Sheriff Joe Arpaio and his Chief Deputy Jerry Sheridan appeared in federal court in Phoenix Monday morning to take a verbal woodshedding from U.S. District Court Judge G. Murray Snow.
Snow was ticked over remarks Sheridan and Arpaio had made to MCSO deputies on October 18, concerning Snow's findings and orders in the ACLU's big civil rights lawsuit Melendres v. Arpaio.
But the judge stopped short of finding Sheridan and Arpaio in contempt. Rather, he accepted assurances from Sheridan and MCSO attorney Tim Casey that mistakes made in that October briefing would not be repeated.
"Your order is the law," Casey assured the judge. "They will comply."
As a remedy, Snow asked the MCSO to come up with "a corrective letter" for his approval, one that would address the inaccuracies in Sheridan's remarks and state that deputies must use their best efforts to comply with his order.
Snow stated the letter should "be signable by both Arpaio and Sheridan," for eventual dissemination to all deputies.
"I intend to have my orders respected," Snow said at one point in the hearing, later accusing Sheridan and Arpaio of sending "mixed messages" and of having a "wink-and-nod mentality that this is a lot of 'crap.'"
The judge's use of that mild invective was a reference to Sheridan's comments to his deputies on October 18, prior to a crime suppression sweep of the West Valley, when the chief deputy derided the judge's final order in Melendres as "ludicrous," "absurd," and "crap."
At the same meeting, which was videotaped, Sheridan told deputies that "every lawyer that I've talked to [says] that it is Judge Snow that violated the United States Constitution," and that Snow "does not have the authority to do what he did."
Additionally, Sheridan suggested reasons why MCSO beige-shirts might not be able to comply with one part of Snow's order, which instructs deputies to do their best to determine the ethnicities of the occupants of any cars stopped by the MCSO.
At the time, Arpaio essentially ratified what Sheridan told deputies, maintaining that the MCSO had done nothing wrong.
"We don't racially profile," Arpaio said at the meeting. "I don't care what everybody says. We're just doing our job. We had the authority to arrest illegal aliens under the federal programs."
Though the judge toyed with playing the videotape in question, the defense assured Snow that his description of what was in the video was correct, and that he did not need to play it.
Casey tried to explain his clients' actions by noting the murder of an MCSO detention officer in August 2013, which purportedly prompted the October sweep.
The defense attorney suggested that emotions were high at the time because deputies were "grieving" over the "assassination" of one of their own.
Snow acknowledged that Sheridan and Arpaio have a free speech right to "mischaracterize my order" but that things change when Sheridan is training MCSO deputies as to what the order means.
"We're not trying to put you out of business," Snow said to Sheridan and Arpaio. "We're trying to keep you in line with the [U.S. Constitution]."
Standing at the lectern before Snow, Sheridan ate crow, admitting he was wrong in his remarks to the deputies.
"I am ashamed at some of the things I said," Sheridan offered.
In trying to explain himself, Sheridan said he had been frustrated with how the MCSO was perceived despite his best efforts.
He claimed that during one meeting in a separate lawsuit brought by the U.S. Department of Justice, the "lead attorney" for the DOJ "said we were ignorant and we were racist."
This angered him because, as a deputy, he had been taught "kindness, compassion, and empathy."
In other words, the DOJ man hurt Sheridan's feelings.
However, Snow reminded him that he (Snow) had not called the MCSO racist:
"I said you used race as a factor," Snow told him.
In Snow's May 2013 ruling, he found that the MCSO had used race in determining whom to stop during its notorious immigration sweeps, and also in determining where the sweeps would take place.
In October of the same year, he outlined the actions and policies needed to end the MCSO's pattern of profiling Latinos.
These included the retraining of deputies, keeping records of the ethnicities of those stopped, the outfitting of patrol cars with cameras, and the appointment of a monitor to oversee these and other issues.
In January, Snow appointed former Rochester, New York, police chief Robert Warshaw to monitor the MCSO's compliance. Warshaw was in court today, and sat silent on the dais, to Snow's right.
During the court session, Snow addressed attempts by both Arpaio and Sheridan to slough off responsibility for the MCSO's being found guilty of racial profiling.
They've done this by blaming the training the MCSO received from U.S. Immigration and Customs Enforcement.
See, ICE training was given to MCSO deputies when the MCSO was participating in that agency's 287(g) program.
The 287(g) program cross-deputizes local law enforcement agents to act as immigration enforcers. The MCSO has long since been booted from the program.
Whether or not the MCSO received "inappropriate" instructions from ICE, Snow declared that it had been completely inappropriate for the MCSO to use pre-textual stops during the sweeps.
Concerning the MCSO's policies and practices, like using pre-textual stops, "the sheriff bears responsibility" for them, said Snow.
He also pointed out that he could have found the sheriff in contempt for not complying with an order he issued as far back as December 2011.
"It is not a criminal violation to be in this country without authorization," he explained of that order, adding that the MCSO had "no authorization to detain anyone merely...in this country without authorization."
In 2011, Snow enjoined the MCSO from "detaining any person based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States."
As part of his ruling in May 2013, Snow found the MCSO had violated that injunction.
During Monday's hearing, Snow warned that he was willing to use the power of the court to force compliance if need be.
"I hope today will prove a valuable correction that allows me to enforce this order," Snow stated.
But he advised Arpaio, Sheridan and Casey that today's hearing had a specific purpose beyond taking them to task.
"It is to create a record," he said, "that you've been advised what is acceptable and what is unacceptable."
Both sides seemed to accept Snow's concept of a corrective letter. But Casey told the judge that he could not "at first blush" agree to Sheridan and Arpaio signing it until he had discussed the idea further with them.
Other issues addressed Monday involved the ACLU's problems with Arpaio's choice for the court-instituted position of "community liaison," with the locations and timings of community meetings and with the community advisory board he had ordered to be created.
Snow asked Casey if the sheriff, who is appealing Snow's decision in the case, was still opposed to participating in this outreach to the Latino community.
Casey indicated that the sheriff remained opposed to the MCSO's involvement in the effort.
The judge then suggested amending his October order to allow Warshaw to take over the duties of the community liaison, which are, in part, to organize and be present at the community meetings.
Similarly, the community advisory board, when chosen, could report to the monitor.
Snow said he would submit a revised order to both parties, allowing them to object.
Arpaio sat frowning throughout the hearing, and never addressed the judge.
Outside the Sandra Day O'Connor U.S. Courthouse, Arpaio said little to the press, just that the matter was under appeal. He then disappeared back into the courthouse, leaving Tom Liddy of the Maricopa County Attorney's Office to field questions.
Liddy was asked if he felt that Snow's order in Melendres was out of line and if Arpaio would comply.
"Yes, we feel that the order is out of line, therefore we have appealed," Liddy said. "If by out of line, [you mean] we think it could be better. Two, we will comply, the sheriff will comply, as the order is written, until such time as the Court of Appeals and the Supreme Court says otherwise."
Liddy conceded that many of the statements made by Sheridan to deputies were factually incorrect and would be corrected.
He also acknowledged the "tone and tenor" of Sheridan's remarks did not make it clear that every member of the MCSO "has to respect and comply with the letter and the spirit of this court order."
Had any disciplinary action been taken against Sheridan because of his remarks? Liddy said no.
Cecillia Wang of the ACLU's immigrants Rights Project expressed satisfaction what what had just transpired.
"We are pleased with what we saw in court today," Wang told reporters. "I think it's clear that the MCSO is not going to step out of line again. If they do, the court is going to use the powers of the federal court to make sure that the law is complied with."
Concerning what the judge could do if the MCSO continues to play games, Wang said that would be up to the judge, but that the court has the power to "hold MCSO and officials in MCSO in contempt," if they do not adhere to the orders of the court.
Overall, watching Sheridan squirm a bit was worth showing up for, but it was Sheridan who was squirming, not Arpaio.
As Snow himself pointed out during the hearing, this is not the first time the MCSO has failed to comply with his orders. Nor, I dare say, will it be the last.
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We are talking about Joe Arpaio here. And he doesn't take kindly to being told what to do, even by a federal judge.
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