Late Thursday evening, the plaintiffs in the ACLU's big civil rights lawsuit Melendres v. Arpaio fired back at Sheriff Joe Arpaio's surprise announcement that the MCSO would begin one of its notorious Hispanic-hunting sweeps on Friday.
Responding to a filing by Arpaio's lawyer Tim Casey earlier in the day, plaintiffs' attorney Stanley Young of the international law firm Covington & Burling writes in a statement to the court that, "the MCSO apparently intends to carry out a Significant Operation outside of the protocol set forth in the Court's Order."
Young observes that Arpaio is doing the sweep in spite of a recent, 59-page command by federal Judge G. Murray Snow, which instructs the MCSO to submit a plan for any such operation to a court-appointed independent monitor.
There must also be a "standard template for operations plans and instructions for MCSO personnel before conducting any Significant Operation." [emphasis in original]
"[T]he Court has not yet appointed a Monitor," writes Young. "The MCSO has not submitted any template for operations plans or instructions to a Monitor. But neither has it submitted any such template to the Court or Plaintiffs' counsel. The MCSO therefore appears to be circumventing the Court's established process for oversight of the agency's conduct of such operations."
The only exception would be in the case of "exigent circumstances," a term defined as, "emergencies in which there is likely to be imminent death or bodily harm or the imminent destruction of evidence."
Young notes that,
Plaintiffs are limited in their ability to evaluate the justification for this Significant Operation since Defendants filed the operations documents under seal. However, in news reports, the Sheriff has announced that he is conducting the patrol in response to the shooting of an MCSO detention officer in August. While the shooting of a law enforcement officer is very serious, this does not explain why the MCSO must conduct an operation tomorrow. [emphasis in the original]
Of course, the reason Arpaio wants to do a sweep Friday, after springing it on the judge and the public, is to get some racial profiling in before a monitor is hired by Judge Snow, likely sometime in December.
Which means Young's skepticism is well-placed.
Defendants had several options if they wanted to conduct a Significant Operation. Although a Monitor has not been appointed, they could have developed a template for operations plans and instructions anytime in the last several weeks (or months) and submitted that template to Plaintiffs' counsel for comment and to the Court for approval. Defendants could have apprised the Court of its desire to conduct Significant Operations in the interim period before a Monitor is appointed and sought the Court's guidance on how to proceed. Defendants did not do those things.
Instead, Defendants have unilaterally modified the procedure for submitting patrol-specific documents for review by filing them with the Court (in the absence of a Monitor), under seal, less than 24 hours before the planned operation is scheduled to begin. By doing so, Defendants have limited the Court's ability to review what they intend to do and have altogether deprived Plaintiffs of any meaningful opportunity to provide input.
The Court ordered strong remedial measures and strict oversight in this case due to the MCSO's past unwillingness to comply with the law and with the Court's earlier orders. The agency's saturation patrols were conducted in a racially discriminatory manner and its operations plans and instructions to MCSO personnel were deeply problematic. Plaintiffs urge the Court to carefully consider whether the planned operation complies with the Court's Order.
Clearly, Young has Arpaio's number.
Arpaio's childish little game is a double-dog-dare to Judge Snow, just to see what the MCSO can get away with.
If Snow were to halt the operation, Arpaio no doubt will play to the public, perhaps even accuse Snow of endangering MCSO deputies.
But if Snow does nothing, Arpaio will know that until a monitor is in place, and even afterward, the MCSO can come up with any lame, pseudo-law enforcement reason to justify a sweep, harass brown people, and continue terrorizing Latino neighborhoods.
Arpaio will test Snow, over and over again, unless the judge draws the line on the sheriff's behavior.
This is not a war of wills or personalities. Snow is invested with the power to protect the constitutional rights of those very people Arpaio is determined to discriminate against.
A litany of transgressions by Arpaio and the MCSO has brought us to this pass: racial profiling, destruction of evidence, violations of human and civil rights, the defiance of previous orders of the court, abuse of power, and pure, unabashed deceit.
Career criminals rarely stop breaking the law unless they are forced to abandon their illicit activities. Do we really think Arpaio will be any different?
Note: This blog item has been altered slightly since publication.
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