Bad news for Sheriff Joe Arpaio's ex-executive chief Brian Sands, and more of the same for Joe.
On Tuesday, federal Judge G. Murray Snow denied a motion by Sands for summary judgment in the ongoing civil contempt case against himself, Arpaio, Arpaio's chief deputy Jerry Sheridan, and two other Arpaio underlings.
Since the trial ended November 20, court-watchers have been waiting for Snow's findings of fact in the case, which could come at any time.
Arpaio and the others allegedly violated Snow's orders in the ACLU civil rights lawsuit Melendres v. Arpaio. These included a December 2011 preliminary injunction, forbidding the MCSO from enforcing federal, civil immigration law.
Both Arpaio and Sheridan admitted their civil contempt just before the trial began back in April, though the other three defendants have not admitted fault..
Over them all hangs the possibility of civil sanctions and fines, as well as the Damocles sword of referral by Snow of criminal contempt allegations to the U.S. Attorney's Office, which could result in jail time.
Attorneys for Sands had argued that the plaintiffs' contempt complaint was not brought in a timely manner, particularly since Sands retired August 2013, and could not be responsible for what happened afterward. They also contended that Sands should be cut loose because the same issues had been covered by previous rulings of the court.
But Snow disagreed, pointing out that there may have been grounds for contempt prior to Sands' retirement, and that the plaintiffs brought their current complaint within a reasonable amount of time after learning of the alleged violations. Snow also concluded that the issues at hand were new, since they involved the violation of orders that Snow already had made in Melendres.
When contacted, Sands' attorney Dane Dodd had no comment on Snow's order.
The ruling itself is not surprising. Sands was part of the chain of command at the MCSO responsible for implementing Snow's orders, though both Arpaio and Sheridan outranked him and any error on his part obviously pales in comparison to Arpaio's.
However, Snow's language and his recitation of the facts in his rejection of Sands' arguments, foreshadow some future pain for Arpaio and others who did his bidding.
For instance, Snow cites an admission by an MCSO attorney in November 2014 that the Sheriff's Office had never communicated the preliminary injunction to its deputies. The judge uses that admission to rebut the claim that the plaintiffs move for a contempt hearing was not timely.
...it was not unreasonable for Plaintiffs to choose not to [seek contempt charges] until after learning in November 2014 that the MCSO had failed to communicate the terms of the preliminary injunction to the line troops in the [MCSO's Human Smuggling Unit], which demonstrated that the MCSO had made no effort at all to comply with the Court’s preliminary injunction. Until that point, Plaintiffs could have reasonably believed that Defendants’ violations of the preliminary injunction arose solely out of a disputed legal issue, which had since been resolved.
After November 2014, however, it was apparent that the MCSO had not merely misinterpreted the terms of the preliminary injunction but had completely ignored it.
Plaintiffs reasonably sought contempt less than two months after discovering the scope of the MCSO’s noncompliance. Plaintiffs “did not dally or unconscionably sit on [their] claim."
The italics above are Snow's, and they indicate a certain amount of righteous indignation, albeit filtered through the rarified lexicon of the court.
Similarly, Snow's observation that the MCSO "had not merely misinterpreted the terms" of his order, but had, "completely ignored it" indicates that Snow believes there was willfulness on the part of the MCSO in ignoring his preliminary injunction.
Indeed, in addressing Sands' claim that the contempt complaint is somehow a retread of the original racial profiling allegations, Snow notes that the "current cause of action involves the [MCSO's] willful disregard of the preliminary injunction."
Granted, Snow uses that phrase "willful disregard" in the context of a civil contempt hearing. Nevertheless, a finding of deliberate defiance of the court's orders would justify a referral of the case to the U.S. Attorney or a court-appointed special counsel for criminal prosecution.
Former U.S. Attorney Paul Charlton, a critic of Arpaio's, found Snow's use of the phrase to be significant.
"It’s hard to know if that is a finding of willfulness that will make its way into a criminal referral," Charlton told New Times via e-mail. "But certainly [it is] not a good sign for MCSO."
To be fair, it's not known if Snow's findings of fact will include language about possible criminal referrals. Such findings normally establish the things that the judge deems to have been proven by the testimony and evidence of a trial.
During the trial, Arpaio's criminal attorney Mel McDonald and the criminal attorneys for the other defendants, told Snow that they wanted a chance to address the court on the subject.
Snow said they would each get "one shot" at it, and that they could file a memorandum with the court to that effect at any time, though Snow was not requiring it.
In an October hearing, Snow told McDonald that, "I'm going to need to make findings of fact for you...When I make findings of fact, I think that will help you [with a written submission or oral argument on a possible criminal referral]."
There is also the subject of remedies for the civil contempt violations, which could get sticky, with expert witnesses and legal filings from various parties.
When can we expect Snow's findings of fact in the contempt trial? Hard to know, given that Snow is a deliberate, meticulous jurist, not given to rushing anything.
He's also very careful about allowing for due process, as a judge should. But whatever Snow issues next, it's unlikely to be the final nail in Arpaio's coffin.
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