Feathered Bastard

Joe Arpaio's Racial Profiling Rationalized by Lawyer Tim Casey in Closing Written Arguments

See also: Joe Arpaio Struggles in Racial-Profiling Trial to Answer Examples of Seemingly Bigoted Leadership See also: Joe Arpaio Looks Like Tired, Old Racist on Stand During Racial-Profiling Trial See also: Joe Arpaio's Racial Profiling Trial Begins, and, Yes, He's Guilty as Sin See also: Joe Arpaio's (ahem) Legal Scholar Brett "Shut Up" Palmer and Flunky Brian Sands Under Oath See also: Joe Arpaio's Taliban, Nativist Steve Camarota, and More Problems for the MCSO See also: Joe Arpaio's Racial Profiling Trial Ends, and Yes, Joe's Still Guilty as Sin

Sheriff Joe Arpaio's nearly-million-dollar defense attorney in the ACLU's big racial profiling lawsuit Melendres v. Arpaio must be figuring U.S. District Court Judge G. Murray Snow for a chump.

How else to explain the asinine rationalizations and outright misstatements of fact that Joe's lawyer Tim Casey offers in his 37-page closing written argument? Some of this stuff you'd have to be brain damaged and high on bath salts to believe.

The document's overarching theme, of course, is that the plaintiffs have failed to prove that the Maricopa County Sheriff's Office engages in a pattern and practice of discriminatory policing.

To bolster this laughable contention, Casey wants the judge (and by extension, the public) to discount the mountain of evidence, the seven days of testimony, and the incriminating statements of Sheriff Joe and others that were offered during the trial, which wrapped up on August 3.

Some of Casey's more ridiculous rationalizations come when he tries to excuse Arpaio's many, blatantly bigoted statements, like Arpaio's infamous comment in 2009 that all Mexican migrants are "dirty."

Casey writes:

"[Arpaio's] purported comment about illegal immigrants being `dirty' was, if not taken completely out of context, referring to them having hiked through the desert for several days, being overheated, being physically grimy or dirty from the desert hiking, disheveled, and un-groomed."

So which is it, Tim, was the comment taken out of context, or did it just require further explanation? Hey, let's go to the full quote, and let the people decide.

"All these people that come over, they could come with disease," Arpaio told a GQ reporter three years ago. "There's no control, no health checks or anything. They check fruits and vegetables. How come they don't check people? No one talks about that! They're all dirty. I sent out 200 inmates into the desert, they picked up 18 tons of garbage that they bring in -- the baby diapers and all that. Where's everybody who wants to preserve the desert?"

What about Arpaio saying on Lou Dobbs' old CNN show that it was an "honor" to be called KKK?

"That suggestion is absurd," Casey sniffs. "Arpaio does not believe being called KKK is an honor."

Really? Then why did he say it was? It's not like the plaintiffs put the words into the old man's mouth. Here's a clip from the show (below). I don't see any ACLU lawyers standing behind him pulling strings on his pie hole.
All Joe needs is white sheet, a fiery cross and he's set

As Snow observed in his final comments to all of the attorneys in the trial, the use of race and ethnicity as a factor in immigration investigations is not allowed in the Ninth U.S. Circuit Court of Appeals.

Lead attorney for the plaintiffs Stanley Young echoes Snow's comments in the plaintiffs' closing written argument (also filed yesterday). Young observes that since 2000 the Ninth Circuit Court has held that "reliance on Hispanic appearance in immigration-related investigations is unconstitutional."

Young quotes the Ninth Circuit as stating that Hispanic appearance is "`of such little probative value that it may not be considered a relevant factor where particularized or individualized suspicion is required.'"

And yet Casey writes that Arpaio's unconstitutional statements on Glenn Beck's now-defunct Fox News program were A-Okay because Arpaio was discussing factors that were to be used only after a stop had occurred.

But it doesn't matter if race and ethnicity come into play before or after a stop, it's still not allowed.

Indeed, what Arpaio had to say at the time was so absurd that even the ultra-conservative Beck made fun of it.

"[I]f local law enforcement comes across some people," Arpaio said, "that have a erratic, or scared, or whatever, you know, they're worried and if they have, their speech, what they look like, if they just look like they came from another country, we can take care of that situation."

It's important to realize that Arpaio was asserting that this was federal law. Indeed, his deputies believed the same.

What Arpaio says is important because he's the top policy maker at the MCSO, and the fish rots from the head down. But Casey wants it both ways. He spends a lot of time arguing that Arpaio's statements are not bigoted, and then he contends that it doesn't matter what Arpaio says anyway.

"Plaintiffs are just wrong in their suggestion that Arpaio's public statements somehow controlled or influenced the manner in which the MCSO deputies conducted their law enforcement operations in the field," states Casey. "The evidence shows that there was a professional law enforcement buffer between Arpaio's public comments and MCSO field operations, and that his media statements had no bearing whatsoever on the operations conducted in the field/street by the MCSO deputies."

Law enforcement "buffer"? In your dreams, pal. Lieutenant Joe Sousa, head of the MCSO's Human Smuggling Unit, participated in MCSO press conferences related to immigration and the sweeps, as did other MCSO deputies.

Press releases were issued before, after, and sometimes during the sweeps. The number of illegal immigrants collared was always touted after the completion of one of these operations. In Arpaio's world, PR hype and police work are one and the same. They are inextricably linked, and can no more be separated than removing the milk from a cake after the cake's been baked.

What about all the racist correspondence Arpaio received that prompted Hispanic-hunting sweeps in various areas of the county?

"Not a single citizen letter received by Arpaio ever influenced or affected his law enforcement decisions," Casey asserts.

And it always snows in Phoenix come August. The most egregious example that contradicts Casey's claim is the 2008 sweep that took place in the area of Cave Creek and Bell roads in Phoenix. Arpaio has acknowledged under oath that this sweep was prompted by a "petition" of local businesses, which was circulated by notorious Mexican-hating nativist Buffalo Rick Galeener, a convicted public urinator and member of the Joe-lovin' racist group United for a Sovereign America.

I could go on and on, rebutting Casey's Flat Earth Society-like statements, but I don't have time to pull a Tolstoy here. So just a few more points.

Casey seeks to discount the statistical analysis of MCSO traffic stops done by plaintiffs witness Dr. Ralph Taylor, a professor at Temple University's Department of Criminal Justice. Casey's are essentially the same arguments offered by Steve Camarota, a researcher at the nativist, far right-wing Center for Immigration Studies, so I'll refer you to my write up of Camarota's testimony during the trial.

Thing is, despite Camarota's cavils,he agreed with Taylor's basic findings: that Hispanics were far more likely to be stopped during immigration sweeps and that stops for Hispanics took longer on average.

We are left with this revealing statement from Casey:

"First, assuming... that Taylor's opinions are reliable, his conclusions remain
non-dispositive. An official policy, pattern, or practice is not unconstitutional solely because it has a racially disproportionate impact."

So even after the MCSO implements a so-called "zero tolerance" policy during the sweeps, and Hispanics remain far more likely to be stopped, this means nothing, according to Casey.

What about when the MCSO does a sweep of lily-white Fountain Hills, and seven out of the 10 arrested for one day have Hispanic surnames? This too is "non-dispositive," meaning it's no big deal.

Naturally, Casey avoids any mention of the crude, anti-Mexican e-mails bandied about between MCSO deputies, or of all the evidence the MCSO destroyed, which Judge Snow will now draw "adverse inferences" from -- i.e., he will assume the evidence would have hurt the defense's case.

The plaintiffs' closing argument is a far more cogent and persuasive document, and it makes a solid case that the MCSO is violating the Fourth and 14th amendment rights of Hispanics, as well as Title VI of the 1964 Civil Rights Act.

But then, the evidence is on the plaintiffs' side, and there's a lot of it. The ACLU and the other plaintiffs counsels want a court-appointed monitor to oversee changes in the MCSO to make sure Arpaio or whoever succeeds him never again transforms that agency into a tool of racial animus and ethnic harassment, Let's hope they get it.

Respective replies to these closing arguments are due on August 16. Then we just have to wait for Snow to rule, and we'll find out if Arpaio gets a baby-sitter or not.

Read the plaintiffs closing argument in Melendres v. Arpaio.

Read the defense's closing argument in Melendres v. Arpaio.

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons