Melendres # 817 - Dec. 4 2014 TRANSCRIPT - Status Conference

Case 2:07-cv-02513-GMS Document 817 Filed 12/05/14 Page 1 of 39
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Plaintiffs,
6
7
8
)
)
)
)
)
)
)
)
)
)
)
vs.
Joseph M. Arpaio, et al.,
Defendants.
Phoenix, Arizona
na
December 4, 2014
1:31 p.m.
OG
10
CV 07-2513-PHX-GMS
S
Manuel de Jesus Ortega

Melendres, et al.,
BO
.C
OM
11
EF
12
13
TH
14
REPORTER'S
OF PROCEEDINGS
RT 'S TRANSCRIPT
RTE
TR
TRAN
16
BEFORE THE HONORABLE G. MURRAY SNOW
OF
15
17
(Evidentiary Hearing)
18
ND
19
20
IE
21
FR
22
2
23
24
25
Court Reporter:
Co
Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
Proceedings taken by stenographic court reporter

Transcript prepared by computer-aided transcription

CV07-2513 Melendres v. Arpaio, 12-4-14 Evidentiary Hearing
A P P E A R A N C E S
1
2
For the Plaintiffs:
4
5
6
Cecillia D. Wang, Esq.

q.
.
AMERICAN CIVIL LIBERTIES
RTIES UNION
FOUNDATION
Immigrants' Rights
hts Project
Projec
39 Drumm Street
et
t
San Francisco,
94111
o, California
Califo
Californ
(415) 343-0775
0775
77
BO
8
9
OG
10
Appearing
ing
ng telephonically:
telepho
11
Andre
dre
re Segura,
Segura, Esq.
AMERICAN
LIBERTIES UNION
MERICAN CIVIL
CIV
125
12 Broad Street, 18th Floor
New York,
New York 10004
York
or
(212)
(212
212)
) 549-2676
EF
12
13
TH
14
18
ND
19
17
OF
15
16
20
IE
21
FR
22
2
23
24
25
Stanley Young, Esq.

COVINGTON & BURLING, L.L.P.
333 Twin Dolphin Drive
Suite 700
Redwood Shores, California 94065
94
(650) 632-4700
.C
OM
Jorge
M. Castillo, Esq.
Jo
MEXICAN
AMERICAN LEGAL DEFENSE
M
AND EDUCATIONAL FUND
Regional Counsel
634 S. Spring Street, 11th Floor
Los Angeles, California 90014
(213) 629-2512
Annie Lai, Esq.
UNIVERSITY OF CALIFORNIA
IRVINE SCHOOL OF LAW
Immigrants Rights Clinic
401 E. Peltrason Drive, Suite 3500
Irvine, California 92697
(949) 824-9894

A P P E A R A N C E S
1
2
For the Defendants:
Michele M. Iafrate, Esq.

IAFRATE & ASSOCIATES
649 N. 2nd Avenue
Phoenix, Arizona 85003
(602) 234-9775
For the Defendant Arpaio:
Thomas P. Liddy, Esq.

Senior Litigation Counsel
nsel
MARICOPA COUNTY ATTORNEY'S
OFFICE
ORNEY'
ORNEY
'S OFF
FF
Civil Services Division
vision
ision
222 N. Central Avenue
Suite 1100
Phoenix, Arizona
zona 85004
8500
(602) 506-8066
8066
06
BO
11
OG
9
10
For Amicus United States of America:

a:
Elizabeth
zabeth A.
A. Strange
UNITED
STATES ATTORNEY'S OFFICE
NITED STATE
405
Street, Suite 4800
40 W.
W Congress
Co
Con
Tucson,
Tucson, Arizona 85701
(520)
(520
520)
) 620-7300
EF
12
16
17
18
OF
15
Also Present:
TH
13
14
.C
OM
Sheriff Joseph M. Arpaio

She
Sh
Chief
Deputy Jerry Sheridan
C
Monitor Robert
Deputy Monitor
Deputy Monitor
Deputy Monitor
Deputy Monitor
S. Warshaw
Noel Rojas
Don Anders
John Girvin
Sherry Kiyler
19
A. Melvin McDonald, Esq.
20
Joshua Bendor, Esq.
21
RI
22
2
23
24
25

P R O C E E D I N G S
1
2
3
THE COURT:
Thank you.
THE CLERK:
This is CV 07-2513, Melendres v. Arpaio,

aio
o,
.C
OM
Please be seated.
on for evidentiary hearing.
13:31:53
Counsel, please announce your appearances.

.
MS. WANG:
Good afternoon, Your Honor.
Cecillia Wang
of the ACLU for the plaintiff class.
are Stanley Young from Covington & Burling

Bendor, who
ing and Josh
Jo
Jos
BO
With me in court
today
u
is not yet admitted but is a staff attorney wi

with the ACLU of
w
11
Arizona, and I believe some of my co-counse

co-counsel
are on the
co
un
12
telephone.
afternoon, Ms. Wang.
15
MS. IAFRATE:
AT
ATE
Good morning.
Go
17
THE
COURT:
H COURT
CO
:
18
Or good
Good
ood afternoon, Your Honor.
Michele
Also at counsel table, Your Honor, is
MS.
MS
S. IAFRATE:
I R
20
need him.
him
ND
Mr. Phil
McDonald
-- Mel McDowell, excuse me, sir -- in case we
Ph
McDo
IE
FR
22
THE COURT:
13:32:35
All right.
Mr. McDonald, are you here
representing the sheriff?

rep
re
2
23
MR. McDONALD:
24
THE COURT:
25
13:32:17
Good afternoon.
19
21
13:32:06
Iafrate and Tom

om Liddy
Lidd on behalf of the defendants.
OF
16
All right
right.
ight.
.
TH
14
THE COURT:
EF
13
OG
10
Yes, Your Honor.
All right.
And that would be to the
extent that this matter involves criminal contempt?
13:32:43

MR. McDONALD:
THE COURT:
If it involves that, yes.
All right.
What I intend to do is lay
out -- I intend in today's proceeding first to do what was
noted; and second, to lay out five areas of inquiry that I want
wa
counsels' participation on indicating why criminal contempt

ntempt
mp is
at issue in this case.
counsel and with the United States Attorney, who

ho I believe
believ is
also present, and I'll give you time to, if you need
it, to
d i
consider what I'm asking and to make such

ch evaluation.
evaluati
evaluat
13:32:58
BO
And I'll invite you to join

n with other
othe
t
will apply to Ms. Wang.
That
OG
10
.C
OM
11
You, too, of course, Ms.

. Iafrate,
Iafrate and welcome.
12
MS. IAFRATE:
13
THE COURT:
13:33:17
EF
Thank you
you.
yo
.
First
st off,
off, on November 20th -- I think I
got it out on the 20th,

h, it
t might
migh have been on the 21st -- I set
15
forth procedures going

forward
to accommodate both the
go
goin
forwa
orw
16
statutory requirements
that the sheriff's PSB is obliged to
uiremen
uirements
t
17
follow with
independent authority to investigate
h the
he monitor's
monit
n
18
and his
obligation to oversee PSB investigations without
s obligat
obliga
13:33:33
IE
ND
S
OF
TH
14
destroying
the privilege, and I indicated that today I would
stroying th
20
entertain any comments or concerns regarding the procedure I'd
21
forth.
set f
fo
22
Ms. Wang.
FR
19
MS. WANG:
2
23
13:34:03
Your Honor, the plaintiffs agree with all
24
the procedures set forth in Your Honor's order of November
25
20th.
13:34:15

We do have one request for an amendment, which is in
paragraph 5 of the enumerated new measures involving the
monitor in the PSB unit, plaintiffs would request that we also

o
receive notice of the same matters that the Court has ordered
ered
ed
the defendants to give the monitor team notice of, subject

bject
ct to
o
any appropriate protective orders.
When you say paragraph 5, which page?

page
MS. WANG:
BO
There are several paragraph 5s in the order.

.
Page 18, paragraph 5.
Specifically, the
Specifi
Speci
Court has directed that when MCSO undertakes

ndertakes
dertakes a new
11
investigation relating to the three

categories of
ree enumerated
enume
enumera
12
matters, that it will lodge under seal

with the Court and
s
13
provide the monitor with written

ritte notice.
no
14
request that plaintiffs'

ffs
fs'
' counsel
counse also receive such notice,
15
subject to any appropriate

orders.
pr
prop
iate
te protective
p
THE COURT
COURT:
:
OF
All right.
sort of seal
you've
operated under previously in these
a that
th
y
you
18
matters?
s?
20
THE COURT:
T
21
MS. IAFRATE:
22
THE COURT:
RI
MS WANG:
MS.
2
23
13:35:09
And that would be the same
17
19
13:34:52
Plaintiffs would
TH
EF
OG
10
16
13:34:37
THE COURT:
We believe --
.C
OM
Yes, Your Honor.

Ms. Iafrate, any objection to that?
13:35:18
No, Your Honor.
All right.
We'll make that amendment,
then.
24
Anything else, Ms. Wang?
25
MS. WANG:
No, Your Honor.
13:35:31

THE COURT:
MS. IAFRATE:
Regarding the November 20th order, on page 16 where
Ms. Iafrate.
you're talking about orders concerning ongoing
investigations --
.C
OM
Thank you, Your Honor.
13:35:51
THE COURT:
Yes.
MS. IAFRATE:
-- at line 10 it specifically
ically talks
talk
about this case and PSB dealing with the constitutional

rights
nstitutio
nstitutiona
of the members of the plaintiff class are

guaranteed by MCSO
re guarante
guarant
BO
11
THE COURT:
Yes.
12
MS. IAFRATE:
13:36:04
OG
going forward.
And, of course,
course
our , MCSO would agree with
EF
10
that, that that was the structure

of this litigation.
ructure o
14
However, in your
order,
yo
order at page --
15
THE COURT:
T:
16
MS. IAFRATE:
IAFRATE
TH
13
OF
Now,
when you say "order" -- I'm sorry.
ow, wh
w
THE
COURT:
H COURT
CO
:
17
MS IAFRATE:
MS.
ND
THE COURT:
T
21
MS. IAFRATE:
IE
20
FR
November 20th.
-- or previous injunctive relief?

No, I'm sorry, Your Honor.
13:36:28
I'm just
dealing with November 20th.

de
2
23
THE COURT:
24
MS. IAFRATE:
25
I'm talking about -I
November
20th's
er
r 20th
0th' order --
19
22
13:36:21
When you say "order," we're talking about
18
All right.
So at page 17 of the November 20th order
you talk about the monitor must necessarily have complete
13:36:36

access to defendants' Internal Affairs investigations.
THE COURT:
Um-hum.
MS. IAFRATE:
Our concern, Your Honor, is that some
.C
OM
internal investigations do not deal with the underlying
litigation in this matter, so I'd ask that that be curtailed

tailed
il
ever so slightly to coincide with what you wrote on

16,
n page 16
6,
where it deals with investigations of MCSO personnel

it
sonnel as
a i
relates to either compliance with the order,

, meaning your
injunctive order, or the constitutional rights of members of
BO
Show me what
talking about.
t lin
line you're
yo
you
12
MS. IAFRATE:
13
THE COURT:
14
MS. IAFRATE:
15
THE COURT:
T:
I'm talking
about page 17 -alking abou
EF
THE COURT:
13:37:09
OG
the plaintiffs' class.
11
Yes.
TH
14.
-- line 1
How about
if I do this, Ms. Iafrate?
abo
ab
One
of the things we
discovered, and I think we've all
we've
ve disc
17
discovered it,
there's a lot of things that relate to this
t,
, is the
t
18
case and
-- to this suit in terms of Internal Affairs
nd
d to
o this
th
IE
ND
S
19
investigations,
PSB investigations.
vestigation
20
everything does; I acknowledge that.
FR
22
13:37:18
OF
16
21
13:36:49
10
That doesn't mean that

13:37:35
How about if I put in here -- I don't want to limit
the monitor's right to have complete access to the PSB because

th
2
23
you don't know what you don't know until you know it.
But I
24
will put in here the right for you to object, saying that the
25
monitor is investigating matters that can have no relation to
13:37:54

this lawsuit and raise the matter to me.
Would that be acceptable to you?
MS. IAFRATE:
THE COURT:
MS. IAFRATE:
THE COURT:
MS. IAFRATE:
That would be acceptable.
All right.
Anything else?
I do have one further --
-- issue, Your Honor, and

nd it deals
with -- a lot of your November 20th order deals

eals with
h the
t
monitor's team and PSB working together.

.
Yes.
11
MS. IAFRATE:
OG
THE COURT:
BO
10
13
needs to occur, then they

y can take one up independently.
EF
mentioned that if the monitor

that an investigation
r believes
belie
THE COURT:
15
MS. IAFRATE:
AT
ATE
concern, Your Honor, is if with those

My
y co
c
OF
THE
H COURT:
CO
COURT
:
Um-hum.
MS.
MS
S. IAFRATE:
I R
If there becomes a determination that
PSB
B should get
ge involved, they may not be able to discipline
20
appropriately because the statutes that -- I understand this

appropriat
21
Court's previous ruling regarding that statute, but as to PSB,

Court
Court'
22
it does apply and, therefore, it could adversely impact their
FR
19
2
23
24
25
13:38:30
investigations
s that are not dealing with PSB --
IE
ND
S
18
That's
That
Tha
's correct.
corr
or
TH
14
17
13:38:19
There are some

where it is
som areas
re
12
16
13:38:06
Sure.
.C
OM
13:38:46
ability to discipline.
THE COURT:
Well, so what you're suggesting is that
the monitor do independent investigations, and if it's going to
13:39:08

CV07-2513 Melendres v. Arpaio, 12-4-14 Evidentiary Hearing 10
do an independent investigation, it's independent and it not
involve the PSB.

Well, I was actually advocating for a
.C
OM
MS. IAFRATE:
cooperative agreement between PSB and the monitor team to do

o
the investigations together, so that not only the monitor

tor
r has
access to what he needs, but also PSB has the ability

ity to
fulfill their duties pursuant to the statute, in case the

he
monitor does uncover an investigation that ultimately

ultimatel would
necessarily lead to discipline, and if we were --- if MCSO was
13:39:26
BO
not involved and did not follow the statute,

they would be
statute t
11
adversely impacted and could not discipline.

discipli
discipline
Well, how
ow abou
about we do this?
EF
THE COURT:
12
OG
10
13:39:49
You know,
once bitten, twice shy.
I do not want
to restrict your ability
w
14
to discipline, nor do I want

an to restrict my monitor's ability
15
to conduct an independent
investigation absent some of the -ep dent
epen
t in
i
16
some of the restrictions

that you would be subject to.
estrict
estrictions
13:40:09
OF
TH
13
So
begins an independent investigation,
o if
f my monitor
m
mon
17
he believe
ieve
v so that it would be helpful, or the kind of thing
19
that
at
t we
w want to involve PSB as training, showing him how to do
20
helpful, we will consult with you, and with

it, or otherwise
it,
oth
21
or Mr. Young or whoever, we'll do it under seal, and

Ms Wang
Ms.
W
Wa
22
we'll see if we can work out a way that we can accomplish both
we
13:40:31
FR
IE
ND
18
2
23
of our objectives without hamstringing your ability to
24
discipline officers.
25
It strikes me that another thing that we could do that
13:40:53

would avoid this problem is the monitor could conduct an
independent investigation and he can publish his results.
then you can do whatever you need to do in terms of conducting

g
your own investigation unhampered by whatever the monitor has

as
done.
.C
OM
13:41:06
that's just sort of off the top of my head.

MS. IAFRATE:
THE COURT:
Right.
BO
So there are several -- and I'm not -- you

u know
know,
6
7
And
We want to be careful.
ful.
ful
There are several

Ther
different ways we can peel this onion.

on
n.
I'm
But I
' certainly not
11
adverse at this point, to the extent

the real goal
tent that
at what
w
12
here is to have the MCSO engage

age in the kind of internal
13
investigations that are serious

rious and necessary and would qualify
14
under the standard, and

nd at
t some
e point that's going to involve
15
bringing MCSO in if there

ongoing independent
ere
e are
a
ar
16
investigations.
s.
TH
OF
Mr. Liddy,
ddy
dy,
, Ms
Ms.
. Wang, Mr. Young, the monitor, we can work it all
19
out,
to work it out, or just determine if we're
t, or
o attempt
attem
20
to keep it separate.
going to have
h
ND
18
IE
FR
22
13:41:34
I certainly
ertainly
rtainl don't have any problem bringing in you,
17
21
13:41:16
EF
OG
10
13:41:46
If you want some sort of an indication of that
possibility in the order, I may make some sort of indication.

po
2
23
But even if it isn't in there very clearly, I'm giving you
24
authorization -- I'm telling you now that if my monitor
25
believes that this is the sort of thing that would benefit from
13:42:04

involving PSB, and it's an independent investigation, I assume
I have your right to signal you that we're going to have a
closed hearing on the matter and invite the plaintiffs' counsel

el
to be involved.
MS. IAFRATE:
.C
OM
I would like that indicator, Your

ur Honor
Honor,
if you are asking my opinion, just so that we don't

t thwart
thwa
certain proceedings in advance of other proceedings.

dings.
dings
.
All right.
We will certainly
ertainly
rtain
d our best.
do
BO
THE COURT:
13:42:19
We, of course, do have to keep some walls

place, but we'll
ls in place
plac
do our best to coordinate with you as
well,
s well
wel
, so
s that our
11
independent investigations don't track

your
trac over
ov
ove
12
investigations, especially the

that we believe are being
he ones tha
13
adequately conducted.
13:42:39
EF
OG
10
Of course, if
f we don't
d 't
don
t believe they're being
TH
14
adequately conducted,
the
are set forth in the order
te
ted
e remedies
r
re
16
itself.
OF
15
MS.
S IAFRATE:
IAFRAT
IAFRATE
17
COURT:
THE
HE C
R
MS IAFRATE:
MS.
ND
19
THE COURT:
T
20
Understood.
All right.
18
13:42:54
Anything else?
That's all, Your Honor.
All right.
Now, we have present, I
believe, in the courtroom, Ms. Strange from the United States

believ
belie
22
Attorney's Office.
At
FR
IE
21
13:43:02
2
23
Ms. Strange.
24
MS. STRANGE:
25
THE COURT:
Yes, Your Honor.
Thank you for being here.
13:43:12

I do want to -- and Mr. McDonald, you're here.
I do want to explain why I've had you here, and I'll

let you sit down but I'm going to call on you in a few minutes,
s,
and I'm going to go through five areas of my thinking.
invite parties, and I'll get -- and we can discuss how much
uc
time you're going to need to address five areas of my thinking,

thinkin
these five areas, as we need to go forward.
.C
OM
appreciate him being here.
BO
I do acknowledge here the presence of the

sheriff.
t
s
she
8
9
And
nd I
13:43:32
I have some deep concerns

and I'm
conc
conce
glad he's here to hear them.
And I think he s
should hear them
11
as we go forward.
12
have been some serious violations

require this Court to
tions that
t
13
take action.
OG
10
EF
But that being

ng
g said
sai -- and I believe there
That being said,

aid, I do recognize that the sheriff is
aid
TH
14
the duly elected sheriff

sh
she
ff of Maricopa County, and I want to give
16
appropriate deference
eferenc to his position where that is necessary
eference
17
and where i
it is indic
indicated.
d
18
areas, and
I'm
an I
'm going to set them out first.
But that all relates on these five
And we're going to be talking about the contempt
ND
19
statutes, so Lauren, will you please put up the contempt

statutes,
21
statute.
statut
statu
IE
20
FR
13:44:10
OF
15
22
13:43:51
13:44:32
There are several contempt statutes in the United
2
23
States Code.
This is the most generic one, the one we're going
24
to put up so everybody can see it.
25
oh, it's going to take us a second.
And if you want to look -13:44:48

It indicates that "A court of the United States shall
have power to punish by fine or imprisonment, at its
discretion, such contempt of its authority, and none other,
as --" and then if we'll hop down to (3) it says "Disobedience

ience
nc
or resistance to its lawful writ, process, order, rule,

, decree
decree,
or command."
.C
OM
There have been several things, a number

things in
ber of thin
which that might have been indicated, but we

e have be
been able to
avoid them, I think, in this suit by making

separate orders to
king separa
separ
BO
the Sheriff's Office with which the sheriff ha

has complied, or
h
11
changing duties that the sheriff wasn't

adequately
fulfilling
wasn
a
ade
12
or didn't want to fulfill to the monitor,

and then the County
mo
monito
13
paid for that difference.
14
date, invoke this statute.

tut .
tute
TH
we haven't had to, up to

And so
o w
But it occurs
there are a number of things
cc
ccu
-- and
a
an
15
which may bear

now; I'm not going to review all of them.
r on it now
17
But I am go
going
review two major areas and propose a way of
ng
g to rev
r
18
going forward
forward,
rward,
, and that's the area which -- to which I invite
13:45:43
ND
S
OF
16
the
e parties
parties'
' participation.
First, on December 23rd, 2011 -F
21
Do you want to take up the preliminary injunction?
22
-- this Court entered a preliminary injunction against
IE
20
FR
13:45:26
EF
OG
10
19
13:45:07
2
23
the Sheriff's Office, and this is the language in that
24
injunction, or the pertinent language.
25
There's a lot of logic and reasoning that I'll spare you.
13:46:01
It's the last page.

13:46:19

Do you want to go to sub 5, Lauren, and show it on the
1
2
screen?
"MCSO and all of its officers are hereby enjoined from
om
.C
OM
detaining any person based only on knowledge or reasonable

e
belief, without more, that the person is unlawfully present

resent
en
within the United States, because as a matter of law

aw such
suc
knowledge does not amount to a reasonable belief

ef that the
he
person either violated or conspired to violate

ate the Arizona
Ari
A
human smuggling statute, or any other state

criminal
tate or federal
fe
fed
BO
law."
OG
10
13:46:49
So that injunction went into

effect
on December 23rd,
int effec
ff
11
2011, and again, the Sheriff's

s Office,
Offi , in conjunction with some
Office
13
recent investigations in -20th under seal, and

- on November
Nove
ove
14
since it has posed no objection to it coming out of seal, made
15
a disclosure that is
is, you
know, of some -- quite, quite serious
i
u kn
k
16
to this Court.
13:47:14
OF
TH
EF
12
Lauren,
a ren
en, if
f you want to put that up, the relevant part.
17
to me that they wanted to alert me that

It
t indicated
in
18
in their
review of the traffic stop videos, and those were the
the
revi
20
stop videos that they had seized from

traffic st
21
Deputy Armendariz's home:

Deput
22
has been referred to as the Korean stop that occurred on

ha
IE
ND
19
FR
13:46:32
13:47:37
"... we did identify one stop which
2
23
November 1st, 2012, which is significant because that was after
24
this Court's order, this injunction to stop doing the
25
interdiction patrols." which I assume meant immigration
13:47:52

interdiction patrols.
"Our review of that tape has led us to believe that it
was an interdiction patrol, and that gave rise to an MCSO
investigation and that investigation is ongoing.
that investigation two lieutenants have been interviewed,

ed,
, and
d
those interviews have revealed, and the MCSO has concluded,

onclud ,
oncluded
that this Court's order was not communicated to

o the line troops
in the HSU." meaning the Human Smuggling Unit.

it.
it
.C
OM
But so far
r in
BO
And I will just interlineate here

the Human
ere tha
that th
t
Smuggling Unit, pursuant to my understanding

rstanding of
o the evidence at
11
trial, was the principal unit charged

harged
arged with
wit immigration
12
interdiction.
Then Mr. Liddy indicates

"...that has spawned an
dicates that
t
14
additional investigation
tion
ion up the
he chain of command as to exactly
15
why they were not..."

... communicated.
..
commun
mmu
16
communication or training
about my preliminary injunction and
tra
trainin
17
how that came

a
t be.
to
be
e.
They did not receive any
13:48:38
OF
TH
13
identified an e-mail from Mr. Casey to Brian

"We
We have
h
18
Sands,
nds
ds,
, Chief
hief Brian Sands, Chief Jack MacIntyre, Chief Jerry
20
Sheridan, and Lieutenant Sousa.

Sheridan,
21
been interviewed.
i
22
additional investigations and interviews.

ad
IE
ND
19
FR
13:48:26
EF
OG
10
2
23
13:48:06
Lieutenant Sousa has already
13:48:56
And so that gives rise to reason for
"However, two of those personnel -- excuse me, one of
24
those, Chief Sheridan, has already been -- has already
25
testified under oath as to his actions..." in a related, I
13:49:09

gather, DOJ lawsuit.
And later Mr. Liddy indicates that in the
internal investigation, that was one of the matters that they
would have -- they anticipated assigning to Investigator Vogel

l
since this went up the MCSO chain of command.
.C
OM
That seems to meet -- I've also received information

rmation
ation
since that Sheriff Arpaio's position was that he could

ould continue
contin
to detain immigrants who he didn't have a cause

on any
e to hold
hol o
state charges and turn them over to ICE pertaining

to
rtaining
taini
t all other
operations during the period.
BO
Those two things indicate to me that

hat the very unit
OG
10
that did most of the immigration

never
received any
n patrol
patr
n
nev
12
indication that they shouldn't

doing them, and in fact
t continue
cont
13
did continue doing them, and

nd that is
i a serious violation in
14
direct contradiction to this

authority that apparently
hi Court's
Co
Cou
15
lasted for months an

and months
months,
more than a year at the minimum,
a
nth
16
it appears.
13:49:55
13:50:18
OF
TH
EF
11
Now,
the
contempt statute which we put up authorizes
o
t
c
con
17
both civil
ivil
vil and criminal contemptual matters, and they can arise
ND
S
18
13:49:32
from
om
m the
t
same underlying facts.
And, in fact, based on the
20
same facts,
facts you can prosecute somebody for criminal contempt
21
and at
an
a the same time have a proceeding for civil contempt for
22
the very same matters.

th
13:50:44
FR
IE
19
2
23
But the difference is that civil contempt generally is
24
coercive or compensatory; that is, you call somebody to
25
testify, they won't testify or otherwise cooperate in the
13:51:02

middle of the trial, the trial judge can jail them for the
pendency of the trial to see -- to coerce their testimony.
usually that authority ends when a trial ends.

Well, our trial's long since over.
And
.C
OM
We still are in
n
the period of injunctive relief that relates to that trial,

rial
al,
however.
interests me also for some of the other matters

s that we'll
w 'l
we
l
discuss here today, and that is I can hold somebody in civil
contempt if I can compensate the victims

s of the
th contempt.
c
co
BO
But the compensatory purpose is the one that
OG
The problem is that in this

s case that
tha is extremely
10
difficult to do.
12
we could identify everyone -- probably

could not identify
proba
13
everyone but we could identify

entify
tify some
ome of the victims of Sheriff
14
Arpaio's conduct, or his office's

conduct during the 18 months
office
15
in which he was apparently

in violation of my preliminary
pp
ppar
ntly
ly i
16
injunction.
17
difficult t
to know
kn
i we could find them.
if
I imagine that
t with some
som considerable effort
TH
13:51:54
OF
But even
eve if we could identify them, it is
we clearly couldn't identify, for example,

And
nd w
ND
S
18
American
citizens who may have been stopped in a desire to do
erican
rican citi
20
the kind of immigration patrols that were going on, and who
21
their constitutional rights violated.

thus had
h
IE
19
FR
13:51:35
EF
11
22
13:51:18
13:52:11
And also there's nothing we can do about the fact that
2
23
the Sheriff's Office, for 18 months, assumed authority that it
24
did not have under the Constitution.
25
for me, because this is a federal court designed to protect
And yet, it is impossible

13:52:36

those rights, and I did enter -- and this Court did enter
orders to protect those rights and those orders were violated,
it is impossible for me to leave that and to let it go without

t
some sort of appropriate response.
.C
OM
As I've indicated, I think that as the duly elected

lected
c
sheriff of Maricopa County, the sheriff is entitled

d to some
deference by this Court if it can be offered.
that in the past when I've fined the sheriff,

just
f, the sheriff
sher
sh
passes the fine on to Maricopa County; and,

depending
and in fact,
fa
fac
13:52:55
BO
But I must say
upon who you believe, may be using my assessments

of curative
assessme
ssessm
11
procedures to actually expand his

budget.
is
s operating
operati
OG
10
He also happened to make a comment,

I think it was in
com
13
good jest, when he first met

that he loves to have
et my monitor,
mon
14
confrontations with the

he federal
ederal court because every time he
15
does his popularity

goes
up.
ty g
es up
TH
EF
12
13:53:14
13:53:36
And so I really
don't know, as I've thought about it,
re
OF
16
whether there
remedy that would fit this situation,
e
i a civil
is
ci
18
but I think
we ought to experiment -- we ought to think
hink that
th
19
about
out
ut it:
:
20
through a civil contempt process without resort to a criminal
21
contempt process that would fit the violation that has occurred
contem
conte
22
here?
he
Is there some sort of civil remedy that is available

13:53:58
FR
IE
ND
17
2
23
If not, Mr. McDonald, I fully intend -- you will see
24
for a minute my recommendation is going to be that we have a
25
civil contempt proceeding first on several matters.
But if at
13:54:21

the end of that civil contempt proceeding I do determine that
the Sheriff's Office, the sheriff, or others should be held in
civil contempt but I cannot find any appropriate civil remedy
that will meet the nature of the infraction, I fully intend

nd to
t
make a criminal referral to the United States Attorney

y to
o try
y
the sheriff, and as I've said, possibly others, and

we'll
d we
w
'll g
go
over this in a minute, for criminal contempt.
.C
OM
I realize that in that proceeding he would

have
wo
ha
BO
8
9
procedural rights, and I would fully intend

and
tend to authorize
au
aut
exercise the full -- all of those rights.
ights.
ights
.
The difference, of
Th
11
course, as I think you know, Mr. McDonald,

McDonald between a civil
12
contempt proceeding and a criminal

proceeding is that
iminal contempt
cont
13
a criminal contempt proceeding

eeding
ding the
he purpose is not really to
14
coerce, nor is it to compensate;

compensate it is to punish.
15
one of the reasons

why it
it's
s wh
w
t's criminal and can result in criminal
16
sanctions such
incarceration or criminal fines.
h as incarc
in
13:55:01
And that's
13:55:24
OF
TH
EF
OG
10
Because
is a very real possibility, I think that
e ause
use that
th
17
you need
ed
d to
o be -- the sheriff needs to be aware of it and you
19
need
of it for any proceedings that are going to
ed
d to
t be aware
aw
20
continue
continue.
21
counsel and I appreciate that.

counse
couns
22
represent the sheriff.

rep
re
IE
ND
18
FR
13:54:42
Ms. Iafrate filed the motion for determination of
13:55:43
She's not in a position to
2
23
I presume, Ms. Iafrate, you're not in a position to
24
represent any other members of the Maricopa County Sheriff's
25
Office who we may pursue for criminal attempt.
13:56:02

MS. IAFRATE:
THE COURT:
That is correct, Your Honor.
But I believe that, if I understood your
motion correctly, you would be in a position to represent them

m
as far as civil contempt proceedings go.
MS. IAFRATE:
THE COURT:
.C
OM
That is correct, Your Honor.
And it does seem to me,

me,
All right.
13:56:10
Ms. Wang, Mr. Young, for what it's worth, that if I initiate
a
initi
criminal contempt proceeding, that's actually

matter
lly
ly a separate
separa
a
tried by the United States Attorney.
BO
Of
course,
you would be
f course
cour
, y
interested in that matter, but you would not

have a role in
ot h
11
that matter.
OG
10
13:56:25
Nevertheless, to the
that you have -- you are
e extent
exten th
EF
12
representing the class interests

nterests
erest in this matter, I thought I
14
would raise to you another

statute which I'm not going to put
nother
other statu
stat
15
on the monitor.
16
opposed to 401,
says that if a crime has been
, and it basically
b
17
committed a
against
victims of behavior that results from a
ainst
in
v
vic
18
contempt,
individual
assessments of $1,000 can be made to be
pt,
, indi
d
19
paid
as well as the jail fine, and because you
id by
b the contemnor
c
20
representing people who may have been the victims of that

are repres
21
crime, I guess I want your input as to whether or not it's

crime
22
worth pursuing such a contempt under that statute if civil

wo
TH
13
13:56:37
13:56:58
FR
IE
ND
OF
It's 18, United

States Code, Section 402 as
It
U
Un
2
23
24
25
contempt doesn't meet it.

I would suggest that there's language in there that
the limit on the fine, if the fine goes to the United States,
13:57:11

is $1,000, and frankly, that's not worth the candle to me.
if the thousand dollars can go to -- if more than a thousand
dollars can go to individual victims of the crime, and if those

se
can be located without an enormous amount of difficulty and

nd
trouble, I would appreciate it if you have any thoughts

ts on
that.
The second matter, and these, again, are only
illustrative because there are a number of other matters,

both
matte
t
that the MCSO, I believe, has under good

d faith investigation
in
inv
BO
and other matters under investigation

on that
ha are
ar not appropriate
11
to discuss today and that I can't

today, but another
t discuss t
12
matter that I think involves the contempt

statute is the
co
contem
13
language that allows me to punish for

contempt, disobedience,
f
14
or resistance to the lawful pro

processes
or rules of this Court.
o
15
In conjunction
nc on with
nct
wit the death of Sergeant Armendariz
13:57:46
TH
EF
OG
10
and the disclosure

osure by
b the
th MCSO of what they found there, there
17
was a number
found that has led to, in subsequent
e of recordings
recor
c
18
investigation,
igation
gation,
, a number of all kinds of recordings of different
13:58:08
IE
ND
S
OF
16
19
kinds,
and video, or at least knowledge of their
nds
ds,
, both
oth audio
a
20
existence; reports that existed at the time that were

existence
21
responsive to discovery that was requested that apparently were

respon
respo
22
not provided; license plates, licenses, identification cards,

no
FR
13:57:31
But
.C
OM
13:58:26
2
23
credit cards, CDs, DVDs, purses, religious statuettes.
Some of
24
these are a matter of ongoing investigations by the MCSO and
25
the monitor.
13:58:51

And I don't pretend, Ms. Wang, Mr. Young, if you're
1
2
worried, I don't pretend that we have our arms fully around
this material yet.
But it appears that a great -- for my present purposes, it

t
appears that at least a large amount of this material was

s
requested by the plaintiffs prior to trial, was not

t delivered
by the defendants to the plaintiffs prior to trial,

as a
rial, and
rial
an a
result may well have, and I'm not making a determinati

determination at
determina
this point, but may well have limited the

in its
he plaintiff
plainti
plaintif
.C
OM
I don't think that MCSO would contend that.

t.
BO
13:59:04
ability to present evidence concerning

ing the
th unconstitutional
un
unc
11
behavior, supervision, and other problems at MCSO.
OG
10
13:59:23
Again, we've previously

usly had
ha -- already gone around
EF
12
this bend once in this matter

atter
ter when MCSO destroyed evidence, and
14
again, I don't know who

may have -ho Mr.
Mr
r. Liddy
Lidd
id
TH
13
Mr. Liddy,
sorry.
y, I'm
m sorr
sor
16
Mr. Casey indic

indicated that he did transmit all the
i
OF
15
13:59:48
17
discovery r
requests
quests
ue
to the MCSO.
We know that he previously
18
submitted
ted
d them to Chief MacIntyre.
19
the
e contempt order to Chief MacIntyre.
20
MacIntyre was his contact or not.

Chief MacI
Mac
21
callousness on the part -- I mean, to the

this demonstrates
d
22
extent that it merely is a question of getting our arms around

ex
I don't know whether

But to the extent that
14:00:04
FR
IE
ND
We know that he submitted
2
23
what you didn't get or having an idea what was destroyed, I
24
think that my civil contempt power, as well as the inherent
25
authority that this Court has to enforce its judgments and
14:00:26

orders, would allow me to, and allow you to discuss with the
parties, the ability to refashion relief or retry this case.
And would allow me, for example, to make sure that your
attorneys' fees were regularly paid while you were retrying

ng
this case instead of waiting until the end or anything

g like
ik
that.
.C
OM
It seems to me I could do that through

h my -- as I
said, through inherent authority and the civil

power.
vil contempt
conte
contemp
But to the extent that -- that it would reveal a c

callous
BO
attitude on the part of MCSO, Sheriff

ff
f Arpaio
Arpaio,
, or any of its
11
officers in terms of complying with

legal obligations, it
ith their l
12
also occurs to me, Mr. McDonald,

that could give rise to a
ald, th
ald
that t
13
criminal contempt proceeding

ding
ng after the civil contempt
14
proceeding.
TH
It also occurs
Mr. McDonald, and I say this not
oc
occ
s to me,
m
15
really to you but I say it so that people are aware --
17
Ms. Iafrate,
I think it will be your obligation -e Mr
Mr. Liddy,
Lidd
i
18
it seems
it also implicates, perhaps,
ms to
o me that
h
19
Chief
perhaps others, who may have been involved in
ief
ef MacIntyre,
MacInty
cInty
20
a callous dealing with their requirements to produce and comply
21
legal rules and orders of this Court.

with the
t
14:01:13
IE
ND
OF
16
FR
14:00:59
EF
OG
10
22
14:00:43
14:01:32
I don't know, of course, if that's true, and I'm not
2
23
trying to foreshadow that it's true.
But as we have
24
Mr. McDonald here to protect the sheriff's rights in case this
25
matter goes to criminal contempt at this early proceeding, I'm
14:01:50

pointing out that Chief Deputy MacIntyre and/or others may
require the same right.
.C
OM
And before we move on from that -- well, I think we
3
4
can move on to this next matter, it flows right into the next
xt
matter, which is:
hearings?
The defendants in this matter right now

ow are MCSO and
Sheriff Arpaio are the two defendants.
I realize,
ealiz , or
ealize
o at least
I was informed by Ms. GilBride some months

Maricopa
ths ago
ago, that
t
th
BO
County was going to take the position

is not a jural
on that
hat MCSO
MC
11
entity and I understand that argument.

gument
ument.
12
changes much, and I think that

at that was our acknowledgment at
13
the time, it doesn't change

nge
e much
muc the
th practical effect or power
14
of this Court so long

g as
a Sheriff
Sherif Arpaio is a defendant, and I
15
don't think that was

but I don't know that.
wa appealed
ppeale
eal
OG
10
EF
MR. LIDDY:
LIDDY:
Your Honor, yes, that was appealed.

You
THE
COURT:
H COURT
CO
:
That Sheriff Arpaio shouldn't have been a
MR LIDDY:
MR.
No, no, that MCSO is a non-jural entity.
THE COURT:
T
All right.
ND
20
24
25
But Sheriff Arpaio as a
14:02:53
defendant was not appealed.

defend
defen
IE
FR
2
23
14:02:43
defendant?
ant
nt?
19
22
I don't
know that it
d
TH
17
21
14:02:27
OF
16
18
14:02:08
Who should be the subject of the contempt

ontempt
em
MR. LIDDY:
That's correct, because he was sued in his
capacity as the elected sheriff of Maricopa County.

THE COURT:
So it seems to me that Sheriff Arpaio is
going to be the subject of the contempt hearings.
MCSO may
14:03:01

also be the subject, but recognizing that that might be voided
out depending upon what the Ninth Circuit does.
really have a whole lot of practical difference, because
Sheriff Arpaio is the party here.
.C
OM
But it won't
But it also seems to me, and I give you this citation,

citation
tation,
all persons involved here, it's United States versus

us Baker,
Bak ,
Baker
641 F.2d 1314.
non-parties and non-parties in privity with a party wh

who are
aware of an order and violate it are liable

civil and
able for
fo both
b
bo
BO
And it indicates that non-parties,

ies,
ies
, both
bot
criminal contempt.
OG
10
14:03:16
14:03:34
And so with all due respect,

like
spect
pect,
, people
peopl
eo
11
Chief MacIntyre, Deputy Chief

Chief Sands, Lieutenant
f Sheridan,
Sheri
Sheridan
13
Sousa, those who you have

e identified
identifie as people who received,
14
for example, the Casey

saying,
Do something with this,
ey
y e-mail
ma
s
sa
15
and apparently nothing

done, may also and should also
th g was
thin
as ever
e
16
be on alert that
hat to the extent I cannot find some sort of civil
17
remedy that
contempt is also something they may
t works,
works
or , criminal
cr
18
want to
and obtain counsel for.
o consider
consid
14:03:55
OF
TH
EF
12
And again, that's a matter on which I invite the
ND
19
parties' comment if they wish to make comment, and that's why

parties'
21
you the case, it's a Ninth Circuit case, United

I' e given
I've
g
22
States versus Baker, 641 F.2d 1314.

St
14:04:20
FR
IE
20
2
23
The timing of the prosecution.
24
States versus Rylander.
25
nodding to indicate you've read it.
You can look at United
I cited that case and I think you're

And it says that you can
14:04:39

actually -- it says that it's not error to proceed in the same
proceeding -- or it's not necessarily error to proceed in the
same proceeding with criminal and civil contempt matters, but
it recommends that you not do that; that if you're going to do

d
both, that you do one and then you do another.
.C
OM
And it seems to me that that is a very good

od
suggestion, and I would propose for your -- again

ain for your
you
comment, that I proceed with matters about which I currently

c
cur
have a belief that a civil contempt proceeding

ceeding is appropriate
BO
by an order to show cause.
That during
I determine
ring that time
t
11
whether or not I believe that any

remedy can
ny
y civil
civ
r
rem
12
appropriately address the violations

I identify, and that
olation that
olations
th
13
if I can't -- can't come up

then we will proceed with
p with
wit one,
on
14
a criminal contempt proceeding

roceeding if
i I believe that the evidence
15
merits such a procedure.

ce
cedu
e.
TH
14:05:39
Now, I also want

wan to make it clear, I think I've
OF
16
already made
clear,
but I do want to make it clear that
d it clear
e
18
there are
number of matters that are of considerable concern
re a nu
19
to me that
at I haven't raised today, and that does not mean that
20
them by either such a civil or a criminal

I won't
won't raise
ra
21
proceeding.
procee
proce
IE
ND
17
FR
14:05:17
EF
OG
10
22
14:04:59
14:05:56
But I think you appreciate, Ms. Iafrate, Mr. Liddy,
2
23
that I also don't want to infringe on any ability, for example,
24
to mess up any investigation you're now undertaking, and/or the
25
monitor's undertaking, for that matter.
So I'm just going to
14:06:19

let people know that there are other matters that are of great
concern to this Court that may receive a similar treatment, and
that's why I'm sort of laying out this treatment for your
comment.
.C
OM
That being said, Ms. Wang, Mr. Young, because you

ou
don't have your arms around the scope of what may have gone
wrong here, I can understand your desire, maybe,

e, to say,
say We
ought to wait until we know what went wrong.

g.
.
I'm somewhat disinclined to do that.
BO
But
say
Bu I must
mu
I believe t
that if we wait
th
too long, this matter, which has already

ready gone
ne on for too long,
11
will remain -- justice delayed is

essentially.
s justice
ustice denied,
d
12
But I recognize that -- or at

like to give you
t least I would
w
13
the opportunity to comment

that.
nt on that
TH
And of course,
you have that opportunity
e, Ms.
Ms
s. Iafrate,
Iafr
af
14
as well.
And it see
seems to
Mr. McDonald, that you have the
se
o me,
me
m
16
opportunity to
on
o comment
comme
o that as well, to the extent you wish
17
to do so.
IE
ND
S
Chief Deputy Sheridan, to the extent that you feel

And
nd C
19
like
ke
e you,
y , or Chief Deputy MacIntyre, or Chief Sands, or
you
20
Lieutenant Sousa, or others who have been implicated as targets
21
or potential targets of investigation, may

of investigation,
in
inv
22
wish to obtain your own separate counsel.

wi
FR
14:07:17
OF
15
14:07:31
I would certainly
2
23
welcome them to weigh in on that if they wish to do so before I
24
proceed in any way.
25
14:06:56
EF
OG
10
18
14:06:33
There are additional matters that pertain to a
14:07:55

criminal contempt proceeding.
I have asked the United States
Attorney to be here and she is -- or the chief assistant is
here.
I've -- as I think it's appropriate that Sheriff Arpaio's
representative be here, because if we proceed with the civil

iv
proceedings there are, at least to some extent, possible

ssible
criminal ramifications to those proceedings, and

to
nd I want
wan you
y
be aware of what's going on from the beginning

keep you
ning
ing and
a
k
kee
apprised.
.C
OM
And the reason I've asked her to be here, just as
BO
14:08:18
If you look at Criminal Rule

Procedure
42 -le of Proce
roc
11
Do we have a copy of that

at to
t put
ut up?
12
And I know you probably

Ms. Strange, but I
ably kn
know this,
t
14:08:33
EF
OG
10
13
have to give notice if I'm

m going
goin to initiate a criminal
14
contempt proceeding.
15
which I have to state

time and place of the trial and allow
ta
tat
the
e ti
t
16
the defendant a reasonable

time to prepare a defense, I have to
reas
reasonab
17
appoint a prosecutor.
p osecutor
secuto
14:08:54
OF
TH
And if
An
i I do
d that, when I give notice,
the rule requires that the contempt be prosecuted

And
nd t
18
by an attorney
attorne
torne for the government unless the interest of
20
requires the appointment of another attorney, and if

justice re
21
government declines the request, the Court must appoint

the go
th
g
22
another attorney to prosecute the contempt.

an
14:09:09
FR
IE
ND
19
2
23
And so it seems to me that that gives your office,
24
your own office, an opportunity to evaluate whether this is
25
something you feel comfortable handling if it comes your way,
14:09:25

and whether or not you wish to pursue it or whether or not you
wish to tell me that if I'm going to pursue it, I need to find
somebody else to pursue it.
.C
OM
And I realize that there can be conflicts and all

l
kinds of other matters that you need to take into account,

unt
t, and
nd
so as this process develops I'm going to continue, as I have

v in
the past, require that you be apprised of information

rmation that
tha
ha
develops.
was under seal, just as Ms. Wang and the

counsel
e plaintiffs'
plaintif
plaintiff
BO
In the past I've done that and made

that that
ade sure th
have received information under seal,

would propose to do
l,
, and I wo
w
11
that, Ms. Iafrate, unless you have

ve any objection.
obje
ob
OG
10
MS. IAFRATE:
13
THE COURT:
14
MS. WANG:
No,
o, Your
ou Honor.
Ho
Hon
15
THE COURT:
T:
McDonald?
Mr. McD
Mc
16
MR. McDONALD:
McDONAL :
McDONALD
No, Your
our Honor.
Hon .
Honor
OF
TH
Do you
any objection, Ms. Wang?
u have
hav an
14:10:08
Judge, should I -- when you provide
17
this under seal,

I be provided that same information?
eal
al, would
woul
o
18
would request
that we be provided any information that you're
quest t
ND
S
14:10:00
EF
12
19
14:09:41
turning
rnin over to the United States Attorney.
rning
THE COURT:
T
20
All right.
You know what?
Now that I'm
starting to go through areas I invite your comment on, I think

starti
start
22
that that is something that if you can just put in your writing
th
FR
IE
21
14:10:22
2
23
that I'm going to have you submit, that will be good.
24
I won't forget it, and I understand that request.
25
That way
Any objection if we provide it to Mr. McDonald?
14:10:35

MS. WANG:
want to do some research on.
the initiation of a prosecution, by analogy, say, during grand

d
jury proceedings, the defendant would not necessarily get
discovery of documents, so I would respectfully ask --
.C
OM
In an ordinary criminal case, at
14:10:51
Yeah, I think it's appropriate

e you
THE COURT:
Your Honor, I think that's something I'd
consider that.
I would point out that, though,

, that what we're
talking about is pre-proceedings, because I have not

t appointed
the prosecutor at the point.
BO
But I do think it's fair -I understand

- I mean,
me , while
mean
w
OG
10
11
your concern, I understand there are some

things
me investigative
i
12
that maybe need to be addressed.

sed.
sed
13
not a potted plant.
14
fully the interests of

client,
as we'll want Chief Deputy
f his clien
ie
15
Sheridan or Chief Mac

MacIntyre
M
ntyre
yre or whoever else might deem fit to
16
hire counsel to be able

to have their own representation.
a
EF
Mr.
after all, is
Mr
M
. McDonald,
M
for contempt,
ntempt
empt,
, that the rights to a jury trial depend upon how
19
seriously
intend to sentence the potential defendants.
riously I i
20
guess it seems to me that we can cross that bridge when we come
21
it, if and when we come to it.

to it
22
any of you want to comment on, you can comment on it in your

an
FR
IE
ND
18
24
25
14:11:22
OF
TH
We want
nt to have
hav him here able to represent
I do
that if I initiate a criminal prosecution
o realize
reali
17
2
23
14:11:05
And I
14:11:53
But if it's something that
written memorandum on this topic.

Now, it does -- how many pages are you going to need?
Those are the topics I'm interested in.
How many pages are you
14:12:18

going to need?
MS. WANG:
THE COURT:
MS. WANG:
Your Honor, we would propose 20 pages.

All right.
How long do you want?
.C
OM
Your Honor, that hinges in part on how

w
quickly the defendants respond to a discovery request we have
outstanding.
referred to that were discovered earlier this month in November

No
of 2014.
say, by next week, we'd ask for an additional

so two
tional week,
week
ee
We don't even have the documents that

t Mr
Mr.
. Casey
s
BO
Assuming that those documents are produced t

to us,
weeks.
But that is contingent on getting

etting the documents that
11
have already been referred to in court.

cour .
court
OG
10
THE COURT:
13
MS. IAFRATE:
Do you have any

idea on that, Ms. Iafrate?
an id
Your
our
r Honor,
Honor, I received a correspondence
from Ms. Wang either yesterday or today regarding this issue.
15
Obviously, I'm new

to this
case.
w t
is c
16
after I got her

request, so I do not know the status of that.
er request
requ
17
I have a call
Casey as well regarding that.
a l in
i to
o Mr.
M
18
can't even
ven give
giv you an estimate, because it would just be a
We are looking into it right
OF
TH
14
ND
S
14:13:07
EF
12
19
14:12:49
14:13:23
So I
false
estimate.
lse
se estimat
timat
THE COURT:
T
All right.
Mr. Liddy, were these -- it
was,
23 boxes, or something like that?
was
wa
, like,
l
22
How many documents?

Ho
MR. LIDDY:
IE
21
FR
20
2
23
14:13:39
I've forgotten.
Your Honor, I believe it was more than
24
that.
It was a vast volume of documents, the most appear to be
25
photocopies, and Mr. Casey --
14:13:56

THE COURT:
So there are hard copy documents.
MR. LIDDY:
There are hard copy documents.
There are
also, as Mr. Casey indicated, tapes -- well, electronic
recordings.
them, as he's the only one that can do it in an efficient

ent
t
manner because he was the one who did the production

on back
bac in
2009.
what was already produced.
But Mr. Casey is in the process of going through

ough
gh
Back in 2008, 2009, MCSO was told

documents
old to gather
gath
at
that were requested.
11
They were presented to Mr. Casey.

y.
.
12
many of these are those copies.

es.
es
They were copied.

The
Th
EF
Well,
ask, do you wish to go review
l, let me
e a
them with Mr. Casey?

MS. WANG:
:
Your
Honor, let me amend what I said.
ur Hon
Ho
16
Plaintiffs
believe that based on the information, the
ntiffs beli
limited information
f rmation
mation we already have, there is a basis to
18
proceed
civil
d with c
i contempt, and there is a basis for the Court
IE
ND
S
17
19
to refer
criminal contempt investigation proceeding to a
ref
a cr
20
prosecutor, whether it's the U.S. Attorney's Office or

prosecutor
prosecuto
21
otherwise.
otherw
other
FR
14:14:41
OF
15
22
14:14:25
to determine how
He needs
ee
TH
14
THE COURT:
They were gathered.

hered.
hered
.
OG
10
13
14:14:08
He'll be able to tell how many of them are duplica

duplicates of
BO
.C
OM
14:15:01
Based on that, I think we'll be ready to brief this
2
23
within two weeks whether or not we get the discovery that's
24
outstanding.
25
Court separately, I think.
We would take up any discovery disputes with the

But I do think that we have
14:15:14

sufficient information that if the Court were not issuing an
order to show cause on civil contempt sua sponte plaintiffs
would submit an application for an OSC.
.C
OM
THE COURT:
Ms. Strange, do you want to brief anything that

at I've
e
THE COURT:
No, Your Honor.
All right.
Ms. Iafrate,
will you
e, how
ho long
o
need, and how many pages?

MS. IAFRATE:
10
MS. STRANGE:
BO
Well, Your Honor,

concern that I
onor,
onor
, the
he c
have are the -- that coverall issue

talked about where
sue that you
y
12
there are issues that we are not

discussing in open court.
no discus
di
THE COURT:
13
EF
11
I completely
ompletely
pletely understand.
u
14:15:42
So how do you
want me to address that?

at?
at
?
TH
14
14:15:30
discussed, or do you want to weigh in on this at this

his point
point?
OG
All right.
MS. IAFRATE:
AT
ATE
15
I guess
that was, by way of explanation,
gu
gue
that there are

of those issues.
e a number
num
17
that our br
briefing
efing
fi
t you may need to be larger than 20 pages,
to
18
because
e there -- within that grouping there are several issues
19
that
at
t need to be addressed.
ND
20
THE COURT:
T
21
MS. IAFRATE:
22
THE COURT:
How many pages do you want?
2
23
MS. IAFRATE:
24
THE COURT:
25
MS. IAFRATE:
14:16:14
Thirty.
All right.
FR
IE
Therefore, I believe
OF
16
14:15:57
How long do you need?
January 15th.
I'm not going to give you that long.

Your question was:
What do I want?
14:16:28

I want to be reasonable, but I want to
move this matter along.
Today is the 3rd, happy holidays.
MS. IAFRATE:
THE COURT:
MS. IAFRATE:
THE COURT:
MS. WANG:
Thank you.
How about I give

ive you till
til
il
7th?
Yeah.
Well, I'll
January 8th.
ll give you
y
yo
14:17:04
Your Honor, is the

proposal -- plaintiffs
th prop
pr
would propose that we have simultaneous

-imultan
imultaneous
THE COURT:
14
MS. WANG:
I agree.
gree
ee.
-briefing, and then perhaps a

- opening b
TH
13
simultaneous response.
on
onse
THE COURT
COURT:
:
14:17:14
We're not going to do -- this isn't going

We
OF
16
to be a normal
thing.
r al
l briefing
briefi
e
MS.
MS
S. WANG:
W G
18
THE COURT:
ND
19
Right.
I've told you what I want you to comment
comment on it, and I'm making my decision.

on, you co
on,
MS. WANG:
22
THE COURT:
IE
21
FR
One day matters, apparently.

.
BO
11
20
14:16:52
OG
THE COURT:
17
Oh, 4th.
MS. IAFRATE:
10
15
Today is the 4th, Your Honor.
January 7th?
12
I'll give you until --
EF
I do recognize we're in the holidays.
.C
OM
THE COURT:
14:17:19
All right.
There's not going to be any responses,
2
23
you're just going to get your chance to do it, and if you want
24
to -- I suppose that what I will do, I will allow, Ms. Wang, if
25
you want to do January 8th and you want to file a request for
14:17:33

an order to show cause, then I'll allow the defendants to
reply -- or to respond, and then you can reply.
.C
OM
But otherwise, I just want to know, the 20 pages
you've asked, and you can have 30 pages if you want, but spare
ar
me if you don't need them, it's just related to the questions

uestions
tions
I've asked.
MS. WANG:
THE COURT:
10
And of course you can file whatever

else
whatev
t
you want whenever else you want to, and then there
ther will be a
normal briefing process.
MS. WANG:
11
OG
Yes, Your Honor.
BO
13
January 7th.
15
MS. WANG:
:
16
THE COURT
COURT:
:
That's
correct.
That
Tha
's corr
or
TH
THE COURT:
EF
requesting from both sides both

oth of our briefs will be due
14
Okay.
kay.
14:18:07
OF
Now, Mr. McDonald, do you want to weigh in

Now
on this as well?
ell
ll?
MR.
MR
R. McDONALD:
M O
18
Yes, Your Honor.
I've been on this
case
se
e a total
otal of 40 hours.
20
on this.
this.
21
don't
don
do
't know whether it will ever be necessary.
22
it's not necessary.

it
I am just beginning to get a handle
I haven't filed a notice of appearance because I
IE
ND
19
FR
14:17:59
Just for the briefing the

Court is
t
12
17
14:17:49
14:18:17
I'm hoping that
2
23
During the process, every time the thought of
24
something criminal coming into it, I want to receive notices of
25
everything.
Whatever will be referred to the U.S. Attorney, I
14:18:34

would want to know about.

THE COURT:
file a notice of appearance.

MR. McDONALD:
4
5
With all due respect, then, Mr. McDonald,
.C
OM
Okay.
I will file a notice of
appearance.
14:18:46
THE COURT:
January 7 deadline?
And then do you want to have the same

sa
MR. McDONALD:
Off-the-record discussion between

and the
een the Court
Co
Cou
clerk.)
THE COURT:
What did I say

say?
?
12
really bad on the days today.

.
13
MR. McDONALD:
14
THE COURT:
TH
16
MR. McDONALD:
McDONAL :
McDONALD
17
OF
are you going to need?

ne
nee
You have it.
How many pages

14:19:03
Judge, I don't know enough about the
case to even
e be able
l to -COURT:
THE
HE C
R
18
19
I'm
Yes.
Yes
s.
All right.
right
15
8th,
8
th, I apologize.
th
14:18:57
January
8th deadline.
Janu
EF
11
OG
BO
10
That would be fine.
All right.
As long as you don't exceed 30
pages,
ges,
ges
, you
ou can
ca have them.
MR. McDONALD:
M
21
THE COURT:
22
MR. McDONALD:
2
23
THE COURT:
RI
20
All right.
14:19:09
And don't use them if you don't need them.

All right.
All right.
Now, are there other matters
24
that need to be -- those were the matters that I intended to
25
address today.
Are there other matters that need to be
14:19:18

addressed?
MS. WANG:
Your Honor, just one point of clarification
so the Court and the defendants are not surprised upon getting
g
our brief.
voluminous record of noncompliance with this Court's several

everal
er
orders to date.
not only the facts relating to the November 1st,

t, 2012,
2012, stuff,
st
but also other instances of noncompliance that

be
hat may
m
b the
subject of a contempt proceeding.
.C
OM
Plaintiffs believe that there is a long and
BO
And in the briefing we would intend

address
nd to addre
d
And so I would just advise
the Court that and ask whether the Court

ourt sees
es any issue with
11
that.
I'm not sure t

that I understand, Ms. Wang,
but if I do, as I've indicated,

icated
ated,
, I'm
I'm not necessarily making any
I'
14
determination right at
moment
as to other matters on which
t this mome
om
15
I think a contempt
may or may not be appropriate.
t finding
fi ding
ng m
16
you want to raise

matters to my attention and I think
aise those
th
17
that they m
may
well,
y well
w
, upon development, be appropriate topics of
18
contempt
aren't now, I will deny your motion to that
pt if
f they
th
the
19
respect
without prejudice, but I have no problem if you raise
spec witho
spect
20
them.
them.
If
14:20:14
ND
OF
TH
13
14:20:33
MS. WANG:
22
MS. IAFRATE:
IE
21
FR
14:20:00
EF
THE COURT:
12
OG
10
Understood.
Thank you, Your Honor.
I have nothing further, Your Honor.
2
23
THE COURT:
24
(Proceedings concluded at 2:20 p.m.)
25
14:19:37
All right.
Thank you.

1
C E R T I F I C A T E
.C
OM
3
4
5
I, GARY MOLL, do hereby certify that I am duly

dul
appointed and qualified to act as Official Court Reporter

for
Repor
p
the United States District Court for the

e District of Arizona.
BO
I FURTHER CERTIFY that the foregoing pages constitute
OG
10
a full, true, and accurate transcript

all of that portion of
script
cript of
f al
12
the proceedings contained herein,

in the above-entitled
rein, had
rein
h
i
13
cause on the date specified

ied
d therein,
therein and that said transcript
14
was prepared under my

y direction and control.
TH
EF
11
16
DATED
Arizona, this 5th day of December,
A ED
D at Phoenix,
P
Pho
17
2014.
ND
19
18
OF
15
20
IE
21
FR
22
2
23
24
25
s/Gary Moll

Melendres # 817 - Dec. 4 2014 TRANSCRIPT - Status Conference

Enviado por

Dados do documento

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Melendres # 817 - Dec. 4 2014 TRANSCRIPT - Status Conference

Enviado por

Direitos autorais:

Formatos disponíveis

Case 2:07-cv-02513-GMS Document 817 Filed 12/05/14 Page 1 of 39

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega

BEFORE THE HONORABLE G. MURRAY SNOW

Proceedings taken by stenographic court reporter

Case 2:07-cv-02513-GMS Document 817 Filed 12/05/14 Page 2 of 39

Cecillia D. Wang, Esq.

Stanley Young, Esq.

Case 2:07-cv-02513-GMS Document 817 Filed 12/05/14 Page 3 of 39

Michele M. Iafrate, Esq.

For the Defendant Arpaio:

Thomas P. Liddy, Esq.

For Amicus United States of America:

Sheriff Joseph M. Arpaio

A. Melvin McDonald, Esq.

Joshua Bendor, Esq.

Case 2:07-cv-02513-GMS Document 817 Filed 12/05/14 Page 4 of 39

This is CV 07-2513, Melendres v. Arpaio,

on for evidentiary hearing.

Counsel, please announce your appearances.

Good afternoon, Your Honor.

of the ACLU for the plaintiff class.

are Stanley Young from Covington & Burling

is not yet admitted but is a staff attorney wi

Arizona, and I believe some of my co-counse

afternoon, Ms. Wang.

Also at counsel table, Your Honor, is

Mr. McDonald, are you here

representing the sheriff?

Iafrate and Tom

Yes, Your Honor.

And that would be to the

extent that this matter involves criminal contempt?

Case 2:07-cv-02513-GMS Document 817 Filed 12/05/14 Page 5 of 39

If it involves that, yes.

What I intend to do is lay

out -- I intend in today's proceeding first to do what was

counsels' participation on indicating why criminal contempt

at issue in this case.

counsel and with the United States Attorney, who

consider what I'm asking and to make such

And I'll invite you to join

will apply to Ms. Wang.

You, too, of course, Ms.

got it out on the 20th,

forth procedures going

entertain any comments or concerns regarding the procedure I'd

Your Honor, the plaintiffs agree with all

the procedures set forth in Your Honor's order of November

Case 2:07-cv-02513-GMS Document 817 Filed 12/05/14 Page 6 of 39

We do have one request for an amendment, which is in

paragraph 5 of the enumerated new measures involving the

monitor in the PSB unit, plaintiffs would request that we also

the defendants to give the monitor team notice of, subject

any appropriate protective orders.

When you say paragraph 5, which page?

There are several paragraph 5s in the order.

Page 18, paragraph 5.

Court has directed that when MCSO undertakes

investigation relating to the three

matters, that it will lodge under seal

provide the monitor with written