Melendres # 1568 - MacIntyre Renewed Motion

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 1 of 18
courtdocs@dickinsonwright.com
Gary L. Birnbaum (#004386)

David J. Ouimette (#006423)
DICKINSON WRIGHT PLLC
1850 North Central Ave., Suite 1400
Phoenix, Arizona 85004-4568
Telephone: (602) 285-5000
Facsimile: (602) 285-5100
E-Mail: gbirnbaum@dickinsonwright.com
douimette@dickinsonwright.com
Special Counsel for Deputy Chief John Jack MacIntyre
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega Melendres, et al.,
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Plaintiffs,
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vs.
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Joseph M. Arpaio, et al.
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Defendants.
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CV 07-2513-PHX-GMS
RENEWED REQUEST BY NON-PARTY
DEPUTY CHIEF JOHN JACK
MACINTYRE FOR DETERMINATION
THAT CRIMINAL CONTEMPT
CHARGES WILL NOT BE PURSUED /
REFERRED AGAINST HIM
PERSONALLY
(ORAL ARGUMENT REQUESTED)
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I.
INTRODUCTION
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Despite the complexities of this case, the Court should not, and we know that it will not,
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lose sight of the fact that this contempt proceeding was commenced by the Courts issuance of
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a limited and carefully crafted Order to Show Cause (OSC). In connection with the OSC,
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the Court indicated the possibility of a referral to the United States Attorneys Office for the
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pursuit of potential criminal contempt sanctions at the conclusion of the civil contempt
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proceedings. As a result of these events, certain individuals including Deputy Chief John
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Jack MacIntyre -- have devoted significant time to working with the civil attorneys for the
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Maricopa County Sherriffs Office (MCSO) (who are paid by the County to represent these
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individuals in the civil contempt proceedings) and have independently had to retain other
counsel (who receive no compensation from the County or the MCSO) to protect their interests
in connection with a possible criminal contempt proceeding.
Deputy Chief MacIntyre has been required to sit through days of evidentiary hearings,
two (partial) days of depositions, and over six hours of interviews with the Courts appointed
Monitor. He has also been required to read, analyze and digest countless pleadings, documents
and transcripts. As the evidentiary proceedings are now concluded, on behalf of Deputy Chief
MacIntyre we respectfully submit that any potential of a criminal contempt referral should
now be removed. Review of the evidentiary record confirms Deputy Chief MacIntyres
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position throughout these proceedings -- that regardless of the conduct of the Sheriff and/or
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others, there is no connection (and certainly no meaningful or incriminating connection)
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between the alleged violations cited by this Court as the basis for the OSC and the conduct of
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Deputy Chief MacIntyre. It is appropriate, therefore, to introduce this Motion by noting the
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extraordinary conduct which must be proven -- and the level of proof required-- to support a
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charge of criminal contempt.
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II.
THE CRIMINAL CONTEMPT STANDARD
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The Court has wide latitude in determining whether there has been sufficient
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contemptuous disregard of a Court order to support a charge of civil contempt;1 a finding of
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criminal contempt, however, requires proof of willful disobedience of the Courts orders.2
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For a nonparty to be held liable in contempt, it is necessary that [the] non-party
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respondent must either abet the defendant [in violating the court's order] or be legally
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identified with him.3 The conclusion depends upon whether the [non-party contemnor] was
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Doc. 880 at 6:1821.

United States v. Baker, 641 F.2d 1311, 1317 (9th Cir. 1981)(Baker)
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Peterson v. Highland Music, Inc., 140 F.3d 1313, 1323 (9th Cir. 1998) (internal citation
and quotations omitted). In these circumstances, to be charged as an abettor requires proof
of three elements: (1) the primary violator must have committed conduct that caused injury to
the plaintiff; (2) the defendant must know that the primary violators conduct constitutes a
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somehow personally connected with defying the authority of the court or disobeying its lawful
decrees.4 However, in any case an agents inability to comply with [an] order due to
circumstances beyond his or her control may constitute a defense to a contempt charge.5 This
is potentially an important limitation in this case.
Moreover, for criminal contempt, [w]illfulness and awareness of the order [allegedly
violated] must be shown beyond a reasonable doubt.6 Willfulness is demonstrated by a
volitional act done by one who knows or should reasonably be aware that his conduct is
wrongful.7 Willfulness means a deliberate or intended violation, as distinguished from an
accidental, inadvertent, or negligent violation of an order.8 Therefore, should the Court refer
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the matter for criminal contempt proceedings, under the applicable standard, the United States
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would be required to prove, beyond a reasonable doubt, that the non-party (Deputy Chief
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MacIntyre) intentionally committed a volitional action which the non-party knew would
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violate the Courts order.9 To say the least, there is no evidence in the record which could
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breach (of a court order); and (3) the defendant must substantially assist or encourage the
primary violator in the achievement of the breach. See Inman v. Wesco Ins. Co., 2013 WL
2635603, at *2 (D. Ariz. June 12, 2013) (District Judge Snow). BLACKS LAW DICTIONARY
defines aid and abet as: To assist or facilitate the commission of a crime, or to promote its
accomplishment. To aid is to assist or help another. To abet [i]n its legal sense, it
means to encourage, advise, or instigate the commission of a crime. Aid and abet, BLACKS
LAW DICTIONARY (10th Ed. 2014) (internal citation omitted). However, [a]iding and abetting
is characterized by affirmative criminal conduct and is not established as a result of omission
or negative acquiescence. STEVEN H. GIFIS, THE LAW DICTIONARY 9 (1975).
4
United States. v. Voss, 82 F.3d 1521, 1526 (10th Cir. 1996) (emphasis added). The
required personal connection with the organization's defiance of the court may arise from the
agent's general control over the organization's operations or from his or her participating or
aiding and abetting in conduct circumventing the order. Id. (citing United States v.
Laurins, 857 F.2d 529, 535 (9th Cir.1988)).
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Id. (citing United States v. Rylander, 714 F.2d 996, 1002-03 (9th Cir. 1983)).
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Baker, 641 F.2d at 1317.
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Id. (citing United States v. Greyhound Corp., 508 F.2d 529, 531-32 (7th Cir. 1974))
(emphasis added).
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Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 782 (9th Cir. 1983).
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Baker, 641 F.2d at 1317 (Willfulness and awareness of the order must be shown
beyond a reasonable doubt.).
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support such a determination as to Deputy Chief MacIntyre in this case, and thus no basis for
the Courts continued consideration of a possible criminal contempt referral.
III.
THERE IS NO EVIDENCE THAT DEPUTY CHIEF MACINTYRE

KNOWINGLY AND WILLFULLY VIOLATED ANY COURT ORDER.
This Court ordered the MCSO and certain non-party individuals, including Deputy
Chief MacIntyre, to show cause why they should not be held in contempt with respect to
(1) alleged violation(s) of the Courts Preliminary Injunction; (2) alleged violation(s) of the
Federal Rules of Civil Procedure governing pre-trial discovery; and (3) alleged violation(s) of
the Courts directives announced at the May 14, 2014 hearing (relating to the implementation
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of an evidence-collection protocol). The OSC relates to allegations of contemptuous conduct
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by the MCSO, including allegations of such importance as knowingly and intentionally
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detaining persons based on suspicion of immigrant status, holding persons without state
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charges in violation of the law and the Preliminary Injunction, and obstructing discovery of
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video footage of, and personal materials confiscated during, traffic and patrol stops.
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However, as to Deputy Chief MacIntyre, there are no factual allegations of
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contemptuous conduct in the OSC or elsewhere at most, there is reference to the possibility
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that contemptuous conduct might conceivably be discovered at a later date. At an early stage
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in this case, undersigned special counsel asked the Court to release Deputy Chief MacIntyre
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from the possibility of a criminal contempt referral.
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submitting to the Court on behalf of Deputy Chief MacIntyre two pre-hearing declarations
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which established the following -- all of which have been corroborated by the subsequent
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testimony of others:
Counsel took the unusual step of
1. Deputy Chief MacIntyre never possessed the authority or responsibility to advise,

train, or oversee compliance of patrol personnel with any aspect of the Preliminary
Injunction.10
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Doc. 896 810.

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2. Following the events surrounding a 2008 litigation hold letter previously

addressed by the Court, Deputy Chief MacIntyre was not responsible for discovery,
record retention, production of documents or coordination of witness interviews in the
Melendres case.11
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3. Deputy Chief MacIntyre was not in attendance or involved in any manner with the
Courts oral directives with respect to the sealed hearing held on May 14, 2014.12
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In response to special counsels early request, the Court indicated that it would consider
the release of Deputy Chief MacIntyre from the prospect of a criminal contempt referral if the
Plaintiffs consented.
counsel sent a letter to the Plaintiffs seeking an agreement concerning the abandonment of any
possible criminal contempt referral against Deputy Chief MacIntyre.13 Plaintiffs declined,
citing only the belief that Deputy Chief MacIntyre might bear some responsibility for
violations of the Preliminary Injunction, but citing no evidence supporting this position.14
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At the suggestion of the Court, Deputy Chief MacIntyres special
Discovery is now complete, all hearing testimony has been received, exhibits have been
admitted, and Plaintiffs have rested their case. Deputy Chief MacIntyre was twice deposed
and has testified fully regarding his lack of involvement in the Melendres case. Deputy Chief
MacIntyres supervisor, Executive Chief Michael Olsen, has testified. Executive Chief Sands,
Chief Deputy Sheridan and Sheriff Arpaio have all testified. Even the Sheriffs attorney,
Mr. Casey, has testified about his December 23, 2011 e-mail to various individuals with
respect to the Preliminary Injunction.
Nevertheless, Plaintiffs have yet to identify any
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Id. at 1417. Deputy Chief MacIntyre further testified that he was never the
principal or assigned contact for attorney Timothy Casey. Mr. Casey indicated that, at one
time, he did communicate with Deputy Chief MacIntyre, but that may simply have been in
response to a suggestion provided to him by the County Attorneys Office in connection with
and at the time of his appointment as counsel. In fact, the Legal Liaison division of the MCSO
-- not Jack MacIntyre -- was responsible for communications with Mr. Casey, as both he and
Deputy Chief MacIntyre have confirmed. Id.; Evidentiary Hearing Tr. (Sept. 29, 2015) at
1619:4-10.
12
Doc. 896 1819.
13
See Letter from Gary L. Birnbaum, Dickinson Wright PLLC, special counsel, to
Cecillia D. Wang, ACLU Foundation (January 22, 2015).
14
See Letter from Cecillia D. Wang, ACLU Foundation, to Gary L. Birnbaum, Dickinson
Wright PLLC, special counsel (January 28, 2015).
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contemptuous conduct on the part of Deputy Chief MacIntyre with respect to violation of the
Preliminary Injunction or otherwise.15
Each of the critical facts stated in Deputy Chief MacIntyres declarations is true, and no
basis for a finding of contempt -- let alone criminal contempt -- exists with respect to Deputy
Chief MacIntyre in this case. Indeed, during his testimony, Executive Chief Olsen (Deputy
Chief MacIntyres supervisor) confirmed that, at the relevant time, Deputy Chief MacIntyre
worked in the detention division of the MCSO, not in enforcement, and as a detention officer
Deputy Chief MacIntyre had no State authorized arrest powers.16
detention officers are not State certified peace officers, Executive Chief Olsen never expected
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Deputy Chief MacIntyre, nor did Deputy Chief MacIntyre have the authority, to oversee law
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enforcement operations, or to give enforcement staff advice or instruction on conducting law
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enforcement operations.17 Specifically, Executive Chief Olsen testified that deputy chiefs on
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the detention side dont have the training in law enforcement [and] dont get involved in
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law enforcement operations.18 Further, theres no way that one of my deputy chiefs or
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myself could go to the sworn side and say: This is what you need to do to be in compliance
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with that court order. They have the expertise; I dont.19 When asked whether Deputy Chief
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MacIntyre had responsibility for ensuring that the Preliminary Injunction was followed,
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Executive Chief Olsen indicated that Deputy Chief MacIntyre was not only too busy with his
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assigned duties in the detention division, but that Executive Chief Olsen would not expect, nor
Importantly, because
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Importantly, MSCOs then-counsel Timothy Casey testified during the evidentiary

hearing that Deputy Chief MacIntyre was copied on the December 23, 2011 e-mail, which
disseminated notice of the Preliminary Injunction, solely as a professional courtesy. Mr.
Casey acknowledged that Deputy Chief MacIntyre did not have any chain of command or
other responsibility for distribution or enforcement of the Preliminary Injunction. Evidentiary
Hearing Tr. (Sept. 29, 2015) at 1633:9-12.
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Evidentiary Hearing Tr. (Oct. 27, 2015) at 3656:5-25.
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Id. at 3657:15-25.
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Id. at 3659:5-9.
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Id. at 3659:20-24.
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did he want, Deputy Chief MacIntyre involved.20 To reiterate, Deputy Chief MacIntyres
supervisor, Executive Chief Olsen, did not expect or want Deputy Chief MacIntyre involved
with the operational aspects of Preliminary Injunction compliance (nor did Deputy Chief
MacIntyre have the authority or training to advise sworn officers), and there is no evidence
that he ever was involved.
This distinct division of operational duties was further confirmed by the chain of
command above Executive Chief Olsen. Chief Deputy Sheridan (Executive Chief Olsens
supervisor) confirmed that Deputy Chief MacIntyre had no role in the Melendres litigation.21
Further, Sheriff Arpaio noted (most clearly in his deposition testimony) that while Deputy
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Chief MacIntyre is an attorney, Deputy Chief MacIntyres administrative role did not involve
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the Melendres litigation.22
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consulted on issues related to the Melendres lawsuit, Sheriff Arpaio indicated: We had a
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[different] lawyer [for that].23
When asked specifically whether Deputy Chief MacIntyre
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In his testimony, Deputy Chief MacIntyre not only reaffirmed what he had stated in his
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declarations, but he testified before this Court that he personally read the contents of the
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Courts Preliminary Injunction to Sheriff Arpaio in January 2012.24 Beyond confirming that
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the appropriate members of the operational staff within the MCSO (who had the authority to
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administer and/or enforce the Preliminary Injunction) were fully aware of its terms, Deputy
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Chief MacIntyre had no further duty (if he had any duty at all), or operational authority, to
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enforce those terms. Importantly, with respect to a possible criminal contempt referral, there is
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Id. at 3666-253667:3.
Evidentiary Hearing Tr. (Apr. 24, 2015) at 956:9-11 (When asked by Plaintiffs counsel
[w]hat is Chief MacIntyre's role in the Ortega Melendres Litigation, Chief Deputy Sheridan
succinctly responded, [n]one.).
22
Deposition of Joseph M. Arpaio (March 25, 2015) at 142:1-11. As a matter of policy,
deposition excerpts may be utilized for any purpose. See Fed.R.Evid. 32(a). Special counsel
did not formally participate in the OSC evidentiary hearing. Reference to corroborative
deposition testimony thus appears particularly appropriate in this case.
23
Id. at 142:19-24.
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Evidentiary Hearing Tr. (Sept. 30, 2015) at 1879:171880:8.
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neither evidence nor even allegation that Deputy Chief MacIntyre willfully committed any
volitional act concerning any of the three areas addressed in the Courts OSC.
Out of an abundance of caution, we nevertheless review specifically below each of the
three areas noted in the OSC -- to summarize the relevant testimony, to provide appropriate
context, and to help guide the Courts consideration of this Request.
1.
The Courts Directives at the Hearing Held on May 14, 2014
It is appropriate to first address (and hopefully dispense with) any alleged non-
compliance by Deputy Chief Macintyre with the Courts oral directives delivered at the May
14, 2014 hearing. During this hearing, in which the existence of the Armendariz evidence
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was disclosed, the Court directed Defendants to consult with the Courts Monitor to develop a
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satisfactory protocol to quietly gather evidence. Plaintiffs allege that the MCSO, Sheriff
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Arpaio, and Chief Deputy Sheridan violated these directives by implementing a collection
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protocol without first consulting with, or receiving approval from, the Court or the Monitor.
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Deputy Chief Macintyre is not even referenced in the OSC as an individual responsible
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in any manner for the alleged violation of the Courts oral directives. Significantly, this Court
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has repeatedly acknowledged that Deputy Chief MacIntyre was not noticed for violations of
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the Courts oral directives of May 14, 2014.25 Indeed, Deputy Chief MacIntyre was not
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present at this hearing, nor was he involved in any related meetings of the MCSO or with the
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Courts Monitor concerning the collection of Armendariz-related evidence.26 In fact, the
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meeting during which the decision was made to have MCSO departments collect the subject
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recordings was apparently attended only by Sheriff Arpaio, Chief Deputy Sheridan, Timothy
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Casey, Tom Liddy, and Christine Stutz.27

In short, Deputy Chief MacIntyre lacked the knowledge of any Court directive (a
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See Evidentiary Hearing Tr. (Apr. 23, 2015) at 805:12-14; Status Conference Tr. (Sept.
10, 2015) at 32:4-15.
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Doc. 896 18-19.
27
Evidentiary Hearing Tr. (Apr. 21, 2015) at 104:8-9; Deposition of Joseph M. Arpaio
(March 25, 2015) at 220:16-18 (citing a letter from Chief Sheridan to the Courts Monitor).
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foundational requirement for a contempt charge) pertaining to the collection of audio and
video recordings prior to the collection protocol being implemented by the MCSO. When
Deputy Chief MacIntyre received notice of the implemented protocol, he fully complied (with
what he believed to be a valid Order) by verifying that the personnel serving under his
command did not possess any responsive evidence.28
The hearing (and deposition) testimony in the present matter, and the Monitor
interviews conducted by Chief Donald Anders, highlight the lack of involvement (much less
any willful and volitional act) of Deputy Chief MacIntyre with respect to any violation of the
Courts May 14, 2014 directives concerning collection of responsive materials. By way of
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example only, Chief Deputy Sheridan testified (at his deposition) that Deputy Chief MacIntyre
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was not even asked to review the materials gathered through the MCSO-implemented
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collection protocol29 and that, in his view (as he testified at the evidentiary hearing), Deputy
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Chief MacIntyre had no pre-implementation role in the Melendres litigation.30
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In sum, Deputy Chief MacIntyre had no knowledge of the Courts oral directives of
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May 14, 2014, and no involvement in implementing MCSOs collection protocol. Indeed, this
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Court, after discussing the preliminary injunction and discovery related issues, has noted that
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Chief MacIntyre is not up on [this] third charge.31 Accordingly, on this point, no more need
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be said.
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2.
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In the OSC, the Court suggests that the MCSO failed to reasonably and diligently
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respond to discovery requests, as required by the Federal Rules of Civil Procedure.32
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Specifically, the Court noted that Defendants never disclosed that MCSO deputies were in
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The Federal Rules of Civil Procedure Governing Pre-Trial Discovery
See, e.g., Deposition of John MacIntyre (March 16, 2015) at 204:10205:20. Of greater
importance, there is no evidence in the record that he disregarded or knowingly violated any
Order of the Court
29
Deposition of Gerard Sheridan (March 20, 2015) at 89:17-19.
30
Id. at 90:2; Evidentiary Hearing Tr. (Apr. 24, 2015) at 956:9-11.
31
Evidentiary Hearing Tr. (Apr. 23, 2015) at 805:12-14.
32
Doc. 880 at 18:3-4.
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possession of, and used during their official duties (in some cases, specifically by HSU
mandated procedure), body and/or vehicle mounted audio or video recording devices.33 In
addition to the non-disclosure of recordings made with the referenced devices, Defendants also
allegedly did not disclose personal property and identification information confiscated by
patrol deputies, nor the written reports of the HSU unit. However, none of these observations
apply to Deputy Chief MacIntyre.
The Court has required that Deputy Chief MacIntyre show cause why he should not be
held in contempt for abetting Defendants discovery violations.34 On the basis of the Courts
prior findings that Deputy Chief MacIntyre has already once borne responsibility for the
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2008 litigation hold violation (not an issue in this OSC proceeding), the Court observed that
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Deputy Chief MacIntyre may have played a continuing role in MCSOs discovery process, and
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in the Defendants failure to disclose the evidence currently at issue.35
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There was at the time - - and there certainly is now - - no evidentiary support for such
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an inference, particularly in evaluating a possible criminal contempt referral. Deputy Chief
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MacIntyres inadvertent failure (for which this Court has already imposed sanctions) to timely
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forward the 2008 litigation hold letter to the responsible MCSO personnel has no bearing on
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the Courts current concern (alleged years after the 2008 events) that Deputy Chief MacIntyre
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may have abetted the Defendants in subsequent and independent alleged violations of the
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discovery rules. At no time during the course of this litigation has Deputy Chief MacIntyre
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personally been responsible for collecting or producing evidence, or for otherwise managing
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the discovery process. There is no evidence to the contrary.
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Former counsel for the MCSO, Timothy Casey, testified before this Court that after the
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issue surrounding the preservation hold letter in 2008, Deputy Chief MacIntyre was no
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Id. at 20:3-15.
Id. at 21:9-10.
Id. at 21:11-26; Evidentiary Hearing Tr. (Apr. 23, 2015) at 801:6-8.
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longer involved with discovery matters.36 In fact, Mr. Casey confirmed the statements of
Deputy Chief Macintyre contained in his declarations that implementation of discovery
policies was the responsibility of a lieutenant in the Legal Liaison section, under the
appropriate Deputy (Sworn) Chief.37 When Mr. Casey needed to follow up on, or elevate the
importance of, an issue, he did not go to Deputy Chief MacIntyre, but followed the chain of
command. If the MCSO Legal Liaison section was not responsive, Mr. Casey tried to
circumvent that process and [Casey] went to Chief Brian Sands, explained my concerns, and
then he [Sands] went to Lieutenant Sousa.38
Deputy Chief MacIntyre is, in fact, and always has been a civilian employee of the
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MCSO and has never had operational involvement with the Deputy (Sworn) Bureaus.39 As
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noted by Executive Chief Olsen, Deputy Chief MacIntyres direct supervisor:

The deputy chiefs on the detention side dont have the training in
law enforcement. Theyre not certified peace officers. [Detention
Deputy Chiefs] dont get involved in law enforcement operations.
Thats a whole other group, and theyve got the expertise and they
deal with that.40
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Therefore, Deputy Chief MacIntyre has never been involved in any traffic or pedestrian stop
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(and lacks the official authority to engage in such activities); he has never gone on a field
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operation, or briefed or accompanied any field unit of the Sheriffs Office.41 Indeed, Deputy
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Chief MacIntyre testified (at his deposition) that he was not even aware (until after the 2014
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arrest of Deputy Armendariz) of the existence of any audio recordings, video recordings,
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personal identification or personal property confiscated by patrol personnel.42
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36
Evidentiary Hearing Tr. (Sept. 29, 2015) at 1618:16-23.

Id. at 1618:24-25; Doc. 896 14-16.
38
Evidentiary Hearing Tr. (Sept, 29, 2015) at 1619:4-1.
39
Evidentiary Hearing Tr. (Apr. 21, 2015) at 103:2021; Evidentiary Hearing Tr. (Apr.
24, 2015) at 955:4-9; Accord: Deposition of John MacIntyre (March 16, 2015) at 31:3-23.
40
Evidentiary Hearing Tr. (Oct. 27, 2015) at 3659:5-9.
41
Deposition of John MacIntyre (March 16, 2015) at 31:3-23.
42
Id. at 40:2341:21. Again, the record of the evidentiary hearing provides no evidence to
the contrary.
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As noted above, Sheriff Arpaio, Chief Deputy Sheridan, and Executive Chief Olsen
have each confirmed that Deputy Chief MacIntyre did not have a role in the Melendres
litigation. While Deputy Chief MacIntyre is a licensed attorney, Sheriff Arpaio indicated (at
his deposition) that Deputy Chief MacIntyres administrative role (if any) with respect to legal
issues was limited to the civil department and, in any event, did not involve the Melendres
litigation.43 When asked specifically whether Deputy Chief MacIntyre consulted on issues
related to the Melendres lawsuit, Sheriff Arpaio indicated, as previously noted: We had a
[different] lawyer [for that].44
Neither Plaintiffs nor the Court in the OSC has identified any evidence that Deputy
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Chief MacIntyre was involved in any Melendres-related discovery, beyond his limited (and
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currently irrelevant) role in 2008.
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Timothy Casey. Any inference that Deputy Chief MacIntyre is responsible for, or had a role
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in, MCSOs subsequent discovery process is simply unfounded.
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inference, based on the acknowledged, inadvertent mishandling of a single litigation hold letter
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seven (7) years ago, falls far short of the knowing and willful conduct standard required for
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finding Deputy Chief MacIntyre guilty of criminal contempt or to support a criminal referral
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by this Court.
This was confirmed by then-counsel for the MCSO,
In any event, such an
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3.
The Preliminary Injunction
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The Court has also ordered the Defendants, and certain non-parties including Deputy
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Chief MacIntyre, to show cause why they should not be held in contempt for failure to abide
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by the terms of the Preliminary Injunction. There is, however, no evidence that Deputy Chief
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MacIntyre ever violated the letter or spirit of the Preliminary Injunction. Indeed, in April
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2015, the Court noted that as it pertains to the preliminary injunction charge, I haven't yet
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heard anything that makes me think that Chief MacIntyre is going to be liable on that
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44
Deposition of Joseph M. Arpaio (March 25, 2015) at 142:1-11.

Id. at 142:19-24.
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charge.45 We respectfully submit that the Courts observation was correct (and prescient) in
April 2015, and that nothing has changed. At most, Deputy Chief MacIntyre is accused of
failing to promptly disseminate or distribute the Preliminary Injunction when such
distribution was not his responsibility; when the target patrol personnel were not within his
scope of authority; when neither MCSO, the Sheriff nor MCSOs trial counsel were relying
on him to do so; when he did in fact advise the Sheriff and others of the terms of the
Preliminary Injunction; and when all appropriate senior MCSO personnel did, in fact, receive
a copy of the Preliminary Injunction.
We suspect the only reason that Deputy Chief MacIntyre has been required to endure a
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continuing presence (financially, physically and emotionally) in this case is because he was
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one of four individuals who received an unsolicited e-mail from then MCSO counsel Timothy
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Casey regarding the Preliminary Injunction. But Mr. Casey has testified that he copied
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Deputy Chief MacIntyre only as a professional courtesy and that he had no expectation that
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Deputy Chief MacIntyre would do anything in response.
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The Court has noted that the MCSO has conceded that Deputy Chief MacIntyre did
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not have responsibilities with respect to the information contained in Timothy Caseys
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(above-referenced) Preliminary Injunction e-mail.46 The MCSO has further confirmed that
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MacIntyre lacked an official duty to act regarding the implementation of the preliminary
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injunction[.]47
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In its Motion for Reconsideration (on privilege issues), the MCSO argued cryptically
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that attorney-client privilege should attach to e-mails received by Deputy Chief MacIntyre
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because MacIntyre somehow served the Sheriffs Office beyond his official duty to act
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regarding detention facilities.48 The Court, however, declined to extend the privilege to
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48
See Evidentiary Hearing Tr. (Apr. 23, 2015) at 804:22805:1.

Doc. 986 at 7:7-8.
Doc. 978 at 4:15-16.
Id. at 4:4-5.
- 13 -
communications with Deputy Chief MacIntyre, in part because he did not have a sufficient
need to know, and because the MCSO had not demonstrated that these e-mails were
relevant to Deputy Chief MacIntyres role in the organization.49 As noted in the Courts
Order rejecting the privilege assertion, there was no reason for Deputy Chief MacIntyre to
facilitate dissemination of the Preliminary Injunction to or for other recipients of the email
who demonstrably had identical and independent contact with [Defense] counsel.50
As the Defendants have acknowledged -- and as the Court has in effect already found
for other (privilege-related) purposes -- Deputy Chief MacIntyre had no responsibilities with
respect to the Preliminary Injunction. Any inference or suggestion to the contrary is wholly
10
without evidentiary support. As noted, former MCSO counsel, Timothy Casey, testified that
11
Deputy Chief MacIntyre was copied on this e-mail solely as a professional courtesy, and
12
that he was aware that Deputy Chief MacIntyre had no chain of command responsibility to
13
act on the injunction.51 The Court has properly observed that Deputy Chief MacIntyre
14
believed that he had no obligation to implement the preliminary injunction within the
15
MCSO.52
16
MacIntyre lacked the authority to implement any aspect of the Courts Preliminary
17
Injunction.53
Deputy Chief MacIntyres supervisor testified, in turn, that Deputy Chief
18
Defense counsel Timothy Caseys December 23, 2011 e-mail was directed to a number
19
of recipients, including MCSO Chief Deputy Sheridan, Executive Chief (Retired) Brian
20
Sands, Lieutenant Sousa, and Deputy Chief MacIntyre (the only official copied on the e-mail
21
22
23
24
25
26
49
Doc. 986 at 7:178:6.

Id. at 7:19-21.
51
See Evidentiary Hearing Tr. (Sept. 29, 2015) at 1633:9-12.
52
Doc. 880 at 15:2223. Indeed, as noted above, during the OSC hearing the Court noted
that as it pertains to the preliminary injunction charge, I haven't yet heard anything that makes
me think that Chief MacIntyre is going to be liable on that charge. Evidentiary Hearing Tr.
(Apr. 23, 2015) at 804:22805:1.
53
See Evidentiary Hearing Tr. (Oct. 27, 2015) at 3666:14-17 (Chief Olsen testified that
Deputy Chief MacIntyre was not expected to, and did not have a responsibility for, ensuring
that the Preliminary Injunction was followed.); Doc. 896 8-10.
50
- 14 -
who was not, directly or indirectly, in charge of patrol deputies).54 The e-mail was sent on
December 23, 2011, after the Courts issuance of the Preliminary Injunction.
Indeed, Deputy Chief MacIntyre read (quoting the Order verbatim) to Sheriff Arpaio
and members of the command staff directly from the Preliminary Injunction.55 Deputy Chief
MacIntyre testified that he read the order twice,56 to ensure that its full importance was
recognized by the operational staff (including the Sheriff) with the authority to implement the
requirements of the Order. Although arguably outside his authority, this incident evidences
that Deputy Chief MacIntyre acted in support of, and not in defiance of, this Courts Orders.
Deputy Chief MacIntyres testimony that members of the operational staff were fully
10
aware of the Order is supported by the testimony of Executive Chief (Retired) Brian Sands,
11
among others. Executive Chief Sands has confirmed that MCSO counsel, Timothy Casey,
12
showed him the Preliminary Injunction and discussed with him how it affected MCSO
13
deputies.57 After his meeting with then-counsel Timothy Casey, Executive Chief Sands
14
recalled that he met with Deputy Chief MacIntyre, and that Deputy Chief MacIntyre asked
15
Executive Chief Sands whether he had received the Preliminary Injunction e-mail.58
16
Executive Chief Sands indicated that he had; and when asked by Deputy Chief MacIntyre if
17
the deputies were aware of the Injunction, Executive Chief Sands indicated that he had
18
already discussed the matter with Chief Deputy Sheridan and Sheriff Arpaio, and that they
19
seemed to be in concert with what Casey had told them.59
20
Executive Chief Sands also testified that following receipt of the Preliminary
21
Injunction, steps were taken to distribute the order, including setting a meeting for MCSO
22
54
23
24
25
26
55
56
57
58
59
Doc. 880 at 10, n. 6.

Id. at 1880:6-8.
Interview of Executive Chief Brian Sands by Chief Donald Anders (Dec. 29, 2014) at
89:18 90:8.
Id. at 91:612; Evidentiary Hearing Tr. (Apr. 22, 2015) at 340:1-6.
91:17-20.
- 15 -
counsel Timothy Casey to meet with Lieutenant Sousa, in addition to various
communications (and initial development of videos) concerning training.60 Executive Chief
Sands concluded that MacIntyre had nothing to do with this operationally Now
MacIntyres out of the picture, and [a]nd quite frankly, MacIntyre wouldnt have anything
more to do with [the preliminary injunction] than making sure the Sheriff and I know about it
and Sheridan.61 Executive Chief Sands assured Deputy Chief MacIntyre that action was
being taken to inform patrol deputies of the Courts Order.
This picture of Deputy Chief MacIntyres limited role, responsibilities and actions is
not only supported by the testimony of Executive Chief Sands (and others), but also by the
10
deposition testimony of Sheriff Arpaio. The Sheriff testified that he was informed of the
11
Preliminary Injunction within a week of its issuance (possibly prior to its receipt by Deputy
12
Chief MacIntyre) and that he delegated responsibility for dissemination and implementation
13
to Chief Deputy Sheridan and Executive Chief Sands, who was running the operation.62
14
When asked specifically about who within the MCSO was responsible for ensuring
15
compliance with the Preliminary Injunction, Sheriff Arpaio testified: I gave [Sheridan and
16
Sands] the mission of doing it.63
17
Stated simply, there is no evidence that Deputy Chief MacIntyre had authority over
18
patrol deputies, nor any material involvement with any MCSO enforcement activities.
19
MCSOs top enforcement officials (e.g., Sheriff Arpaio, Chief Deputy Sheridan and
20
Executive Chief Sands) and counsel (e.g., Timothy Casey) had knowledge of the Preliminary
21
Injunction, and those same officials have indicated that Deputy Chief MacIntyre had no
22
23
24
25
26
60

92:1-18.
62
Deposition of Joseph M. Arpaio (March 25, 2015) at 49:2-24.
63
Id. at 51:20. The record of the evidentiary hearing is not materially inconsistent.
61
- 16 -
implementation responsibilities with respect to the Courts Order.64 As suggested by the
Court at an earlier stage of the proceedings, there is no evidence of record that even remotely
suggests that any action of Deputy Chief MacIntyre violated the terms of the Courts
Preliminary Injunction or that he knowingly abetted anyone else in committing such a
violation.
IV.
CONCLUSION
A finding of criminal contempt requires proof, beyond a reasonable doubt, that the
alleged contemnor intentionally committed a volitional action which he knew would violate
the Courts Orders. Special counsel for Deputy Chief MacIntyre respectfully submits that
10
there is literally no evidence in the record of this case that could support a criminal contempt
11
referral (let alone a criminal contempt indictment and conviction) against Deputy Chief
12
MacIntyre. For these reasons, and based upon the foregoing authorities and the record of this
13
case, undersigned counsel respectfully request that the Court enter an order determining that
14
there will be no criminal contempt referral with respect to Deputy Chief MacIntyre.
15
RESPECTFULLY SUBMITTED this 19th day of November, 2015
16
DICKINSON WRIGHT PLLC
17
By: s/ Gary L. Birnbaum

Gary L. Birnbaum
David J. Ouimette
1850 N. Central Ave., Suite 1400
Phoenix, Arizona 85004-4568
Attorneys for Deputy Chief
John Jack MacIntyre
18
19
20
21
22
23
24
25
26
64
The Court has cited a Ninth Circuit decision indicating that defendants must perform
all reasonable steps within their power to insure compliance. Doc. 880 at 7:4-6 (citing
Stone v. City & Cnty. of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992). There is no
requirement that a Deputy ignore the limits on his authority and responsibilities and go outside
his command structure to insure compliance with any order. In this case, the record reveals
that Deputy Chief MacIntyre may in fact have gone somewhat outside of his command
structure but only to insure that the Preliminary Injunction had been received, and to inquire
whether or not deputies were being briefed on the Courts Order. Having personally informed
the Sheriff of the Order, and having been informed by the Executive Chief that the MCSO was
taking the necessary enforcement steps to inform the patrol deputies, Deputy Chief MacIntyre
clearly had taken all reasonable steps, within his power, to insure compliance.
- 17 -
CERTIFICATE OF SERVICE
I hereby certify that on November 19th, 2015, I electronically transmitted the attached
document using the CM/ECF system for filing, and which will be sent electronically to all
registered participants as identified on the Notice of Electronic Filing, and paper copies will be
sent to those indicated as non-registered participants. The Evidentiary Appendix in Support of
the Renewed Request by Non-Party Deputy Chief John Jack MacIntyre for Determination
that Criminal Contempt Charges Will Not Be Pursued/Referred Against Him Personally was
similarly filed and transmitted/delivered at the same time and in the same manner.
3
4
5
6
7
s/ Suzanne Majorczak, CP
8
9
PHOENIX 63483-1 259264v3
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
- 18 -
Case 2:07-cv-02513-GMS Document 1568-1 Filed 11/19/15 Page 1 of 127

Melendres # 1568 - MacIntyre Renewed Motion

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Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 1 of 18

Gary L. Birnbaum (#004386)

Special Counsel for Deputy Chief John Jack MacIntyre

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres, et al.,

Joseph M. Arpaio, et al.

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 2 of 18

in connection with a possible criminal contempt proceeding.

others, there is no connection (and certainly no meaningful or incriminating connection)

charge of criminal contempt.

THE CRIMINAL CONTEMPT STANDARD

contemptuous disregard of a Court order to support a charge of civil contempt;1 a finding of

For a nonparty to be held liable in contempt, it is necessary that [the] non-party

Doc. 880 at 6:1821.

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 3 of 18

is potentially an important limitation in this case.

violated] must be shown beyond a reasonable doubt.6 Willfulness is demonstrated by a

wrongful.7 Willfulness means a deliberate or intended violation, as distinguished from an

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 4 of 18

the Courts continued consideration of a possible criminal contempt referral.

THERE IS NO EVIDENCE THAT DEPUTY CHIEF MACINTYRE

of an evidence-collection protocol). The OSC relates to allegations of contemptuous conduct

by the MCSO, including allegations of such importance as knowingly and intentionally

However, as to Deputy Chief MacIntyre, there are no factual allegations of

from the possibility of a criminal contempt referral.

Counsel took the unusual step of

1. Deputy Chief MacIntyre never possessed the authority or responsibility to advise,

Doc. 896 810.

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 5 of 18

2. Following the events surrounding a 2008 litigation hold letter previously

At the suggestion of the Court, Deputy Chief MacIntyres special

Nevertheless, Plaintiffs have yet to identify any

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 6 of 18

Preliminary Injunction or otherwise.15

Deputy Chief MacIntyre had no State authorized arrest powers.16

enforcement operations, or to give enforcement staff advice or instruction on conducting law

Importantly, MSCOs then-counsel Timothy Casey testified during the evidentiary

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 7 of 18

that he ever was involved.

the Melendres litigation.22

[different] lawyer [for that].23

When asked specifically whether Deputy Chief MacIntyre

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 8 of 18

Out of an abundance of caution, we nevertheless review specifically below each of the

context, and to help guide the Courts consideration of this Request.

The Courts Directives at the Hearing Held on May 14, 2014

Courts Monitor concerning the collection of Armendariz-related evidence.26 In fact, the

Casey, Tom Liddy, and Christine Stutz.27

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 9 of 18

command did not possess any responsive evidence.28

Chief MacIntyre had no pre-implementation role in the Melendres litigation.30

respond to discovery requests, as required by the Federal Rules of Civil Procedure.32

The Federal Rules of Civil Procedure Governing Pre-Trial Discovery

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 10 of 18

apply to Deputy Chief MacIntyre.

in the Defendants failure to disclose the evidence currently at issue.35

an inference, particularly in evaluating a possible criminal contempt referral. Deputy Chief

the discovery process. There is no evidence to the contrary.

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 11 of 18

Deputy Chief Macintyre contained in his declarations that implementation of discovery

then he [Sands] went to Lieutenant Sousa.38

noted by Executive Chief Olsen, Deputy Chief MacIntyres direct supervisor: