Professional Documents
Culture Documents
1 T.E. Wheeler, II
Acting Assistant Attorney General
2 Steven H. Rosenbaum (NY Bar No. 1901958)
3 Paul Killebrew (LA Bar No. 32176)
Matthew J. Donnelly (IL Bar No. 6281308)
4 Cynthia Coe (DC Bar No. 438792)
Maureen Johnston (WA Bar No. 50037)
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U.S. Department of Justice, Civil Rights Division
6 Special Litigation Section
601 D St. NW, Suite 5200
7
Washington, D.C. 20004
8
Attorneys for the United States
9
IN THE UNITED STATES DISTRICT COURT FOR THE
10 DISTRICT OF ARIZONA
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12 Manuel de Jesus Ortega Melendres, on No. 2:07-cv-02513-GMS
behalf of himself and all others similarly
13 situated; et al.
14
Plaintiffs, UNITED STATES
15 STATEMENT ON STANDING
16 and OF FORMER SHERIFF
ARPAIO, FORMER CHIEF
17 United States of America DEPUTY SHERIDAN, AND
18 LIEUTENANT SOUSA
Plaintiff-Intervenor,
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v.
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21 Paul Penzone, in his official capacity as
Sheriff of Maricopa County, AZ; et al.
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23 Defendants.
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1 Plaintiff class were insufficient, invalid, or void because they were completed using
2 unacceptable internal affairs practices or were conducted in a cursory and bad faith
3 manner. (See, e.g., id. at 489, 572, 692.)
4 However, the Court found there was no need to use the Courts contempt power
5 to coerce Defendants to comply because Plaintiffs did not assert that Defendants
6 remain in violation of the Courts preliminary injunction. (Id. at 878.)
7 This Court ordered remedies to address the violations described in the Findings of
8 Fact in two ways. First, on August 19, 2016, the Court issued an order setting forth a
9 plan to compensate victims of the contempt found under Count 1individuals MCSO
10 detained in violation of the Courts preliminary injunction. (Doc. 1791.) Second, on
11 August 26, 2016, the Court entered the Second Supplemental Injunction to remedy the
12 failures of policy, training, and supervision that led to the violations identified in the
13 Findings of Fact. (Second Amended Second Supplemental Permanent Injunction/
14 Judgment Order, Doc. 1765, amending Doc. 1760.) The Court created the positions of
15 the Independent Investigator and the Independent Disciplinary Authority to address
16 certain deficient internal affairs investigations. (Id. at 294-337.) The Court vested the
17 Independent Investigator and the Independent Disciplinary Authority with the power to
18 decide whether the deficient investigations warranted re-investigation, and whether
19 discipline was appropriate. (Id. at 296, 304, 322, 325, 334.) The Court also vested
20 authority in the Monitor to oversee and/or conduct future investigations into misconduct
21 that involved members of the Plaintiff class. (Id. at 274-293.)
22 On August 19, 2016, the Court also referred Arpaio, Sheridan, Captain Bailey, and
23 Michele Iafrate to another Judge of this Court . . . for a determination of whether [they]
24 should be held in criminal contempt. (Order Re Criminal Contempt, Doc. 1792 at 1.)
25 The federal district court to which the matter was referred signed an Order to Show
26 Cause on October 25, 2016, as to whether Arpaio should be held in criminal contempt for
27 willful disobedience of this Courts preliminary injunction. See United States v. Arpaio,
28 No. 2:16-CR-01012-1-SRB (D. Ariz. Oct. 25, 2016) (Doc. 36). On December 13, 2016,
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1 that Court dismissed Sheridan, Bailey, and Iafrate from the criminal contempt
2 proceedings and issued an order stating that the criminal case would proceed against
3 Defendant Arpaio only for those allegations of criminal contempt in the Order to Show
4 Cause. Id. (Doc. 60 at 4).
5 On November 10, 2016, the Non-Party Contemnors filed a motion to
6 prospectively recuse this Court and its Monitor. They also filed a separate motion for
7 leave to seek discovery into allegedly improper past communications between the Court
8 and the Monitor. They asserted that this information would inform them whether prior
9 court orders should be vacated. (Docs. 1878, 1884.)
10 In January 2017, Sheriff Penzone became the Sheriff of Maricopa County, and this
11 Court substituted him as the defendant on January 13, 2017. (Doc. 1923.) Sheriff
12 Penzone filed a notice on March 10, 2017 stating that he will not assert or pursue any
13 portions of the recusal and discovery motions filed by the Non-Party Contemnors. (Doc.
14 1977.) On March 23, 2017 the Non-Party Contemnors filed a brief asserting that they
15 have standing to pursue these motions. (Doc. 1987.)
16 ARGUMENT
17 Article III demands that an actual controversy persist throughout all stages of a
18 case. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013); see also Arizonans for
19 Official English v. Arizona, 520 U.S. 43, 64 (1997) (holding that standing must be met
20 by persons seeking appellate review, just as it must be met by persons appearing in courts
21 in the first instance). Evaluating the standing of litigants throughout the course of a case
22 serves the interest of ensuring that Article III standing not be placed in the hands of
23 concerned bystanders, who will use it simply as a vehicle for the vindication of value
24 interests. Diamond v. Charles, 476 U.S. 54, 62 (1986) (internal citations omitted).
25 Arpaio, Sheridan, and Sousa are not parties to this case and not personally
26 responsible for enforcing this Courts orders. The question now before the Court is
27 whether they have demonstrated a sufficient personal or tangible stake in A) the
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1 prospective recusal of the Court and the Monitor; and B) obtaining discovery in search of
2 evidence to invalidate past court orders.
3 Standing has three requirements. First, litigants must demonstrate that they
4 suffered a concrete and particularized injury. Lujan v. Defenders of Wildlife, 504 U.S.
5 555, 560 (1992). Second, the claimed injury must be one that fairly can be traced to the
6 challenged action . . . and not injury that results from the independent action of some
7 third party not before the court. Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26,
8 41-42 (1976). Third, litigants must demonstrate that their injuries are likely to be
9 redressed by a favorable judicial decision. Warth v. Selden, 422 U.S. 490, 505-06 (1975).
10 There must be a substantial likelihood that victory in the suit would provide the relief or
11 benefit sought. Simon, 426 U.S. at 45.
12 What is sufficient to establish standing also depends on what relief is sought.
13 Where litigants seek injunctive or prospective relief, they must also show that that they
14 are in immediate[ ] danger of sustaining some direct injury and demonstrate that such
15 injury is neither conjectural nor hypothetical. See Los Angeles v. Lyons, 461 U.S. 95,
16 102 (1983).
17 Here, the Non-Party Contemnors assert standing both for the prospective recusal
18 of this Court and the Monitor and for discovery into past allegedly improper
19 communications between the Court and the Monitor. (Doc. 1987 at 7, 10.) Because each
20 of the Non-Party Contemnors asserts overlapping but distinct arguments for their
21 standing for each motion, the following sections will examine each Non-Party
22 Contemnors arguments for each motion. Section A discusses their arguments for
23 standing to seek the prospective recusal of the Court and the Monitor. Section B
24 discusses their arguments for standing to seek discovery.
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1 must make independent decisions within his own delegated responsibility. (Id. at
2 310.)
3 The Court itself only has the authority to impact future discipline imposed by the
4 Independent Disciplinary Authority in one rare instance, following a long sequence of
5 independent acts, including if the Independent Investigator initiates and completes a
6 reinvestigation, and if the Independent Disciplinary Authority imposes serious discipline
7 of suspension, demotion, or termination. (Id. at 162(b), 337(b).) The employee might
8 then be entitled to appeal this discipline to the Maricopa County Law Enforcement Merit
9 System Council, and [t]he Council may exercise its normal supervisory authority over
10 discipline imposed with one caveat. (Id. at 337(b).) The Council may not explicitly
11 or implicitly exercise its discretion to reduce discipline on the basis that the matter was
12 not timely investigated or asserted by MCSO because doing so would constitute an
13 undue impediment to the remedy that the Plaintiff class would have received for the
14 constitutional violations inflicted by the MCSO if the MCSO had complied with its
15 original obligations to this Court. (Id.) Thus, only if the Merit Council reduced or
16 vacated discipline on the basis described, could the Plaintiff class then seek the reversal
17 of such reduction with the Court. This possibility is too remote and speculative for Sousa
18 to establish standing to seek prospective recusal of the Court.
19 ii. Recusal of the Monitor would also not redress the alleged
20 future harms because the Monitor also lacks a substantial
21 role in the reinvestigations
22 The chance that the Monitor would become involved in the reinvestigations is also
23 remote and speculative and would only impact MCSO employees who receive minor
24 discipline from the Independent Disciplinary Authority. Employees found to have
25 committed minor misconduct receive discipline less severe than a suspension. (Id. at
26 162(a).) They may file a grievance if they are not satisfied with minor discipline [they]
27 received. See Employee Grievance Procedures, GC-16 at 9, attached as Exhibit 1. In
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1 such cases, the Monitor shall have the authority to decide the grievance. Id. at 10;
2 (Doc. 1765 at 337(a).)
3 The Monitor would only assume this role after the Independent Investigator
4 concluded his investigation, and the Independent Disciplinary Authority adjudicated it
5 and imposed minor discipline. In that circumstance, the Monitors role in deciding the
6 grievance would not be to revisit the investigative findingswhich are the exclusive
7 province of the Independent Disciplinary Authoritybut to assess whether policy was
8 followed during the investigation. The grievance procedure can only be initiated by the
9 employee under investigation, and the point of deciding a grievance is not to increase
10 discipline, as the Non-Party Contemnors suggest. (Doc. 1987 at 5.) Rather, the
11 grievance process is intended to provide employees with a positive and effective way to
12 address concerns related to Office policy and procedure . . . and to resolve disputes
13 pertaining to administrative investigations and minor discipline. GC-16, at 1.
14 Moreover, the Monitors authority is limited to addressing disputes to minor discipline
15 imposed; any serious discipline of suspension or higher triggers the process outlined in
16 the Maricopa County Merit System Rules. Id. at 2. Given the Monitors lack of a
17 substantial role in the reinvestigations, his recusal would not redress any alleged harms
18 from those reinvestigations.
19 c. Potential loss of law enforcement certification is not fairly
20 traceable to the Court or the Monitor
21 Sheridan and Sousa also fail to demonstrate that any action taken by AZPOST
22 including investigation, suspension, or revocation of their police officer certificationis
23 fairly traceable to a future adverse finding or discipline resulting from investigations
24 conducted by the Monitor or the Independent Investigator. They also fail to explain how
25 the prospective recusal of this Court and the Monitor would impact the actions of
26 AZPOST at all.
27 AZPOST is an independent entity that is not connected to this Court or the
28 Melendres proceedings. Its authority comes from state law, and the AZPOST Board has
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1 the discretion to deny, cancel, suspend, or revoke the certified status of a peace officer
2 when there is cause to do so. See Ariz. Admin. Code R13-4-109. The Board holds the
3 ultimate authority over whether officers lose their certification. See Ariz. Admin. Code
4 R-13-4-109(D) (stating that when determining whether to initiate an inquiry, [t]he Board
5 may conduct additional inquiries or investigations to obtain sufficient information to
6 make a fair determination). Should the Board act, the law enforcement officer under
7 review is entitled to prompt notification and other procedural rights under state law. See
8 Ariz. Admin. Code R-13-4-109(E).
9 Because the Board takes actions based on its own standards, pursuant to the
10 decisions of its members, any action to suspend or revoke Sheridans or Sousas
11 certification cannot be fairly traced to the actions of the Court or the Monitor.
12 d. Vague claims of reputational harm are insufficient to confer
13 standing for prospective relief
14 Finally, Sheridan and Sousa claim that any future finding of wrongdoing from an
15 internal affairs investigation conducted by the Independent Investigator would cause
16 them grave reputational harm. (Doc. 1987 at 7.) Sheridan and Sousa essentially argue
17 that potential discipline arising from future investigations may result in future
18 reputational harm. This argument fails for two reasons. First, where litigants request
19 prospective relief, as they do here, they must demonstrate that they are in immediate
20 danger of harm. See Lyons, 461 U.S. at 104. These claims of possible future reputational
21 injury are much too speculative to entitle Sheridan and Sousa to prospective relief,
22 particularly where any potential injury depends, in part, on their own actions. See Lujan,
23 504 U.S. at 565. Second, as explained above, the Court and the Monitor are not involved
24 in the reinvestigations into Sheridans and Sousas misconduct; any future reputational
25 injury would therefore not be fairly traceable to the Court and the Monitor.
26 Further, vague injury to reputation does not alone establish the concrete and
27 particularized injury necessary for standing. (This issue is addressed at greater length in
28 Section B.5., infra.) Sheridan and Sousa have failed to demonstrate that they are in
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1 immediate danger of reputational injury, and that this injury could be redressed by the
2 prospective recusal of the Court.
3 *****
4 Ultimately, if Sousa or any other MCSO employee receives discipline, it will be
5 the result of acts that are attributable to multiple independent entities, including the
6 Independent Investigator, the Independent Disciplinary Authority, the Merit Council, and
7 the AZPOST Board. With so many third parties involved, any potential injury
8 discipline, loss of AZPOST certification, future reputational harmis too far removed
9 from the influence of the Court or the Monitor to establish standing for prospective relief.
10 See, e.g., Lujan, 504 U.S. at 562 (holding that where causation and redressability hinge
11 on the unfettered choices made by independent actors not before the courts the burden
12 is on the plaintiff to show that those choices have been or will be made in such manner
13 as to produce causation and permit redressability of injury) (citations omitted).
14 Moreover, these potential injuries are not redressable by prospective recusal of the
15 Court and the Monitor. Any future removal of the Court and the Monitor from this case
16 would not impact the authority of the Independent Investigator and the Independent
17 Disciplinary Authority, who would continue to exercise their duties pursuant to the
18 Second Supplemental Injunction.
19 B. Arpaio, Sheridan, and Sousa Lack Standing to Seek Discovery into
20 Communications Between the Court and the Monitor
21 The Non-Party Contemnors also claim that they have standing to seek discovery
22 into the Courts communications with the Monitor because the courts prior orders have
23 injured movants in tangible ways. (Doc. 1987 at 10.) The Non-Party Contemnors do
24 not seek to vacate those orders at this time, however. They hope to establish a basis to
25 move in the future to vacate past orders. But the Non-Party Contemnors have not
26 asserted any injury for which discovery itself would provide redress. Further, even
27 assuming that future discovery did establish a basis to vacate past orders, that relief
28 would still not redress the alleged injuries that the Non-Party Contemnors claim.
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1 1. Sheridan and Sousa cannot establish that the discovery they seek
2 would redress any alleged injuries they claim could result from
3 reinvestigations of their misconduct
4 Sheridan and Sousa argue that the Second Supplemental Injunction injures them
5 because it requires reinvestigations that could result in discipline. These arguments fail
6 for many of the same reasons set forth above.
7 Again, Sheridan is no longer employed by MCSO and cannot plausibly assert that
8 any injury will come to him as a result of an MCSO internal affairs investigation. With
9 no injury, Sheridan lacks standing.
10 Sousa also cannot demonstrate that discovery in support of vacating the Second
11 Supplemental Injunction would redress his claimed injury of future discipline. Even if
12 Sousa obtained the relief he seeksboth prospective recusal of this Court and the
13 Monitor, and vacating past court ordersthat relief would not compel MCSO to cease
14 any open investigation into his past conduct, or to cease the imposition of any discipline.
15 What Sousa really seeksending for good all administrative investigations with no
16 discipline imposedwould actually require an additional court order terminating any
17 investigation of him and rescinding any discipline imposed on him. Such an order would
18 represent an extension of federal court authority well beyond any remedy this Court
19 provided in the Second Supplemental Injunction. (See, e.g., Doc. 1765 at 7.)
20 2. Any action by AZPOST is not fairly traceable to the Findings of Fact
21 Sheridan and Sousa next claim that any action taken by AZPOST is an injury
22 traceable to the Courts May 13, 2016 Findings of Fact, which subjected both Sheridan
23 and Sousa to investigation. (See Doc. 1987 at 12, Exhibit 1.) As explained above,
24 AZPOST is an independent body, created by state law, and bound by standards and
25 procedures that dictate when it is appropriate to take action involving the conduct of
26 certified peace officers in Arizona. Any injury that results from the actions of AZPOST
27 is not fairly traceable to the Courts Findings of Fact and not redressable by vacating
28 those findings.
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1 she knowingly and willfully violated a specific rule of ethical conduct because, if the
2 courts formal finding were permitted to stand, it would stigmatize [appellant] among
3 her colleagues and potentially could have a serious detrimental effect on her career. 222
4 F.3d at 1138. Cases from other circuits suggest that because courts are a critical feature
5 of the market in which attorneys compete, they face unique professional consequences
6 from reputational harm caused by courts disparaging findings about their conduct and
7 have standing to contest those findings. See, e.g., Walker v. City of Mesquite, Texas, 129
8 F.3d 831, 832-33 (5th Cir. 1997) (holding that the importance of an attorneys
9 professional reputation, and the imperative to defend it when necessary, obviates the need
10 for a finding of monetary liability or other punishment as a requisite for the appeal of a
11 court order finding professional misconduct); In re Williams, 156 F.3d 86, 97 (1st Cir.
12 1998) ([L]inguistic sanctions can . . . in the long run . . . strike the lawyers bank
13 account. . . .); Butler v. Biocore Medical Technologies, Inc., 348 F.3d 1163, 1168-69
14 (10th Cir. 2003) (recognizing the importance of an attorneys professional reputation
15 and holding that attorney who was sanctioned by district court had standing to appeal
16 orders disparaging language in part because district court had mailed the order to every
17 court in which [attorney] had been admitted to practice).
18 Ultimately, the Non-Party Contemnors do not explain what, if any, the alleged
19 reputational harm of being held in contempt has had on any of their cognizable financial
20 or legal interests. Without such a nexus, they lack standing to seek discovery.
21 CONCLUSION
22 For the reasons stated herein, the Non-Party Contemnors lack standing, and
23 their recusal and discovery motions should be dismissed.
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9
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/s/ Maureen Johnston
11 Paul Killebrew
Special Counsel
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Cynthia Coe (DC Bar No. 438792)
13 Matthew J. Donnelly (IL Bar No. 6281308)
Maureen Johnston (WA Bar No. 50037)
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Trial Attorneys
15 U.S. Department of Justice
Civil Rights Division
16
Special Litigation Section
17 601 D St. NW
Washington, D.C. 20004
18 Tel. (202) 353-1146
19 maureen.johnston@usdoj.gov
20 ATTORNEYS FOR THE UNITED STATES
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1 CERTIFICATE OF SERVICE
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3 I certify that on or about April 13, 2017, I filed the foregoing through the
4 Courts CM/ECF system which will serve a true and correct copy of the filing on
5 counsel of record.
6 /s/ Maureen Johnston
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