Case 2:07-cv-02513-GMS Document 1566 Filed 11/18/15 Page 1 of 10

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres, on

behalf of himself and all others similarly
situated; et al.

No. CV-07-2513-PHX-GMS
ORDER

Plaintiffs,

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and

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United States of America,

Plaintiff-Intervenor,

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v.

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Joseph M. Arpaio, in his official capacity as

Sheriff of Maricopa County, Arizona; et al.

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Defendants.

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The topics which the Court requests the Parties to address at the hearing on Friday,

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November 20, 2015 include, but may not be limited to, those set forth below. An

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efficient response to some of the questions may invite a written compilation or

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compilations, and may save the parties some of their time for oral presentation. See, e.g.,

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Question 12(c). To the extent that the parties wish to provide such written compilations,

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the Court welcomes stipulated compilations, or, at the least, responses that are identified

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with the question asked, filed with the Court and the other parties.

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1.

To the extent that the parties wish to argue more than they already have

done regarding Chief Sands pending Motion for Summary Judgment, (Doc. 1214) they

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should make such arguments within the time allotted to the sides for oral argument on

November 20, 2015.

2.

As the Court has already indicated, it feels free to consider the matters set

forth in the docket and the representations made by the parties and their representatives to

the Court during the status conferences and in the papers filed in this matter. It also feels

free to rely on its previous findings of fact and conclusions of law. If any party objects to

the Court doing so please state such objections and the basis therefore.

3.

In so doing, it occurs to the Court that some matters may still be under seal

for which there is no longer a continuing justification. It sets forth the proceedings or

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parts of which that have been sealed below and invites the parties to indicate the ones, as

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to which it believes, there may be a continuing basis to keep the matter under seal:

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(a) 08-07-14 Doc. 735

Telephonic Conference SEALED

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(b) 10-28-14 Doc. 780

Status Conference V. 2 SEALED

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(c) 04-22-15 Doc. 1021

Evidentiary Hearing Day 2 PORTION SEALED

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(d) 04-24-15 Doc. 1041

Evidentiary Hearing Day 4 PORTION SEALED

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(e) 10-01-15 Doc. 1456

Evidentiary Hearing Day 9 PORTION SEALED

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(f) 10-02-15 Doc. 1563

Evidentiary Hearing Day 10 PORTION SEALED

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(g) 10-08-15 Doc. 1472

Evidentiary Hearing Day 11 PORTION SEALED

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4.

In light of the fact that some reports have been outstanding for a long time

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and the Defendants have not yet, or have only recently submitted final versions, it occurs

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to the Court that there may be IA investigations that have been completed and submitted

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to the Monitor, or which may yet be completed and submitted to which the court may

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wish to refer. It proposes the following procedure: If it desires to review any IA report

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which has not been introduced into evidence, it will inform the parties which IA report

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number or numbers it is seeking from the Monitor. It will refer to the IA reports only to

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the extent that it wishes to ascertain the contents of the MCSO investigations and their

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findings and conclusionswhich would apparently be matters of public record for closed

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investigations.

Other than ascertaining the conclusions and the content of the

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investigation, it will not accept or reject any specific findings of the reports without

consulting with the parties. Further it will have no substantive communications with the

Monitor regarding the Monitors opinion concerning the adequacy of any report prepared

by MCSO without providing advanced notice to the parties and an opportunity to be

heard.

needs to raise such objections at oral argument.

If any party objects to this procedure, or desires to propose an alternate one--it

5.

There has been testimony that during the time that the preliminary

injunction was in effect, HSU roadside interdiction patrols detained and turned over to

ICE 171 persons for whom it had no state charges but whom it suspected of being in the

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country without authorization. Although the Court recalls testimony that a similar tally

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either existed or could be prepared for HSUs work place employment raids and/or other

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activities, it cannot recall that such a tally was ever subsequently admitted into evidence.

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The Court also remembers Lieutenant Sousas testimony pertaining to overhearing radio

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calls from MCSO operations that were not part of HSU, principally District II, pertaining

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to the transfer of non-chargeable unauthorized persons to ICE custody.

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a.

Please highlight for the Court any other testimony or exhibits that

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demonstrate the numbers of persons that may have been impacted by the MCSOs

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violation of this Courts preliminary injunction and the different ways in which they may

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have been impacted.

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b.

To the extent that the identity of such victims, or the extent of the

harm done to them, may or may not be ascertainable please indicate why.

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Video Recordings

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6.

The Court is aware from the evidence that the MCSO went through a

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process by which it reviewed videotapes that it recovered from the Deputy Armendariz

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investigation or from subsequent developments and inquiries. Chief Deputy Sheridan

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testified that this constituted approximately 8900 videos of traffic stops. Hr. Tr. at 934.

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The Court assumes that the MCSO reviewed all of the recordings it recovered from all

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sources including the Armendariz videotapes, the video recordings subsequently found in

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HSU offices, the video recordings it recovered from MCSO deputies and posse members

pursuant to Chief Trombis May collection efforts and other sources. If this is not

correct, please inform the Court.

a.

These videotapes which MCSO has apparently reviewed would

appear to be more extensive than those that were accounted for by Emily Doan that were

provided by the MCSO to Plaintiffs. See, e.g. Ex. 214 (enumerating 456 DVDs). Please

explain the discrepancy. Were any of the videotapes accounted for by Emily Doan

provided to the parties prior to the underlying trial in this matter?

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b.

Were any video tape recordings subsequently recovered by MCSO

that were not reviewed pursuant to the MCSO review procedure outlined at trial?
c.

There was testimony by Captain Bailey, among others, that the

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protocol followed by MCSO reviewers in reviewing the videotapes was turned over to

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the Monitor and/or the Plaintiffs. Please identify this protocol if it was admitted into

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evidence in this action.

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d.

Were Plaintiffs given access to any video recordings that came into

the possession of MCSO that they may have wished to review?

e.

The specific self-surrender of video files appears to be the subject of

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an Internal Affairs Investigation, see, e.g., Ex. 2943 (IA2014-0253). Is this investigation

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closed? Has any final report been issued in this or other investigations that pertains to

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MCSO video files?

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Monitor? Has such an investigation, or any part of it, been admitted into evidence?

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f.

Has such final report been provided to the parties and to the

As the testimony indicated, the review of such files also has resulted

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in various other internal affairs investigations, see, e.g., Ex. 2943

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investigations closed? Are all such investigations whether closed or pending listed on

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Ex. 2943? Please identify any matters that have arisen from videotape review and remain

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pending. Do all such investigations that are closed contain final reports? Please identify

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the matters arising from videotape review that are closed in which a final report either

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Are all such

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was or has not yet issued. Please identify the final reports for such matters that have been

admitted into evidence in this matter.

g.

In his April hearing testimony Sheriff Arpaio indicated that he

thought there was an MCSO internal affairs investigation into the MCSOs failure to

follow the Courts May 14, 2014 orders, but he did not know the results of that

investigation. (Tr. 635-36). To the extent that any such investigation ever occurred

please identify it. Identify whether it is opened or closed, whether a final report has ever

been issued, whether the investigation has been provided to the Parties and or the

Monitor, and/or whether it was admitted into evidence in this matter.

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Audio Recordings

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7.

The Court is aware from representations made by MCSO personnel at post-

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trial conferences and status hearings and the evidence at the contempt hearing of the

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capacity of MCSO patrol deputies to make audio recordings of their public encounters

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during the relevant discovery period in this case.

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a.

Please point to any admitted evidence suggesting that any audio

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recordings were recovered or reviewed by MCSO or made available to the Plaintiffs,

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either prior to trial in this action or thereafter.

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b.

The self-surrender of such files appears to be the subject of an

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Internal Affairs Investigation, see, e.g., Ex. 2943 (IA2014-0253). Is this investigation

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closed? Has any final report been issued in this or other investigations that pertains to

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MCSO audio files? Has it been provided to the Parties and/or the Monitor. Has it been

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admitted into evidence in this action?

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Reports

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8.

The Court is aware from representations made by MCSO personnel at post-

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trial conferences and status hearings and the hearing evidence that a number of MCSO

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reports relevant to the underlying trial were identified and provided after trial.

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a.

Have all such reports whenever located been made available and/or

provided to the Plaintiffs for their inspection?

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Are they all accounted for in the testimony of Emily Doan? See, e.g.

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Were any of these reports provided to Emily Doan provided prior to

Ex. 215?

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b.

the trial of this matter?

d.

Items including reports found after trial at Enforcement Support in

November 2014 appear to be the subject of an Internal Affairs Investigation, see, e.g., Ex.

2943 (IA2015-0018). Is this investigation closed? Has any final report been issued in this

or other investigations that pertain to responsive reports found and disclosed after the trial

of this matter? Have such reports been provided to the Parties and/or the Monitor? Have

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they been admitted into evidence in this action?

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Identifications

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9.

Throughout the post-trial period a number of identifications of persons,

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many of which appear to be identifications of potential members of the Plaintiff class,

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have come to light in the custody of the MCSO or its deputies.

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a.

There has been testimony that approximately 500 identifications

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were found on the property of Deputy Armendariz. Chief Deputy Sheridan testified that,

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as a general matter, he does not believe that investigators into the Armendariz matter

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looked into how these identifications came into the custody of MCSO deputy sheriffs.

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Has there been any contrary testimony or evidence? Has there been any contrary

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testimony or evidence as it relates to the identifications that have come forward since that

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time?

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b.

Such identifications appear to be the subject or partial subject of a

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number of PSB investigations. These include: IA2014-221 (Armendariz is the only

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principal), IA2014-0295 (criminal investigation of Cisco Perez allegations), IA2014-0339

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(what is 267 found in locker at HSU? Does this refer to Identifications?) IA2014-0541

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(does this investigation into property taken from drop houses also include

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identifications?) IA2014-0579 (Drivers license), IA2014-587 (Drivers license), IA2014-

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0588 (Id card), IA2014-0775, IA2014-776, IA2014-777, IA2014-0780, IA2014-0781,

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IA2014-782, IA2014-783, IA2014-821, IA2015-0022. Are these investigations closed?

Has any final report been issued in these or other investigations that pertain to

identifications found in the custody of MCSO or its deputies or volunteers? Have they

been provided to the Parties and/or the Monitor? Have they been admitted into evidence

in this action?

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c.

Were Plaintiffs given access to any such materials that they may

have wished to review?

Other Items of Personal Property and/or Tangible Things

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Throughout the post-trial period a number of items of property or tangible

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things including license plates, purses, credit cards, bank cards, debit cards, cell phones,

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narcotics, weapons, drugs, and currency that may have come from members of the

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Plaintiff class have continued to come to the attention of the Defendants.

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a.

Such property appears to be the subject or partial subject of a

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number of PSB investigations. These include: IA2014-221 (Armendariz is the only

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principal), IA2014-0295 (criminal investigation of Cisco Perez allegations), IA2014-0339

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(what is 267 found in locker at HSU? Does this refer to property?) IA2014-0541,

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IA2014-588 (Navy Credit Union card), IA2014-0780 (photos, docs), IA2014-817

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(drugs), IA2015-0018) (there are two entries for this in Ex. 2943, is there a reason for

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this? (cash, CDs), IA2015-0019 (purse) IA2015-21 (currency), IA2015-22 (2 cds 1

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notebook).

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b.

Are these investigations, and any investigations that MCSO intends

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to initiate on such property, closed? Has any final report been issued in these or other

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investigations that pertain to property found in the custody of MCSO or its deputies or

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volunteers? Have they been provided to the Parties and/or the Monitor? Have they been

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admitted into evidence in this action?

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c.

Were Plaintiffs given access to any such materials that they may

have wished to review?

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d.

Has the MCSO initiated any PSB investigation with Officer

Raphaelita Montoya as the principal, or reopened any PSB investigation involving other

principals for her admitted transfer of materials from HSU offices to Charley

Armendariz? If so which investigations? When were they initiated? Have they been

provided to the parties and the Monitor?

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This Court has already ruled that it could draw negative factual inferences

from the destruction of evidence resulting from the failure of Defendants to comply either

with the original preservation letters sent by Plaintiff to the MCSO on or about July 21,

2008.

Plaintiffs followed up the preservation letter with broad interrogatories and

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document production requests seeking any documents or tangible things referencing

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MCSO traffic stops, created during MCSO traffic stops, resulting from MCSO traffic

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stops or guiding an officers discretion during MCSO traffic stops. Examples of the

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relevant discovery requests are cited in the Order to Show Cause. (Doc. 880 at 18-20).

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To the extent that Plaintiffs assert that this Court is entitled to draw negative factual

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inferences for destroyed documents it should state why. To the extent that the Defendant

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contests otherwise, it should similarly so state. Similarly to the extent that the parties

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believe the Court does not have the power to fashion a remedy based on the materials

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withheld before trial they should so state.

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PSB Investigations Generally

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12.

Does Doc. 1420 (the unredacted version of Ex. 2943) disclose all assigned

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PSB investigations of which MCSO is aware with assigned IA numbers that are related to

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this case?

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a.

Is there any evidence which would suggest that Doc. 1420 and/or

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Ex. 2943 does other than accurately state the IA number, Principal, Findings, Discipline,

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Summary and Property associated with each investigation?

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b.

Are there matters or investigations related to this case or the

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Armendariz investigations, or the matters raised by them, of which MCSO is aware, that

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have not yet been or never were assigned an IA case number?

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Have any such

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investigations ever been suspended, abandoned or otherwise not yet completed? If so

please specifically identify such matters to the Court.

c.

Pursuant to Doc. 1420 and/or Ex. 2943 MCSO is still engaged in

ongoing internal investigations. Some, although now completed, may not have been

completed and provided to Plaintiffs prior to the time that these contempt hearings began.

Some, by the acknowledgement of the Defendants, will not have been completed until at

least shortly after the evidentiary proceedings in this contempt hearing have terminated,

see, e.g., IA2014-221, and still have yet to be provided to the Parties and/or Court

Monitor. For the reasons set forth above, with respect to all of the investigations

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identified in Doc. 1420 and/or Ex. 2943, please identify as precisely as possible: (1) the

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specific date on which the IA number was drawn or the investigation began whichever is

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earlier; (2) whether the investigation remains open; (3) the specific date on which the

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investigation was completed; (4) the specific date on which the complete investigation

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findings and supporting materials were provided to the Monitor; and (5) the specific date

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on which the completed investigation findings and supporting materials were provided to

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the Plaintiff. If the investigation remains open please so indicate to the extent that Doc.

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1420 does not already do so.

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d.

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Please provide this same information for any investigations

identified in response to (c) above.

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e.

Do any of the PSB investigations enumerated in Doc. 1420 and/or

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Ex. 2943 indicate that Chief Deputy Sheridan recused himself from any participation in

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those investigations?

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f.

Do any of the PSB investigations enumerated in Doc. 1420 and or

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Ex. 2943 indicate that Captain Bailey recused himself from any participation in those

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investigations?

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13.

There has been apparently conflicting testimony by MCSO personnel as to

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whether the timeline by which a PSB administrative investigation must be completed is

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tolled by the instigation of a related criminal investigation.

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testimony that the PSB administrative timeline is 120 days, and other testimony that it is

180 days. Please identify and provide the relevant provisions of:

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a.

The policy, contract, precedent, regulation or any other authority

suggesting what the timeline is or was during the years since 2011; and,

b.

Any policy, contract, precedent, regulation or any other authority

which suggests that the running of the time period is tolled by an intervening and related

criminal investigation.

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14.

Please provide any legal authority that might suggest that one an officer is

deceased, statements made by him in a compelled administrative interview may not be

used or taken into account in a corresponding criminal investigation.

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February Discovery Orders

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15.

Captain Skinner testified that he issued internal directives within MCSO

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pertaining to compliance with the Courts February 2015 discovery orders. If such

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directives are part of the evidence admitted in the record, please indicate where they can

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be located.

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Dated this 18th day of November, 2015.

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Honorable G. Murray Snow

United States District Judge

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