Case: Melendres v. Arpaio

This case concerns racial profiling by the Maricopa County Sheriff’s Office (“MCSO”) in Arizona. On December 12, 2007, Latino motorists filed this lawsuit in the United States District Court for the District of Arizona against the County of Maricopa, MCSO, and Sheriff Joe Arpaio. The plaintiffs sued under 42 U.S.C. § 1983 and 28 U.S.C. § 2201. They sought to represent a class of Latino persons who have been or will be stopped, detained, interrogated, or searched by the Sheriff or his agents in moving or parked vehicles in Maricopa County. They alleged violations of the Fourth (search and seizure) and Fourteenth (equal protection) Amendments to the U.S. Constitution; Title VI of the Civil Rights Act of 1964; and the Arizona state constitution. Private pro bono attorneys, the American Civil Liberties Union (both local and national), and the Mexican American Legal Defense Fund represented the plaintiffs. The United States Department of Justice appeared as an amicus, explaining that it had a strong interest in the matter because of its separate civil rights lawsuit against the County, United States v. Maricopa County. The plaintiffs claimed that MCSO engaged in a widespread pattern and practice of racial profiling and racially/ethnically discriminatory treatment in “enforcing” federal immigration laws against Latino persons without regard for actual citizenship or immigration status. They sought declaratory and injunctive relief. The case was assigned to District Judge Mary H. Murguia.

Specifically, the plaintiffs alleged that MCSO had launched a series of "crime suppression sweeps" to target Latino persons and investigate their immigration status, using pretextual and unfounded stops, racially motivated questioning and searches, and baseless arrests. These sweeps included a volunteer "posse" that helped to carry out MCSO policies. MCSO claimed it had authority for the sweeps under a limited agreement with U.S. Immigration and Customs Enforcement (“ICE”). However, the plaintiffs alleged that the ICE agreement prohibited these practices, because the agreement only allowed for questioning immigration status if someone was suspected of violating a state or federal law more severe than a traffic offense. The plaintiffs further alleged that MCSO’s pattern and practice of racial profiling went beyond those "sweeps" to include widespread, everyday targeting and mistreatment of drivers and passengers in Maricopa County who appeared to be Latino. The plaintiffs alleged that Latino drivers and passengers were stopped at higher rates, searched more intrusively, and detained longer than similarly situated white drivers and passengers (even within the same vehicle). 

The plaintiffs also alleged that MCSO had set up a "hotline" for "tips" on undocumented immigrants, which they alleged invited individuals to equate race with immigration status. Finally, the plaintiffs alleged a failure to train personnel and volunteers adequately and to promulgate appropriate policies to prevent infringement of the plaintiffs' rights. Allegedly, Sheriff Arpaio publicly stated his intent to “go after illegals” and his belief that appearance was a basis to question someone about their immigration status.

On January 3, 2008, the defendants moved to dismiss the complaint. The plaintiffs moved to amend the complaint on July 16, 2008. The court granted the motion to amend the complaint and denied the motion to dismiss as moot on September 5, 2008. The plaintiffs filed an amended complaint on September 5, 2008, removing the right to travel and due process claims under the state and federal constitutions, as well as the request for punitive damages. 

On September 29, 2008, the defendants moved to dismiss the amended complaint. They argued that the plaintiffs failed to state a claim, the plaintiff organization Somos America lacked Article III standing, Maricopa County could not be sued under 42 U.S.C. § 1983, and MCSO was a non-jural entity and could not be sued. 

On February 10, 2009, the court denied the defendants’ motion to dismiss. Judge Murguia held that the plaintiffs sufficiently alleged Fourth Amendment and equal protection claims. Because the other plaintiffs had Article III standing, the court did not decide if Somos America had standing. Additionally, Judge Murguia held that Maricopa County could be sued under § 1983, and failed to dismiss MCSO as a non-jural entity. 598 F. Supp. 2d 1025.

Two weeks later, the defendants moved for recusal. They claimed that they recently learned that Judge Murguia’s sister served as the president and CEO of the National Council of La Raza (“NCLR”), and that this information warranted recusal. Judge Murguia recused herself on July 15, 2009. The court held that the motion was untimely, denied allegations of bias, and questioned the county’s motives. However, the court found that NCLR had published many articles criticizing the defendants, taking strong positions on legal and factual matters in this case, and containing pictures of Judge Murguia’s identical twin sister. Judge Murguia reasoned that NCLR’s posts might lead the public to question her impartiality, and thus decided to recuse herself in this close call. 2009 WL 2132693. The case was reassigned to District Judge G. Murray Snow.

On August 13, 2009, Judge Snow denied the defendants’ motion to stay proceedings pending an investigation by the U.S. Department of Justice (“DOJ”). 2009 WL 2515618. 

The court denied the defendants’ motion for judgment on the pleadings on August 24, 2009. Judge Snow also denied the plaintiffs’ motion for class certification without prejudice, stating that the plaintiffs could refile after the court resolved the standing issue. 2009 WL 2707241. 

On October 13, 2009, the court approved a joint motion and stipulation of plaintiffs and defendant Maricopa County to dismiss Maricopa County without prejudice.

The parties filed cross-motions for summary judgment on April 29, 2011. The plaintiffs also filed a renewed motion for class certification on the same day.

On June 8, 2011, the court awarded the plaintiffs $72,002 in attorneys’ fees and $22,705 in costs.

On December 23, 2011, the court granted partial summary judgment for the plaintiffs and partial summary judgment for the defendants, and entered a preliminary injunction. Judge Snow allowed the equal protection claims to proceed because a genuine issue of material fact existed. Evidence of Sheriff Arpaio’s statements and MSCO’s operations weighed in favor of the plaintiffs, but MCSO’s claims of race-neutral criteria used when conducting those operations weighed in favor of the defendants. On the Fourth Amendment claims, the court granted summary judgment for the defendant on some and for the plaintiff on some, and let others proceed to trial. The court held that MCSO lacked authority to (1) enforce federal civil immigration law and (2) detain people under Arizona’s human smuggling statute based solely on reasonable suspicion of unlawful presence in the United States. Judge Snow preliminarily enjoined MCSO from detaining anyone merely because of belief of unlawful presence in the United States. The court also certified a class of "all Latino persons who, since January 2007, have been or will be in the future, stopped, detained, questioned, or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County, Arizona." 836 F. Supp. 2d 959.

On the same day, the court imposed sanctions on MSCO because officers destroyed evidence. The plaintiffs had sent letters to MCSO in 2008 demanding the preservation of evidence, but MCSO failed to comply. Instead, officers intentionally deleted emails and shredded stat sheets that documented each officer’s contacts and arrests of undocumented immigrants. Based on the few available stat sheets, the court held that the factfinder might draw the following inferences from the shredded stat sheets. First, the stat sheets would have suggested that officers involved in special operations did not follow a "zero tolerance" policy requiring them to stop all traffic offenders, which meant that the officers had broad discretion to stop certain people. Second, the shredded stat sheets would have included a significantly higher number of arrests in the categories "Illegal Alien turned over to ICE/LEAR" and/or "Suspected Illegal Alien arrested on state charges" than records documenting ordinary patrol activity. Based on recovered emails, the court found that the factfinder could draw the following inferences from the deleted emails: that MCSO maintained a file of citizen complaints making requests for special operations; that MCSO conducted operations in areas named in the complaints; and that at least some of the citizen communications complained about "Mexicans," "day laborers," or "illegal immigrants," but did not provide a description of any criminal activity. 2011 WL 6740709. 

MSCO appealed the December 23 order to the United States Court of Appeals for the Ninth Circuit on January 13, 2012 (Docket Number 12-15098). Circuit Judges J. Clifford Wallace, Susan P. Graber, and Marsha S. Berzon heard oral argument on September 13, 2012, and affirmed the district court’s order on September 25, 2012. Writing for the panel, Judge Wallace held that the plaintiffs had standing to raise their Fourth Amendment claims, and that the district court did not abuse its discretion in granting the preliminary injunction. 695 F.3d 990.  

Back in the district court, a bench trial took place from July to August 2012. 

On May 24, 2013, Judge Snow issued a 142-page decision finding for the plaintiffs. 989 F. Supp. 2d 822. The court entered injunctive relief to remedy the Fourth and Fourteenth Amendment violations caused by MCSO operations. The permanent injunction prohibited MCSO from:

• detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization;
• following or enforcing its Law Enforcement Agency Response (“LEAR”) policy against any Latino occupant of a vehicle in Maricopa County;
• using race or Latino ancestry as a factor in determining whether to stop any vehicle in Maricopa County with a Latino occupant;
• using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization;
• detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law;
• detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present; and
• detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.

The defendants appealed the injunction, along with the denial of their initial motion to dismiss, to the Ninth Circuit on June 21, 2013 (Docket Number 13-16285).

On June 13, 2013, the DOJ filed a statement of interest to aid the plaintiffs in negotiating a consent decree. The parties filed a proposed consent decree to ensure MCSO’s compliance with the injunction. On October 2, 2013, after hearing the terms on which the parties could and could not agree, the court made the December 2011 injunction permanent and established methods for compliance. Judge Snow required MCSO to create a unit and system to identify problematic behavior and aid in compliance. The court also provided for the appointment of an independent monitor. Judge Snow further required MCSO policies and procedures to conform to the U.S. and Arizona constitutions and laws, the monitor to review MCSO’s immigration-related policies and practices, all officers to receive anti-discrimination training, implementation of dash-cam recording to document traffic stops, and community efforts to rebuild public trust.

The Sheriffs appealed this order to the Ninth Circuit on October 31, 2013 (Docket Number 13-17238), and it was consolidated with their previous appeal.

The court appointed Robert Warshaw as an independent monitor on January 17, 2014.

On March 17, 2014, Judge Snow scheduled a status conference to discuss various issues that arose between the injunction’s entry on October 2, 2013 and the monitor’s appointment on January 17, 2024. The issues included MCSO training, MCSO’s appointment of a community liaison officer, and monitor access to MCSO facilities and information. 2014 WL 1017909.

Judge Snow issued orders amending the permanent injunction on April 4 and October 10, 2014. The first order directed the monitor to serve as a liaison between the public and MCSO. The second order amended the injunction to allow for body-mounted cameras, as opposed to dash-mounted cameras, for recording traffic stops.

Also in April of 2014, Judge Snow entered another enforcement order. The court found that Sheriff Arpaio and other MCSO leaders had been misinforming MCSO employees about the court’s prior orders. Judge Snow required Sheriff Arpaio to disseminate a statement synthesizing the court’s prior orders to all MCSO personnel, and to take other measures ensuring that all MCSO staff understood their constitutional obligations. The court clarified on April 29, 2014 that the enforcement order did not apply to MCSO volunteers who only worked as teachers or religious volunteers in the jail. 2014 WL 1686834. 

On September 11, 2014, Judge Snow awarded the plaintiffs $4,439,241.66 in attorneys' fees and costs. The court retained jurisdiction of the action until the defendants had achieved full and effective compliance and maintained such compliance for no less than three years.

The Ninth Circuit heard oral argument in the consolidated appeals on December 3, 2014.

Back in the district court, Judge Snow entered an order on February 12, 2015 to hold an evidentiary hearing on whether MCSO committed contempt of court. The court referenced a 2013 video released of Sheriff Arpaio telling his officers to disregard the court’s prior orders. Further videos were retrieved showing that officers had detained people and illegally taken their possessions, against the court's earlier orders. On March 17, 2015, the defendants admitted to being in civil contempt, moved to vacate the hearing, and suggested possible remedial measures. The court denied the motion on April 14, 2015. The hearing took place from April 21 to 24, 2015. At the hearing, the court introduced a news article describing MCSO’s alleged confidential investigation into the court’s “collusion” with the DOJ, as well as evidence of other improper investigations into the court’s family members. Based in part on Judge Snow’s conduct at the hearing, the defendants moved for recusal on May 22, 2015. Judge Snow declined to recuse himself on July 10, 2015. The court denied accusations of bias and pointed out numerous legal flaws in the defendants’ motion and allegations. 2015 WL 13173306. The Ninth Circuit denied the defendants' application for a writ of mandamus on the recusal issue (Docket Number 15-72440).

On April 15, 2015, the Ninth Circuit affirmed in part, vacated in part, and remanded the district court’s May 24, 2013 permanent injunction. Writing for the panel, Judge Wallace held that the named plaintiffs had standing to represent the class, and the district court did not abuse its discretion in granting class certification. The Ninth Circuit then addressed the injunction’s requirements that monitors consider disciplinary outcomes for violations of department policy and assess whether officers should be subject to civil or criminal liability for off-duty conduct. Judge Wallace vacated and remanded these requirements, deeming them overbroad because they were not narrowly tailored to curing the constitutional violations. The Ninth Circuit also ordered that Maricopa County be substituted as a party in lieu of MCSO—Arizona law had recently settled the issue that MCSO was a non-jural entity, and was thus improperly joined. 784 F.3d 1254. On May 15, 2015, the County petitioned for panel rehearing and rehearing en banc. The Ninth Circuit declined to rehear the case on June 26, 2015.

Because it was now substituted for MCSO as a party, the County appealed four district court orders entered between December 2011 and April 2014 (Docket Number 15–15996)—the same orders appealed by the Sheriff and MCSO in the most recent appeal (784 F.3d 1254). The plaintiffs moved to dismiss the County’s appeal for lack of jurisdiction on August 11, 2015. The Ninth Circuit heard oral argument on January 12, 2016. On March 7, 2016, the Ninth Circuit dismissed the County’s appeal for lack of jurisdiction because it was untimely. 815 F.3d 645.

On August 26, 2015, Judge Snow amended the supplemental permanent injunction in line with the Ninth Circuit's ruling. Judge Snow narrowed the monitor's considerations to only include violations pursuant to this particular case and injunction.

Meanwhile, the United States moved to intervene on July 20, 2015, based on the "general public importance" of the matter. Judge Snow granted the motion on August 13, 2015. The United States' intervenor complaint, filed on August 31, 2015, cited violations of 42 USC § 14141(b) and Title VI of the Civil Rights Act of 1964. The United States sought equitable and injunctive relief. This intervention was prompted by the resolution in United States v. Maricopa County, in which District Judge Roslyn O. Silver settled certain issues but required the DOJ to pursue further relief within this case.

After the Ninth Circuit declined to rehear the case, the defendants filed a petition for a writ of certiorari in the Supreme Court of the United States on September 24, 2015 (Docket Number 15-376). 2015 WL 13732208. The Supreme Court denied the petition on January 11, 2016. 577 U.S. 1062. 

Back in the district court, the parties litigated evidentiary issues for several months. On May 13, 2016, Judge Snow issued a lengthy order holding the defendants in civil contempt and setting a hearing date for May 31, 2016. The court found that the defendants did not implement the court's preliminary injunction, failed to disclose thousands of relevant discovery items, and deliberately violated court orders. These actions harmed the plaintiff class, impeded litigation, and led to a trial that did not adequately address the plaintiffs' constitutional rights. 2016 WL 2783715. 

On July 22, 2016, Judge Snow issued an amended supplemental permanent injunction. The injunction required MCSO to investigate all allegations of employee misconduct related to the issues in this case, implement misconduct-related training, develop a civilian complaint intake process, implement transparency measures, and ensure document preservation and production. The court further ordered MCSO to make all policies, procedures, protocols, training materials, and other relevant materials subject to review and comment by the monitor. 2016 WL 3965949.

The defendants appealed the amended supplemental permanent injunction on September 15, 2016 (Case Numbers 16-16659, 16-16661, and 16-16663). On August 3, 2017, the Ninth Circuit dismissed the appeal with respect to now-retired MCSO Deputy Sheridan, on mootness grounds. 2017 WL 4315029. Sheridan petitioned for panel rehearing on September 18, 2017, which the Ninth Circuit denied on October 24, 2017. The Ninth Circuit awarded the plaintiffs $52,877.42 for the cost of the appeal on January 4, 2018. 878 F.3d 1214. Sheridan filed a petition for a writ of certiorari with the Supreme Court on January 22, 2018 (2018 WL 565674; Docket Number 17–1041), which the Court denied on June 25, 2018. 138 S. Ct. 2674. On July 31, 2018, the Ninth Circuit held that the district court did not abuse its discretion in issuing the amended supplemental injunction, and that Arizona law did not prohibit the County from funding the injunction. 897 F. 3d 1217. The defendants petitioned the Supreme Court for a writ of certiorari (Docket Number 18-735), which was denied on October 7, 2019. 140 S.Ct. 96.

In November 2016, Paul Penzone defeated Joe Arpaio in the election for Maricopa County Sheriff. The court replaced Penzone as the named defendant in the case on January 13, 2017.

Prior to the change in defendant in this case, Judge Snow referred Sheriff Arpaio on August 19, 2016 to a randomly selected judge to determine if he should be held in criminal contempt for:

• violation of the court's December 23, 2011, preliminary injunction;
• failure to disclose all relevant materials for the investigation; and
• intentional failure to preserve and produce required records as directed in the court's April 23, 2015, order.

Sheriff Arpaio and Deputy Sheridan asked Judge Snow to recuse himself on November 10, 2016. They also moved for a stay pending resolution of the recusal issue. The court denied the stay on December 5, 2016. 2016 WL 7638469. Judge Snow also declined to recuse himself on November 14, 2017, finding that Arpaio and Sheridan lacked standing to seek recusal. 2017 WL 5632304.

The criminal proceedings took place in a separate action, United States v. Arpaio. On July 31, 2017, District Judge Susan R. Bolton found Sheriff Arpaio guilty of criminal contempt. Judge Bolton held that Judge Snow’s preliminary injunction was clear—it stated that detaining persons past the time sufficient to conduct a criminal investigation violated the Fourth Amendment, and ordered Sheriff Arpaio to cease the practice immediately. Further, Judge Bolton found that Sheriff Arpaio had the requisite knowledge of the order. Based on Sheriff Arpaio’s public statements demonstrating flagrant disregard for the order, Judge Bolton determined that he had willfully violated the preliminary injunction. 2017 WL 3268180. On August 14, 2017, Sheriff Arpaio moved for a new trial, and/or that the verdict be vacated, arguing that he was wrongfully denied a trial by jury. On that same date, he also moved for a judgment of acquittal. After President Donald Trump issued an executive grant of clemency to Sheriff Arpaio on August 28, 2017, Arpaio filed an additional motion to vacate the criminal verdict. Judge Bolton dismissed the first two motions. 

On October 19, 2017, Judge Bolton also denied Sheriff Arpaio's motion to vacate the verdict, insofar as it sought relief beyond dismissal with prejudice. 2017 WL 4839072. The court held that although the presidential pardon spared Sheriff Arpaio from any punishment that otherwise might have been imposed, it did not "revise the historical facts" of the case. Thus, the court maintained the conviction. 

Sheriff Arpaio appealed this decision to the Ninth Circuit. On April 17, 2018, the Ninth Circuit appointed a special prosecutor to defend the district court’s decision. 887 F.3d 979. A Ninth Circuit judge sua sponte called for a vote on whether to rehear the order appointing a special prosecutor en banc. The Ninth Circuit declined to rehear the case on October 10, 2018. 906 F.3d 800. The Ninth Circuit stayed briefing to allow the Solicitor General to consider whether to file a writ of certiorari in the Supreme Court. On January 1, 2019, the Solicitor General determined that the government would not ask the Supreme Court to hear the case, and the Ninth Circuit reinstated a briefing schedule. On February 27, 2020, the Ninth Circuit affirmed the district court's denial of the motion to vacate. 951 F.3d 1001.

Meanwhile, in the original district court action, the parties continued litigating over legal fees. Mediation was unsuccessful. On March 3, 2017, the Ninth Circuit ordered Maricopa County to pay the plaintiffs $400,395.55 in attorneys’ fees and costs for the appeals. On March 1, 2018, the Ninth Circuit ordered that an employee of Maricopa County pay the plaintiffs $52,877.42 in additional attorneys' fees.

In 2017, the monitor noted that MCSO had completed the delivery of misconduct investigations training. As of November 2018, the monitor noted steady improvement in the quality of internal investigations, particularly since completion of the training.

On May 24, 2018, MCSO published its Third Traffic Stop Annual Report. The monitor noted issues with the underlying data due to a lack of quality control procedures with MCSO’s contracted vendor responsible for the various analyses. MCSO has since contracted with a new vendor. Despite the monitor's concerns with the data, the Report found that the issue of racial differences in post-stop outcomes was systemic and could not be attributed to only a small number of deputies. The Report did, however, identify several deputies who were outliers when compared to their peers and noted that MCSO was working to address those outliers.

The monitor continued to oversee MCSO's compliance with the supplemental injunctive orders. On March 30, 2018, the plaintiffs moved again for attorneys’ fees incurred between June 1, 2016 and August 31, 2017. The court awarded the plaintiffs $723,869.90 in attorneys’ fees and $23,966.34 in costs on April 12, 2019. 2019 WL 1586877.

On June 11, 2019, the Independent Investigator (appointed by Judge Snow’s July 26, 2016 injunction) announced that he had completed his duties and was no longer needed to investigate MCSO affairs. On January 3, 2020, he submitted a letter to the judge charting the work he did and notifying him that he would be available to the court if he was required to testify.

On November 16, 2020, the monitor found that MCSO had a backlog of 1,954 citizen and internal complaints. The complaints were supposed to be investigated within 85 days, but the wait time had risen to 501 days. The monitor deemed this wait time unreasonable—rather than take substantive steps to resolve the backlog, MCSO repeatedly granted itself extensions. The monitor also found that MSCO had filled only one of eleven positions approved in the Professional Standards Board (“PSB”) budget. Therefore, the monitor found that MCSO had failed to comply with the injunction’s personnel and timeliness of investigations requirements.

On December 10, 2020, Sheriff Penzone moved for relief. The Sheriff argued that the monitor had changed his methodology without notice, resulting in the monitor’s finding that MCSO failed to comply with the injunction. The court denied the motion on December 18, 2020, holding that determinations of non-compliance did not constitute changes in the monitor’s methodology. 

On March 9, 2021, the United States and other plaintiffs jointly moved to enforce paragraph 70 of the July 2016 injunction. Paragraph 70 required MCSO to take appropriate corrective or disciplinary measures if a traffic stop indicated an individual or systemic problem with racial profiling. The United States criticized the current methodology for flagging problematic officers because it “(1) fail[ed] to properly accommodate for location and time in generating comparison stops, resulting in false positive and false negative results; and (2) employ[ed] a descriptive rather than comparative analysis on the data from deputies who perform[ed] less than twenty stops in a twelve-month period—approximately 40% of all MCSO deputies.” 

On October 29, 2021, the court declined to make any adjustments to the enforcement of paragraph 70. Judge Snow held that the data collection program had been largely collaborative, and the United States had not supplied the court with sufficient information to make the requested changes. However, the court ordered that the data from the study be given to the United States’ independent expert, Dr. Dean Knox, and ordered the parties and the monitor to work together to find a solution.   

On March 10, 2021, the plaintiffs moved for an order to show cause, seeking to initiate civil contempt proceedings for violation of the injunction. They argued that the defendants had not conducted the required timely investigations of employee misconduct. At the show cause hearing, the court stated that even if it accepted the defendants’ reasons for the delayed investigations as true, the court would still hold Sheriff Penzone in contempt. In a joint report requested by the court after the hearing, the defendants said they would forego any defenses for the delays and focus on remedies. 

On August 12, 2021, the court granted the plaintiffs’ motion for an order to show cause. The court appointed a management expert to help bring the defendants into compliance. The expert’s job included preparing a management study to identify the sources of MCSO’s failure to comply with deadlines and to recommend the actions necessary for MCSO’s compliance with the injunction. After the parties submitted recommendations, the court appointed Michael Gennaco of the OIR group (an independent police oversight consulting group) on September 7, 2021.

During the briefing for the motion for a show cause order, the defendants also moved to modify the July 2016 injunction on May 28, 2021. The defendants sought to (1) relax the investigative timeline because a new state law allowed for 180 days, and (2) amend paragraph 244 of the July 2016 injunction. Paragraph 244 prohibited the form used to file a complaint from containing language that could be construed as discouraging the filing of complaints (i.e., language that stated the criminal consequences of filing a false complaint). MSCO sought to change the complaint form because Arizona had passed a new law mandating that every person filing a complaint be given written notice of the criminal consequences of filing a false complaint. On September 29, 2021, the court rejected this motion. Judge Snow held that the July 2016 injunction superseded state law because facilitating a constitutionally adequate internal investigation process was necessary to remedy a constitutional violation. The court found that informing complainants of criminal consequences could function as a form of intimidation, deterring complaints and interfering with the investigation process.  

On July 26, 2022, management expert Michael Gennaco filed a report on the delayed internal investigations at MSCO. The report found that the backlog continued to grow–the average time to close an investigation rose from 520 days in the third quarter of 2020 to 611 days by the first quarter of 2022. The root causes of the backlog included: conducting more investigative work than necessary to assess misconduct; committing insufficient resources to investigations; lacking internal controls in the PSB, including the ability to self-grant extensions of time; and lacking flexibility to modify investigative protocols or use non-investigative interventions. MCSO had tried several methods to alleviate the backlog that did not work, including screening out complaints that did not involve MCSO employees, “coaching” to address minor misconduct, allowing telephonic interviews, hiring more staff (but not more investigators), and moving the caseload to other departments with supervision. The report recommended creating a new Constitutional Policing Advisor role to increase external confidence in the legitimacy of the internal investigation system and to streamline the process. The report also recommended that MCSO immediately fill all vacancies in the PSB, increase the use of contract investigators, and increase the resources dedicated to investigations by 30%.   

On November 8, 2022, the court found Sheriff Penzone in contempt and partially granted his May 28, 2021 motion to modify the injunction. As to the contempt ruling, the court cited the Sheriff’s “knowing and continuous” non-compliance regarding the investigations. Since the management expert began his report, the MCSO had done nothing to remedy the backlog. Instead, the backlog had worsened, rendering the investigations “completely ineffectual.” 2022 WL 16793398.

The court mandated the following remedies (enforceable by fines): hiring seven more PSB investigators within 60 days; authorizing MCSO to use approved private contractors; and demonstrating that MCSO was effectively using overtime and other administrative tools to increase the hours committed to investigations. The court gave the monitor the authority to oversee all of MCSO’s complaint and intake routing, and to make the process more efficient. Judge Snow also required MCSO to propose new investigation policies for the following scenarios: the complaint was filed more than a year ago; the officer no longer works for MCSO; the complainant is unable or unwilling to cooperate; a health-related in-custody death; workplace relationships; mitigated penalties where the officer accepts responsibility; and minor misconduct. The court further required prioritizing the oldest cases in the backlog. For each month that the PSB could not reduce the backlog by 20 cases, the court mandated MCSO to pay into the PSB staffing funds two times the amount required to recruit, hire, train, and compensate a PSB sergeant for one year. On November 30, 2022, the court added these and additional reporting requirements to the injunction as the “Amended Third Supplemental Permanent Injunction.”   

On November 16, 2022, the defendants requested a consultant to aid in clearing the backlog. The defendants appealed the changes to the injunction and the November 8, 2022 contempt order on January 9, 2023 (Docket Number 23-15036). After failed mediation, oral argument took place in the Ninth Circuit on March 17, 2024. The appeal is ongoing in the Ninth Circuit as of April 7, 2024. 

On August 28, 2023, the parties agreed to extend the deadline for MCSO to submit the staffing study required by Paragraph 361 of the district court’s Amended Third Supplemental Permanent Injunction. The next day, Judge Snow granted the extension.

On September 27, 2023, the court temporarily granted MCSO’s request to amend the span of control for MCSO first-line field supervisors. Judge Snow implemented a 12-month pilot program, during which MCSO supervisors could oversee no greater than eight sworn deputies and four non-sworn personnel, so long as they satisfied the Monitor’s requirements.

The court held a status conference on August 11, 2023 to discuss MCSO’s responsibility to acquire the Monitor’s approval before hiring civilian investigators in PSB. The parties filed a joint report documenting their disagreements on this issue on August 25, 2023. On January 3, 2024, Judge Snow mandated that MCSO obtain the Monitor’s approval before hiring new PSB investigators.

Pursuant to Paragraph 348 of the November 2022 injunction, the Monitor collaborated with PSB and proposed changes to MCSO internal investigation policies. Judge Snow issued an order detailing those policies on October 12, 2023, and mandated that MCSO accept them. The policies included the creation of investigative plans, scheduling and deadline requirements, supervisory interventions, and the use of IA Pro as a case management tracking tool. Judge Snow clarified that the new policies superseded the policies in Paragraphs 170 and 171 of the July 2016 injunction.  

On January 3, 2024, Judge Snow ordered MCSO to assign more staff to review the backlog and to publish a staffing study by March 1, 2024. Pursuant to Paragraphs 355 and 356 of the November 2022 injunction, the court ordered MCSO to complete the backlog review on or before June 1, 2024.

Sheriff Penzone resigned in January 2024. The court substituted Penzone’s successor, Sheriff Russ Skinner, as a defendant on February 14, 2024. 

MCSO submitted the required staffing study on March 1, 2024, and moved for its approval. The court scheduled oral argument on the staffing study approval issue for May 2, 2024. The case is ongoing as of April 7, 2024.