“In many ways, this is a landmark case. … We need to have it resolved,” Arpaio attorney Tim Casey recently told the court.
The case began when Manuel de Jesus Ortega Melendres, a Mexican tourist who was in the United States legally, was stopped outside a church in Cave Creek where day laborers were known to gather. Melendres, the passenger in a car driven by a White driver, claims that deputies detained him for nine hours and that the detention was unlawful.
Eventually, the case grew to include complaints from two Hispanic siblings from Chicago who felt they were profiled by sheriff’s deputies, and from an assistant to former Phoenix Mayor Phil Gordon whose Hispanic husband claims he was detained and cited while nearby White motorists were treated differently.
U.S. District Judge Murray Snow expanded the complaint last December into a class-action lawsuit that includes all Latino drivers the Sheriff’s Office has stopped since 2007.
The lawsuit does not seek monetary damages. Instead, the plaintiffs want the kind of injunctive relief that the Sheriff’s Office has resisted in the past — a declaration that spells out what deputies may or may not do when stopping potential suspects, and a court-appointed monitor to make sure the agency lives by those rules.
Lawyers for Arpaio, who is seeking re-election to a sixth term in November, will argue that the agency does not need a monitor because there is no systemic discrimination, only a few deputies who might have violated office policy and who were punished for their transgressions.
But the plaintiffs’ attorneys are armed with anecdotal evidence, their own statistical analysis of the sheriff’s operations, some of the sheriff’s own internal communications and constituent notes that disparage Latinos. They will claim that such information, taken as a whole, would force any reasonable person to conclude that Arpaio’s immigration-enforcement policies opened a door to racial profiling through which sheriff’s deputies followed their leaders.
Snow will decide who is right in a tightly managed, non-jury bench trial, set to start July 19, that will span six days. Each side’s presentation is limited to 20 hours.
The issue at the heart of the case is whether Arpaio’s immigration-enforcement policy resulted in the violation of constitutional rights that guarantee equal protection to U.S. citizens and prohibit governments from enforcing laws that deprive citizens of life, liberty and the pursuit of happiness, said David Harris, a University of Pittsburgh law professor whose academic focus is police behavior and racial profiling.
The U.S. Supreme Court has justified the practice by law-enforcement officers of making “pretextual” traffic stops that allow them to launch into questions about other criminal activity, but only as long as there is probable cause to make the stop, Harris said. But the courts have also consistently said they will not tolerate any type of enforcement that violates the equal-protection clause.
“The problem is, there is no way to see illegal status,” Harris said. “Illegal-immigration status cannot be seen by behavior. Unless you’re standing in the desert where the line is, you don’t know that somebody is crossing or has crossed. You can’t, by simply looking at them or listening to them talk, tell whether they’re illegal or not. They (deputies) are using Latino appearance as a proxy for illegal status, and in so doing they’re sweeping in and showing themselves willing to target lots and lots of people that aren’t illegal at all, who are U.S. citizens. That’s the real problem here.”
To prove institutional discrimination, Harris said, plaintiffs in the Melendres case will have to rely on a three-pronged approach that uses the sheriff’s own statements and internal communications to prove the agency’s intention to target Latino drivers. Then they must use a combination of anecdotal evidence and statistical analysis to show the results.
“Where many of these cases for the plaintiffs have failed is on the statistical evidence. Different U.S. courts have set different standards for what you have to show. Here, they’ll have to have good, solid statistical evidence (of racial profiling),” Harris said. “But if the internal communications were damning enough, the statistics would be proven out — they would prove each other. The statistics would prove that the intent of the memos was carried out.”
The Sheriff’s Office will have its own statistical expert review the data and draw conclusions. Agency attorneys have denied in court documents that sheriff’s operations had any discriminatory effect on Latino residents.
Internal communications and e-mails from residents to Arpaio that plaintiffs consider damning include correspondence with constituents requesting immigration sweeps because of “Mexicans” working in fast-food restaurants, and e-mails from deputies that contain stereotypes mocking Hispanics. Arpaio’s defenders consider them legally meaningless.
Sheriff’s Deputy Chief Jack MacIntyre predicted the plaintiffs would be hard-pressed to prove that any of the requests for immigration sweeps directly resulted in a work-site raid or a saturation patrol. Even in those instances where a constituent asked for a sweep and a raid later took place, other factors contributed to those decisions, MacIntyre said.
“Do you take messages and evaluate them for their credibility, their worth? Yes. When the sheriff relays these, it doesn’t make a full-blown investigation,” MacIntyre said. “The sheriff listens to constituents; that’s why he’s sitting here. As an elected official, you ought to listen to constituents. When you stop listening, you become a former sheriff.”
Some political observers predicted Arpaio’s attorneys would try to force a change of judges in the case — which likely would have postponed the trial’s start until after the election — when it came to light last month that a relative of Snow’s is a partner in the law firm representing the plaintiffs. Snow’s brother-in-law works in the firm’s Washington, D.C., office as an insurance, patent and product-liability litigator. The plaintiffs are represented by attorneys from the firm’s San Francisco-area office.
The firm guaranteed that Snow’s brother-in-law would not benefit financially if Snow rules in favor of the plaintiffs and that he would not have any influence in the case.
Attorneys for Arpaio at a hearing late last month asked Snow to remain on the case, in part to speed up resolution of profiling allegations that have dogged deputies since the agency embarked on its immigration-enforcement mission.
There is a large element in the Sheriff’s Office that welcomes the court battle, if for no other reason than the opportunity to clear the agency’s reputation.
“They want closure,” Casey, Arpaio’s attorney, told Snow.
How the outcome reverberates throughout the larger law-enforcement community depends largely on the nature of Snow’s verdict. If he validates the sheriff’s tactics, Arpaio’s supporters will seize on the ruling as proof that the agency has enforced immigration laws without discriminating.
If Snow finds in favor of the plaintiffs, Arpaio’s agency might be forced to change — but his supporters are still likely to view the verdict as evidence of a left-leaning conspiracy to take down a politician who has become a national figurehead in the immigration-enforcement movement.
“Sheriff Joe has made himself a kind of symbol for a certain type of enforcement which has much more of a political basis than an effective law-enforcement basis,” Harris said. “If he wins or if he loses, it’s ‘Heads I win, tails I still win because my people are still going to vote for me.’ “
Bruce Merrill, a veteran Arizona political pollster who has followed Arpaio’s career, said the sheriff is part of a unique field of politicians whose legacy will outstrip any single court ruling.
“There’s a concept in political behavior called selective perception: If you like Joe Arpaio, you’re not even going to hear this negative information,” Merrill said. “If you don’t like Joe, it’s going to reinforce that he’s a racist.”
Plaintiffs, meanwhile, are just as anxious for a resolution as Arpaio’s team. They have endured two significant delays since the lawsuit was filed in December 2007.
The first came in 2009, when the original judge on the case, U.S. District Judge Mary Murguia, recused herself. She took the action after the Sheriff’s Office complained about statements that her twin sister, Janet, had made in her role as leader of a national Latino rights group.
After taking over the case, Snow last year awarded more than $90,000 in court costs and attorneys’ fees to the plaintiffs to offset the costs of depositions that had to be retaken after the Sheriff’s Office produced thousands of records that it initially had said were not available.
The trial is expected to move quickly. Snow gave each side precisely 20 hours in which to present its case, along with some time for rebuttal.
Dan Pachoda, an attorney with the American Civil Liberties Union, said Snow has already mentioned that he will not likely be swayed by anecdotal evidence. The time limit will simply force lawyers to focus their line of questioning for witnesses.
But he expects both sides to be able to argue their cases in the allotted time.
“Most of our case is to be developed out of the mouths of MCSO,” Pachoda said, referring to the documents the Sheriff’s Office has produced for the lawsuit. “The printouts are helpful to show that he chose to focus on immigration as the priority. To him, as shown by other statements, immigration means Mexicans. His immigration enforcement meant getting people that are Latino, and the way he did it was to round as many people up as possible and sort them out afterward. That turns the presumption of innocence on its head.”