August Trial To Examine Arpaio Retaliation Against Critics

Published: Tuesday, June 16, 2015 - 12:13am
Updated: Tuesday, June 16, 2015 - 9:35am

A trial in federal court scheduled for August will examine whether the Maricopa County Sheriff’s Office led by Sheriff Joe Arpaio illegally retaliated against critics with baseless criminal actions or meritless lawsuits.

The U.S. Department of Justice filed the civil rights lawsuit in 2012.

Last week, U.S. District Court Judge Roslyn Silver set an Aug. 10 date for a bench trial. Then in a pre-trial order issued Monday, she sided with the DOJ about what the trial would cover.

“The court ruled that every aspect of this case that Sheriff Arpaio wanted dismissed will not be dismissed and they are moving forward to trial,” said former U.S. Attorney Paul Charlton, who is watching the litigation closely.

The trial will also examine whether the sheriff’s office discriminated against non-English-speaking jail inmates.

The Monday ruling was another legal blow to the six-term sheriff, who is currently facing contempt of court charge for failing to follow a court’s orders in another racial profiling lawsuit.

Activist Lydia Guzman welcomed the news that the trial would examine whether Arpaio and his staff retaliated against perceived critics in violation of the First Amendment.

“For a long, long time we have been saying that Arpaio is a bully,” said Guzman, who provided information to the DOJ for this lawsuit. “He retaliates against anyone who criticizes him.”

The DOJ’s lawsuit alleges a pattern beginning in 2006 of illegal retaliation by the sheriff’s staff against critics. Among the examples listed in the suit:

• The criminal charges filed against Judge Gary Donahoe after he ruled against the sheriff’s interests;

• The arrest of former County Supervisor Don Stapley who had been critical of some of the sheriff’s policies;

• The arrests of attendees of County Board of Supervisor meetings who clapped to show opposition to the sheriff’s immigration policies; 

• The federal racketeering lawsuit against various county officials and judges brought by former County Attorney Andrew Thomas and the sheriff’s office.

“These actions, taken by MCSO and Arpaio, have deterred and are likely to deter persons from engaging in protected speech,” reads the DOJ’s complaint.

Silver also gave the DOJ another victory when she ruled in her Monday pre-trial order the sheriff’s office had discriminated against Latinos in traffic stops.

Silver decided it was not necessary to re-litigate that issue at trial since U.S. District Court Judge Murray Snow had already made that finding in a separate class action racial profiling suit. Snow’s 2013 ruling was largely upheld by the 9th U.S. Circuit Court of Appeals. Snow has ordered the sheriff’s office to undergo a series of reforms to prevent profiling, including the introduction of new training, data collection techniques, cameras and an independent monitor to oversee compliance.

“We are pleased that the court has granted our motion and entered judgment against Sheriff Arpaio and Maricopa County for engaging in discriminatory traffic stops that formed the basis for some of our central claims in this case, and has permitted our other claims to go forward to trial,” DOJ attorney Mark Kappelhoff said in an emailed statement. 

Arpaio attorney Joe Popolizio said in an email that Silver’s ruling on the traffic stops issue “changes little” given that it is a reflection of Snow’s previous ruling.

“On the rest of the claims, however, the court ruled that issues of fact must be resolved at the upcoming trial in which the United States still bears the burden of proof,” Popolizio wrote.

Charlton said it was “timely” that Silver’s ruling allowed the retaliation portion of the DOJ suit to go forward.

That’s because new questions have surfaced in recent weeks about whether Arpaio improperly launched an investigation targeting another judge — Snow — after he ruled against the sheriff in the class-action racial profiling suit in 2013.

Arpaio’s probes may have been trying to unearth evidence of possible bias by Snow that would have forced the judge off the case.  

Last month Arpaio’s lawyers filed a motion for Snow to recuse himself from the ongoing racial profiling case. Snow had been in the midst of contempt proceedings against the sheriff after it came out last year that Arpaio had repeatedly violated Snow's orders. Snow had also said he may refer the case to a federal prosecutor to pursue criminal contempt charges.

The sheriff’s lawyers argued Snow should remove himself from the case because he created a conflict of interest when he directly questioned Arpaio about his investigations of Snow or his family members during contempt hearings in April.

The motion to disqualify Snow put the contempt case on hold. Hearings were supposed to resume on June 16 but have been postponed as Snow considers the motion. Snow is expected to rule after sheriff’s attorneys submit additional arguments on June 22.

The American Civil Liberties Union, which represents the plaintiffs in the racial profiling case, have argued there are no grounds for Snow to recuse himself.

In a brief filed last week, the plaintiffs’ attorneys argued Snow’s questions about the investigations “were proper and relevant to the ongoing contempt hearing and the question of remedies to ensure compliance with prior orders.”

Plaintiffs also argued the sheriff’s motion was “untimely and appears to be filed for purposes of manipulation and delay.”

The ACLU cited judicial ethics expert Stephen Gillers of New York University Law School, who called the sheriff’s grounds for recusal “baseless.”

Whether or not Snow decides to stay on the case, the contempt proceedings against Arpaio and four of his staff members are not expected to resume for a number of months. The sheriff will likely appeal if Snow does not recuse himself.

If Snow does take himself off the case, the new judge will need time to catch up on the case.

As of the end of March, Maricopa County had already spent almost $5 million to defend itself in the DOJ civil rights lawsuit. The class-action racial profiling case under Snow is expected to cost the county some $45 million by mid-2016.

On Monday, the Maricopa County Board of Supervisors announced its intent to raise property taxes by 4.6 percent over last year to raise additional revenue.

 

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