10 Key Findings From The Civil Contempt Ruling Against Sheriff Joe Arpaio
On May 13 U.S. District Court Judge Murray Snow found Maricopa County Sheriff Joe Arpaio and three others in civil contempt of court for violating court orders that stemmed from a long-standing racial profiling case.
In a 162-page order, Snow concludes that Arpaio and others deliberately violated court orders and acted in bad faith, paving the way for a possible referral to a prosecutor to pursue criminal contempt charges.
Click to read more about 10 of Snow’s many findings from the 162-page ruling:
Snow is the same judge who ruled in 2013 that the sheriff’s immigration enforcement tactics racially profiled Latino motorists. Snow ordered sweeping changes at the Maricopa County Sheriff’s Office, including new training, protocols, body cameras and an independent monitor to oversee compliance.
But the following year, new evidence surfaced showing the sheriff’s office never implemented a pre-trial preliminary injunction Snow issued in 2011. The order forbade officers from detaining suspected unauthorized immigrants who could not be charged with any state crimes. Because the sheriff’s office had disregarded the order, the illegal detentions continued for 17 months. It also became apparent that sheriff’s deputies had been recording videos of traffic stops for years, but those videos had not been turned over to plaintiffs before the trial — a violation of the rules of discovery. Furthermore, the sheriff and his staff bungled the judge’s instructions in May 2014 for how to recover video footage from deputies once its existence was known.
Snow cited those three violations when he ordered a civil contempt of court evidentiary hearing in April 2015. The hearing dragged into the fall when the sheriff’s lawyers missed deadlines for completing internal investigations and turning over documents, plus new information surfaced, creating new lines of inquiry. Ultimately there were more than 20 days testimony in the contempt hearing, which concluded on November 20.
Almost six months later, Snow filed his findings of fact and conclusions of law on May 13. The sheriff’s lawyers have indicated they disagree with some of the findings. All the parties are supposed to submit responses May 27 and then will meet on May 31 for a hearing to discuss remedies. Snow rejected a request from the sheriff’s attorneys’ for an extension.
Arpaio and his chief deputy, Jerry Sheridan, acknowledged in March 2015 that they violated court orders and could be found in civil contempt of court. But they insisted their missteps were unintentional. Their defense lawyers focused on that theme during the civil contempt evidentiary hearing. When those hearings were finally over in November 2015, Arpaio’s lawyer John Masterson summed things up this way:
“Were there mistakes made? Absolutely. Were Court orders violated? Absolutely. But the key we wanted to get across to the court, and the public for that matter, is it was not intentional.”
But Snow concluded the opposite in his findings of facts. Snow writes:
“[T]he Court finds that the Defendants have engaged in multiple acts of misconduct, dishonesty, and bad faith with respect to the Plaintiff class and the protection of its rights. They have demonstrated a persistent disregard for the orders of the Court, as well as an intention to violate and manipulate the laws and policies regulating their conduct…”
Furthermore, Snow explicitly found that Arpaio and Sheridan both “knowingly and intentionally failed to implement the preliminary injunction.”
Snow has long threatened that at the conclusion of the civil contempt case he will decide whether to refer the case to a federal prosecutor to pursue criminal contempt charges. The finding that the violations were intentional is significant because it paves the way for Snow to do just that, since intent is a necessary element for a criminal prosecution.
Plus, Snow’s strong wording in the ruling makes it increasingly unlikely he would find strictly civil remedies to be a sufficient resolution. Civil contempt remedies are not intended to be punitive, and are just supposed to ensure compliance with court orders and compensate those harmed by the contempt. A criminal contempt finding on the other hand can result in punishment for the defendants, such as fines or incarceration.
Throughout the order Snow concludes that various statements Arpaio and Sheridan made in the evidentiary hearing were not truthful. For example Snow finds Sheridan’s assertion that he had never heard of the 2011 preliminary injunction until 2014 as “demonstrably false.” The judge also takes issue with Arpaio’s testimony under oath that he did not know of any investigations into Snow, since it later came out that Arpaio’s confidential informant Dennis Montgomery was trying to link Snow to a conspiracy and gave Arpaio timelines and drawings with information about that theory. The judge found that Arpaio’s statements on the issue “constitute deliberate misstatements of fact made in bad faith.”
Former U.S. Attorney Paul Charlton told KJZZ federal prosecutors should be paying close attention to these findings.
“If a judge makes a finding that the head of one of the largest law enforcement agencies in the state made an intentional misrepresentation under oath and did so more than once, that is something that a prosecutor especially, a federal prosecutor, should be paying very close attention to — regardless of whether the judge eventually refers that case to the US Attorney’s office for prosecution,” Charlton said.
Arpaio argued on the stand that he did not intentionally violate the 2011 preliminary injunction forbidding sheriff’s deputies from detaining suspected immigrants who could not be booked on state charges, because he relied on his attorneys and subordinates to institute the order.
But Snow did not buy that argument, finding “In light of the evidence and testimony at the evidentiary hearing, that explanation is neither credible nor acceptable as a matter of fact or law.”
The judge even concludes that Arpaio intentionally violated the 2011 order in an effort to help his 2012 reelection bid.
Snow points out that Arpaio testified in the 2012 initial racial profiling trial that MCSO still had the authority to detain immigrants even when no state criminal charges could be filed. Snow concluded that “does not indicate a failure to understand the preliminary injunction, but rather a refusal to abide by it.”
In the fall of 2012, Arpaio began to complain to the media that Immigration and Customs Enforcement officials would no longer allow sheriff’s deputies to turn over suspected unauthorized immigrants for deportation who were not charged with state crimes. Arpaio began to publicize to the media that he was using a so-called “back-up plan” to turn these unauthorized immigrants over to Border Patrol instead. But detaining immigrants who could not be charged with state crimes for any length of time — even for the purpose of turning them over to federal agents — violated Snow’s 2011 order.
In October 2012, shortly after the U.S. Ninth Circuit Court of Appeals affirmed Snow’s preliminary injunction and weeks before the election, Arpaio put out a press release saying “My back-up plan is still in place and we will continue to take these illegal aliens not accepted by ICE to the Border Patrol.”
Snow concludes that Arpaio wanted to continue to show voters he was enforcing federal immigration law, despite the court order not to.
“Sheriff Arpaio’s persistent and publicized violations of the Preliminary Injunction were motivated by his belief that such activities would benefit his upcoming reelection campaign,” Snow writes.
A major theme that emerged in the contempt hearing was whether the sheriff used a confidential informant based in Seattle to investigate Snow in an effort to discredit the judge and retaliate against him after Snow ruled against the sheriff’s office in the underlying racial profiling case.
Snow first asked the sheriff about the so-called “Seattle Investigation” in April 2015, in response to a June 2014 Phoenix New Times article that alleged the sheriff was using a confidential informant named Dennis Montgomery to investigate Snow and link him in a false anti-Arpaio conspiracy with the U.S. Department of Justice.
"Did you ever — you see that the article says that what Montgomery was actually doing was investigating me. You see that that's what the article says?" Snow asked the sheriff on April 23, 2015.
"It's not true," Arpaio said at the time.
“Are you aware that I've ever been investigated by anyone?” Snow asked.
"You investigated?" Arpaio asked back. "No, no."
Arpaio testified that Montgomery was hired to investigate an alleged plot by the CIA to illegally harvest banking records from Maricopa County residents, and that any reference to Snow was because he was a possible victim.
But records emerged revealing that Montgomery had created timelines and drawings trying to link Snow in a conspiracy, and that Arpaio had added his own information with handwritten notations on one of the timelines. There was also testimony that when the Seattle investigation began, Arpaio’s posse leader Mike Zullo instructed Montgomery to type the name “Murray Snow” into Montgomery’s database.
On the stand this past October when Snow asked Arpaio why he had not been forthcoming about Montgomery’s investigation, Arpaio said that he did not consider what Montgomery did to be an “investigation” of Snow. In his ruling, Snow finds that testimony is not credible. Snow also dismisses Arpaio’s testimony Montgomery was only looking into the judge because he was a possible victim of the alleged CIA scheme.
Further Snow finds that there was “ample evidence of Arpaio’s enthusiasm for and participation in the investigation.”
“The MCSO’s “Seattle” investigation involving Mr. Montgomery demonstrates Sheriff Arpaio’s many intentional misstatements under oath and his attitude of hostility toward the court’s order,” Snow writes.
Snow finds that not only did Arpaio make misstatements about the nature of Montgomery’s work for the sheriff’s office; he tried to conceal some of Montgomery’s records from the court.
After Snow first grilled Arpaio on the stand about Montgomery in April, the judge demanded Arpaio turn over records relating to Montgomery’s work immediately.
While the sheriff’s office did turn over some records right away, it did not hand over 50 hard drives of Montgomery’s material. The court’s independent monitor discovered their existence in July, prompting the judge to take the dramatic step of ordering the sheriff’s office to turn the drives over to U.S. Marshals.
The sheriff’s office also initially failed to turn over a report from two former National Security Agency computer specialists, Thomas Drake and Kirk Wiebe, who the sheriff’s office asked to evaluate Montgomery’s work to see if it was credible. They concluded Montgomery’s database was fraudulent and did not contain records from the CIA as Montgomery had suggested. “We have found that he is a complete and total FRAUD,” the former NSA employees concluded.
In the ruling Snow speculates about the reasons why the drives were not turned over initially.
“There were many reasons Sheriff Arpaio would not have wanted the hard drives and their fraudulent nature disclosed,” Snow writes. “First, Mr. Montgomery committed a fraud on the MCSO. Having paid large sums of money to Montgomery for his investigations, the MCSO was a victim of that fraud. Disclosure could therefore bring embarrassment to Sheriff Arpaio and the MCSO.”
While the sheriff’s office was in violation of the 2011 preliminary injunction for 17 months, officers detained at least 157 suspected unauthorized immigrants who had not been accused of committing any state crimes.
Snow finds the violation of the injunction went beyond those 157, since they “resulted in harm to many class members who were detained when they otherwise would not have been regardless of whether they were ultimately transferred to ICE or the Border Patrol.”
Snow invites the parties to suggest how individuals harmed by the violation of the 2011 preliminary injunction should be compensated.
Snow’s ruling includes scathing passages about the sheriff’s internal affairs department, which is supposed to investigate internal misconduct and mete out discipline.
“To escape accountability for their own misconduct, and the misconduct of those who had implemented their decisions, Defendants, or their proxies, named disciplinary officers who were biased in their favor and had conflicts,” Snow writes.
There was an internal investigation into how the sheriff’s office failed to implement the 2011 preliminary injunction. The person Arpaio appointed to lead the investigation, Chief Mike Olson, was Sheridan’s subordinate and yet Sheridan was one of the principals under investigation. While Olson initially sustained findings against several individuals, including Sheridan, Olson ultimately reversed all the findings. That meant in the end, not a single person in the agency was disciplined for failing to implement the 2011 preliminary injunction.
“The Court finds that as a matter of fact, Sheriff Arpaio achieved what he desired in appointing Chief Olson to the position—a biased decision-maker who imposed no discipline on anyone for the MCSO’s 17 month violation of this Court’s orders,” Snow writes.
Snow also was displeased that the sheriff’s office uses a more lenient discipline matrix for internal investigations stemming from this court case versus other incidents.
“As a result of this special policy, the MCSO generally treated misconduct that harmed members of the Plaintiff class less seriously than the uniform level of discipline that MCSO policy otherwise requires,” Snow writes.
Snow also alludes to manipulations of timing so that the investigators would not be able to impose serious disciplinary measures. He flags instances where investigators took on cases despite conflicts of interest, and notes one case where a detective was notified by a friend as soon as a witness came forward with an allegation against him that was supposed to be confidential.
Because of these deficiencies and others, Snow determines that at least four internal investigations are either invalid or void. One investigation was supposed to evaluate supervisors’ failures in overseeing Ramon “Charley” Armendariz, a former deputy and star of the Human Smuggling Unit who hung himself after drugs, illegal weapons, a cache of IDs, license plates, credit cards and other items were discovered in his garage.
The other internal investigations were into the misconduct related to the items in Armendariz’s garage (more on that in item 8) and allegations that deputies had a widespread practice of seizing identifications and other possessions, including from Latino drivers in the plaintiff class.
Snow indicates major reforms to the internal affairs division are needed and invites the parties to weigh in. He also asks the parties to comment on how the voided investigations can be reopened, and how future internal investigations related to this case should be handled in the future. In the ruling he suggests the possibility they be done by a third party outside of the supervision of Arpaio.
In May 2014 the sheriff’s office discovered one of its deputies in the Human Smuggling Unit, Ramon "Charley" Armendariz, had stashed an illegal weapon, hundreds of IDs, license plates, credit cards, cell phones, drugs, CDs and videos of his own traffic stops in his garage. Armendariz resigned and hung himself at his home days later.
Immediately Snow raised questions about whether Armendariz was shaking down immigrants.
Before Armendariz died, he alleged in an interview with the MCSO that the items in his garage belonged to the entire Human Smuggling Unit. He said a female coworker removed items stored in HSU offices and placed them in his garage because she “got word of an upcoming inspection by the Internal Affairs Division.” Though Montoya initially denied any involvement, she later acknowledged dropping some items off at Armendariz's residence and loading other items into his vehicle.
But Snow finds that “[e]ven after Officer Montoya confessed as much, there was no further investigation or reassessment of her involvement, or that of anyone else, in the possible mishandling or theft of property in either an administrative or a criminal investigation.”
Montoya was apparently spared from taking a polygraph test after experiencing a panic attack, according to testimony in the contempt hearing. Neither she nor anyone else received any discipline in connection to the items in the garage that were apparently stolen from members of the public.
The sheriff’s office has acknowledged that some of the IDs found in Armendariz’s garage resulted from traffic stops made by other officers. But Snow notes that Sergeant David Tennyson, who led the internal investigation, was not able to explain at the evidentiary hearing how they wound up in the garage.
Snow finds that the sheriff’s office only investigated 28 items of personal property found at Armendariz’s home, even though there were over a thousand items. Snow finds the sheriff’s office never investigated any of the weapons, credit cards, CDs or cell phones found at the home.
One of the items that was investigated was a license plate that belonged to a woman by the name of Manuela Ruiz Hernandez. Snow’s ruling says Hernandez reported that a female deputy took the plate after asking her if she was a citizen, a Mexican and whether she was “illegal” and a “wetback.” Snow writes there is evidence the stop was made by Deputy Amie Duong, but MCSO only sustained allegations of misconduct against the deceased Armendariz, not Duong.
Snow also finds the sheriff’s office purposely delayed internal investigations related to Armendariz’s garage so they could not be evaluated in the evidentiary hearing.
After the discovery of all of the IDs in Armendariz’s garage in May 2014, Snow wanted to know if there was a widespread practice of improperly seizing IDs from the public, and the plaintiff class of Latino motorists in particular. He ordered any IDs in the possession of the MCSO should be turned over to the court. The sheriff’s office was also under an order to notify the court as soon as there is an internal affairs investigation that relates to this case.
In early July a sergeant tried to put 1,459 IDs in the agency’s Property and Evidence department for destruction. The supervisor, who was aware of the court order, refused. Internal Affairs investigators were notified about the IDs, as was one of the sheriff’s attorneys, Michele Iafrate.
The sheriff’s office did not notify the court’s independent monitoring team about the IDs or the internal investigation into them, since Iafrate said she was going to research whether the IDs in this instance fell under the court’s order. Chief Deputy Jerry Sheridan suspended the investigation.
When members of the monitor’s team visited later that July, they sat down in a meeting with several members of the sheriff’s staff. Testimony varies on the exact question asked, but a monitor asked either if there were any other pending investigations regarding IDs, or if anymore IDs had been found.
Captain Steve Bailey, the head of the Professional Standard Bureau, testified in the contempt hearing that, “I was asked the question, and I just glanced at [Iafrate], and she looked at me and said no.”
Snow finds Bailey, Iafrate and Sheridan violated his orders.
“When Captain Bailey answered “no” to the Monitor’s question pertaining the identifications, regardless of the phrasing of the question, he knowingly violated the orders of the Court. Chief Deputy Sheridan, Captain Bailey, and Ms. Iafrate violated the specific and direct orders of this Court without a justifiable basis for doing so.”
It remains to be seen if this finding will have any ramifications for Iafrate. The State Bar of Arizona can choose to investigate cases where there are allegations that an attorney has violated the rules of professional conduct.
One of the most dramatic twists in this saga came in June 2014 when Phoenix New Times reporter Stephen Lemons wrote that the sheriff’s office had hired Dennis Montgomery to engage in a covert investigation to expose Snow was colluding with the U.S. Department of Justice and others in an alleged anti-Arpaio conspiracy.
The sheriff’s office had in fact quietly hired Montgomery as a confidential informant, and it became a mystery who had tipped Lemons off. That article was the basis for Snow questioning Arpaio under oath in April 2015 about Montgomery.
Snow finds in his ruling that MCSO may have put surveillance on a witness who came forward with allegations of misconduct against a detective in order to see if she was Lemons’ source of information.
Maryann McKessy, an attorney with the Maricopa County Attorney’s Office and a former girlfriend of Detective Brian Mackiewicz, put in a complaint of misconduct against Mackiewicz in August of 2014. Mackiewicz was assigned to working with Dennis Montgomery on the Seattle investigation, and McKessy alleged that he was billing his hours improperly and had Montgomery build him a personal computer. She also alleged Mackiewicz had a romantic relationship with a domestic violence victim he met on a case he investigated, and used steroids.
Snow finds that MCSO investigators — who were friends with Mackiewicz — subverted the investigation, failed to follow up, and improperly notified Mackiewicz about McKessy’s allegations.
“[T]hey discussed Ms. McKessy’s allegations, and the possibility that she was the snitch Sheriff Arpaio wished to identify who had disclosed the substance of the Seattle investigation to The New Times...They in fact apparently initiated some sort of surveillance on Ms. McKessy to determine if she was in contact with Steve Lemons...In their phone conversation the next day, in which Sergeant Tennyson continued to discuss with Detective Mackiewicz the details of McKessy’s allegations against him, Mackiewicz comments to Tennyson that “[i]f Maryann [McKessy] goes to Lemons we’ll know it’s her,” to which Tennyson responds, “exactly.””
The Arizona Attorney General’s Office has since taken over the investigation against Mackiewicz.