Case 2:12-cv-00981-ROS Document 350 Filed 11/14/14 Page 1 of 18

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Mark Kappelhoff
Deputy Assistant Attorney General
Jonathan M. Smith (DC Bar No. 396578)
Edward G. Caspar (MA Bar No. 650566)
Jennifer L. Mondino (NY Bar No. 4141636)
Paul Killebrew (LA Bar No. 32176)
T. Jack Morse (GA Bar No. 449134)
Puneet Cheema (CA Bar No. 268677)
Brian Buehler (NY Bar No. 4893665)
U.S. Department of Justice, Civil Rights Division
Special Litigation Section
601 D St. NW, 5th Floor
Washington, D.C. 20004
Tel. (202) 514-2000/Fax (202) 514-6273
edward.g.caspar@usdoj.gov
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Maricopa County, Arizona; and Joseph M.
Arpaio, in his official capacity as Sheriff of
Maricopa County, Arizona,
Defendants.

No. 2:12-cv-00981-ROS
UNITED STATES RESPONSE TO
DEFENDANT ARPAIOS MOTION
FOR PARTIAL SUMMARY
JUDGMENT

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19

Defendant Arpaios Motion must be denied because there are no legal grounds in

20 support, and genuine disputes as to material facts remain. Fed. R. Civ. P. 56(a).
The Melendres Injunction Does Not Foreclose Relief for the United States
21 I.
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28

There are no legal grounds for granting summary judgment against the United
States on Claims 1, 2, 3, or 5 of its Complaint based on the injunction in Melendres. The
Melendres injunction does not reach all of the conduct challenged by the United States,
has been appealed by the Defendants in the Court of Appeals and is years from full
implementation. Defendant Arpaio cannot successfully argue that the Melendres
injunction fully remedies the unlawful conduct at issue in the United States claims, that
this blocks any redress of the United States injuries, depriving the United States of

Case 2:12-cv-00981-ROS Document 350 Filed 11/14/14 Page 2 of 18

1 standing and otherwise rendering its claims moot. See Doc. 345, at 2-8.
2

[T]he interest required of a litigant to attain standing is essentially the same as the

3 interest required to maintain a claim under the mootness doctrine. Nelsen v. King Cnty.,
4 895 F.2d 1248, 1250 (9th Cir. 1990). The United States must establish standing, but
5 [t]he party asserting mootness bears the burden of establishing that there is no effective
6 relief that the court can provide. That burden is heavy . . . . Forest Guardians v.
7 Johanns, 450 F.3d 455, 461 (9th Cir. 2006) (internal citation omitted). [A] case
8 becomes moot only when it is impossible to grant any effectual relief whatever. Chafin
9 v. Chafin, 133 S. Ct. 1017, 1023 (2013) (internal citations omitted).
10
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12

A. The United States Claims Seek Relief from a Broader Scope of Unlawful
Conduct than that Addressed by the Melendres Order.
As explained in the United States Motion for Partial Summary Judgment, the

13 conduct addressed by the Melendres order is a subset of the conduct that the United
14 States asserts in its discriminatory policing claims. Doc. 332, at 6 (emphasis added).
15 Claims 1, 3, and 5 of the United States Complaint seek relief from Defendants
16 discriminatory policing practices, including traffic stops, workplace raids, and jail
17 operations. See United States Statement of Additional Facts in Response to Def.
18 Arpaios Mot. for Partial Summ. J. 1, 3 [hereinafter SAF]. The discrimination in
19 workplace raids and jail operations clearly is not covered by the Melendres order, nor
20 does Defendant claim that it is. See Doc. 345, at 1 n.1. Likewise, Claim 2 of the United
21 States Complaint seeks relief for Fourth Amendment violations that are beyond the
22 scope of those addressed by Melendres, including unreasonable searches and detentions
23 during MCSO worksite raids. See SAF 2. The Melendres order simply does not fully
24 redress the United States injuries as to those claims, and cannot render the claims moot.
25 See Flagstaff Med. Ctr., Inc. v. Sullivan, 962 F.2d 879, 885 (9th Cir. 1992) (Partial relief
26 in another proceeding cannot moot an action that legitimately seeks additional relief.);
27 Doe v. Stegall, 653 F.2d 180, 183-184 (5th Cir. 1981) (same).
28

Nor does the Melendres order moot, or deny the United States standing to assert,

Case 2:12-cv-00981-ROS Document 350 Filed 11/14/14 Page 3 of 18

1 Claims 1, 3, and 5 seeking relief for discrimination in general traffic enforcement. The
2 United States asserts in this case that MCSO officers unlawfully discriminate against
3 Latino drivers in the enforcement of traffic laws generally, not only during
4 immigration-related enforcement operations. SAF 3. In contrast, the injunction
5 ordered in Melendres is necessarily tied to the Courts finding that MCSO officers
6 engaged in discrimination in enforcing state laws relating to immigration status, SAF
7 4, and is based on MCSO practices relating to saturation patrols aimed at detecting
8 unauthorized aliens. Id.; see Missouri v. Jenkins, 515 U.S. 70, 88 (1995) ([F]ederal9 court decrees must directly address and relate to the constitutional violation itself.
10 (internal citations omitted)). 1 Tied as it is to immigration-related operations, the
11 Melendres order cannot and does not provide full relief for the United States claims of
12 discrimination in general traffic enforcement. As such, the Melendres order neither
13 renders the United States claims moot, nor prevents the Court in this case from ordering
14 effective relief. See Sullivan, 962 F.2d at 885; accord Donovan v. Cunningham, 716 F.2d
15 1455, 1461-62 (5th Cir. 1983) (settlement of a class action did not moot action by the
16 Secretary of Labor based on the same events because the Secretary sought broader relief);
2
17 Madyun v. Thompson, 657 F.2d 868, 871-872 (7th Cir. 1981). The cases cited by

18 Defendant are inapposite, because the legal disputes there had been wholly resolved, and
19 there was nothing remaining for the courts to decide. Kittel v. Thomas, 620 F.3d 949,
20 952 (9th Cir. 2010); see Lombardo v. Warner, 481 F.3d 1135, 1136-37 (9th Cir. 2007).
21

B. The Melendres Order Does Not Foreclose Relief to the United States Even
for the Unlawful Conduct at Issue in Melendres.

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As to the unlawful conduct found in Melendres, as to which the United States also

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Defendant argues that the plaintiffs complaint in Melendres alleged

26 discrimination in general traffic stops, see Doc. 345, at 3 & n.3, but it is the scope of the
order, not the Complaint, that matters here.
27
2
Even if provisions of the Melendres order affect general traffic enforcement, it
28 cannot be assumed that additional remedial provisions would not be warranted based on a
broader finding of discrimination untethered to immigration-related operations.
3

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1 seeks relief, the injunction there does not foreclose relief because it does not provide a
2 full remedy to the United States, it is on appeal, and it is years from full implementation.
3

1. The United States is entitled to an injunction on the conduct addressed by

4 the Melendres order because that order does not afford the United States adequate
5 redress for its claims. See United States v. Borden Co., 347 U.S. 514, 519-20 (1954). In
6 Borden Co., 347 U.S. 514 (1954), the Supreme Court held that, because of the different
7 interests sought to be vindicated by the United States, a District Court had abused its
8 discretion in refusing to grant the United States an injunction against certain dairies under
9 the Sherman Act solely because a private action had resulted in a consent decree that
10 enjoined the conduct in question and [in the District Courts view] made it useless to
11 award the Government an injunction. Id. at 515, 520. As the Supreme Court explained,
12 To hold that a private decree renders unnecessary an injunction to which the
13 Government is otherwise entitled is to ignore the prime object of civil decrees secured by
14 the Governmentthe continuing protection of the public, by means of contempt
15 proceedings, against a recurrence of antitrust violations. Should a private decree b[e]
16 violated, the Government would have no right to bring contempt proceedings to enforce
17 compliance; it might succeed in intervening in the private action but only at the courts
18 discretion. Id. at 519. The Court added that in its efforts to enforce the decree, the
19 private plaintiff necessarily would be guided by its own interests and resources, which
20 were markedly different than those of the United States. Id.
21

Likewise, here, the United States interests in seeking relief from the

22 discriminatory conduct at issue in Melendres and in ensuring compliance with the

23 injunction are distinct from those of the private plaintiffs in Melendres. See United
24 States v. E. Baton Rouge Parish Sch. Bd., 594 F.2d 56, 58 (5th Cir. 1979) ([T]he United
25 States has an interest in enforcing federal law that is independent of any claims of private
26 citizens.); Heaton v. Monogram Credit Card Bank of Georgia, 297 F.3d 416, 425 (5th
27 Cir. 2002) (noting that, although government agency and private partys interests
28 appeared to share common ground, they may diverge in the future given that the

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1 government must represent the public interest). Unlike the private plaintiffs, the United
2 States must ensure that orders concerning compliance are consistent with its nationwide
3 enforcement of the same civil rights laws, and with the United States law enforcement
4 interests generally. Yet, as information bearing on Defendants compliance with the
5 Melendres order repeatedly has been sealed, SAF 5, and as the United States is not a
6 party to the Melendres case, the United States cannot effectively protect its unique
7 interests in ensuring that Defendants unlawful conduct is fully remedied through
8 compliance with the injunction. See Borden Co., 347 U.S. at 519; E.E.O.C. v. Goodyear
9 Aerospace Corp., 813 F.2d 1539, 1543 (9th Cir. 1987) (settlement of employees claim
10 against employer did not moot EEOCs suit against same employer based on same
11 conduct because the EEOC promotes public policy and seeks to vindicate rights
12 belonging to the United States as sovereign).
13

Entry of judgment in favor of the United States would allow it to secure joinder in

14 the Melendres case as a required party under Rule 19(a)(1), so that it may protect its
15 interests in ensuring Defendants compliance with the injunction to the extent it addresses
16 the unlawful conduct at issue in the United States claims. Though this interest of the
17 United States depends on a subsequent order in another case, [h]owever small that
18 concrete interest may be due to potential difficulties in enforcement, it is not simply a
19 matter of academic debate, and is enough to save this case from mootness. Chafin, 133
20 S. Ct. at 1026 (internal citations omitted); see also Lucero v. Trosch, 121 F.3d 591, 59521 597 (11th Cir. 1997) (though claims were moot as to original plaintiff because he sold his
22 interest to a purchaser who was not yet a party to the case, the prospect of the purchasers
3
23 joinder defeated mootness of the injunction appeal).

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2. Defendants appeal of the Melendres order keeps it from mooting the

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3

Previously, joinder of the United States claims that overlap with the finding of
discrimination in Melendres would not have been appropriate, given the two cases very
27 different stages of litigation. Entry of summary judgment in favor of the United States on
28 its discriminatory policing claims would make these claims ripe for joinder.
26

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1 United States claims. Defendants appeal of the scope of the order in Melendres, SAF
2 6, renders uncertain the orders ultimate impact on the conduct at issue in this case and
3 prevents the United States claims from being moot, even as to the conduct at issue in
4 Melendres. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291 n. 7
5 (2005) (cert. petition to the Supreme Court concerning a state court decision that
6 potentially resolved a claim at issue in a parallel federal lawsuit prevented the federal
7 case from being moot); Rogin v. Bensalem Twp., 616 F.2d 680, 684 (3d Cir. 1980)
8 (decision in state case did not moot challenges to the same conduct in a federal action
9 because the state decision remained pending on appeal). Indeed, an important reason the
10 United States maintains its claims of discriminatory traffic enforcement is to preserve the
11 opportunity to gain relief if the scope of the Melendres injunction is reduced.
12

The injunction ordered in Melendres simply provides no legal grounds for

13 granting summary judgment against the United States on any of its claims. There is a
14 legal mechanism for accounting for the impact of Melendres on this case, and that is the
15 application of issue preclusion as to the determination that Defendant Arpaio and MCSO
16 engaged in racial discrimination during immigration-related law enforcement operations.
17 See Doc. 332, at 4-9. Appropriate remedies may be determined only after the record of
18 the Defendants wrongdoing is fully established at trial.
19

3. The United States injuries have not been redressed because compliance is

20 years away. SAF 7. Full and effective compliance with the Melendres injunction
21 requires achievement of twenty-one separate categories of affirmative obligations. Id.
22 Implementation of the order has only just begun, and in important respects, it is moving
23 slowly or has failed to begin at all. SAF 8. The mere existence of the order, therefore,
24 does not redress the United States injuries. Nor does it establish that Defendant has
25 discontinued the unconstitutional conduct. Defendant has a dismal track record of
26 compliance thus far. SAF 8-9, 186. Moreover, Defendant persistently denies having
27 engaged in discriminatory conduct despite the courts holding to the contrary. SAF 9,
28 187. A partys persistent insistence on its own blamelessness and repeated self-

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1 justification is sufficient to show a likelihood of future violation. United States v.

2 Laerdal Mfg. Corp., 73 F.3d 852, 856 (9th Cir. 1995).
3 II.

Ample Evidence Establishes the Title VI LEP Inmate Discrimination Claims

A. The United States Disparate Impact Claims Are Not Challenged.

In seeking summary judgment on the claims of discrimination against limited-

6 English proficient (LEP) Hispanic jail inmates, Defendant argues only that the evidence
7 is insufficient to show intentional discrimination. His motion must fail because the
8 United States has claimed not only intentional discrimination, but disparate impact
9 discrimination as well. See Doc. 1, 179, 184. The Title VI regulations, which Claims
10 4 and 5 seek to enforce, prohibit such unlawful disparate impact discrimination. See 28
11 C.F.R. 42.104(b)(2). Defendant has not challenged the legal or evidentiary bases for
12 this disparate impact claim, so his motion for summary judgment on Claims 4 and 5
13 (asserting discrimination against LEP Hispanic inmates) must fail.
14

B. Ample Evidence Establishes Defendants Intentional Discrimination.

15

The United States claims of intentional discrimination against LEP Hispanic

16 inmates are supported by an abundance of evidence, as recounted herein. To the extent

17 Defendant disputes this evidence, genuine disputes as to material facts remain, which
18 precludes summary judgment. See Fed. R. Civ. P. 56(a). The McDonnnel Douglas
19 framework for establishing intentional discrimination under Title VII applies as well to
20 Title VI cases. Rashdan v. Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014). Applying
21 that framework to a Title VI claim, the Ninth Circuit has advised that the requisite degree
22 of proof necessary to establish a prima facie case on summary judgment is minimal and
23 does not even need to rise to the level of a preponderance of the evidence. Id. at 1183.
24

Title VI provides: No person in the United States shall, on the ground of race,

25 color, or national origin, be excluded from participation in, be denied the benefits of, or
26 be subjected to discrimination under any program or activity receiving Federal financial
27 assistance. 42 U.S.C. 2000d. The Act directs Federal agencies to issue regulations
28 effectuating its command. Id. 2000d-1. The regulations prohibit recipients from

Case 2:12-cv-00981-ROS Document 350 Filed 11/14/14 Page 8 of 18

1 restrict[ing] an individual in any way in the enjoyment of any advantage or privilege

2 enjoyed by others receiving any disposition, service, financial aid, or other benefit under
3 the program and utiliz[ing] criteria or methods of administration which have the effect
4 of subjecting individuals to discrimination, 28 C.F.R. 42.104(b)(1)(iv), or have the
5 effect of defeating or substantially impairing accomplishment of the objectives of the
6 program as respects individuals of a particular race, color, or national origin. 28 C.F.R.
7 42.104(b)( 2). A federal financial recipient that fails to take reasonable steps to ensure
8 that language barriers do not exclude LEP persons from effective participation in its
9 benefits and services violates Title VI and its implementing regulations. See Lau v.
10 Nichols, 414 U.S. 563, 568 (1974); Department of Justice, Enforcement of Title VI of the
11 Civil Rights Act of 1964National Origin Discrimination Against Persons With Limited
12 English Proficiency; Policy Guidance, 65 Fed. Reg. 50123, 50124 (Aug. 16, 2000)
13 [hereinafter DOJs 2000 Title VI Guidance]; Department of Justice, Guidance to Federal
14 Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin
15 Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41455,
16 41469-70 (Jun 18, 2002) (discussing four factors to consider in deciding on reasonable
17 steps specifically in the context of jails) [hereinafter DOJs 2002 Title VI Guidance].
18

For its intentional discrimination claim, the United States must show that

19 Defendants language access failure was due in part to an invidious discriminatory

20 purpose. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66
21 (1977). Determination of intentional discrimination demands a sensitive inquiry into
22 such circumstantial and direct evidence of intent as may be available, and the impact of
23 Defendants language access failureswhether it bears more heavily on one race than
24 another,is an important starting point. Id. at 266.
25

An abundance of evidence establishes both Defendants language access failures

26
27
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1 and his discriminatory intent. 4 First, Defendant relies heavily on its DI-6 Policy
2 regarding LEP inmates, but Defendant did not adopt that policy until October 2013
3 eighteen months after the United States brought this suit, and over four years after the
4 United States notified Defendant of his potential language access failures. SAF 10-11.
5 That delay alone supports an inference of Defendants intentional discrimination. See
6 Almendares v. Palmer, 284 F. Supp. 2d 799, 808 (N.D. Ohio 2003) (allegations that
7 defendants chose to continue a policy of failing to ensure bilingual services, knowing that
8 Spanish-speaking applicants and recipients of food stamps were being harmed as the
9 consequence, stated intentional discrimination claim under Title VI). Defendant claims
10 that he took reasonable language access measures before the adoption of his LEP policy
11 in 2013, but the only measure he cites is the claimed use of a telephonic interpretation
12 service. Doc. 345, at 11 n. 12. Reliance on such a service in a facility with such a large
13 LEP population as MCSO jails is patently insufficient. See DOJs 2002 Title VI
14 Guidance, 65 Fed. Reg. at 41469 (Telephonic interpretation services may offer a prudent
15 oral interpreting option for prisons with very few and/or infrequent prisoners in a
5
16 particular language group.); SAF 12; Doc. 337, Defendants SOF, 63.

17

Notwithstanding Defendants recent adoption of an LEP policy, reports from two

18 experts in jail administration, and sworn statements and testimony from MCSO personnel
19 and inmates, show a failure to implement the policys provisions and further establish
20 Defendants longstanding and persistent pattern or practice of language access failures.
21 These witnesses establish, for example, that MCSO personnel routinely give oral and
22 written instructions and information to inmates primarily or exclusively in English, SAF
23 13-14; officers ignore LEP Hispanic inmates and refuse to speak with them, id. 15;
24

Evidence of Defendants discrimination against Hispanic inmates also constitutes

25 evidence, under Arlington Heights, of his intent to discriminate in policing practices. See
26 Arlington Heights, 429 U.S. at 266.
5
As with law enforcement activities, critical and predictable contact with LEP
27 individuals [in jails] poses the greatest obligation for language services. Corrections
28 facilities have somewhat greater abilities to assess the language needs of those they
encounter . . . . DOJs 2002 Title VI Guidance, 67 Fed. Reg. at 41469.
9

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1 bilingual detention officers refuse to interpret for LEP Hispanic inmates, id. 16; LEP
2 Hispanic inmates must rely on other inmates to interpret and translate for them for
3 matters ranging from daily necessities, to complaints, discipline, and medical
4 emergencies, which compromises their safety and security, id. 17; see DOJs 2002 Title
5 VI Guidance, 65 Fed. Reg. at 41469 (Reliance on fellow prisoners is generally not
6 appropriate.); the vast majority of classes, including those likely to be associated with
7 reduced sentences or other benefits, are offered only in English, SAF 18; see DOJs
8 2002 Title VI Guidance, 65 Fed. Reg. at 41470 (jails should account for an LEP inmates
9 inability to participate in programs that can result in sentence reductions); LEP inmates
10 have inadequate access to educational and substance abuse programs, SAF 19; LEP
11 Hispanic inmates have less access to legal materials, medical care, and visitation than
12 English-speaking inmates, id. 19-22; MCSO personnel receive inadequate training on
13 matters necessary to ensure LEP Hispanic inmates meaningful access to jail programs,
14 services, and opportunities, id. 23-24; and Defendant continues to have inadequate
15 policies to ensure appropriate identification of LEP inmates, communication of such
16 identification to MCSO staff, and assessment of LEP inmate literacy levels, see DOJs
17 2002 Title VI Guidance, 65 Fed. Reg. at 41469 ([A]gencies should be aware of literacy
18 problems so that LEP services are provided in a way that is meaningful and useful (e.g.,
19 translated written materials are of little use to a nonliterate inmate).); SAF 25.
20

The evidence also establishes the significant harm caused by Defendants

21 language access failures. Given the importance of information communicated by jail

22 authorities in a jail setting, including information concerning security, discipline, legal,
6
23 and medical matters, SAF 26, the denial of such information constitutes significant

24 harm to LEP Hispanic inmates. The evidence also establishes that MCSO officers have
25 disciplined Latino LEP inmates more frequently or more harshly than English speaking
26

See DOJs 2002 Title VI Guidance, 67 Fed. Reg. at 41469 (Contact affecting
27 health and safety, length of stay, and discipline likely present the most critical situations
28 under the four-factor analysis.).

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1 inmates, id. 27; target Latino inmates for searches, id. 28; ignore or delay resolution
2 of inmate requests submitted in Spanish, id. 29; and deny LEP Hispanic inmates work
3 assignments associated with rewards such as additional food or recreation, id. 30.
4

Considerable evidence also establishes the discriminatory intent behind

5 Defendants language access failures. First, these failures fall most heavily on Hispanic
6 inmates: almost all LEP inmates are Hispanic and Spanish speaking, and Hispanic LEP
7 inmates make up a significant proportion of the inmate population. Id. 31-32; see
8 Arlington Heights, 429 U.S. at 266 (the impact of a challenged policy or practice may
9 evince a discriminatory intent); Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487
10 (1997) (same, because people usually intend the natural consequences of their actions).
11 Additionally, testimony from MCSO officers and inmates establish MCSO officers
12 awareness of the negative impact of language access failures on LEP Hispanic inmates,
13 SAF 33; the routine use of racial slurs by detention officers, id. 34; and officers
14 admonitions to speak English and their taunting of LEP Hispanic inmates for their
15 inability to speak English, id. 35. Statements indicating race and national-origin based
16 discriminatory animus by MCSO leadership, including Defendant Arpaio, also evince the
17 discriminatory intent behind Defendants language access failures, id. 36, as officers
18 often will follow the behavior of leadership over a written policy, id. 37.
19

Clearly, to the extent Defendant denies the language access failures established in

20 the record, there exist genuine disputes as to material facts, which preclude summary
7
21 judgment. See Fed. R. Civ. P. 56(a).

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25
26
27
28

Defendant refers to an unrelated report by the U.S. Marshals Service (USMS) as

the most convincing piece of evidence in the record concerning his compliance. Doc.
345, at 12. Yet, as Defendant was informed at the time of that report, the inspections at
issue were designed to review jail practices to verify basic, minimal requirements [for
housing Federal detainees] are met. They are not to be used in lieu of potentially more
intensive or focused reviews by other appropriate authorities regarding jail conditions and
practices. USMS inspections are not certifications, accreditation, or compliance approval
of any sort. United States Statement of Controverting Facts, 103.
11

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1 III.

No Grounds Support Summary Judgment on the Retaliation Claim.

A.

Defendants pattern or practice of unconstitutional retaliation includes the filing of

Defendant Enjoys No Privilege for His Retaliatory Conduct.

4 baseless bar and judicial complaints against attorneys and judges who opposed him or his
5 agenda. See United States Statement of Controverting Facts 106; SAF 115-128,
6 142-155; see White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) (Informal measures,
7 such as the threat of invoking legal sanctions and other means of coercion, persuasion,
8 and intimidation can violate the First Amendment . . . . (internal citations omitted)).
9 Defendant claims protection for such retaliation because Arizona courts have recognized
10 an absolute privilege extended to anyone who files a complaint with the State Bar
11 alleging unethical conduct by an attorney. Drummond v. Stahl, 618 P.2d 616, 620
12 (Ariz. Ct. App. 1980). But state law cannot provide immunity from suit for federal civil
13 rights violations. Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir. 2000) (reversing
14 decision to apply state statutory immunities for child abuse investigations to federal 42
15 U.S.C. 1983 constitutional claims); see Martinez v. California, 444 U.S. 277, 284 & n.
16 8 (1980). And Federal law recognizes no immunity for filing bar complaints. Lampton
17 v. Diaz, 639 F.3d 223, 229 (5th Cir. 2011) (federal law does not provide immunity to
18 complainants before state ethics committees). Defendants privilege-based argument
19 therefore fails.
20

B.

The United States Need Not Plead or Prove a Lack of Probable Cause.

21

It is beyond question that in the Ninth Circuit, the existence of probable cause is

22 not dispositive of a First Amendment claim for retaliatory law enforcement action. As
23 the Ninth Circuit stated unequivocally in Ford v. City of Yakima, an individual has a
24 right to be free from retaliatory police action, even if probable cause existed for that
25 action. 706 F.3d 1188, 119596 (9th Cir. 2013); see Skoog v. Cnty. of Clackamas, 469
26 F.3d 1221, 1232 (9th Cir. 2006) ([W]e conclude that a plaintiff need not plead the
27 absence of probable cause in order to state a claim for retaliation.). The cases cited by
28 Defendant hold only that, for purposes of qualified immunity, such a right was not clearly

12

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1 established at the time of the events at issue in those cases. See Reichle v. Howards, 132
2 S. Ct. 2088, 2093 (2012) (considering 10th Circuit law and explicitly declining to address
3 the question whether a First Amendment retaliatory arrest claim may lie despite the
4 presence of probable cause to support the arrest); Acosta v. City of Costa Mesa, 718
5 F.3d 800, 824-25 (9th Cir. 2013); Am. News & Info. Servs., Inc. v. Gore, No. 12-CV6 2186 BEN (KSC), 2014 WL 4681936, at *9 (S.D. Cal. Sept. 18, 2014). Acosta did not
7 mention the right recognized in Skoog, let alone overrule it. See Acosta, 718 F.3d at 8248 25; Morse v. San Francisco Bay Area Rapid Transit Dist. (BART), No. 12-CV-5289 JSC,
9 2014 WL 572352, at *12 (N.D. Cal. Feb. 11, 2014) (recognizing right as clearly
10 established, and noting that [t]he Acosta court provides no analysis as to why Skoog
11 would not still apply.). Indeed, even after Acosta, the Ninth Circuit has continued to
12 rely on the holding in Skoog. See Martin v. Naval Crim. Investigative Serv., 2013 WL
13 4757224, at *1 (9th Cir. Sept. 5, 2013) (unpublished) (Our precedent has long provided
14 notice to law enforcement officers that it is unlawful to use their authority to retaliate
15 against individuals for their protected speech, Ford, 706 F.3d at 1195, even if probable
8
16 cause exists for the challenged law enforcement conduct, Skoog, 469 F.3d at 1235.).

17

In any event, the existence of qualified immunity is not at issue in this case, only

18 whether there is a right to be free from retaliatory arrest regardless of the existence of
9
19 probable cause. Whether or not it would have been clear to an arresting officer, see

20
8

21
22
23
24
25
26
27
28

Melendres illustrates why probable cause cannot insulate officers from

retaliatory acts. There, the court found that MCSO officers had no difficulty in finding a
basis to stop any vehicle they wished for a traffic infraction. MCSO witnesses who
testified at trial acknowledged that if you follow any vehicle on the roads of this country
for even a short amount of time, you will be able to pull that person over for some kind of
violation. Melendres, 989 F. Supp. 2d at 860-61 (citations omitted). Thus, an MCSO
campaign of retaliatory and harassing traffic stops would be completely unactionable.
9
Though the existence of probable cause is not dispositive, [p]robable cause for
the initial arrest can be evidence of a police officers lack of retaliatory animus for
subsequently booking and jailing an individual. Ford, 706 F.3d at 1204 n.2. Defendant
does not claim that the United States lacks sufficient evidence of the officers intent to
retaliate, and for good reason. The question of retaliatory animus involves questions of
fact that normally should be left for trial. Alpha Energy Savers, Inc. v. Hansen, 381 F.3d
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1 Anderson v. Creighton, 483 U.S. 635, 640 (1987) (a right is clearly established if a
2 reasonable official would understand that what he is doing violates that right), it is
3 beyond question in this case.
4

C. The United States Has Standing to Seek Relief for Defendants Pattern or

Practice of Unconstitutional Retaliation, and the Claim Is Not Moot.

1. Standing. Defendant claims that the United States lacks standing to seek

7 injunctive relief for his unconstitutional retaliatory acts because he is not alleged to have
8 engaged in them since 2010, and so there is no threat of future injury. Doc. 345, at 16.
9 But Article III standing requires not that Defendants unlawful conduct continues, but
10 that the injuries it causes are actual or imminent. Clark v. City of Lakewood, 259 F.3d
11 996, 1007 (9th Cir. 2001) (emphasis added) (Article III standing requires an injury that
12 is actual or imminent, not conjectural or hypothetical. In the context of injunctive relief,
13 the plaintiff must demonstrate a real or immediate threat of an irreparable injury.); see
14 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181-83
15 (2000) (evidence of ongoing injury sufficient to establish injury in fact).
16

Thus, in Allee v. Medrano, 416 U.S. 802 (1974), the Supreme Court affirmed the

17 grant of an injunction against law enforcement officers who had engaged in a pervasive
18 pattern of intimidation against union organizers in violation of the First Amendment, id.
19 at 812, even though the plaintiffs had not brought suit until after the conduct had ceased,
20 id. at 805, 810. The plaintiffs showed the necessary irreparable injury because their
21 injury persisted: the workers, and their leaders and organizers were placed in fear of
22 exercising their constitutionally protected rights of free expression, assembly, and
23 association, and [p]otential supporters of their cause were placed in fear of lending
24 their support. Id. at 814-15.
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Likewise, here, the harm caused by Defendants pattern or practice of retaliation

26 persists: it has had a chilling effect that persists today on peoples willingness to speak
27
28 917, 929-30 (9th Cir. 2004); accord Ford, 706 F.3d at 1204 n.2 (noting that the
determination of retaliatory animus should be left to the trier of fact).
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1 out against him. See SAF 127-28, 141, 155, 168-70. Most strikingly, it has cowed the
2 Maricopa County Board of Supervisors from living up to its obligations to ensure that
3 Defendant did not engage in unconstitutional discrimination. See id. 185. Were it not
4 for the ongoing effects of Defendants campaign of intimidation, the County may have
5 exercised its oversight authority to require Defendants compliance with Title VI, thereby
6 obviating the need for the United States to seek relief from the County in this case.
7

2. Mootness. Defendant also argues that the retaliation claim against him is moot

8 because he is not alleged to have engaged in the unlawful conduct since December 2010.
9 Doc. 345, at 16-17; see Friends of the Earth, Inc., 528 U.S. at 190-92 (discussing
10 distinctions between standing and mootness); Lozano v. AT & T Wireless Servs., Inc.,
11 504 F.3d 718, 732-33 (9th Cir. 2007) (same). His argument fails. It is well settled that
12 a defendants voluntary cessation of a challenged practice does not deprive a federal
13 court of its power to determine the legality of the practice. Friends of the Earth, Inc.,
14 528 U.S. at 189 (internal citations omitted). The defendant claiming that its voluntary
15 compliance moots a case bears the formidable burden of showing that it is absolutely
16 clear the allegedly wrongful behavior could not reasonably be expected to recur. Id. at
17 190 (emphasis added). This determination is based on all the circumstances, including
18 the character of the past violations, United States v. W. T. Grant Co., 345 U.S. 629,
19 633 (1953), as well as the isolated or recurrent nature of the infraction; the defendants
20 recognition of the wrongful nature of his conduct; the extent to which the defendants
21 professional and personal characteristics might enable or tempt him to commit future
22 violations; and the sincerity of any assurances against future violations. United States v.
23 Laerdal Mfg. Corp., 73 F.3d 852, 855 (9th Cir. 1995). Consideration of all the
24 circumstances here prevents Defendant from meeting his formidable burden to show
25 that it is absolutely clear that acts of retaliation could not reasonably be expected to
26 recur. Friends of the Earth, Inc., 528 U.S. at 190.
27

First, the commission of past illegal conduct is highly suggestive of the

28 likelihood of future violations. Fed. Election Commn v. Furgatch, 869 F.2d 1256, 1263

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1 (9th Cir. 1989) (internal citation omitted). Such conduct, without more, does not
2 automatically justify the issuance of an injunction, id., but together with the
3 circumstances below, it cannot be absolutely clear that acts of retaliation could not
4 reasonably be expected to recur, particularly given Defendants attitude towards the
5 judicial findings in Melendres that he has engaged in systemic violations of civil rights.
6 Defendant has exhibited the sort of extraordinary intransigence and hostility towards
7 compliance with federal civil rights laws and court orders that support[s] the inference
8 of a likelihood to commit future violations. Laerdal Mfg. Corp., 73 F.3d at 856 (internal
9 citation omitted). This District Court repeatedly has criticized Defendant for violating,
10 undermining, and flouting its remedial orders. SAF 186. 10 Additionally, Defendants
11 persistent refusal to acknowledge any wrongdoing even in the face of the courts findings
12 in Melendres, id. at 187, suggests that he would have no compunction at all against
13 engaging in retaliation if the Court were to dismiss the retaliation claim against him
14 before there has been a finding as to his liability. See Furgatch, 869 F.2d at 1262 (A
15 defendants persistence in claiming that (and acting as if) his conduct is blameless is an
16 important factor in deciding whether future violations are sufficiently likely to warrant an
17 injunction.).
The timing of Defendants cessation of retaliatory conduct also prevents a finding

18

19 that that it is absolutely clear that acts of retaliation could not reasonably be expected
20 to recur. Friends of the Earth, Inc., 528 U.S. at 190. The last instances of retaliation
21 known to the United States occurred in 2010, see SAF 178, and since then, Defendant
22 has known that he and MCSO have been the subject of active investigation for civil rights
23 violations. See id. 188. This timing, in light of the other relevant circumstances,
24 prevents a finding that acts of retaliation could not reasonably be expected to recur. See
25 United States v. Parke, Davis & Co., 362 U.S. 29, 48 (1960) (A trial courts wide
26

10

This extraordinary attitude alone makes Defendant ineligible for any deference he
27 might otherwise be afforded as a local government officer. There is less concern about
28 the recurrence of unlawful behavior by a government defendant only when the voluntary
cessation appears genuine. Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988).
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1 discretion in fashioning remedies is not to be exercised to deny relief altogether by lightly

2 inferring an abandonment of the unlawful activities from a cessation which seems timed
3 to anticipate suit.); W. T. Grant Co., 345 U.S. at 632 n. 5 (courts must beware of efforts
4 to defeat injunctive relief by protestations of repentance and reform, especially when
5 abandonment seems timed to anticipate suit, and there is probability of resumption).
6 IV.

The United States Does Not Seek an Obey-the-Law Injunction.

Defendant Arpaio mischaracterizes the nature of the relief sought by the United

8 States as an obey-the-law injunction. The United States Complaint specifically seeks

9 injunctive relief requiring the Defendants to adopt and implement policies, procedures,
10 and mechanisms to remedy the pattern or practice of unlawful conduct described herein,
11 and specifically addressing a variety of operational areas. SAF 189. Such an
12 injunction, based on the evidence in the record, is well within the Courts equitable power
13 to order. See Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988)
14 ([C]ourts of equity have broad discretion in shaping remedies. (internal citations
15 omitted)). And it would be premature to determine the availability of any injunctive
16 relief without first hearing the evidence in dispute. See E.E.O.C. v. Creative Networks,
17 L.L.C., 912 F. Supp. 2d 828, 846 (D. Ariz. 2012) (Because liability has yet to be
18 determined as to this claim, ruling on injunctive relief would be premature.).
19

Respectfully submitted,

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MARK KAPPELHOFF
Deputy Assistant Attorney General

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Jonathan Smith
Chief, Special Litigation Section

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/s/ Edward G. Caspar

Edward G. Caspar (MA Bar No. 650566)
Jennifer L. Mondino (NY Bar No. 4141636)
Paul Killebrew (LA Bar No. 32176)
T. Jack Morse (GA Bar No. 449134)
Puneet Cheema (CA Bar No. 268677)
Brian Buehler (NY Bar No. 4893665)
U.S. Department of Justice, Civil Rights Division

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CERTIFICATE OF SERVICE
I certify that on November 14, 2014, I used the Courts CM/ECF system to serve a

4 true and correct copy of the foregoing filing on counsel of record.

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/s/ Edward G. Caspar

EDWARD G. CASPAR

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