Case 2:07-cv-02513-GMS Document 1635 Filed 02/29/16 Page 1 of 5

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M. Craig Murdy (011016) Craig.Murdy@lewisbrisbois.com

Dane A. Dodd (031084) Dane.Dodd@lewisbrisbois.com
LEWIS BRISBOIS BISGAARD & SMITH LLP
Phoenix Plaza Tower II
2929 North Central Avenue, Suite 1700
Phoenix, Arizona 85012-2761
Telephone: 602.385.1040
Facsimile: 602.385.1051
Firm email: azdocketing@lewisbrisbois.com
Attorneys for Brian Sands

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres, on

behalf of himself and all others similarly
situated; et al.,

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Plaintiffs,
vs.

No. 07-cv-02513-PHX-GMS

RETIRED CHIEF SANDSS

RESPONSE TO THE COURTS
FEBRUARY 19, 2016 ORDER [DOC.
1624]

Joseph M. Arpaio, in his individual and

office capacity as Sheriff of Maricopa
County, Arizona; et al.

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Defendants.

(Hon. G. Murray Snow)

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Retired Chief Brian Sands respectfully submits the following response to the
Courts February 19, 2016 Order (Doc. 1624).

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Re Paragraph No. 1 in Doc. 1624: Chief Sands was not a party to this action when

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it went to trial in 2012. Consequently, Chief Sands did not have the opportunity to cross-

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examine witnesses, make objections, or present controverting evidence during the course

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of the trial. Therefore, Chief Sands objects to the use of evidence presented in that trial as

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evidence against him in this contempt proceeding. Likewise, he objects to the use of the

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findings of fact set forth in Doc. 579 being used against him in this proceeding for the truth

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of the matter asserted. Statements made in both the findings of fact, as well as the

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underlying evidence is inadmissible hearsay as to Chief Sands if used for the truth of the

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matter asserted. Fed. R. Evid. 801 and 802.

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Moreover, a court may not take judicial notice of proceedings or records in another

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cause so as to supply, without formal introduction of evidence, facts essential to support a

contention in a cause then before it. M/V Am. Queen v. San Diego Marine Constr. Corp.,

708 F.2d 1483, 1491 (9th Cir. 1983), see also Wyatt v. Terhune, 315 F.3d 1108, 1114 (9th

Cir. 2003) ([W]e have held that taking judicial notice of findings of fact from another

case exceeds the limits of Rule 201.), abrogated on other grounds by Albino v. Baca, 747

F.3d 1162, 1166 (9th Cir. 2014). There is especially good reason to refrain from using the

findings of fact against Chief Sands in this contempt proceeding, where the Court has

indicated they are apparently incorrect at least in part. See Doc. 1624 at 1:27 to 2:1.

The evidence presented at trial in 2012 and the findings facts based upon the same

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cannot be used for the truth of the matters they assert against Chief Sands. If they are,

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however, Chief Sands respectfully contends that they do not show what the February 19,

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2016 Order suggests they might. That Order states:

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In its previous findings of fact and conclusions of law the Court determined
that after MCSOs 287(g) authority was revoked, Sheriff Arpaio trained
what he represented to be all 900 of his patrol deputies that they had the
authority to enforce federal immigration law. The Court is now aware that
its determination in those pages that Sgt. Palmer provided such training
only up until the date the Court entered its preliminary injunction is
apparently incorrect. . . .
Doc. 1624 at 1:24 to 2:1 (citation omitted).

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Yet the evidence appears to conflict with the notion that even after the preliminary

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injunction Sergeant Palmer continued to provide training to MCSO deputies that they had

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the authority to enforce federal immigration law.

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Sergeant Palmer thought MCSOs deputies had the authority to enforce federal

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immigration law in 2010, but by July of 2012 he had been disabused of that notion both by

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the Courts preliminary injunction order and a ruling finding illegal presence to be a civil

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infraction:

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Q.

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4824-9966-7502.1

So at the time of your second deposition in this case [in 2010] you
believed that even without 287(g) authority, and MCSO deputy
would have the inherent authority to make reasonable detention of
individuals for whom he has reasonable suspicion to believe is in

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fact an illegal alien in the United States, is that correct?

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A.

Yes.

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Q.

Sir, is that still the law today?

A.

No.

Q.

Okay. And is that because of this Courts order in December of last

year?

A.

Yes, in part, and also I believe that there was a ruling at some level
that what Kris Kobach was teaching was actually a civil violation,
not a criminal violation.

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Trial Tr. 699:8-24 (Jul. 25, 2012) (emphasis added).

The Ninth Circuit issued a ruling that unauthorized presence was only a civil
violation and not a criminal one on March 11, 2011. Martinez-Medina v. Holder, 673 F.3d
1029, 1036 (9th Cir. 2011). The Supreme Court ruled the same way on June 25, 2012.
Arizona v. United States, 132 S. Ct. 2492, 2505 (2012). It is not clear which ruling Sgt.
Palmer is referencing.

The training he provided following the preliminary injunction,

however, shows that he was conveying to deputies that they did not have authority to
enforce federal immigration law.
Sergeant Palmer felt that as a sergeant in the Human Smuggling Unit, one of his
responsibilities was to make sure that deputies were complying with the law. Id. at 722:2223. Accordingly, after the preliminary injunction issued, he briefed the HSU about the
injunction. Contempt Hrg Tr. 218:5-24; 1816:24 to 1817:12. He misunderstood what the
preliminary injunction required, as evidenced by the training scenarios he drafted based
on . . . [his] conversations with Tim Casey. Ex. 2540. In particular, he erred in thinking
that, while writing a citation to someone for violating a state criminal statute,
[a] Deputy can simultaneously place a phone call to ICE to advise them of
his suspicion that the passenger may be an illegal alien in the U.S. If ICE
clearly instructs the Deputy to detain the passenger for subsequent turn over

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to an ICE facility or officer, then the Deputy can make the physical
detainment of the passenger based on the directive from ICE.
Ex. 2540 at Scenario 3.

This misunderstanding, however, is a far cry from saying that deputies have the

authority to enforce federal immigration law. Sgt. Palmers training is actually in strong

opposition to that notion. The training scenarios require a deputy to immediately release a

person irrespective of the deputys suspicion that the person is in the country illegally. Id.

at Scenario 1 and 2.

permissible to detain a person suspected of being in the country illegally is when ICE

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clearly instructs the deputy to detain that person. Id. at Scenario 3. In other words, only

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federal authorities have the authority to enforce federal immigration law. The overall

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message of the training seems clear: MCSO deputies do not have the authority to enforce

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federal immigration law.

The only situation in which Sgt. Palmers training states it is

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Re Paragraph No. 2 in Doc. 1624: The finding referenced in No. 2 of Doc. 1624

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does not appear to have direct relevance to the contempt proceeding against Chief Sands.

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However, to the extent any adverse inference may be appropriate, Chief Sands objects to

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any adverse inference being drawn against him. Chief Sands also objects to the use of this

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finding against him on the same grounds articulated above.

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Re Paragraph No. 3 in Doc. 1624: Excepting his own testimony, Chief Sands

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objects to the use of the finding referred to in paragraph No. 3 of Doc. 1624 (citing Doc.

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579 pp. 104-06) and the testimony to which it refers on the same grounds articulated

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above. This testimony is not in evidence, statements made at trial and the resulting

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findings are inadmissible hearsay, and it is not a proper matter for judicial notice under

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Ninth Circuit precedent.

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With regard to his testimony, Chief Sands would note the following exchange with
the Court:

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THE COURT: All right, so if you dont have probable cause to charge them

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with a state law violation, then you turn them over to ICE if you believe

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theyre in the country illegally?

THE WITNESS: Or at least contact ICE.

Trial Transcript, p. 845:18 22.

Re Paragraph No. 9 in Doc. 1624: To the extent the Court inquired as to whether

the Court can consider deposition testimony [Doc. 1583, Contempt Hearing Transcript,

4588:8 15], Chief Sands objects to the consideration of deposition testimony as evidence

against him in these contempt proceedings. The use of deposition testimony must comply

with Fed. Rules of Civ. Proc. 32, see also Fed. R. Evid. 801 and 802. Chief Sands does

not know which deposition testimony the Court may use, and consequently, cannot state

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specific objections to the same. Therefore, Chief Sands objects to the use of deposition

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testimony. The deposition testimony that was not introduced into evidence should and

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should not be considered. Furthermore, Chief Sands has not been presented with an

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opportunity require introduction, or to introduce other parts of the deposition that in

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fairness should be considered. See Fed. Rules Civ. Proc., Rule 32(a)(6).

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RESPECTFULLY SUBMITTED February 29, 2015.

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LEWIS BRISBOIS BISGAARD & SMITH LLP

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By: s/ Dane A. Dodd

M. Craig Murdy
Dane A. Dodd
Attorneys for Brian Sands

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CERTIFICATE OF SERVICE

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I hereby certify that on February 29, 2015, I electronically transmitted the foregoing
RETIRED CHIEF SANDSS RESPONSE TO THE COURTS FEBRUARY 19, 2016
ORDER [DOC. 1624] to the Clerks office using the Courts CM/ECF System, and
thereby served all counsel of record in this matter.

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s/ Pam Betzhold

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