“When fascism comes to America, it will come wrapped in the flag and waving a cross, and will claim the label Americanism”
Arizona's own Goebbels, Russell Pearce, is now attempting to raise money for Ban Amnesty Now using the phase-out of the 287(g) program as a panic button.
What Pearce fails to mention is that DHS is also rolling out a new program, Secure Communities, which accomplishes the same immigration status checks on all persons booked in local jails across 15,000 jurisdiction in 44 states (whereas 287(g) is only in about 60 jurisdictions), without the liability and constitutional violations created by unleashing xenophobic hate-baters like Sheriff Joe Arpaio on an innocent public.
Sheriff Arpaio responded to the DOJ's Civil Rights Division by the deadline set by AAG Thomas Perez, but he did so in a rather unusually passive aggressive fashion (see his attorney's letter [pdf link]: he's made his own discovery demands (106 of them!) and set his own deadline. He seems to be acting like the DOJ's investigation is under investigation.
He did not respond personally, but through a letter signed by his attorneys at Jones, Skelton & Hochuli, P.L.C., Popolizio and Jones, hereinafter, 'the mouthpiece'. The letter contained two "Exhibits" and was all on the attorneys' letterhead.
My overall impression of the document is that is ultimately a rather detailed and aggressive discovery demand for every bit of evidence on which the DOJ based the conclusions laid out in their letter of investigative findings. Considering there is currently no litigation pending, it's a very unusual response. What makes it even more odd is that all of the evidence that Sheriff Joe's mouthpieces demand was originally produced by the MSCO itself in response to the DOJ's lawsuit seeking disclosure for its investigation.
Nearly everything Sheriff Joe demands was disclosed by him to the DOJ, and thus are presumably his own records. Did he not keep copies? Is he just too lazy to review his own records? Does he want the DOJ to draw him a road map to defending against a lawsuit against his office?
Those items Joe wants the DOJ to produce that did not come from his office strike me, quite frankly, as demands for attorney work product and consultations with experts which, even if litigation were pending, would not be discoverable. Essentially, Sheriff Joe wants the DOJ to give him every scrap of evidence they might use against him, and the entire paper trail of their investigation of his office.
To say that the DOJ will not assent to his demands is putting it mildly. This response is more of a propaganda tool than a response. Joe's propaganda spin will go like this:
"I wanted to cooperate. I provided everything they ever asked for. All I wanted to know was what evidence they based their conclusions on, and they won't say. Their investigation is just a secretive political hit job. How can I possibly help put my office in compliance when they won't even tell me how they determined my office was violating the law? All I want is some help understanding why they think there are violations occurring, and they have just proven they are just out to get me. I offer to help them, and they just filed suit. Blah, blah, blah..."
Poor Joe.
Let's start with the cover letter.
First, there is the bald-faced lie with which it begins. The mouthpiece claims Joe has made "good faith voluntary efforts" to achieve compliance with the DOJ's investigation. Bullshit. He stonewalled the investigation and it required a federal lawsuit to get him to allow DOJ investigators access to MSCO records, facilities and personnel. The mouthpiece alleges that 'the dispute' between them over the 'scope' of the investigation 'was ancient history': if you call a year ancient, perhaps...
It just gets worse from there. The mouthpiece alleges the MSCO and Joe stand ready to cooperate "regardless of this political gamesmanship, the undisclosed broken promise, and the misleading portrayal of this matter in the media..." You are seeing a press release, not a response to serious allegations of systemic civil rights violations.
The mouthpiece then claims that Joe wants a "constructive dialogue" but "will not cower at the threat of litigation, either." Further, such a "constructive dialogue" can only occur "if the DOJ provides the underlying facts and information for its findings." Why? Because "only with all of the underlying facts and information relevant to the DOJ's conclusions in hand... can we truly evaluate these findings, determine their merit and make any neccessary changes and adjustments to the MSCO..."
Did you get that? Joe wants to judge whether he thinks the DOJ's investigation has merit. He's so stuck in authoritarian law-enforcer mode that he does not seem to realize that he's being accused of being the lawbreaker.
Imagine if the next perp that MSCO picks up wants to investigate how MSCO came to accuse him before he'll accept that he's under investigation? The perp wants the names and addresses of all his victims and the individual cops who picked him up. He wants every internal email or memo regarding his case. Discovery by an accused is one thing, but what Sheriff Joe is proposing is outrageous.
His mouthpiece goes on "if the DOJ's stance is to conceal the facts underlying its findings unless forced to reveal them in litigation, that stance is absurd, counterproductive, unfortunate, and contrary to it guidelines." What, did you run out of adjectives, mouthpiece?
What is actually absurd is the list of 106 civil discovery demands contained in 'Exhibit 2'. It is entitled "Requests for Facts and Information" and repeats the baldfaced lie about "the complete cooperation of the MSCO you have enjoyed", then asserts that "the DOJ is obligated to make every effort to secure the voluntary compliance of the MSCO which, at this juncture, depends on the DOJ's mere provision of the factual detail behind its findings."
Merely respond to these 106 extensive demands we are making. Oh, is that all?
The letter proceeds step-by-step to demand definitions, documentation, and all factual and procedural background for every factual assertion in the DOJ's finding letter.
Now, call me crazy, but I think Joe knows exactly what the DOJ based its findings on. The mouthpiece outlines in great detail in 'Exhibit 1' exactly what the MSCO provided the DOJ: 230 interviews (145 inmates, 85 staff, more with Joe and command staff), 86,398 pages of documentation, 931 Gigs of records and documents, 165 boxes of documents, etc. Could it be that the DOJ used all that information to make its findings? Imagine that...
So what does Joe demand as his price of cooperation? Let's take a look at a few sample 'requests'.
"1. Please provide a complete copy of the recent statistical study that the DOJ commissioned regarding MCSO traffic stop activities on Maricopa County roadways which purportedly concludes that Latino drivers are four to nine times more likely to be stopped than similarly situated non-Latino drivers."
Seems like a reasonable sort of request. No big thing. Just show us the goods and we'll judge whether the report is reliable. Right. Now the accused gets to judge whether the evidence against him is good enough. But wait there's more...
In 'request' 2, we get this:
"2. ... Please also provide the identity, files,reports, notes, writings, relevant to the conclusions of each law enforcement expert consultant who concluded that these HSU stops were in violation of the Fourth Amendment. The curriculum vitae of each expert is also requested."
Now, I'm not a civil litigator, but I'm pretty sure that such material (except the c.v.s) would not be discoverable. What Joe and his mouthpiece are demanding here are the means by which to investigate and attempt to undermine, discredit, or intimidate those experts. The part about notes and writings is especially disturbing; those materials are work for hire in anticipation of litigation and thus absolutely non-discoverable work product.
Joe wants the DOJ to strip naked before he'll consent to even talk to them.
Even odder, Joe wants the work product of every expert the DOJ ever consulted in their investigation (see 'request' 22), whether their advice contributed to the DOJ's findings or not. That's so not going to happen.
Now, that's all pretty disturbing, but check this out:
"3. Please describe, with particularity, each "individual account" regarding MCSO deputies stopping Latinos on the basis of their appearance. In doing so, please identify the individual by providing a name and contact information so that we may conduct our own interviews. We would also request any statements provided to the DOJ, either recorded or written, which memorialized these individual accounts and any factual information regardingthese alleged discriminatory stops including, but not limited to, the date and time of each stop."
OK, now this is getting bizarre. Joe wants the names and contact information of the victims of MSCO racial profiling, so they can 'conduct their own interviews'? This is like a rapist wanting to inview his own victim. It's absurd. The MSCO is asking for the exact tools they need to further intimidate and attempt to undermine the victims of their own civil rights violations.
That may seem bad, but they are just getting started.
They want the same particularized victim information for people who reported the police misconduct underlying every allegation the DOJ makes. This includes immigration detainees, prisoners in MSCO's own jails, even citizens who reported MSCO retaliation against individuals who criticize police practices! He wants that information for victims of retaliatory detention, arrest without cause, and unfounded civil lawsuits! He wants the DOJ to identify and lay bare to retaliation the very people his office is accused of victimizing!
This has the danger of retaliation and initimidation written all over it!
Joe and his mouthpiece actually think the DOJ is going to identify whistleblowers, some of whom are in Joe's own custody, in his own jails, or under his own command, for him to 'investigate' their allegations? He's clearly insane.
Or just full of shit.
This is not a request for any sort of reasonable information sharing or discovery, it is an excuse not to cooperate and give himself a legitimate sounding excuse for his continued non-cooperation. "They won't tell me what I did wrong! Wah, wah, wah."
This skein of utterly non-responsive clap-trap and out-right lies, in combination with Joe's recent announcement that he will seek reelection signals just one thing: Joe's hunkering down.
The DOJ will get no cooperation. Voluntary compliance is not going to happen. Joe knows he's going down, and he's digging in for a protracted propaganda and legal war, and he'll do anything, including going after whistleblowers in his own office, in his own jails, and among the public he was entrusted to keep safe and instead victimized, to continue running things the way he likes.
The DOJ has released a public Letter of Findings concerning its investigation into the Maricopa County Sheriffs Office's (MSCO) practices which infringe on the civil rights of the citizens of Maricopa County. Most of those abuses and illegal practices concern Equal Protection and Due Process violations of Latino citizens and legal residents (not, as Arpaio would contend, the rights of undocumented aliens).
Here is some coverage of from the DOJ Civil Rights Division's (CRD) presser, and the full transcript of the CRD's Statement. Sorry for the use of FOX footage (and the annoying ad), but it was the most extensive excerpt of the DOJ's presser I could find.
You will note that in Arpaio's responses, he simply denies any pattern of infringement of civil rights and instead attacks the DOJ as trying to block Arpaio's efforts at enforcing immigration law. Here's more FOX coverage throwing softballs to Arpaio regarding the allegations for him to swat down unchallenged by any facts.
Note carefully the DOJ's stated intention to cooperate with Sheriff Arpaio in negotiating an agreement to address their concerns, and the contrast with the divisive polemical attacks in Arpaio's response.
What does the DOJ's finding under section 14141 (42 U.S.C. 14141) actually mean?
Firstly, what this is NOT, is any sort of demand by the DOJ that Arpaio resign.
Just the opposite, in fact. The Civil Rights Division specifically notes in both its finding letter and presser that it wants very much to work with Arpaio to remedy his agency's policies and practices to conform with best practices and stop the civil rights violations they found in their multi-year investigation of his office.
It is Arpaio who is failing to cooperate, and making this into a show-down. He stone-walled the DOJ's investigation for over a year, refusing to release records and make personnel and facilities available to DOJ investigators. Finally, the DOJ had to sue the MSCO to gain access to those resources to complete their investigation.
Section 14141 was enacted in 1994 as part of an omnibus crime package. It was intended to give more enforcement power to the DOJ's CRD to reform public justice institutions, including police departments, prisons and juvenile detention facilities. It gives the DOJ a right of action to seek injunctive and equitable redress in federal court of any patterns of practice resulting in civil rights violations.
The findings which the CRD have published establish that the CRD's investigation has found evidence that patterns and/or practices of the MSCO are resulting in constitutional violations. The letter puts MSCO on notice of the subjects on which the MSCO will need to enter into negotiations for reform under a legally enforcable consent decree, or face a federal lawsuit to force reform.
MSCO is not unique in facing such an investigation. Several police departments around the country have been similarly investigated and subsequently entered into consent agreements with the DOJ (24 that I'm aware of) concerning similar alleged practices. As far as I'm aware, however, this is the first time that the sort of systemic racial profiling and discriminatory practices have been the subject of a 14141 action against a police agency by the DOJ.
The CRD gave Arpaio a 60 day deadline during which they intend that he should begin to design and implement reforms of policies and practices, and enter into negotiations with the CRD on an enforceable consent decree. Instead of indicating that he would work with the CRD, Arpaio has publicly counter-attacked and denied any need of reform. It seems likely, judging by Arpaio's response to the CRD's findings that he will use this time to rally political support and throw mud at the DOJ. He does not appear to be amenable to negotiating a settlement.
That public and divisive intransigence is, so far as I'm aware, unprecedented. It could be that cooler heads will prevail and Arpaio will dial it back and sit down with the CRD to start work on an agreement. But he may not, and that puts us in some entirely unprecedented legal and political territory.
What are the tools DOJ can use to force reform?
The DOJ can obtain equitable and injunctive relief from the federal courts to ensure that procedures are put in place to address the alleged systemic violations.
Historically, this involves negotiating a consent decree outlining the needed reforms, procedures, systems, training and oversight needed to end the violations. Generally, one or more monitors or compliance officers are appointed to directly oversee the implementation process once a consent decree is in place.
That historical method of implementation of 14141 reforms seems, at least initially, unlikely to be workable with Arpaio at the helm of MSCO.
Ultimately, the consequences could include civil contempt judgements against MSCO, if Arpaio refuses to comply with court orders. It could even include a federal receivership of departments or facilities that demonstrate an ongoing pattern of non-compliance. I don't believe this has ever happened in the context of a police agency, but it has been done for specific detention facilities. Ultimately, it is possible that the Maricopa jails could be taken from Arpaio's control if violations continue and Arpaio refuses to address the problems CRD has found in his jails.
I can't stress enough that it is unprecedented for a police agency to seriously and publicly deny any problem and resist entering into negotiations toward a consent decree. I'm simply not aware of any situation that 14141 has been used against police agency headed by a political figure who bases his legitimacy on the very conduct the DOJ finds to be a violation of the Constitution. I have looked at the prior actions CRD has brought under 14141 and at the literature discussing those procedures, and have been unable to locate any real parallel to the situation with MSCO.
Part of this stems from the fact that 14141 has only been law for roughly 15 years. The real parallels with police agencies who stubbornly insist on maintaining discriminatory and illegal practices predate 14141, and where fought by the DOJ with inferior legal tools. It was, in fact, to more effectively combat problematic principals like Arpaio that Congress passed 14141, but the DOJ hasn't yet had to deal with open defiance of its autohority and findings in a 14141 action. In a sense, this might be a welcome opportunity for the professional staff at the CRD to really give 14141 a real test of its effectiveness.
Police agencies tend to be run by competent and reasonable professionals who are having problems with oversight and training that result in systemic violations. I don't know that 14141 has ever been used to try to reform of intentional policies and cultural norms tht promote constitutional violations. Principal directors tend to be quite cooperative and even eager to work with the DOJ to fix problems in their agencies. The MSCO and Arpiao seem likely to pose an entirely different set of legal and political challenges to CRD's enforcement strategy.
What the legal and political consequences could be when the DOJ and its CRD are faced with an intransigent and popular political figure intent on resisting any changes is uncharted territory. If Arpaio wants to double down and try to wait out the DOJ in hopes of a regime change in 2014, he might well succeed in the long term. That is, unless he decides at some point that he's had enough and retires when things get too hot. He is an old man, after all.
A high profile fight in the national media which airs all of Arpiao's dirty pink laundry would likely be very damaging both to Arpaio and to Arizona, but might well play perfectly to the local political constituency on whom Arpaio relies. Arpaio may relish the national attention he would garner by defying the DOJ so openly. The DOJ would have to get creative in crafting a legal strategy to address an obstreperous Arpaio; their only experience with 14141 enforcement seems to be predicated on a fairly good-faith attempt by the local stakeholders to reach a mutually satisfactory consent decree.
What would stubborn resistance to DOJ authority mean for MSCO and Maricopa residents?
It's hard to say, as its never really happened before, but we've already seen one compliance tool brought to bear by Homeland Security. Napolitano has already stripped Arpiao's agency of its 287g access to immigration status information based on the CRD's letter of findings. In her statement, Napolitano states that by continuing to allow MSCO personnel to participate in 287g programs, she would effectively be making DHS a party to the constitutional violations CRD found. It is understandable and correct that the head of DHS refuse to be involved, even vicariously, in enabling civil rights violations.
But Napolitano's principled stand is likely to be a very politically divisive move this early. Napolitano might have moved too quickly, before it is clear that Arpaio will refuse to implement any reforms. Loss of 287g certification certainly limits the ability of MSCO to violate the constitutional rights of Latinos, but it also makes immigration enforcement much more difficult for ICE in Maricopa county. The loss effectively reduces the number of boots on the ground doing immigration enforcement activities in Maricopa. it also gives Arpaio a fairly effective propaganda weapon in his claim that the Obama Administration is attempting to put MSCO out of the immigration enforcement business. The action further feeds into the paranoia and anger generated amongst Arpaio's supporters around the State by the Administration's ongoing effort to enjoin enforcement of SB1070.
Loss of access to immigration information could be only the tip of the enforcement spear; the MSCO and its jail facilities recieve millions in federal assistance and grants. That funding could ultimately be in jeopardy. Loss of those funds could sharply increase the cost of MSCO jails and programs to Maricopa residents.
Fines and penalties for non-compliance or contempt could ultimately be levied agains MSCO by the federal courts if Arpaio refuses to comply with court orders. Those costs would also ultimately be passed on to Maricopa taxpayers.
I don't know if it would be possible to hold Arpaio personally liable in any way, he likely enjoys at least some limited immunity as an elected official for his actions and those of his agency. It is possible that Arpaio might ultimately end up with some personal legal liability.
It seems likely that should Arpiao decide to pick a public fight with the CRD, there will be much less incentive for the CRD to keep its investigative findings private, as is generally done as a term of a consent decree. Should flurries of public records start coming out of the CRD regarding the violations it found, you might expect to see a lot of private section 1983 civil rights lawsuits filed on the basis of those documents and testimony.
14141 does not give a private right of action (only the DOJ may sue), but if the DOJ's investigations start producing documentation of violations that plaintiffs can get a hold of, it could produce a tidal wave of 1983 private civil rights violation litigation, which the County would be on the hook for, and which would pubicize much of the worst behavior of the MSCO under Arpaio. It is also not unknown for even elected officials to be hit with personal liability in some 1983 actions. This might be one way more than just Arpaio's political hide could be put into play by his intransigence.
What should we expect from Arpaio's camp in terms of political ploys?
We are already seeing the outlines of Arpaio's political defense. It is a mainly an aggressive offense.
In the short term at least it seems that Arpaio has decided that resistance and push-back are the stategy he wants to pursue regarding the civil rights violations against Latinos. First, he alleges that he is being persecuted for political reasons: pick you favorite flavor- Obama's presidential campaign's desire to court the Latino vote by attacking him, and/or AG Holder chumming the waters to cover the smell from the Fast and Furious scandal Arpaio's allies are out establishing these themes on the nets and all over FOX news.
The one area in which Arpaio seems to be pursuing a conciliatory line is his department's failure to adequately investigate hundreds of sex crimes. Arpaio has apologized publicly and vowed reform, including hiring an outside expert to oversee training and implementation of reforms.
I have not yet seen anything along this vein, but given the deeply racist views of Arpaio and many of his supporters, there is an obvious line of attack: Perez, the head of CRD, is Latino. I don't think will be a public ploy, but I am confident that it will play some part in Arpaio's more sotto voce propaganda campaign.
All of these counter-attacks are transparently false, given the long term nature of the investigation against MSCO and the well-supported findings (which Arpaio had best pray the CRD does not decide to further substantiate by releasing any raw data from its investigations), but they have propagandistic value and credibility to those whom Arpaio is appealing to.
It is unsurprising that Arpaio, faced with evidence of his mismanagement and the culture of bias he has created in his 20 years as Sheriff, would decide to double-down on further divisive and corrosive politics rather than focus on serving the people of Maricopa more effectively. After all, that is the modus operandi Arizonans have come to expect from a sadly dominant faction of the State GOP, which relies on demagoguery of immigration and race-baiting Latinos to maintain its power and distract from their incompetence and failures.
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