Melendres # 1591 | P Response to Nov 18 Order

8/20/2019 Melendres # 1591 | P Response to Nov 18 Order

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Cecillia D. Wang (Pro Hac Vice)

[email protected]

ACLU Foundation

Immigrants’ Rights Project

39 Drumm Street

San Francisco, CA 94111Telephone: (415) 343-0775

Facsimile: (415) 395-0950

Daniel J. Pochoda

[email protected]

ACLU Foundation of Arizona

3707 N. 7th Street, Suite 235

Phoenix, AZ 85014

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

Attorneys for Plaintiffs (Additional attorneys

for Plaintiffs listed on next page)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,

et al.,

Plaintiffs,

v.

Joseph M. Arpaio, et al.,

Defendants.

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CV-07-2513-PHX-GMS

PLAINTIFFS’ RESPONSE TO

COURT’S NOVEMBER 18, 2015

ORDER

Case 2:07-cv-02513-GMS Document 1591 Filed 12/04/15 Page 1 of 22


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Additional Attorneys for Plaintiffs:

Andre I. Segura (Pro Hac Vice)

[email protected]

ACLU Foundation


125 Broad Street, 17th Floor

New York, NY 10004

Telephone: (212) 549-2676

Facsimile: (212) 549-2654

Priscilla G. Dodson (Pro Hac Vice)

[email protected]

Covington & Burling LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

Telephone: (202) 662-5996

Facsimile: (202) 778-5996

Anne Lai (Pro Hac Vice)

[email protected]

401 E. Peltason, Suite 3500

Irvine, CA 92697

Telephone: (949) 824-9894Facsimile: (949) 824-0066

Jorge M. Castillo (Pro Hac Vice)

[email protected]

Mexican American Legal Defense and

Educational Fund

634 South Spring Street, 11th FloorLos Angeles, California 90014

Telephone: (213) 629-2512

Facsimile: (213) 629-0266

Stanley Young (Pro Hac Vice)

[email protected]

Hyun S. Byun (Pro Hac Vice)

[email protected]

Michelle L Morin (Pro Hac Vice)

[email protected] & Burling LLP

333 Twin Dolphin Drive, Suite 700

Redwood Shores, CA 94065

Telephone: (650) 632-4700

Facsimile: (650) 632-4800

James B. Chanin (Pro Hac Vice)

[email protected]

Law Offices of James B. Chanin

3050 Shattuck Avenue

Berkeley, CA 94705

Telephone: (510) 848-4752Facsimile: (510) 848-5819

Tammy Albarran (Pro Hac Vice)

[email protected]

Lauren E. Pedley (Pro Hac Vice)[email protected]

Covington & Burling LLP

One Front Street

San Francisco, CA 94111

Telephone: (415) 591-7066

Facsimile: (415) 955-6566



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Plaintiffs respectfully submit the following response to the outstanding questions in

the Court’s order of November 18, 2015 (Doc. 1566) concerning the evidence in the

civil contempt hearing.

Question 3 – sealing of court transcripts:

Plaintiffs submit that there is no basis to seal any portion of any of the transcripts

listed at page 2 of the Court’s order (Doc. 735, 780, 1021, 1041, 1456, 1563, 1472).

Question 5 – evidence regarding violations of the preliminary injunction order:

Plaintiffs have introduced substantial evidence that hundreds of individuals were

detained in violation of the Court’s preliminary injunction order. Some of that evidence

allows the Court to identify the names of some individuals who were detained, and other

evidence suggests that there are persons not identified by name in MCSO records who

were also subject to violations of the preliminary injunction. Due to deficiencies in

Defendants’ documentation practices as described below, it is impossible to

systematically identify all victims of Defendants’ violations of the preliminary

injunction or even to count the total number of such victims. Thus, the full scope of

MCSO’s violations cannot be fully ascertained.

A.

At least 190 individuals were detained in violation of the preliminary

injunction order by the Human Smuggling Unit alone

There are numerous exhibits that shed light on the scope of Defendants’

preliminary injunction violations as a result of activities of the Human Smuggling Unit

(“HSU”). These include Lt. Jakowinicz’s summary spreadsheets compiling the number

of individuals contacted by members of the HSU during human smuggling traffic

interdiction operations (Exhibits 207, 208, 209); Excel workbooks containing the datafrom which Lt. Jakowinicz created those summaries for HSU (Exhibits 2853, 2854,

2855); Lt. Jakowinicz’s compilation of persons detained without state criminal charges

during worksite enforcement raids by the Criminal Employment Unit (“CEU”) (Exhibit

2944); human smuggling interdiction operation statistics compiled by Lt. Sousa (Exhibit



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212); worksite operation statistics compiled by Lt. Sousa (Exhibits 89, 132); and

miscellaneous MCSO departmental reports, HSU shift summaries with identifying

information redacted (Exhibits 79, 86, 88), HSU reports and shift summaries with names

of individuals detained without state criminal charges to be turned over to immigration

authorities (Exhibits 56, 80-81, 83, 85), as well as press releases describing the detention

of persons based upon immigration status, without any criminal charge (Exhibits 51, 52,

59, 75-78, 82, 84, 87, 90, 182).

The clearest source of evidence as to victims of MCSO’s violations of the

preliminary injunction is a set of spreadsheets compiled by Lt. Jakowinicz. First, his

summary spreadsheets, Exhibits 207, 208 and 209, show that at least 14 individuals

were detained during human smuggling interdiction operations in violation of the

preliminary injunction in the last days of December 2011, 97 individuals in calendar

year 2012 (Exhibit 208), and 60 in calendar year 2013 (Exhibit 209). Lt. Jakowinicz

testified that he compiled this information from HSU shift summaries and departmental

records and entered the information into Excel spreadsheets. Hrg Tr. 379-83. Each of

Exhibits 207-09 is a printout of the summary chart from an Excel spreadsheet compiling

the underlying incident information for only human smuggling interdiction operations

for December 23-31, 2011, calendar year 2012, and calendar year 2013, respectively.1

Lt. Jakowinicz testified that on each of these summary charts the total number under the

column titled “Turned Over to ICE” represents the number of individuals held without

state charges in violation of the preliminary injunction. Hrg Tr. 389:3-10.

1 The full Excel workbooks compiled by Lt. Jakowinicz were admitted by the Court

upon stipulation of the parties as Exhibits 2853-55 and correspond respectively toExhibits 207-09. These workbooks provide the underlying data compiled from MCSOrecords and reports, as testified to by Jakowinicz. Separate tabs in each workbook provide information as to each individual incident, including the names and dates of birth of those contacted, justification for arrests (if any), whether there was no probablecause of a state crime to arrest an individual, and whether an individual wastransported to immigration authorities.



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Lt. Jakowinicz also compiled a similar spreadsheet showing the number of

individuals detained in violation of the preliminary injunction during worksite

enforcement raids by the CEU. He testified that during such raids, MCSO detained

people without state charges based on immigration status. Hrg Tr. 425:2-14. Lt.

Jakowinicz’s worksite raids compilation was admitted as Exhibit 2944,2 and it was

compiled and can be read in the same manner as the human smuggling operations

spreadsheets described above. Lt. Jakowinicz’s testimony and Exhibit 2944 demonstrate

that at least 19 people were detained during MCSO worksite raids and transferred to

immigration authorities without state charges after the preliminary injunction order

issued. Hrg Tr. 425.3 See also Exhibit 132 at MELC 114929 (records of Lt. Sousa

showing that as of March 28, 2012, 161 individuals had been detained during CEU

operations and turned over to ICE); Exhibit 89 (showing that as of July 22, 2013, 179

people had been so detained).

Taken together, Lt. Jakowinicz’s spreadsheets compiling the information on

individuals detained in human smuggling interdiction and worksite enforcement

operations demonstrate that by MCSO’s own count, a total of at least 190 individuals

were detained in violation of the Preliminary Injunction Order by HSU (including CEU)

alone in 2011 through 2013. It is likely, however, that Lt. Jakowinicz’s compilations

undercount even the number of individuals detained and transferred to federal custody

by HSU (including CEU), much less the total number detained throughout MCSO. Lt.

2 Plaintiffs only obtained the worksite raids spreadsheets after numerous requests over

a period of months. Plaintiffs first requested that information following Lt.

Jakowinicz’s deposition testimony in March of 2015 in which he revealed that thiscompilation existed. That information was not provided by Defendants until October27, 2015.3 Like the HSU spreadsheets, the original electronic version of Exhibit 2944 includes

worksheet tabs with the underlying information for each worksite operation, includingthe names and dates of birth of the 19 individuals identified as having been detained inviolation of the Court’s Order.



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Jakowinicz testified that while shift summaries would sometimes indicate whether

someone was transferred to ICE because that person could not be held on state charges,

these instances were not always documented by MCSO. Tr. 378:9-18.

Further, statistics compiled by Lt. Sousa in Exhibit 212 indicate that between

December 28, 2011 and March 28, 2012, 82 individuals were detained in violation of the

preliminary injunction order. Exhibit 212 includes statistics maintained by Lt. Sousa for

the HSU until the end of March 2012 (when he left HSU). At page MELC172502 of

Exhibit 212, Lt. Sousa’s compilation indicated that between the time MCSO’s 287(g)

agreement was terminated and December 28, 2011 (just five days after issuance of the

preliminary injunction order), HSU detained and turned over to ICE a cumulative total

of 977 individuals without any state criminal charge. Hrg Tr. 731:13-732:11. At page

MELC172500 of Exhibit 212, Lt. Sousa indicated that the figure as of March 28, 2012

was 1,059 individuals. The difference between the December 28, 2011 and March 28,

2012 figures— i.e., 82 people— represents the number of individuals detained for turn-

over to ICE without state charges during that time period. Because all of those

detentions occurred after issuance of the preliminary injunction, those 82 individuals

were detained in violation of the preliminary injunction during that two-month period.

Lt. Jakowinicz’s later effort to count the number of people detained in violation of the

preliminary injunction reflects that only 37 individuals were detained during the same

period, or 45 fewer people than Sousa’s tally. On this point, the Court should credit Lt.

Sousa’s more contemporaneous statistics to find that Lt. Jakowinicz’s spreadsheets

represent an undercount of the number of violations from December 2011 to May 2013.

B.

It is impossible to ascertain the full scope of preliminary injunctionviolations

Notably, the total number of individuals detained by MCSO in violation of the

preliminary injunction order is no doubt higher than indicated by the numbers compiled

by the HSU lieutenants, Sousa and Jakowinicz. Lt. Jakowinicz only considered



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documentation of HSU/CEU activities in his spreadsheets. Hrg Tr. 378:9-18, 383:7-14.

It was established through the uncontroverted testimony of Lt. Sousa that non-

HSU/CEU deputies in the Patrol Division would regularly detain and turn people over to

immigration authorities without state charges. Hrg Tr. 2611-12. But MCSO has made

no effort to identify or to count individuals detained by deputies outside of HSU.

Indeed, Lt. Sousa testified that he could not be certain that MCSO documented every

contact between MCSO and federal immigration authorities concerning individuals

detained based on their suspected immigration status alone. Hrg Tr. 2619-20.

There are other sources of information that confirm the existence of additional

incidents of violations of the Preliminary Injunction Order and, in some cases, the

identity of potential victims, though they too are imperfect tools for counting the total

number of violations:

CAD Databases. Exhibits 2851-52 (in evidence) are raw data from the computer-

aided dispatch (“CAD”) system from December 23, 2011 to September 24, 2013.

The CAD databases capture communications between MCSO deputies and

Dispatch that are transmitted through radio broadcast, and therefore may reveal

instances in which deputies contacted ICE or Border Patrol during the course of a

stop. Hrg Tr. 2621:10-17. Based upon testimony from Lt. Sousa and Tim Casey,

it appears possible to glean some information about detentions in violation of the

preliminary injunction in MCSO’s CAD data, but such an effort would be

laborious and incomplete as a method for identifying victims. For example, Tim

Casey testified that in order to get information regarding the incidents that formed

the basis for Plaintiffs’ October 2012 letter, he asked for the CAD records. Tr.1687:1-7. In addition, Lt. Sousa testified that on occasion he heard MCSO

deputies in Patrol District 2 calling out over radio channels for assistance from

U.S. Border Patrol agents about suspected undocumented individuals. Hrg Tr.

2620-21. He testified more generally that if an MCSO deputy called out for



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immigration-related assistance through Dispatch, a record of such

communications might be contained in the CAD database. Hrg Tr. 2624-25. The

CAD databases therefore are a potential source of information concerning

individuals detained in violation of the preliminary injunction. Searching for

terms such as “ICE,” “BP,” or “Border Patrol” within the CAD databases may

lead to proof of additional violations of the preliminary injunction and in some

cases the identities of victims. However, the information that can be obtained

through CAD is limited to what has been included in the comments section for

each incident. As explained by Lt. Sousa, only radio communications would be

included in the CAD data. Id.. If an MCSO deputy called federal immigration

authorities by telephone—which was HSU’s regular mode of communication

with federal authorities, Hrg Tr. 2619— such telephone communication would

not be captured. Hrg Tr. 2624-25.

DHS Records. In addition, through a Touhy subpoena, Plaintiffs have sought

certain records from the U.S. Department of Homeland Security (“DHS”)

reflecting contacts between MCSO and ICE or Customs and Border Enforcement

(“CBP”) and MCSO. The Court signed a protective order (Doc. 1581) on

November 25, 2015, that DHS required as a precondition for the production of

those documents. DHS’s initial production will include reports maintained by the

Phoenix ICE LEAR Unit, which would have likely received the bulk of

communications from MCSO to ICE, and the Border Patrol’s “E3” database,

which should also include contacts with MCSO. Once DHS produces those

documents, Plaintiffs intend to inspect them carefully to determine whether theycontain additional evidence of violations. Under the agreement they have arrived

at with DHS, Plaintiffs will be able to identify incidents they can ask DHS to pull

additional documents about in an effort to identify and locate victims. Plaintiffs



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will also seek additional documents about individual incidents from the MCSO,

to the extent they do not have them already.

Notwithstanding the foregoing evidence that may lead to the identification of

additional victims of MCSO’s preliminary injunction violations, Defendants do not

appear to have made any effort to review or seek such evidence themselves. Further,

Plaintiffs are currently aware of no set of documents that would definitively show all

violations. In fact, the total number and identities of all victims cannot be fully

ascertained because of MCSO’s deficient documentation policies and practices. For

example, as noted above, the clearest evidence of preliminary injunction violations is the

set of Lt. Jakowinicz’s compilations, but even those exhibits do not even attempt to

capture violations by personnel outside of HSU/CEU and likely undercount even

HSU/CEU violations. Tr. 378:9-18.

The HSU lieutenants’ statistics likely undercount even HSU/CEU victims because

they only indicate the numbers of individuals who were detained to be turned over to

federal immigration authorities as recorded in shift summaries or other departmental

records by HSU. It does not capture the number or identities of individuals who were

detained on suspicion of unlawful presence alone but who were ultimately permitted to

go on their way without further detention or arrest. This could have occurred, for

example, if a person was encountered during a traffic stop and detained solely on the

basis of suspected unlawful immigration status, but was released because he was

determined to be a U.S. citizen or lawfully present noncitizen. Such events were likely

not recorded. Lt. Sousa testified that while he commanded HSU, deputies were not

required to document traffic stops that did not result in an arrest or citation. Hrg Tr. 686

A verbal warning, for example, would not be recorded. Id. Even worse, Lt. Sousa

testified that HSU deputies sometimes would encounter a vehicle in which no one was

arrested on state charges, but deputies would detain all of the occupants of the vehicle

solely for the purpose of turning them over to immigration authorities. Hrg Tr. 688. Lt.



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Sousa could not confirm that such instances were ever documented by the HSU during

his time there. Id.

Lt. Sousa also could not confirm that any of HSU’s limited recordkeeping policies

were actually being followed. For example, HSU had a written protocol providing for

an HSU supervisor to record information regarding contacts made with immigration

authorities, but Lt. Sousa could not recall whether that protocol was actually followed

from 2009 until the time he left the unit. Hrg Tr. 2616. Nor could Lt. Sousa could

confirm that every contact made with immigration authorities was documented. Hrg Tr.

2620. Further, Plaintiffs have not been provided with any statistics similar to those

contemporaneously tracked by Lt. Sousa, for any time period after Sousa’s departure

from HSU. Lt. Sousa testified that he would expect similar statistics to have been

contemporaneously maintained by Lt. Jakowinicz. Hrg Tr. 733:22-734:3. But no such

contemporaneous records were produced, only Lt. Jakowinicz’s much more recent post

hoc compilation of violations of the preliminary injunction based upon departmental

reports and shift summaries.

C. Information relating to the scope of damages for victims of MCSO’s

violations of the preliminary injunction

There is also evidence in the record suggesting the degree of harm that victims of

the preliminary injunction might have suffered. MCSO witnesses testified that

individuals were routinely held in violation of the preliminary injunction for several

hours. Sgt. Trowbridge and Sgt. Palmer testified that it was HSU practice to detain and

take all occupants of a vehicle involving suspected human smuggling back to the

Enforcement Support Division building for questioning even if there was no probablecause at the time to believe all of the occupants were involved in human smuggling and

often when not all occupants of the vehicle had even been questioned at the scene of the

stop. Hrg Tr. 175-76, 431. Trowbridge and Palmer testified that the process of

questioning each individual typically took several hours. Tr. 432, 175-76. For example,



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in the incident involving Palmer’s dispute with Sheriff Arpaio regarding the detention of

several such individuals pending a press conference, Palmer testified that by the time he

spoke with Sheriff Arpaio, the people had already been detained “for a few hours to

several hours.” Hrg Tr. 176. MCSO then drove those individuals to the Border Patrol

facility in Casa Grande, which according to Palmer can take up to two more hours. Hrg

Tr. 178. More generally, Lt. Sousa testified that it was common to hold individuals

beyond the time to complete a traffic stop where the only basis for such detention was

the need to transfer such individuals to immigration authorities. Hrg Tr. 2610. It should

be noted that even a detention of less than 20 minutes on such basis would violate the

preliminary injunction and give rise to a claim for compensation.

Because of Defendants’ discovery violations and the contempt of the Court’s May

14, 2014, order, additional evidence that might have shed light on the scope of

preliminary injunction violations has likely been lost. For example, there was testimony

that MCSO’s post-May 14, 2014 efforts to gather video recordings was not successful,

and that many recordings that once existed likely were not preserved. MCSO witnesses

including Chief Deputy Sheridan and Lt. Sousa admitted that the way the collection

effort was carried out—in violation of the Court’s directive and after misleading the

Monitor—likely did not result in the gathering of all extant recordings. Hrg Tr. 697,

874.4 There was also testimony (and exhibits) demonstrating that many video

recordings that were made were not preserved. Hrg Tr. 196-97. Those destroyed and

withheld recordings might also have provided additional information as to the

circumstances of specific incidents of violations of the preliminary injunction, but they

are no longer available.

4 In addition, during closing argument on November 20, 2015, Plaintiffs listed

numerous exhibits demonstrating the difficulties MCSO encountered during their belated attempt to gather video recordings after May 14, 2014.



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In sum, the full impact of MCSO’s violations over the nearly year-and-a-half

during which deputies continued to violate the preliminary injunction cannot be

quantified.

Question 6: MCSO’s video review process

Plaintiffs do not have information in response to several of the subparts of Question

6. In response to 6(a), Plaintiffs respond that Defendants did not produce any of the

videos listed in Exhibit 214 (Emily Doan’s list of 456 DVDs) before the underlying trial

in this case. Many of the DVDs listed in Exhibit 214 included multiple videos, so the

number of videos is greater than the number of DVDs. In addition, Exhibit 214 does not

account for any videos that the Defendants produced in forms other than the DVDs

during and after the time Ms. Doan compiled Exhibit 214.

In response to 6(c), Plaintiffs note that Captain Bailey actually testified that he does

not know whether the purported MCSO protocol for review of the video recordings was

produced to the Monitor or to Plaintiffs. Hrg Tr. 3404. While he testified that there was

such a protocol, he was unable to describe it. Id. Chief Deputy Sheridan did not know

whether such a protocol existed. Hrg Tr. 1541-42.

In response to 6(d), Plaintiffs respond that Defendants produced video recordings

in response to our document requests, but that we have no knowledge as to whether any

responsive recordings were withheld. Plaintiffs note that in at least one instance, only a

partial recording was produced and key portions of the stop were not depicted. For

example, Plaintiffs examined a video recording associated with the traffic stop

underlying IA case 14-547 (IA case file at Exhibit 2860) which, according to the IA file,

concerned an inappropriate and racially discriminatory statement. As described duringthe hearing, Plaintiffs became aware that the video recording that was produced by

Defendants did not depict the offensive statement. Hrg Tr. 3834-3838.

In response to 6(e), Plaintiffs are unaware of any final report in IA case 14-253.

Defendants produced a few documents that refer to 14-253, but none of those documents



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is the case file for 14-253. To Plaintiffs’ knowledge, the only exhibit in evidence that

mentions IA case 14-253 is a June 27, 2014, weekly status report memorandum to

Captain Bailey (Exhibit 2054).

In response to 6(f), Plaintiffs do not have the necessary information to answer, but

respond in part that the following IA case materials arise from review of a video

recording and are in evidence: Exhibit 2063 (IA case materials on 14-544 concerning a

traffic stop of Plaintiff class members by Deputies Gandara and Armendariz in which a

transport was requested for the occupants of the vehicle before any contact was made

with them), Exhibit 2772 (IA case materials on 14-546 concerning an apparently

unjustified stop of Plaintiff class members by Deputies Hechavarria and Armendariz),

Exhibit 2104 (IA case materials on 14-547concerning a stop of Plaintiff class members

cited above in the response to 6(d), Exhibit 2017 (IA case materials in 14-570

concerning an apparently unjustified stop of a Plaintiff class member by Deputies

Hechavarria and Armendariz and Sergeant Trowbridge, in which there was a

discrepancy in the amount of cash seized by Armendariz from the driver), Exhibit 2519

(IA case materials in 14-580 concerning a traffic stop by Deputy R. Lopez in which he

failed to Mirandize a person in custody prior to interrogation).

In response to Question 6(g), Plaintiffs respond that they are unaware of any IA

case investigating the admitted contempt of the Court’s May 14, 2014 order concerning

the collection of video recordings.

Question 7: audio recordings

In response to 7(a), Plaintiffs are unaware of any admitted evidence relating to

audio recordings by MCSO. Defendants did not produce any audio recordings prior totrial. During the discovery in connection with the contempt proceeding, Defendants

produced audio recordings, including audio recording of the stop at issue in IA Case No.

14-547. That particular recording was only produced after further specific request from

Plaintiffs for additional recordings relating to that stop, when Plaintiffs discovered that



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the video recording (Exhibit 2860) was incomplete and did not depict the critical

moments at issue in the IA case.

In response to 7(b), as noted above, Plaintiffs do not have any materials in IA Case

No. 14-253.

Question 8: MCSO reports relevant to the underlying trial

Plaintiffs do not have the information necessary to answer Question 8, as only

Defendants know what documents exist and whether those documents have been

produced. In response to 8(b), Plaintiffs respond first that Defendants failed to produce

the relevant departmental/incident reports prior to the underlying trial in this case.

During the discovery in connection with the contempt proceeding, Defendants also

failed to timely produce all such reports and continued to produce such documents

belatedly after the contempt hearing began in April 2015. Exhibit 215 contains only a

subset of the relevant incident/departmental reports because (1) Defendants’ production

was still ongoing at the time Ms. Doan compiled Exhibit 215 and (2) Plaintiffs’ review

of those documents was still ongoing. None of the departmental reports listed in Exhibit

215 compiled by Emily Doan was produced by Defendants before trial.

Question 9: Identifications

In response to 9(a), Plaintiffs are aware of no evidence that anyone at MCSO

attempted to identify the owners of identification documents found in Deputy

Armendariz’s home. In addition to the testimony of Chief Deputy Sheridan mentioned

in the Court’s order, Sgt. Tennyson, who wrote a memorandum to Chief Deputy

Sheridan about those identification documents (Exhibit 1001), testified that he did not

attempt to identify the owners of those documents. Hrg Tr. 3135-36.In response to 9(b) and (c), Plaintiffs do not have the necessary information to

provide full answers. Defendants did produce materials relating to IA cases 14-579, 14-

587, 14-588 and represented that those files were closed. Defendants also produced

materials relating to 14-221 and represented that the case was open. Defendants



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produced materials relating to IA cases 14-775, 14-776, 14-777, 14-780, 14-781, 14-782

14-783, and 15-22, without indicating their status. Plaintiffs are unable to ascertain

whether any given IA files that were produced are final reports.

Plaintiffs are aware of the following record evidence relating to the IA case

numbers identified in the Court’s order:

14-221: Lt. Seagraves testified that 14-221 was closed. Hrg Tr. 2080.

Exhibit 2943, MCSO’s September 30, 2015 spreadsheet summarizing

“Armendariz-related” IA cases, shows that 14-221 was closed. However,

Chief Deputy Sheridan testified that 14-221 was still open and he assumed

the file had not been produced to the Monitor or Plaintiffs. Hrg Tr. 1537,

1548-49.

14-295: No IA file with this number was produced to Plaintiffs, but Exhibit

1001, Sgt. Tennyson’s memo to Chief Deputy Sheridan concerning Cisco

Perez’s “pocketing” allegations, appears to relate to 14-295.

14-541: Exhibit 2008 is the response to Lt. Sousa’s grievance challenging

the written reprimand he received in the 14-541 case. Exhibit 2561 is Lt.

Sousa’s memorandum to Chief Lopez in advance of his pre-determination

hearing in the 14-541 case.

14-339, 14-579, 14-587, 14-588, 14-775, 14-776, 14-777, 14-780, 14-781,

10-782, 14-783, and 14-821: Plaintiffs are unaware of any admitted exhibits

relating to any of these cases.

15-22: Exhibit 2062 is material relating to this case. It does not appear to

be a complete file. It was admitted into evidence as it was produced toPlaintiffs.

Question 10: Other items of personal property and/or tangible things

In response to Question 10, Plaintiffs do not have the necessary information to

answer fully. However, as to IA case numbers 14-221, 14-295, 14-339, 14-541, 14-588,



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14-780, and 15-22, Plaintiffs cross-reference the information in response to Question 9

above. In addition, Plaintiffs respond that Defendants produced materials relating to IA

cases 14-817, 15-18, 15-19, and 15-21. Plaintiffs do not know whether those materials

were completed and final reports.

Plaintiffs are unaware of any admitted evidence relating to IA Case No. 14-817 and

15-19. Exhibits 2010, 2887, and 2890 all appear to relate to IA Case No. 15-18. Exhibit

2010 also refers to IA Case No. 15-21.

As in our response to previous questions, Plaintiffs are unable to determine whether

they had access to all materials requested from Defendants. Defendants made a

production of responsive documents; whether there were other responsive documents is

unknown to Plaintiffs.

Plaintiffs are aware of three IA case numbers associated with Officer Ralphaelita

Montoya: 15-21, 14-295 and 14-541. As noted above, Plaintiffs have received some

documents associated with those IA case numbers but are unable to determine whether

complete and final reports were produced.

With regard to Officer Montoya, Plaintiffs further note that the evidence

demonstrates that although Officer Montoya admitted to Sergeant Tennyson that she had

taken items from the HSU offices to Deputy Armendariz’s home, there was no further

investigation of her involvement in possible mishandling or theft of property. Hrg Tr.

2901-03. In addition, Officer Montoya was scheduled for a polygraph examination but

did not complete it because of a “panic attack,” and was never required to submit to a

polygraph examination again. Id. Prior investigations of Officer Montoya in IA cases

were not reopened after her admission. Hrg Tr. at 2902-03. In two administrative IAcases, 14-541 and 15-21, Officer Montoya had already received findings of Not

Sustained. Hrg Tr. at 1205, 3270-71; see also Ex. 2010, Ex. 2887, Ex. 2943.

Tennyson’s supervisor, Lt. Seagraves, was not aware that Montoya admitted to

Tennyson that she had transported property to Armendariz’s home and understood



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instead that Montoya had taken paperwork to Armendariz’s home. Hrg Tr. 2231.

Captain Bailey and Chief Deputy Sheridan apparently had no knowledge of Officer

Montoya’s admission to Sergeant Tennyson. Captain Bailey testified that his

understanding was that Officer Montoya had only put property from the HSU office in

Deputy Armendariz’s car, and that Armendariz was the one who took the items to his

home. Hrg Tr. 3247. Chief Deputy Sheridan testified that he knew that a female

detention officer took items from the Enforcement Support building to Armendariz’s

home, but did not know whether it was Officer Montoya. Hrg Tr. 1196-97.

Question 11: Negative inferences from destruction of evidence

Plaintiffs submit that the Court should draw the following negative inferences from

Defendants’ destruction of evidence in this litigation:

Recordings of traffic stops were destroyed.

Those recordings would have showed violations of Plaintiffs’ 14A and 4A

rights.

There was inadequate supervisor review of video recordings.

Videos that were preserved were selectively preserved because they did not

inculpate personnel, or tended to exculpate personnel. (See Exhibit 169,

which states that purpose of recording is to defend against complaints and

for use as evidence in criminal trials, and instructs that only videos proving

criminal activity (by the person stopped) should be impounded into

evidence.)

Any complaints that a civilian lodged or attempted to lodge with MCSO

would have been corroborated by destroyed video recordings.These negative inferences are supported by existing evidence in the record:

Exhibits 36 and 42: Chief Trombi had to send out a second email about

gathering videos after his initial email of May 14, 2014. This was followed by a

third email, from Chief Deputy Sheridan, ordering the submission of video



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Palmer testimony, Hrg Tr. 196-97: Palmer also testified that he sometimes

deleted recordings because the memory was full.

Exhibit 2050: This collection of memoranda from various SID (including HSU)

personnel to then-commander Captain Bailey demonstrates that many videos

were not preserved and produced.

In support of the request for negative inferences, Plaintiffs refer to the legal

authorities cited in the briefing on their Renewed Motion for Sanctions for Defendants’

previous spoliation of evidence (Doc. 416, 450; see also Doc. 227, 237).

Plaintiffs request leave to make a full submission as to remedies after the Court

issues its findings of fact, but note at this point that remedies for the destruction of video

recordings should include the following modifications to the Court’s Supplemental

Injunction:

MCSO policy regarding body-mounted cameras should provide that

civilians will be informed that they are being recorded. Such a policy will

put a civilian who wishes to lodge a complaint on notice that a video

recording exists and may support the complaint, and help to ensure that

video recordings will be preserved.

In addition, MCSO supervisors should be required to conduct a mandatory

review of any recording when there is any allegation of wrongdoing

including but not limited to racial profiling, prolonged traffic stops, and any

other Fourth Amendment violation. In addition, for any deputy who has a

large number of alerts in EIS, the supervisor should increase the number of

regular random reviews of that deputy’s recordings.Question 12: PSB investigations generally

Plaintiffs do not have the necessary information to answer Question 12. However,

in response to 12(e), Plaintiffs respond that they are unaware of any IA cases in which



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Chief Deputy Sheridan recused himself, other than 14-543 and 14-542. In response to

12(f), Plaintiffs are unaware of any IA case in which Captain Bailey recused himself.

Question 13: Tolling of administrative IA case deadlines

Plaintiffs refer to the legal authorities cited by Plaintiff-Intervenor the United States

during closing argument.

Question 14: Fifth Amendment Self-Incrimination Clause

Plaintiffs are aware of no legal authority suggesting that once an officer is

deceased, statements made by him in a compelled administrative interview may not be

used or taken into account in a corresponding criminal investigation of another

individual. The Fifth Amendment right against self-incrimination is personal to the

individual whose testimony is being compelled. In re Kunstler , 914 F.2d 505, 517

rehearing denied, cert. denied, 499 U.S. 969 (1990) (citing Moran v. Burbine, 475 U.S.

412, 433 (1986)); see also Braswell v. United States, 487 U.S. 99, 118 (1988)

(corporation cannot validly claim protection under the Fifth Amendment). Moreover,

the Fifth Amendment’s self-incrimination clause merely prohibits the use of compelled,

self-incriminating statements in a criminal case. The initiation of legal proceedings

against the witness who gave the compelled statements is the necessary trigger for any

violation of the self-incrimination clause allegedly resulting from compelled interviews;

the use of coercive questioning during an administrative interview does not implicate the

Fifth Amendment Self-Incrimination Clause. Chavez v. Martinez, 538 U.S. 760, 770

(2003) (mere use of compulsive questioning of a witness, absent use of the compelled

statements in a criminal case against the witness, does not violate the self-incrimination

clause).Question 15: February 2015 discovery orders

Plaintiffs are unaware of any admitted exhibits containing internal directives

concerning compliance with the Court’s February 2015 discovery order.



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RESPECTFULLY SUBMITTED this 4th day of December.

By: /s/ Cecillia D. Wang

Cecillia D. Wang (Pro Hac Vice)

Andre I. Segura (Pro Hac Vice)ACLU Foundation


Daniel Pochoda

ACLU Foundation of Arizona

Anne Lai (Pro Hac Vice)

Stanley Young (Pro Hac Vice)

Tammy Albarran (Pro Hac Vice)

Hyun S. Byun (Pro Hac Vice)

Priscilla G. Dodson (Pro Hac Vice)

Michelle L Morin (Pro Hac Vice)

Lauren E. Pedley (Pro Hac Vice)

Covington & Burling, LLP

Jorge M. Castillo (Pro Hac Vice)

Mexican American Legal Defense and

Educational Fund

James B. Chanin (Pro Hac Vice) Attorneys for Plaintiffs



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CERTIFICATE OF SERVICE

I hereby certify that on December 4th, 2015, I electronically transmitted the

attached document to the Clerk’s office using the CM/ECF System for filing. Notice

of this filing will be sent by e-mail to all parties by operation of the Court’s electronic

filing system or by mail as indicated on the Notice of Electronic Filing.

Dated this 4th day of December, 2015.

/s/ Cecillia D. Wang


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Melendres # 1591 | P Response to Nov 18 Order

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