Mark A Ivener, A Law Corporation

Justice Dept. Accuses Arizona Sheriff of Civil Rights Violations; Federal Judge Issues Ruling

Thomas E. Perez, U.S. Assistant Attorney General, sent a letter on December 15, 2011, to the Maricopa County Attorney, Bill Montgomery, accusing the Maricopa County Sheriff’s Office (MCSO) in Arizona of engaging in a “pattern or practice of unconstitutional policing.”

Meanwhile, a federal judge ruled on December 23, 2011, that Maricopa County’s deputies may not detain people based solely on the suspicion that they may be in the United States illegally. U.S. District Judge Murray Snow noted, among other things, that Sheriff Arpaio “has made public statements that a fact-finder could interpret as endorsing racial profiling.” A separate federal grand jury investigation of the MCSO related to criminal abuse of power continues.

Mr. Perez’s letter notes that a Civil Rights Division investigation found that MCSO engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices. MCSO’s “deputies, supervisory staff, and command staff” perpetrated the alleged violations.

The Civil Rights Division also found reasonable cause to believe that MCSO operates its jails in a manner that discriminates against limited English proficient (LEP) Latino inmates, who it said are punished “routinely” for failing to understand commands given in English and are denied critical services provided to other inmates.

The investigation uncovered a number of instances in which MCSO initiated immigration-related crime suppression activities in the community after receiving complaints that described no criminal activity, but rather referred to circumstances such as individuals with “dark skin” congregating in one area, or individuals speaking Spanish at a local business. “The use of these types of bias-infected indicators as a basis for conducting enforcement activity contributes to the high number of stops and detentions lacking in legal justification,” Mr. Perez said.

Mr. Perez noted that the bias affects MCSO from the top down. Maricopa County Sheriff Arpaio, for example, labeled as “intelligence” a letter explicitly equating skin color with law-breaking and instructed a subordinate to address it. Such instances “are striking examples of how Sheriff Arpaio has promoted a culture of bias in his organization and clearly communicated to his officers that biased policing would not only be tolerated, but encouraged.”

The Civil Rights Division also found that MCSO deputies are encouraged to make high-volume pretextual traffic stops in targeted locations. “We have identified and interviewed Latinos who, though legally present in the United States, were arrested or detained without cause as a consequence of these operations.” Further, MCSO’s Criminal Employment Squad (CES) deputies, tasked with interdicting undocumented persons by enforcing state forgery and identity theft statutes, “routinely raid businesses in a manner that harms innocent Latino workers. Specifically, CES’s deputies typically detain and investigate the immigration status of all employees at a raided worksite, whether or not the employees are listed in the warrant authorizing the raid. The CES targets worksites where most, if not all, of the employees are Latino,” the letter states.

MCSO officials also have resorted to official harassment to silence critics, the letter says. For example, former Chief Deputy David Hendershott filed “unfounded complaints” with the Arizona State Bar against five attorneys, alleging ethical violations. The attorneys had publicly criticized MCSO’s tactics. Similarly, Mr. Hendershott, acting in his official capacity, filed complaints with the Arizona Commission on Judicial Conduct against judges who had publicly criticized MCSO and Sheriff Arpaio or had rendered decisions deemed detrimental to MCSO’s interests. All of the bar and judicial complaints were dismissed as insufficient to warrant an investigation, the letter notes, adding that Sheriff Arpaio participated as a named plaintiff in a civil federal racketeering suit filed against the same targeted judges and a number of other county officials. The claims against the judges echoed the complaints Hendershott had filed; the suit eventually was abandoned. “The arrests and harassment undertaken by MCSO have been authorized at the highest levels of the agency and constitute a pattern of retaliatory actions intended to silence MCSO’s critics,” Mr. Perez noted.

These violations, along with the absence of clear policies and procedures to ensure effective and constitutional policing and oversight, “have contributed to a chronic culture of disregard for basic legal and constitutional obligations,” Mr. Perez said, adding that the Civil Rights Division found “additional areas of serious concern,” including MCSO deputies using excessive force against Latinos, and MCSO’s implementing its immigration enforcement program in a way that has created a “wall of distrust” between MCSO officers and Maricopa County’s Latino residents, and that “has significantly compromised MCSO’s ability to provide police protection” to residents.

Mr. Perez told Maricopa County that effective resolution of these issues will require a comprehensive written agreement along with federal judicial oversight. “We prefer to resolve this matter without resort to further litigation, although we will not hesitate to file suit, if necessary,” the letter states, setting a deadline of January 4, 2012, for a response to an invitation for “constructive dialogue.” Mr. Perez noted that the Civil Rights Division’s investigation was delayed when MCSO “repeatedly refused to provide the United States with access to pertinent material and personnel,” which was resolved by means of a lawsuit.

MCSO released Sheriff Arpaio’s response implying that political motivations of the Obama administration and Congressional Democrats are behind the actions and noting, among other things, that “2 Democrat Latino US Congress men from Arizona, joined by several other Latino Legislatures want me to resign my office. All of these same Democratic elected officials, throughout the years, have been criticizing my enforcement of State and Federal Illegal immigration laws.” Conversely, Sheriff Arpaio noted, “Candidates for President of the United States – Herman Cain and Michelle Bachmann recently visited me in my office, Texas Governor Rick Perry and Mitt Romney also called me – all interested in my successful enforcement of illegal immigration and asked for my endorsement. Recently in New Hampshire, I endorsed Texas Governor Rick Perry for President of the United States.” (Typographical errors in original.)

Mr. Perez’s letter includes a description of the findings, a legal discussion, and remedial measures required, such as training for deputies; establishment of policies and procedures; data collection and risk management; developing and implementing a complaint, investigation, and disciplinary system; a comprehensive language access program for LEP individuals in jail and in the community; and community outreach. The letter is available as a PDF. Sheriff Arpaio’s response is available as a PDF.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.