doj v arpaio # 348 | d.ariz._2-12-cv-00981_348

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 Attorneys for the United States

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 MARICOPA COUNTY’S MOTION FOR SUMMARY JUDGMENT

Defendant Maricopa County’s Motion for Summary Judgment must fail because

the arguments it advances are unsupported by applicable law, contrary to the factual

record, and have previously been considered and rejected by this Court in this same case.

I. Legal Standard for Summary Judgment

Summary judgment may be granted only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). A genuine dispute as to material fact is absent only if,

“upon viewing the evidence and inferences which may be drawn therefrom in the light

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Case 2:12-cv-00981-ROS Document 348 Filed 11/14/14 of 17

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most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of

law.” Diaz v. Eagle Produce Ltd., 521 F.3d 1201, 1207 (9th Cir. 2008) (citation omitted).

I. Defendant Received the Required Pre-suit Notification under Title VI.

Focusing only on the United States’ December 2011 Findings Letter, Defendant

argues that the United States did not provide the pre-suit notification required by Title

VI.1

A. The United States provided the requisite notice.

Doc. 334, at 5. The record firmly establishes, however, that the United States

provided the requisite notice over months of communications with County

representatives preceding the filing of the Complaint in May 2012. Additionally,

Defendant has pointed to no prejudice it has experienced from any claimed lack of notice.

Its motion on this ground therefore must fail.

Title VI of the Civil Rights Act of 1964 (“Title VI”) provides that no action to

effect compliance with its requirements shall be taken until the United States “has

advised the appropriate person or persons of the failure to comply with the requirement

and has determined that compliance cannot be secured by voluntary means.” 42 U.S.C. §

2000d-1. Department of Justice regulations require such notice to be provided to “[t]he

[funding] recipient or other person” who has failed to comply with Title VI or the

implementing regulations. 28 C.F.R. § 42.108(d)(3).

The United States provided Defendant with ample notice of the Title VI

violations. On December 15, 2011, it provided the Maricopa County Attorney, who

represents the County, and counsel for Defendant Arpaio and the Maricopa County

Sheriff’s Office (MCSO), with the United States’ Findings Letter detailing the nature and

extent of the Title VI violations. See United States’ Statement of Additional Facts in

Resp. to Def. Maricopa County’s Mot. for Summ. J., ¶ 1 [hereinafter SAF]. On

December 15, 2011, counsel for the County responded to the letter, suggesting that the

1 Defendant’s argument does not apply to Claims 1, 2, or 6, which are not brought under Title VI.


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United States had “noticed the wrong party” and should notice counsel for MCSO. SAF

¶ 2. On January 17, 2012, the United States informed counsel for Defendant Maricopa

County that it would continue to include it in all correspondence concerning the matter

because the United States’ “investigation potentially affects Maricopa County as the

conduit of federal financial assistance to MCSO.” SAF ¶ 3. From January through April

2012, through written correspondence and in-person meetings, counsel for the United

States, Defendant Arpaio, and Defendant Maricopa County conferred on the potential of

a mutually agreeable resolution of the issues raised in the United States’ Findings Letter.

SAF ¶ 4.

In addition, an attorney for the United States deposed in this matter testified to his

personal knowledge of having participated in “numerous communications” with the

County “notifying the County that the Department of Justice had determined that the

County had failed, in the eyes of the Department of Justice, to discharge responsibilities it

had with respect to funding of the Sheriff's Office.” SAF ¶ 5. During these

communications, which preceded this lawsuit, counsel for the United States met with

counsel for the County, discussed “the County’s own obligation with respect to MCSO,”

and informed him that what was “needed was something that was transparent and

accountable, that showed that, in fact, MCSO was going to change and the County was

going to engage in the oversight and accountability that it’s required to do.” SAF ¶ 6.

Counsel for the United States further “sat down with at least two county commissioners,

county supervisors, to tell them and explain to them what our findings were” and make

every attempt “to settle this matter short of a lawsuit.” SAF ¶ 7.

Finally, on May 9, 2012, after determining that Defendant’s compliance could not

be secured by voluntary means, the United States sent the County formal correspondence,

advising that “in accordance with the notice requirements set forth in DOJ’s Title VI

regulations, 42 C.F.R. § 108(d)(3), it is the intention of the Department of Justice to file a

civil action against Maricopa County, the Maricopa County Sheriff s Office, and Sheriff

Joseph M. Arpaio in order to remedy the serious Constitutional and federal law


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violations, including noncompliance with Title VI, as noted in our . . . Findings Letter.”

SAF ¶ 8.

The sum of these communications between the United States and Defendant

certainly satisfies the Title VI pre-suit notification requirement. The County, MCSO, and

Defendant Arpaio each were advised of the Title VI violations. The County in particular

was advised of its potential liability “as the conduit of federal financial assistance to

MCSO,” SAF ¶ 3, which the County knew entailed its contractual assurances to require

MCSO’s compliance with Title VI. SAF ¶¶ 9-10. And as the County had made those

assurances, it was advised that what was “needed was something that was transparent and

accountable,” that showed that, “the County was going to engage in the oversight and

accountability that it’s required to do.” SAF ¶ 6.

Additionally, Defendant does not contest that MCSO received the requisite pre-

suit notice, and decisions of Arizona courts have established that MCSO is a part of the

County. See Braillard v. Maricopa Cnty., 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010)

(“Although A.R.S. § 11–201(A)(1) provides that counties have the power to sue and be

sued through their boards of supervisors, no Arizona statute confers such power on

MCSO as a separate legal entity.” (emphasis added)); id. (rejecting the argument that

“MCSO has ‘admitted in court proceedings that it is a separate entity from the County.’”

(emphasis added) (citation omitted)); Ekweani v. Maricopa Cnty., No. CV-08-1551-

PHX-FJM, 2009 WL 976520, at *2 (D. Ariz. April 9, 2009) (“[T]he office[] of the county

sheriff . . . [is] simply [an] administrative subdivision[] of the county.”).

B. Defendant identifies no prejudice from any alleged lack of notice.

Tellingly, Defendant does not claim that it was unaware of the Title VI violations,

or that it was surprised by the suit. The purpose of the pre-suit notice requirement is to

“avoid unnecessary invocation of formal enforcement procedures” when voluntary

compliance can be secured, Adams v. Richardson, 480 F.2d 1159, 1163 (D.C. Cir. 1973),

but Defendant does not claim its voluntary compliance could have been secured, if only it

somehow had been provided with more notice. It alleges only a “procedural[]” fault and


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points to no prejudice whatsoever from any alleged lack of notice. Doc. 334, at 8

(claiming relief is “procedurally precluded (because no notice was given)”). Such

alleged failures of process, however, do not warrant dismissal of a claim when no

prejudice has resulted. See, e.g., Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1404

(9th Cir. 1994); United Food & Commercial Workers Int'l Union v. Alpha Beta Co., 736

F.2d 1371, 1382 (9th Cir. 1984) (“so long as a party received sufficient notice,” technical

faults with a summons do not warrant dismissal “absent a showing of prejudice”). Nor

can such an alleged deficiency of notice under Title VI support a grant of summary

judgment, inasmuch as any prejudice has been cured by discovery—Defendant knows

full well the nature of its Title VI violations, and it has had every opportunity to reach

voluntary compliance before and during the litigation of this matter. Cf. Fed. R. Civ. P.

12(h)(1) (defenses based on insufficient process are waived unless made by motion under

Rule 12(b)); 5B Charles Alan Wright, et al., Fed. Practice and Procedure § 1353 (3d ed.

2008) (“Since the defense of improper service of process involves a matter in abatement

and does not go to the merits of the action, it is technically not proper to raise it by a

summary judgment motion.”).

Thus, because the United States has satisfied both the letter and purpose of the

Title VI pre-suit notice requirement, Defendant’s motion on this ground must be denied.

II. The United States Has the Authority to Enforce Title VI.

Defendant claims that the United States lacks authority to enforce Title VI

directly, and that only private plaintiffs may do so. Doc. 334, at 4-8.2

2 Defendant’s argument does not apply to Claims 1, 2, or 6, which seek to enforce § 14141, or to Claim 5, which seeks to enforce Defendant’s contractual assurances to comply with Title VI.

To the contrary,

however, the United States’ authority to enforce Title VI directly is confirmed by long-

standing precedent and the Department of Justice’s own interpretation of Title VI as the

agency charged with administering the Act.


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Title VI provides that compliance may be effected by fund termination or “any

other means authorized by law.” 42 U.S.C. § 2000d-1. Interpreting this provision, the

Court of Appeals for the District of Columbia Circuit explained:

Although fund termination was envisioned as the primary means of enforcement, . . . Title VI clearly tolerates other enforcement schemes. Prominent among these other means of enforcement is referral of cases to the Attorney General, who may bring an action against the recipient. The choice of enforcement methods was intended to allow funding agencies flexibility in responding to instances of discrimination.

Nat’l Black Police Ass’n, Inc. v. Velde, 712 F.2d 569, 575 (D.C. Cir. 1983); accord

United States v. Miami Univ., 294 F.3d 797, 808 (6th Cir. 2002) (interpreting FERPA:

“We believe that the [statutory language “take any other action authorized by law”]

expressly permits the Secretary to bring suit to enforce the FERPA conditions in lieu of

its administrative remedies”); United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039,

1050 (5th Cir.1984) (“[A]n agency may resort to ‘any other means authorized by law’—

including the federal courts.” (citations omitted)); A.R. ex rel. Root v. Dudek, No. 13-

61576-CIV, 2014 WL 3263047, at *5 (S.D.Fla. May 30, 2014) (“Various courts have

interpreted the phrase ‘by any other means authorized by law’ to mean that, if an

offending entity violates the statute and compliance is not forthcoming, the funding

agency may refer the matter to DOJ to enforce the statute’s nondiscrimination

requirements in court.” (citations omitted)); United States v. City & Cnty. of Denver, 927

F. Supp. 1396, 1400 (D.Colo. 1996) (same).3

Additionally, in issuing regulations and guidance pursuant to Title VI, the

Department of Justice has interpreted the phrase “any other means authorized by law” to

3 Defendant suggests that the “mode of reasoning” in these cases was “expressly rejected” by the Supreme Court in Alexander v. Sandoval, Doc. 334, at 7 n.1, but Sandoval is inapposite—it concerned private rights of action under Title VI, not civil actions by the United States. See 532 U.S. 275, 287 (2001).


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permit civil actions to gain compliance. See 28 C.F.R. § 42.108(a)(1) (explicitly

authorizing “[a]ppropriate proceedings . . . to enforce any rights of the United States

under any law of the United States (including other titles of the Act), or any assurance or

other contractual undertaking”); Department of Justice, Guidelines for the enforcement of

Title VI, Civil Rights Act of 1964, 28 C.F.R. § 50.3, pt. I.B.1 (listing various

“[p]ossibilities of judicial enforcement,” including “a suit to enforce compliance with . . .

statutory provisions requiring nondiscrimination” and “a suit for other relief designed to

secure compliance.”).4

Courts must presume “‘that Congress, when it left ambiguity in a statute’

administered by an agency, ‘understood that the ambiguity would be resolved, first and

foremost, by the agency, and desired the agency (rather than the courts) to possess

whatever degree of discretion the ambiguity allows.’” City of Arlington, Tex. v. F.C.C.,

133 S. Ct. 1863, 1868 (2013) (quoting Smiley v. Citibank (South Dakota), N. A., 517

U.S. 735, 740–741 (1996)). Title VI directs agencies providing Federal financial

assistance to issue regulations to effectuate its nondiscrimination mandate. 42 U.S.C. §

2000d-1. The Department of Justice not only has issued the regulations cited above as an

agency that disperses financial assistance, but is responsible for the review and approval

of all other agencies’ Title VI regulations, and for the coordination of “the

implementation and enforcement by Executive Agencies” of the nondiscrimination

provisions of Title VI. Exec. Order No. 12250, 45 Fed. Reg. 72995, §§ 1-101, 1-201

(Nov. 2, 1980). Therefore, to the extent that there exists any ambiguity in Title VI’s

4 Defendant argues that this Guidance requires the United States to bring suit only against a subgrantee of Federal financial assistance even when both the subgrantee and the grantee itself are liable. Doc. 334, at 7-8. The text of the Guidance simply does not bear that interpretation, and such an interpretation would be inconsistent with the Guidance’s emphasis that “several alternative courses of action are open,” 28 C.F.R. § 50.3(a), and with the intention of Title VI “to allow funding agencies flexibility in responding to instances of discrimination.” Velde, 712 F.2d at 575.


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authorization for the United States to pursue “any other means authorized by law” to

effectuate compliance, the reasonable interpretation of the Department of Justice that

Title VI permits civil actions to effectuate compliance must control. See City of

Arlington, Tex., 133 S. Ct. at 1868 (“Statutory ambiguities will be resolved, within the

bounds of reasonable interpretation, not by the courts but by the administering agency.”);

Dudek, 2014 WL 3263047, at *5-6 (holding that the Department of Justice reasonably

interpreted the phrase “by any other means authorized by law” to permit civil actions).

Finally, the Court need not reach the question whether Title VI permits civil

actions by the United States, because Defendant committed to contractual assurances that

it would comply with the nondiscrimination provisions of Title VI, SAF ¶¶ 9-12, and the

United States seeks to enforce those contractual assurances, as well. See Doc. 1,

Complaint, ¶¶ 181-85. The Title VI regulations explicitly authorize “appropriate

proceedings” to enforce those contractual assurances, 28 C.F.R. § 42.108(a)(1), and even

without those regulations, the United States has inherent authority to bring civil actions to

enforce them. United States v. Marion Cnty. Sch. Dist., 625 F.2d 607, 609 (5th Cir.

1980) (holding that the United States has an “inherent right” to sue to enforce contractual

assurances of compliance with Title VI, as it does to enforce the conditions associated

with any grant of Federal assistance). Defendant’s argument therefore must fail.

III. The County Has the Authority to Redress the United States’ Injuries.

Defendant claims that the United States lacks standing to bring the claims against

it because Defendant does not have sufficient authority over the Sheriff to be able to take

any action that could redress the United States’ injuries. Doc. 334, at 8-12. Defendant’s

argument is wholly without merit.

A. The Court already has rejected Defendant’s argument.

First, the Court already has considered and rejected this same argument in this

case. See United States v. Maricopa Cnty., Ariz., 915 F. Supp. 2d 1073, 1082-84 (D.

Ariz. 2012). The determination that the argument fails is therefore “law of the case,” and

should not be reconsidered. United States v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012)


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(“Under the ‘law of the case’ doctrine, a court is ordinarily precluded from reexamining

an issue previously decided by the same court, or a higher court, in the same case.”

(internal quotation marks omitted)). “For the [‘law of the case’] doctrine to apply, the

issue in question must have been ‘decided explicitly or by necessary implication in [the]

previous disposition.’” Id. (citations omitted).

In denying Defendant’s motion to dismiss, the Court considered the same

argument Defendant raises now: “The County argues it should be dismissed because it

has no authority over the MCSO and Sheriff and therefore has no liability for, or power

to stop, the alleged discrimination by the MCSO and Sheriff.” United States v. Maricopa

Cnty., Ariz., 915 F. Supp. 2d 1073, 1082 (D. Ariz. 2012). Defendant then moved the

court to reconsider its Order, specifically as to its argument that the United States lacks

standing because the County lacks sufficient authority over the Sheriff. Doc. 59, at 4.

The Court denied Defendant’s motion to reconsider “[f]or the reasons stated in the United

States’ response to the County’s motion to dismiss, and the Court’s order denying the

County’s motion to dismiss.” Doc. 73, at 1. By “necessary implication,” Defendant’s

standing argument has been decided because it is inconsistent with the result reached by

this Court in denying Defendant’s motion to dismiss. Jingles, 702 F.3d at 502 (“‘An

argument is rejected by necessary implication when the holding stated or result reached is

inconsistent with the argument.’”) (quoting United States v. Jordan, 429 F.3d 1032, 1035

(11th Cir. 2005)). No grounds exist to revisit the question now: the decision is not

“clearly erroneous,” Defendant points to no “intervening controlling authority,” and no

“different evidence” has been adduced that contravenes the clear state law controlling the

decision. Id. at 502-03. Defendant’s argument fails on this ground alone.

B. Defendant clearly has sufficient authority to provide some redress.

Second, Defendant’s argument is simply false. It has sufficient authority over the

Sheriff to “at least partially redress” the United States’ injuries, and that satisfies the

redressibilty requirement of Article III standing. Meese v. Keene, 481 U.S. 465, 476-77

(1987); see Massachusetts v. E.P.A., 549 U.S. 497, 526 (2007) (holding that defendant’s


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ability to provide relief even “to some extent” suffices for standing). As set out in the

Complaint, the United States seeks an injunction requiring Defendant “to adopt and

implement policies, procedures, and mechanisms to remedy the pattern or practice of

unlawful conduct described herein, and by specifically addressing, inter alia, . . . policies

and training; non-discriminatory policing and jail operations; . . . misconduct complaint

intake, investigation, and adjudication; . . . oversight and transparency; and community

engagement.” Doc. 1, ¶ 193. Defendant Maricopa County has the authority to take

action addressing all of those areas. It may, for example, establish oversight mechanisms

to evaluate whether MCSO policies and practices are lawful. SAF ¶ 13. In fact, the

County already engages in such oversight to ensure MCSO’s compliance with other laws,

SAF ¶¶ 13-15, and there is no lawful prohibition against the County engaging in such

oversight as to MCSO’s compliance with the Federal laws at issue here, see SAF ¶ 17.

Defendant may institute policies and training providing for such oversight; establish

mechanisms to receive complaints from the community to inform its oversight activities;

and engage with the community through Board meetings and other events to ascertain

whether any MCSO practices may be creating risks of unlawful conduct by MCSO

personnel. SAF ¶¶ 13-18. If Defendant identifies any areas of concern, it may require

Defendant Arpaio to report to it under oath on what he will do to prevent unlawful

conduct from occurring, SAF ¶19; it may confer with the Sheriff and persuade him to

adopt best practices to avoid such unlawful conduct, SAF ¶ 20; it may notify the United

States that its subrecipient of Federal financial assistance is at risk of engaging in conduct

that violates Federal law so that the United States may take appropriate action, SAF ¶ 21;

and it may then cooperate with the United States in any subsequent investigation and

require MCSO’s cooperation as well, SAF ¶¶ 22-23.5

5 By identifying these potential means of redress, the United States does not propose to limit the scope of appropriate remedial measures that ultimately should be ordered based on the trial record.


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All of these actions are consistent with Defendant’s statutory authority. Under

A.R.S. § 11-251, Defendant, through the Board of Supervisors, may “[s]upervise the

official conduct of all county officers and officers of all districts and other subdivisions of

the county charged with assessing, collecting, safekeeping, managing or disbursing the

public revenues, see that such officers faithfully perform their duties and direct

prosecutions for delinquencies, and, when necessary, require the officers to renew their

official bonds, make reports and present their books and accounts for inspection.” A.R.S.

§ 11-251(1). As the Arizona Court of Appeals has held, “[i]nasmuch as the Sheriff is a

county officer under A.R.S. s 11-401 subsec. A, par. 1. the County exercises supervision

of the official conduct of the Sheriff.” Fridena v. Maricopa Cnty., 504 P.2d 58, 61 (Ariz.

App. 1972). Defendant also may examine the Sheriff’s “accounts and performance,”

A.R.S § 11-251(10), and require him to report to the Board “under oath on any matter

connected with the duties of his office,” id. § 11-253.

Additionally, Defendant determines the budget of the Sheriff, A.R.S. § 11-

201(A)(6), and need provide only for “actual and necessary expenses incurred by the

sheriff in pursuit of criminals, for transacting all civil or criminal business and for service

of all process and notices,” id. § 11-444(A); see Gregory v. Thompson, 159 Ariz. 512,

514-15 (Ariz. Ct. App. 1989) (applying identical language concerning constable, holding

that a County board need not provide expenses for activities it determines to be

unnecessary). Expenses incurred in unlawful activities cannot be considered “necessary.”

See Pinal Cnty. v. Nicholas, 179 P. 650, 651-52 (Ariz. 1919) (concerning a County’s duty

to pay “necessary expenses” of the County Attorney, “the board of supervisors is charged

with the duty of supervising all expenditures incurred by him, and rejecting payment of

those which are illegal or unwarranted”). Indeed, during the United States’ Title VI

investigation, with which MCSO initially refused to cooperate, former counsel for the

County, Thomas Irvine represented to the United States that the County would instruct

MCSO “that it may not expend any public funds, including on outside counsel, to resist


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any DOJ Title VI inquiry,” because “resisting a Title VI inquiry is outside the scope of

the employment of any elected or appointed official.” SAF ¶ 23. 6

The factual record developed during discovery confirms the County’s sufficient

oversight authority over the Sheriff. SAF ¶¶ 13-26. For example, former County

Manager David Smith testified that the County Board of Supervisors has a “major

influence” over the financing of the Sheriff’s Office, and the “final say” on his budget,

which it could cut and require the Sheriff to stay within, SAF ¶24; that the County could

and did use its budgeting authority to persuade and bargain with the Sheriff’s office to

affect matters otherwise within the Sheriff’s control, SAF ¶ 20; that the Board has the

power to put the Sheriff on a line-item budget if it is aware that MCSO is in violation of

policy or law, SAF ¶ 17; and that the County Board can influence MCSO through its

power to issue budget variance reports, withhold approval over capital expenditures,

withhold improvements or changes for technology, and withhold salary increases or other

benefits, id. County Supervisor Andrew Kunasek confirmed that the Board can order

special audits, reject proposed budgets, use audits to evaluate MCSO, and subpoena

MCSO for information. SAF ¶ 25. County Supervisor Mary Rose Wilcox testified that,

upon receiving a citizen complaint, the Board could ask the County Manager to look into

the problem and provide the Board with a written response on what he found. SAF ¶ 18.

6 Irvine also represented to the United States that, “[t]he Maricopa County Board of Supervisors has supervisory powers concerning the sheriff’s office.” SAF ¶ 22. Defendant’s reliance on Hounshell v. White, 202 P.3d 466 (Ariz. Ct. App. 2009), for its assertion that it has no supervisory authority over the Sheriff, is misplaced. The Court’s decision in Hounshell was limited to the question of whether the County Board of Supervisors could discipline classified employees of county officers. While the Court held that the Sheriff had exclusive authority to hire and fire deputies, the Court recognized the supervisors’ authority to supervise and discipline county officers in other areas, including under § 11-251(1). Id. at 470.


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Defendant’s ability to take all of these actions is further corroborated by

Defendant’s June 2011 “Resolution of the Board of Supervisors of Maricopa County

Concerning the Oversight and Review of the Maricopa County Sheriff’s Department.”

SAF ¶ 13. That Resolution recognizes “the powers and duties of the Maricopa County

Board of Supervisors (“Board”) relating to oversight and budget authority” as provided in

the same statutes cited above, SAF ¶ 13, and directs the County’s Office of Management

and Budget to perform “oversight functions and review of MCSO” concerning a wide

variety of MCSO practices. SAF ¶¶ 13-15.

Finally, Defendant Maricopa County acknowledges its authority to approve or

deny MCSO applications for Federal financial assistance. SAF ¶ 26. Significantly,

Defendant has continued to seek Federal grant applications on behalf of MCSO long after

the United States notified the County in March 2009 that it was commencing an

investigation of MCSO for alleged patterns or practices of discriminatory police practices

and national origin discrimination. SAF ¶ 9. Each time it did so, the County committed

to contractual assurances that it would comply with Title VI and require MCSO’s

compliance with Title VI as well. SAF ¶ 10. Indeed, the County signed its latest such

contractual assurance in June 2014, a year after this District Court held that Defendant

Arpaio and MCSO were engaged in widespread unlawful racial discrimination.

SAF ¶ 11. The County’s repeated commitments to abide by Title VI and require

MCSO’s compliance as well, while fully aware of the potential racial discrimination by

MCSO, evince the County’s understanding that it does indeed have the authority to

exercise meaningful oversight over the Sheriff.

Both Arizona law and the factual record in this case establish beyond question that

Defendant Maricopa County has authority to exercise meaningful oversight over MCSO

sufficient to provide some redress for Defendant’s violations of Federal law. The United

States therefore has standing to seek relief from the County, and Defendant’s argument to

the contrary must fail. Additionally, to the extent Defendant disputes the factual record

confirming that it has sufficient oversight authority over the Sheriff, then a genuine


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dispute as to material fact remains, which precludes summary judgment. Fed. R. Civ. P.

56(a).

IV. The County Can Be Liable Under § 14141 and Title VI.

Defendant argues that it cannot be liable under the Violent Crime Control and Law

Enforcement Act of 1994, 42 U.S.C. § 14141, or Title VI because those laws do not

allow the Sheriff’s liability to be “imputed” to the County. Doc. 334, at 12-16.7

As this Court already has held: “Under Arizona law, the Sheriff has final

policymaking authority with respect to County law enforcement and jails, and the County

can be held responsible for constitutional violations resulting from these policies. The

policymaker analysis also supports Plaintiff's Title VI claims against the County because

Title VI reaches the actions of relevant ‘decisionmakers.’” United States v. Maricopa

Cnty., Ariz., 915 F. Supp. 2d 1073, 1084 (D. Ariz. 2012) (citing Pers. Adm'r of Mass. v.

Feeney, 442 U.S. 256, 279 (1979)). As the Court noted in reaching this decision, “courts

routinely find the Sheriff is the final policymaking authority for the County in analogous

§ 1983 matters” id. at 1083, and both the Arizona Court of Appeals and this District

Court have held that “Arizona Counties can be held liable for the Sheriff’s discretionary

acts related to jail management and law enforcement policy.” Id. (citing Flanders v.

Maricopa County, 54 P.3d 837 (Ariz. Ct. App. 2002) and Guillory v. Greenlee County,

No. 05-cv-352, 2006 WL 2816600 (D. Ariz. Sept. 28, 2006)).

Here,

too, Defendant’s argument must fail under the “law of the case” doctrine because this

Court already has considered and rejected it in this same case.

The Defendant’s argument against policymaker liability therefore has been

considered and explicitly rejected by this Court in this same case. That determination is

“law of the case,” and should not now be revisited. Jingles, 702 F.3d at 499. The Ninth

7 Defendant’s argument does not apply to Claim 5, by which the United States seeks to enforce the County’s contractual assurances to comply with Title VI and require MCSO’s compliance as well.


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Circuit has recognized three circumstances that may warrant reconsideration of a prior

decision in the same case: “(1) the decision is clearly erroneous and its enforcement

would work a manifest injustice, (2) intervening controlling authority makes

reconsideration appropriate, or (3) substantially different evidence was adduced at a

subsequent trial.” Id. at 502-03 (citations omitted). None of them applies here. The

Court’s decision is not clearly erroneous but well supported by the law. What Defendant

fails to understand is that policymaker liability is not a form of indirect liability by which

the County can be held liable for the misdeeds of another actor; rather, because the

Sheriff is a County officer with policymaking authority over law-enforcement practices,

the Sheriff’s actions and policies in that area are the County’s own actions and policies.

See Blackburn v. Snow, 771 F.2d 556, 571 (1st Cir. 1985) (holding county liable for jail

practices of its sheriff and noting that “there could hardly be a clearer case of county

liability”).8

Defendant does not challenge the sufficiency of the evidence to establish Federal

law violations resulting from the policies of the Sheriff, only that, as a matter of law,

§ 14141 and Title VI do not permit “imputation” of liability to the County. To the extent

that Defendant argues that, as a factual matter, Defendant could not “engage” in the

unlawful conduct because it lacked sufficient authority to do so, that argument is rebutted

Moreover, Defendant cites to no intervening authority or new evidence that

would make reconsideration appropriate.

8 Defendant did not seek leave to file a motion that exceeds the 17-page limit prescribed by local rule, but on page 18 of its motion, Defendant cites Grech v. Clayton Cnty., Ga. in support of its argument that policymaker liability does not apply because Defendant cannot control the Sheriff’s policies and practices. Doc. 334, at 18. Grech is inapposite. There, Georgia state law afforded counties none of the authorities to oversee sheriffs that Arizona law affords Defendant here, nor did any Georgia state court decision recognize that counties can be liable for the discretionary acts of sheriffs, in contrast to the Arizona state court decisions relevant here. See Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1332-39 (11th Cir. 2003).


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by the law and evidence establishing the County’s clear authority to take action to guard

against violations of Federal law by the Sheriff (see Section III, above), and a genuine

dispute as to material facts concerning Defendant’s authority precludes summary

judgment on this argument. Fed. R. Civ. P. 56(a).

For the foregoing reasons, and the reasons stated in the Court’s Order denying

Defendant’s motion to dismiss and rejecting this argument, and in the United States’

Response to Defendant’s motion to dismiss, Defendant’s argument concerning

“imputation” must fail.

Conclusion

For the foregoing reasons, the United States respectfully submits that Defendant’s

Motion for Summary Judgment must be denied.

Respectfully submitted,

MARK KAPPELHOFF Deputy Assistant Attorney General Jonathan Smith Chief, Special Litigation Section

/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 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Tel. (202) 514-2000/Fax (202) 514-6273 [email protected]

ATTORNEYS FOR THE UNITED STATES


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CERTIFICATE OF SERVICE

I certify that on November 14, 2014, I used the Court’s CM/ECF system to serve a

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

/s/ Edward G. Caspar EDWARD G. CASPAR


doj v arpaio # 348 | d.ariz._2-12-cv-00981_348

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