In May, a federal judge ruled that Sheriff Joe Arpaio’s immigration enforcement efforts violated the constitutional rights of Latinos. The judge has now appointed a monitor to oversee efforts by the Maricopa County Sheriff’s Office to end what the court found to be a pattern of racial profiling. Kelly Flood, senior staff attorney for the ACLU of Arizona and Tom Liddy, one of the attorneys representing the Maricopa County Sheriff’s Office, discuss the ruling.
José Cárdenas: Thank you for joining us. Back in May, a federal judge ruled that Sheriff Joe Arpaio's immigration enforcement efforts had violated the constitutional rights of Hispanics. This month, the same judge appointed a monitor to oversee efforts by the Maricopa County Sheriff's Office to end what the court found to be a pattern of racial profiling. Here tonight is Tom Liddy from the Maricopa County Attorney's Office and one of the attorneys representing Sheriff Joe Arpaio. And Kelly Flood, Senior Staff Attorney for the ACLU of Arizona. Thank you both for joining us on "Horizonte." You both have been here before and we've talked about different aspects of this litigation but just Kelly, a quick refresher on the ruling in May and how we got there and in essence what the judge said.
Kelly Flood: The case was filed in 2007 and after about five years of fairly hotly contested litigation we went to trial last fall for about a two-week federal court trial. After the trial was over, the judge took some time formulating, took several months, and ultimately issued a liability ruling in May, issuing findings of fact and conclusions of law and found the sheriff's office had engaged in racial profiling with, he found in favor of the plaintiffs on our 4th and 14th Amendment claims and then indicated that we should work toward a remedy and the order that he just issued on October 2nd is the remedy phase and that is the injunction in which he has explained to the parties how he wants his findings of fact and conclusions of law to be implemented in a way that will repair the problem that we saw.
José Cárdenas: Now, Tom, in terms of the remedy, as I understand it, the judge's order didn't say there was going to be a monitor but it was pretty much understood that that was going to be part of the remedy right?
Tom Liddy: The judge indicated earlier on when we were meeting that he was very much inclined to put a monitor in place and we understood that so we were arguing over what would the role of monitor be. The sheriff's fine having someone with professional law enforcement experience there to advise him on policies and operations but he was very much opposed to a federal judge infringing upon his constitutional powers to make decisions in the sheriff's office and we're very pleased that the Judge Snow understood that and that the monitor that will be put in place will only have an advisory function, the sheriff is very pleased with that.
José Cárdenas: So it's a 59 page order. Give us the sketch of what the judge said.
Tom Liddy: Let me back up just a little bit. People will recall, the sheriff was doing a large-scale saturation patrols in which they were pulling over vehicles and there were undocumented migrants that were there and they were being handed over to ICE and some were being deported and others weren't and it was creating a lot of controversy in parts of the Maricopa County community and the judge was really focused on that. So the big takeaways are that the law has been clarified if not changed that unlawful presence is not a crime in the United States of America. Now that is clear. So no one will be arrested on suspicion of being in Arizona, Maricopa County or the country without documentation. And then the sheriff has said that for traffic stops, it can only be for federal, criminal violations, or state criminal violations and every law enforcement decision, there will be no racial profiling. And what does that really mean? It means one can never use race or ethnicity when making a law enforcement decision. That's a very important decision, it's one that the sheriff supports and it makes sense because race is not an indicator of any unlawful activity and it's just bad policing to do that. So moving forward, that's the big picture. The sheriff wants -- the judge wants to make sure that there's a retraining because many of our 2-E-7-G, those are the deputies that were wearing the federal hat during these large-scale operations were trained by ICE and ICE taught them that it was legal to use ethnicity as a factor, never the sole factor but a factor. That is just not correct. And the Ninth Circuit has made that very clear it wasn't correct and Judge Snow said that's got to be changed and there needs to be new training. There's a new training regimen that's in this order. There are very specific rules about written policies that must be put in place for large saturation patrols. There haven't been any large saturation patrols since 2011 because of the litigation. Now that the order's out, large saturation patrols will be permitted and they'll start moving forward with those again but they'll be doing it in accordance with this order which says you have to have a plan that's written, provided to the monitor, provided to the plaintiff, the plaintiff has to make sure that there's a reason that a certain area has been selected, it has to be because of criminal activity and reports of criminal activity have to be investigated now. That wasn't always the case before. And another big thing will be a database created now. Everyone who is stopped by the sheriff's office, the sheriff did not want this, the court has ordered that the deputies try to guess the person's ethnicity and when they make that guess they have to put it in a database. There's going to be a large and growing database that the people out in Maricopa County won't be aware of where the police are guessing what your race is, what your background is so that's going to be created, the court's ordered that, as well.
José Cárdenas: I want to talk about some other aspects of the order but before we do that, Kelly, is the ACLU pleased with what the judge decided was going to be the role of the monitor and other aspects?
Kelly Flood: Absolutely. We think that the judge appropriately balanced what was necessary in this case in order to remedy the problems that he saw and that obviously the plaintiffs and the community experienced with the sheriff's office and we think that the role is appropriate. It is an advisory role. The monitor will take a look at the sheriff's new policies, the training, the data, we'll analyze the data that's collected based upon the traffic stops and the monitor will try to evaluate whether the sheriff is both complying with the court's order and whether the problems are actually being remedied. And then the monitor will have the opportunity to advise whether he or she thinks things are being done correctly or maybe things could be done differently. And then ultimately, the court has retained jurisdiction to determine whether the sheriff is in compliance with the court's order.
José Cárdenas: Another big part of the order in terms of the implementation has to do with the role of the Community Advisory Board. Explain that.
Kelly Flood: Correct. And the Community Advisory Board is something that we felt was very important in order to help sort of heal the rift in the community. There had obviously been a large rift in the Latino community who had felt basically terrorized by MCSO for many years and we felt and the court ultimately agreed that as part of healing that broken relationship, having a community advisory board where folks nominated by the sheriff's office and folks nominated by the plaintiffs and the plaintiffs' representatives could come together, talk about how the order is being implemented, how it was impacting the community, get community input and hopefully move productively towards, you know, repairing the relationship between the Latino community and the sheriff's office.
José Cárdenas: Now, Tom, I understand that the sheriff at the end of the day was not too unhappy with the role the monitor's going to have, made the point that he's not -- he or she won't have veto power. But the sheriff wasn't very happy about the notion of the Community Advisory Board. Why?
Tom Liddy: It's interesting. Not all the Hispanic community was opposed to the sheriff. Remember a lot of the terrorism or terrorizing that occurred in Maricopa County and surrounds us by coyotes who were kidnapping people, murdering people, raping people, people dying in the desert. So somebody had to do something. And the federal government was doing nothing. So Sheriff Joe stepped into the vacuum. There are many people that were very grateful for the actions the sheriff was taking. Of course, that's why he was re-elected. Specifically with the Community Advisory Board, in Maricopa County we have an elected sheriff and by its very nature of elected office, any office holder must communicate on an ongoing basis with all aspects of the community or you're going to lose the next election so the sheriff was opposed to the article 3 federal court placing this on this one political body, he would say it's not political, we'll see what happens when you have three community activists on a board and then three other people that have been put on the board, we'll see how that works out, you know. Good luck with that. It may just be that it's a political circus, you know, every four times a year, we'll see.
José Cárdenas: It is just advisory, though, right? They can't tell the sheriff what to do.
Tom Liddy: They can't tell the sheriff what to do but the concerns is will it be a forum for people to express anger, outrage, stir things up, or will it be a forum where people will actually work hard, looking closely at what's going on in law enforcement operations, only the future will tell, we don't know but the sheriff has very little confidence that that advisory board will be any more helpful than other forums that people in Maricopa County have for expressing their views about all manner of things, including the operations of the sheriff's office.
José Cárdenas: Kelly, you indicated that one of the benefits or positives that your side sees in the advisory board is that it is an opportunity to vent and express concern.
Kelly Flood: I didn't use the word vent but I would say express concern, yes. And I think that the way Tom has characterized who might ultimately be on the board is probably not accurate. What we are planning and what we are hoping is that the folks who are on the board will be people who will be serious, who will be optimistic, who will want to work in a meaningful and cooperative way to engage the sheriff's office with the community to express the concerns and the needs of the community and we as expressed in court, we don't think this is an opportunity for some political body. We see it as an opportunity to create a new and healing relationship between the community and the sheriff's office.
José Cárdenas: Let's talk about the selection of the monitor. What's the process going to be?
Kelly Flood: The process is that both sides are currently vetting candidates. We both -- we sent out a request --
José Cárdenas: There's some certain criteria that they have to meet.
Kelly Flood: Correct, right and we sent out, for example, a request for proposal, we've got a number of qualified candidates in. We've been talking with them and interviewing them. I assume the sheriff's office has been doing the same thing. We're going to exchange our nominees. If we can agree on someone great, we let the judge know and that person gets appointed. If we can't agree, then we will submit our proposals to the judge and the judge will make the ultimate decision.
José Cárdenas: They have to have some kind of law enforcement or criminal background, something that qualifies them to be involved in this.
Kelly Flood: Or previous monitor experience and often law enforcement monitors have law enforcement backgrounds.
José Cárdenas: Quickly, the training requirements. What are those? And how are they going to be implemented?
Kelly Flood: For the new training -- [ Overlapping Speakers ] There are a variety of requirements under the order, including a combination of in person training where there's a question-and-answer opportunity and also some online training and the sheriff's office will be designing the new training and implementing it and the monitor will have some input in that but it's ultimately up to the sheriff's office to design the new training consistent with the court's order.
José Cárdenas: Tom, there are a lot of provisions in the order that talk about what deputies are supposed to do when they make stops, what things they can consider, what things they can't, the kinds of reporting they're supposed to do, disclosures before and after, any concerns about any of that?
Tom Liddy: There is a concern that it will lengthen the stops. One of the complaints in the litigation was that traffic stops by MCSO deputies of Hispanics was taking too long and that's a concern of the court, I think it's a concern of everybody and a lot of the requirements are going to make traffic stops longer, not real pleased about that. But we'll do the best we can with that. The other concern is the collection of racial and ethnic data, it doesn't sound like something that's American but the court has ordered that so that's going to go forward. That's a concern. But the general law enforcement is not going to change. If you commit a crime in Maricopa County, Sherriff Joe and his deputies are going to stop you and you are going to stand before the man in court.
José Cárdenas: Kelly, the order provides for a 3 year minimum period of monitoring and then one side or the other if they reach an agreement can ask that the order be lifted. What's your expectation?
Kelly Flood: It's wait and see at this moment. We're optimistic. We're hopeful that this will be a meaningful and productive process and that the sheriff will be in full compliance with the order as quickly as practicable and that things will improve. And we'll just have to wait and see and if it happens that's great and there could be agreement and if it doesn't happen, we'll have to go back to the court and discuss what's appropriate at that time.
José Cárdenas: Tom, this is not necessarily the end of the litigation as I understand. A notice of appeal has been filed, there will be a challenge to the judge's ruling in May. Where do you expect this to end up?
Tom Liddy: The sheriff indicated he will appeal and on his behalf we have filed a notice of appeal and the Ninth Circuit will give us the schedule and we'll have to detail the concerns we have in the appeal in December. We'll file that with the Ninth Circuit.
José Cárdenas: The biggest concerns with the judge's May ruling are?
Tom Liddy: There are many. We're talking 59 pages here, even more than that.
José Cárdenas: That's the most recent order.
Tom Liddy: And that's the one that we'll appeal, only the final order is appealable. We'll be looking at that. And it's a target rich environment I'll tell you that. We're not going to go to the Ninth Circuit with 20-22 different issues. We're going to look at it very closely and see which issues are likely to be the most fruitful at the appellate level and at the Supreme Court and we'll file the appeal in December.
José Cárdenas: Last question, Kelly. Your projection on the appeal, will it hold up?
Kelly Flood: We think that the judge's ruling, both his May ruling on liability, and then this ultimate injunction, we think that both of them are well reasoned.
José Cárdenas: Not concerned that the judge went too far?
Kelly Flood: We don't believe that he exceeded his authority at all. This injunction and remedy is consistent with remedies around the country against other law enforcement bodies. We're confident that both the liability and the ruling and the injunction will stand.
José Cárdenas: Well, I guess we'll know soon enough. Thank you both for joining us on "Horizonte" to talk about it. Appreciate it.
Kelly Flood:Senior Staff Attorney, ACLU of Arizona;Tom Liddy:Attorney, Maricopa County Sheriff's Office