Seventeen-year-old Arizona racial profiling case returns to the 9th Circuit

A federal appeals panel considered Wednesday whether a federal judge
can give decision-making authority to a court-appointed monitor in a
nearly two-decade class action over racial profiling by Arizona’s Maricopa County Sheriff’s Office. 

In
his third injunctive order since finding that then-county Sheriff Joe
Arpaio implemented racist policies of “immigration sweeps” in which
Latinos were disproportionately detained on suspicions of
non-citizenship, U.S. District Judge G. Murray Snow vested authority in a
third party monitor to decide when and how to intake and route
misconduct complaints in an effort to catch up with a growing backlog of complaint investigations. 

In a Wednesday afternoon appeal hearing before a three-judge Ninth Circuit panel, the sheriff’s office argued that the order violated federal civil rules of procedure by giving judicial power to a third party.

“The
powers of the monitor should be advisory only,” sheriff’s office
attorney Eric Fraser told the panel. “He should be making
recommendations to the district court that the district court then
implements.”

Attorneys representing the class and the United States argued
that the order doesn’t give the monitor unconstitutional power because
the decisions of the monitor are always subject to judicial review. Both
appellees are open to a remand to clarify that the monitor’s decisions
are subject to Snow’s approval if appealed by the sheriff’s office. 

“We wouldn’t object to a very limited remand,” U.S. attorney Natasha Babazadeh told the panel.

In the November 2022 injunctive order, Snow found then-Sheriff Paul Penzone in civil contempt
for failing to take proper steps to catch up on a backlog of misconduct
complaints stemming from the reign of his predecessor Arpaio. Arpaio
was found in civil contempt in 2016 and convicted of criminal contempt in 2017, but he was pardoned by then-President Donald Trump just weeks before his sentencing. 

When
Penzone took over for Arpaio in 2017, he was tasked with filling seven
vacant internal investigator positions and decreasing the average time
it took to complete an investigation from more than 600 days down to 85
or fewer. By 2023, the list of uninvestigated complaints — including
accusations of violence and sexual assault by sheriff’s deputies and
correctional officers — remained at more than 2,000. 

Snow
appointed former chief of the Rochester Police Department Robert
Warshaw as a third party monitor in 2013 to ensure the sheriff’s office
complied with Snow’s orders. Warshaw, a former associate director of the
White House Office of National Drug Control Policy, had previously been
appointed as a monitor over the Oakland Police Department in 2010. Snow
appointed him on recommendation from the American Civil Liberties Union
of Arizona. 

Now, after nine years of monitoring, the situation hadn’t improved. 

“The
court was faced with a dire situation,” class attorney Amy Heath told
the panel Wednesday. “Years of worsening non-compliance with its orders
that it put in place to remedy constitutional violations.”

Civil
Rule of Procedure 53 limits the authority of a monitor to that of an
advisory position that can make recommendations for the court’s
approval. Rule 65 prohibits injunctions that give a non-judicial officer
discretion to determine the terms of an injunction. Snow’s injunction
gave the monitor the authority to decide what types of misconduct
complaints are taken up, and what divisions they are sent to for
investigation. 

Heath argued that Snow didn’t have to follow civil
rules of procedure because the judge’s “equitable authority” as a
federal judge grants him the power to delegate monitors with limited
executive power over a government office. Further, she argued that the
power inherently comes with the opportunity for judicial review. While
the sheriff’s office is bound by the monitor’s directions, she said, it
can always appeal those directions to Snow for a final say.

Both
she and Babazadeh told the panel they are open to it, remanding the
order back to Snow with instructions to include clarifying language that
judicial review is always an option. 

U.S. Circuit Judge Susan
Graber raised that point with Fraser during his rebuttal, asking what
he’s fighting for if his opponents agree that judicial review is an
option. 

“It seems like you’re fighting something that is a shadow,” the Bill Clinton appointee told him.

Fraser
said after-the-fact judicial review doesn’t work in a practical sense,
because by the time an issue is brought to Snow, the complaint has
already been routed to a specific division for investigation.

U.S.
Circuit Judge Marsha Berzon asked why they can’t just go to the judge
while a complaint is routed to one division and ask him to reroute it to
another.

“In the meantime we’ve squandered all those resources,”
Fraser answered. “If the judge agrees with us, we’ve now wasted that
time and we’re back to square one.”

Berzon, also a Bill Clinton appointee, didn’t seem to mind that possibility.

“It just doesn’t sound very consequential what you’re upset about,” she said. 

U.S. Circuit Judge Clifford Wallace, a Richard Nixon appointee, rounded out the panel.