Melendres, et al. v. Arpaio, et al

Filing 2827

ORDER: This Order resolves the pending Order to Show Cause. (Doc. 2681 .) It also resolves Sheriff Paul Penzone's Motion to Modify Second Order. (Doc. 2647 .) For the following reasons, the Court finds Sheriff Paul Penzone in civil contempt an d sets forth appropriate curative orders. Those curative measures include granting his Motion to Modify Second Order (Doc. 2647 ) in part and denying it in part. See order for complete details. Signed by Chief Judge G. Murray Snow on 11/8/22. (NKS)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Manuel de Jesus Ortega Melendres, on
behalf of himself and all others similarly
situated; et al.

9
10

No. CV-07-2513-PHX-GMS
ORDER

Plaintiffs,

11

and

12

United States of America,

13

Plaintiff-Intervenor,

14
v.

15

Paul Penzone, in his official capacity as
Sheriff of Maricopa County, Arizona; et al.

16
17

Defendants.

18
19

This Order resolves the pending Order to Show Cause. (Doc. 2681.) It also resolves

20

Sheriff Paul Penzone’s Motion to Modify Second Order. (Doc. 2647.) For the following

21

reasons, the Court finds Sheriff Paul Penzone in civil contempt and sets forth appropriate

22

curative orders. Those curative measures include granting his motion to Modify Second

23

Order (Doc. 2647) in part and denying it in part.

24

Contempt Findings

25

In 2016, this Court found that the MCSO manipulated the timing of investigations

26

brought to it to impose either no discipline or less serious discipline on its deputies in those

27

cases in which discipline was warranted. (Doc. 1677 at ¶¶ 574-583); (Doc. 1765 at 2.)1

28

1

It further found that other investigations were delayed to avoid the Court’s efficient
review of those investigations. (Doc. 1677 at ¶¶ 729-33.)

1

This delaying tactic was possible because, pursuant to its internal procedures and then-

2

existing state law, the MCSO could not impose discipline on a deputy if the investigation

3

of the alleged misconduct took longer than four months.2 It was thus easy to exonerate a

4

deputy accused of misconduct by merely failing to timely investigate his or her misconduct.

5

At that time, the Court found that in many other respects the MCSO had engaged in

6

biased and faulty investigations. To remedy that conduct, the Court required that the

7

Sheriff provide that “all allegations of employee misconduct, whether internally discovered

8

or based on a civilian complaint, are fully, fairly, and efficiently investigated.” (Doc. 1765

9

at ¶ 163.) It further required that the Sheriff and MCSO “conduct objective, comprehensive

10

and timely administrative investigations of all allegations of employee misconduct.” (Id.

11

at ¶ 183.) Specifically, Defendants were required to complete administrative investigations

12

within 85 calendar days of the initiation of the investigation by PSB and 60 calendar days

13

for investigations conducted in the Divisions. (Id. at ¶ 204.)

14

Nevertheless, since the Court entered that order the Defendants have continually

15

failed to complete their investigations in a timely manner. The MCSO has been aware that

16

adequate staffing has been an issue with PSB since at least 2017. (Doc. 2167 at ¶ 175). In

17

2018, two years after the Court entered its order, the average closure of a case took 204

18

days—about two and a half times the maximum permitted by this Court’s order. This, in

19

itself, violated the Court’s order and state law. That number, however, continued to

20

increase. In 2019 the average closure ballooned to 499 days and 552 days in 2020. (Doc.

21

2569 at ¶ 194.) In 2020, the Monitor found that MCSO had filled only one of the eleven

22

positions approved for PSB in the 2018 budget. (Doc. 2594 at ¶ 193.) The Monitor thus

23

found MCSO in non-compliance with paragraph 195’s personnel requirement and

24

paragraph 204’s timely investigation requirements in its November 2020 and February

25

2021 reports. (Docs. 2569, 2594.) In these reports the Monitor noted the continuing failure

26

to staff up the PSB even with budgeted positions. As the report stated, “PSB continued to

27
2

28

Close to the time that the Court entered its order, the Arizona Legislature extended the
statutory deadline for law enforcement agencies to complete internal investigations from
120 to 180 days. A.R.S. § 38-1110(A).
-2-

1

note that with the continuing influx of new cases, and the ongoing backlog of

2

investigations, even if [positions authorized in the 2018 budget that had not been filled]

3

were added, the Bureau would still be insufficiently staffed to meet its responsibilities.”

4

(Doc. 2594 at ¶ 195.) The Monitor explained, “we have previously noted, hiring of civilian

5

personnel is a positive step, but their hiring will not address what is an unacceptable failure

6

to properly staff PSB with an adequate number of investigators to comply with the order.”

7

(Id. at ¶ 195.) The Monitor thus held the MCSO as being out of compliance with ¶¶ 195

8

and 204 of this Court’s order. (Id. at ¶¶ 195, 204.) This pattern continued and worsened.

9

The Court entered its Order to Show Cause (“OSC”) why Defendants should not be held

10

in contempt in August of 2021. (Doc. 2681.) Prior to entering the Order, the Court noted

11

that “[r]ather than taking the necessary substantive steps to resolve the backlog and process

12

the complaints within the time period specified by the Order, however, the MCSO has

13

repeatedly granted itself . . . extensions . . . while the backlogs continued to increase.”

14

(Doc. 2576 at 2.)

15

After reviewing the briefing and while setting the OSC hearing the Court noted that,

16

even if it accepted all of the Defendants’ responses to the OSC as true, it would hold Sheriff

17

Penzone in contempt. (Doc. 2657 at 14.) Thereafter, the parties commendably agreed to

18

use the show cause hearing to focus on remedies for the contempt, and a Management

19

Expert was retained to recommend how to proceed. (Doc. 2663 at 2.)

20

The Court thereafter withheld any formal finding of contempt to determine whether

21

the Defendants would take remedial steps with respect to the backlog while it awaited the

22

Management Expert’s Report. To be sure, the Monitor and the Management Expert both

23

report that the internal investigations in which MCSO does engage are well done and well-

24

intentioned. (Doc. 2790 at 10-11.) The Management Expert indicated that the MCSO was

25

cooperative with him in his investigations and evaluations. (Id. at 4.) Yet, during the time

26

that the Management Expert has been preparing his recommendations, the existing

27

investigator vacancies in the PSB have remained unfilled, and the timeline to complete an

28

investigation has grown to approximately 600 days per investigation. (Doc. 2802-1 at 5.)

-3-

1

For full administrative cases involving sworn personnel, the timeline to complete an

2

investigation is now apparently in excess of 800 days. (Doc. 2810 at 43.) MCSO now has

3

2,137 pending investigations. (Doc. 2801-1 at 3.) Each of its investigators, on average,

4

complete 17 investigations a year. (Doc. 2810 at 5.) The failure to complete investigations

5

in a timely manner has become so extreme as to render investigations completely

6

ineffectual and render no service to either the complainant or MCSO personnel. The

7

Management Expert confirmed the Court’s calculation that at the present rate that the

8

investigative staff is clearing complaints, coupled with the rate at which uninvestigated

9

complaints are accruing, it would require 117 case investigators to clear up the caseload

10

over the next two years. (Doc. 2810 at 5-6.)

11

Further, newly-amended state law now provides protection for MCSO personnel

12

who have been involved in delayed investigations by mandating the dismissal of the

13

complaint after one year from its filing. A.R.S. § 38-1110(A). While the new state law

14

protects deputy sheriffs who are innocent but accused of misconduct from protracted

15

investigations, it does nothing to protect the interests of those members of the public,

16

including members of the Plaintiff class, who have a basis for filing such complaints. It

17

simply dismisses them.

18

investigations should be completed within 180 days, and only rarely should take longer

19

than that, it does nothing to protect the complaining parties from a deputy’s misconduct,

20

or to cure that misconduct, if the agency merely delays the investigation more than one

21

year, whether through bad faith or otherwise. It was precisely the manipulation of such

22

otherwise reasonable time constraints that resulted in the MCSO’s abuses and led to the

23

Court’s imposition of the time limits on investigations more than six years ago. In the

24

Court’s view, the new statute does not prevent the Sheriff from complying with the terms

25

of this Court’s previous orders for all outstanding investigations. If the parties feel

26

otherwise, they must raise the issue with the Court.

While the new statute apparently assumes that all internal

27

Sheriff Penzone’s non-compliance with ¶¶ 195 and 204 of the Second Order have

28

been knowing and continuous. To be sure, Sheriff Penzone has had at least some difficulty

-4-

1

in implementing the Court’s orders in the present environment. Nevertheless, he does not

2

demonstrate that he has taken all reasonable steps to comply with the order, especially as

3

the backlog has increased. The backlog, despite Sheriff Penzone’s knowledge of it, only

4

gets worse. It may be that Sheriff Penzone welcomes this Court’s intervention by way of

5

contempt remedies to cure that backlog. In any event, he leaves the Court with few options

6

for obtaining compliance with its orders. Thus, the Court holds the Sheriff in civil

7

contempt.

8

The Court has the authority to enter civil contempts in such cases and to compel

9

appropriate remedial measures. Stone v. City & Cnty. of San Francisco, 968 F.2d 850, 856

10

(9th Cir. 1992) (affirming a court’s authority to enter a contempt order with sanctions

11

designed to bring San Francisco’s jail population levels in line with its previous order).

12

“[A] contempt sanction is considered civil if it is remedial, and for the benefit of the

13

complainant.” Int’l Union Mine Workers of Am. V. Bagwell, 512 U.S. 821, 827 (1994). A

14

contempt sanction is “civil and remedial if it either ‘coerce[s] the defendant into

15

compliance with the court’s order, [or] . . . compensate[s] the complainant for losses

16

sustained.’” Id. at 829 (quoting United States v. Mine Workers, 330 U.S. 258, 303-304

17

(1947)).

18

The Court’s mechanism imposing fines as a result of the contempt will coerce

19

Defendants to appropriately support their compliance efforts. The fines are reasonable in

20

light of Defendants’ continued contumacy, and the unique structure of the fines (a “PSB

21

Staffing Fund”) ensures that any fines imposed will help Defendants comply with the

22

Court’s orders.

23

To determine the appropriate size and duration of a civil contempt fine designed to

24

coerce compliance, the Court considers “the character and magnitude of the harm

25

threatened by continued contumacy, and the probable effectiveness of any suggested

26

sanction in bringing about the result desired.” Shuffler v. Heritage Bank, 720 F.2d 1141,

27

1148 (9th Cir. 1983) (quoting United Mine Workers of Am., 330 U.S. at 304); see also

28

Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 514 (9th Cir. 1992) (affirming a $10,000

-5-

1

daily fine as properly tailored to coerce compliance “[b]ecause the district court considered

2

the harm threatened and the effectiveness of prior injunctive relief in setting the amount”).

3

Here, the character and magnitude of the harm to Plaintiffs, the general public, and MCSO

4

personnel posed by Defendants’ violations establishes the need for a substantial fine.

5

Although MCSO command staff have known about the violations for years, the backlog

6

continues to grow, and MCSO has not taken meaningful steps to address it.

7

The Court’s fine structure is also highly likely to bring MCSO into compliance.

8

Defendants can avoid paying fines by filling vacant positions at PSB, engaging contractors

9

to staff PSB, and steadily decreasing the backlog. The Court expects MCSO to decrease

10

the backlog at a reasonable rate – at least 20 cases each month. This rate roughly

11

approximates the rate at which the backlog has grown under MCSO’s current leadership.

12

(See Doc. 2790 at 5.) And, even if Defendants clear the backlog at that rate, it will still

13

take years to clear it. If Defendants are unable to avoid paying the fines, they may use the

14

fines to help cure their violations by hiring additional staff, increasing investigators’

15

salaries, and paying investigators incentives.

16

Therefore, to protect the interests of the Plaintiff class (let alone the general public),

17

in ensuring that investigations are completed in sufficient time to administer discipline, the

18

Court will require that the MCSO come into compliance with its reasonable investigative

19

protocols. It thus enters the following remedies:

20

Remedies

21

The paragraphs in the remainder of this Order are numbered as to continue from the

22

numbered paragraphs in the Second Amended Second Supplemental Permanent Injunction

23

Order (Doc. 1765).

24

338.

Within 14 days from the date of this order, MCSO will calculate and provide the

25

Court and the parties with the dollar amount required to recruit, hire, train and

26

compensate for one year a single PSB budgeted sergeant position.

27
28

339.

MCSO must not reduce the staffing levels at PSB below the minimum investigator
staffing number identified in ¶ 340 while a backlog in investigations remains.

-6-

1

340.

Within 60 days from the date of this order, MCSO will fill the seven currently

2

budgeted, yet vacant, positions at PSB referred to in Mr. Gennaco’s report, through

3

hiring or internal transfers. (Doc. 2790 at 15.) The staffing referred to by Mr.

4

Gennaco, together with the full staffing of the vacant positions, is 39 investigators.

5

This is the minimum investigator staffing number. If MCSO fails to fill any one of

6

the seven vacant budgeted staffing positions with an AZPOST sworn investigator

7

who is approved by the Monitor within 60 days of the date of this order, MCSO

8

and/or Maricopa County will pay into a PSB Staffing Fund three times the amount

9

identified by PSB in ¶ 338 above for each vacancy remaining at the MCSO for

10

budgeted investigators. It shall, thereafter on a monthly basis pay into the Staffing

11

Fund three times the amount identified in ¶ 338 above for every month the number

12

of PSB investigators falls below the minimum investigator staffing number.

13

341.

If MCSO desires to fill the positions with new civilian investigators in lieu of sworn

14

officers, it may do so to the extent that it is authorized to do so, consistent with state

15

law. Should it fail to fill any one of the seven vacant positions within 60 days of

16

the date of this order, MCSO and/or Maricopa County will pay into a PSB Staffing

17

Fund three times the amount identified by PSB in ¶ 338 above for each vacancy

18

remaining at the MCSO for budgeted investigators. It shall, thereafter on a monthly

19

basis pay into the Staffing Fund three times the amount identified in ¶ 338 above

20

for every month the number of PSB investigators falls below the minimum staffing

21

number.

22

342.

If the MCSO attempts to fill these open positions with a mix of qualified sworn

23

personnel and civilian investigators, it may do so to the extent that it can, consistent

24

with state law. Nevertheless, if it fails to fill any one of the seven vacant positions

25

within 60 days, the MCSO and/or Maricopa County will pay into the PSB Staffing

26

Fund three times the amount identified in ¶ 338 above for each vacancy remaining.

27

It shall, thereafter on a monthly basis pay three times the amount identified in ¶ 338

28

above for every month that the number of PSB investigators falls below the

-7-

1
2

minimum staffing number.
343.

3
4

MCSO is authorized to conduct PSB investigations through approved private
contractors if it can do so consistent with state law.

344.

MCSO must demonstrate that it is using overtime and other administrative tools to

5

increase the personnel hours committed to investigate all types of complaints.

6

MCSO shall report its use of these tools to the Monitor on a monthly basis.

7

345.

MCSO and/or Maricopa County shall hereby establish a PSB Staffing Fund, which

8

shall be a separate account of the MCSO. The amounts set forth in ¶¶ 340-42 shall

9

be paid directly into this account. The MCSO, however, is only authorized to

10

withdraw funds from this account for the hiring and payment of PSB investigators

11

or private investigators contracted with PSB who are in compliance with the

12

requirements of state law. The fund may also be used to hire necessary additional

13

PSB administrative staff and necessary additional PSB supervisory staff only, and

14

for no other purpose. MCSO is not permitted to offset the amount of any fine from

15

PSB’s existing budget or use it to subsidize the number of PSB staff and

16

investigators existing at the time of this Order. MCSO shall provide an accounting

17

of the PSB Staffing Fund on a monthly basis to the Monitor and the Court. But, if

18

necessary, MCSO is permitted to augment and/or exceed the salary and incentives

19

normally paid PSB investigators to hire and/or maintain sufficient investigators,

20

whether sworn or civilian, to reduce the backlog.

21

346.

authorities set forth in this Order.3 The Monitor therefore has immediate authority

22
23
24
25
26
27
28

The Court hereby vests the Monitor, Robert Warshaw, with the supplemental

3

The Court is aware of the concern of the Plaintiffs and Plaintiff-Intervenor that expanding
the Monitor’s duties to include those of the Constitutional Policing Authority as
recommended by Mr. Gennaco might, in some way, compromise the Monitor’s
responsibilities under ¶ 126 of the Supplemental Permanent Injunction. The Court also
shares MCSO’s concern about the length of time necessary to develop a new role, hire a
“CPA,” and bring that individual up to speed in time to efficiently implement the curative
reforms set forth below. The Court is aware of the massive existing backlog, and the need
to timely correct that backlog. The Court also notes that the requirements of this Order, in
many respects, track over the same territory that the Monitor and the parties have already
-8-

1

to oversee all of MCSO’s complaint intake and routing. The Court hereby vacates

2

any previous order that conflicts with this Order, including but not limited to ¶ 292

3

of the Second Order (Doc. 1765). In consultation with the PSB Commander, the

4

Monitor shall make determinations and establish policy decisions pertaining to

5

backlog reduction regarding, by way of example, which complaints should be

6

(a) investigated by PSB; (b) sent to the Districts for investigation or other

7

interventions; or (c) handled through other methods, to include diversion and/or

8

outsourcing of cases. The Monitor must consult with the PSB Commander about

9

these policy decisions but maintains independent authority to make the ultimate

10

decision. The authority granted to the Monitor in this paragraph shall not be

11

applicable when there is no backlog. If the backlog is eliminated and then arises

12

again while the Defendants are still subject to monitoring, this authority will be

13

renewed in the Monitor.

14

347.

The Monitor shall revise and/or formalize MCSO’s intake and routing processes.

15

The Monitor’s authorities shall include, but not be limited to, the power to audit and

16

review decisions made with respect to individual cases and, if necessary, to change

17

such designations. The Sheriff and the MCSO shall expeditiously implement the

18

Monitor’s directions or decision with respect to intake and routing, and any other

19

issues raised by the Monitor pertaining to backlog reduction and any other authority

20

granted the Monitor under the Court’s orders. The Monitor must consult with the

21

PSB Commander about these processes but maintains independent authority to

22

make the ultimate decision. The authority granted to the Monitor in this paragraph

23

shall not be applicable when there is no backlog. If the backlog is eliminated and

24

then arises again while the Defendants are still subject to monitoring, this authority

25

will be renewed in the Monitor.

26

348.

The Monitor will evaluate PSB’s current investigative practices. The PSB, under

27
28

been over ad nauseum. (See, e.g., Doc. 1765 at ¶¶ 163-167.) It therefore determines to
assign the responsibilities set forth in Mr. Gennaco’s report to the Monitor.
-9-

1

the authority of the Monitor, shall create, and submit for the Monitor’s approval,

2

policies and procedures that:

3

(a) Identify and eliminate unnecessary investigative requirements that may be

4

removed from particular classes of cases;

5

(b) Provide for the establishment of an investigative plan for each investigation to

6

eliminate unnecessary steps for the investigation of the complaint at issue;

7

(c) Establish formal internal scheduling expectations and requirements for

8

supervisory interventions;

9

(d) Establish expectations on the timeline for each step of the review process. The

10

formulated expectations will be consistent with the timeline requirements of this

11

Court’s previous orders;

12
13

(e) Assess current use of IA Pro as a case management/tracking tool.
349.

The authority granted to the Monitor in this paragraph shall not be applicable when

14

there is no backlog. If a backlog is eliminated and then arises again while the

15

Defendants are still subject to monitoring, this authority will be renewed in the

16

Monitor. Given that the parties have provided the Monitor with feedback on these

17

issues, the Monitor is directed to consider the input already articulated by the parties

18

on these issues and determine, at his discretion, to adopt them or not. The Monitor

19

may choose, but will not be required, to seek additional input from the parties in the

20

development of the above stated policies. The Monitor shall finalize and submit

21

such policies to the Court within four months of the date of this order. The parties

22

shall have two weeks thereafter to provide the Court with any comments on the

23

Monitor’s final proposed policies. The Court will, if necessary thereafter, make

24

determinations as to the final policies.

25

350.

The Monitor will assess MCSO’s compliance with the investigative requirements

26

of this order and shall determine whether training on investigative planning and

27

supervision is needed and implement such training.

28

351.

The Monitor has the authority to make recommendations to the Court concerning

- 10 -

1

the revision of the Court’s orders as it pertains to the investigation of complaints

2

where, in its opinion, such revisions would increase efficiency without impinging

3

on investigations necessary to the operation of a fair and unbiased law enforcement

4

agency.

5

352.

The Monitor may intervene in the course of any investigation for the purpose of

6

facilitating the appropriate operation of the PSB and/or the reduction of the backlog,

7

if he deems it appropriate, and will document his actions in a quarterly report to be

8

submitted to the Court. The authority granted to the Monitor in this paragraph shall

9

not be applicable when there is no backlog. If the backlog is eliminated and then

10

arises again while the Defendants are still subject to monitoring, this authority will

11

be renewed in the Monitor.

12

353.

The Monitor shall recommend to the Court adjustments in the investigations of the

13

following categories of cases according to the following procedure:

14

MCSO shall, upon the approval of the Monitor:

15

(a) Create, formalize, and implement a policy regarding whether investigations are

16

necessary when the complaint was submitted to the MCSO more than a year

17

after the last instance of the underlying alleged misconduct reported, or when

18

the MCSO employee involved left MCSO’s employ prior to the filing of the

19

complaint.

20

(b) Create, formalize, and implement a policy regarding when investigations are

21

necessary if the initial complainant is unwilling or unable to cooperate, or if the

22

initial complainant is anonymous.

23
24

(c) Create, formalize, and implement a policy regarding when MCSO may
investigate health related in-custody jail deaths by County medical staff.

25

(d) Create, formalize, and implement a policy regarding when an entity other than

26

PSB may investigate internal allegations emanating from workplace

27

relationships.

28

(e) Create, formalize, and implement a policy regarding when, in cases in which

- 11 -

1

external evidence establishes a violation, the PSB Commander has the discretion

2

to offer principals a mitigated penalty if they accept responsibility.

3

mitigated penalty shall be no lower than the minimum discipline within the

4

applicable discipline matrix range for the charged offenses.

The

5

(f) Create, formalize, and implement a policy regarding when the PSB commander

6

is authorized to handle the alleged minor misconduct through supervisory

7

intervention in lieu of investigation. MCSO shall submit to the Monitor within

8

15 days, a list of the minor misconduct within the GC-17 (Disciplinary Matrix)

9

which it deems should be considered by the Monitor to be handled as a

10

supervisory intervention. MCSO’s list shall exclude allegations concerning the

11

Plaintiff class and allegations of bias.

12

In proposing such policies to the Monitor, the MCSO shall fully and openly consult

13

with the other parties to this litigation. All parties shall move expeditiously to formulate,

14

consult with, and approve these policies. MCSO and the parties shall complete and submit

15

to the Monitor for approval all such proposed policies within three months of this order.

16

As to those issues on which the parties cannot obtain consensus, they shall each submit

17

their proposals to the Monitor. The Monitor shall then, promptly present to the Court the

18

final proposed policies he deems best. The parties will have two weeks thereafter to

19

provide the Court with any comments on the Monitor’s final proposed policies. The Court

20

will, thereafter, make determinations as to the final policies.

21

354.

22
23

To the extent that the policies require implementation plans or address deadlines,
the Court shall approve these after they are submitted by the Monitor.

355.

The Monitor and the PSB shall review the cases in the current backlog that are

24

eligible to be diverted from PSB investigations by ¶ 353 of this order. It is the

25

expectation of the Court that the diverted cases shall reduce the current backlog.

26

356.

Within five business days of the elimination of these cases from the backlog, the

27

Monitor shall certify to the parties and the Court the number of administrative

28

investigations remaining in the backlog that are open and have not been completed

- 12 -

1

within the time limits required by the Court. At the beginning of each month, the

2

number of open cases whose investigations have exceeded the time by which Doc.

3

1765 ¶ 204 required that they be completed shall be the remaining backlog. This

4

backlog shall not include any cases for which the Monitor has granted an extension

5

of the investigative deadline pursuant to ¶ 365 of this Order.

6

357.

The cases in this remaining backlog should be identified by year, giving priority to

7

the oldest cases, i.e., the cases that were filed first. The expectation should be to

8

address the oldest cases first, without ignoring the continuing caseload. For each

9

month in which the PSB cannot reduce the remaining backlog by 20 cases from the

10

previous month’s number, the MCSO and/or Maricopa County shall pay into the

11

PSB Staffing Fund two times the amount identified in ¶ 338 above.

12

358.

Maricopa County has requested that the Court relax its investigative timeline to be

13

consistent with state law. The Court shall only consider doing so, when significant

14

progress is made towards the reduction of the backlog.

15

359.

The MCSO and/or Maricopa County shall pay all reasonable costs of the Monitor,

16

consistent with ¶ 123 of the Supplemental Permanent Injunction. The Monitor is

17

free from any liability for such matters as set forth in ¶ 144 of the Supplemental

18

Permanent Injunction.

19

360.

The Monitor shall submit a quarterly progress report to the Court and parties

20

describing the rationale for each type of investigative diversion approved, the result

21

of each diversion type, the backlog tally, the number of completed cases, unresolved

22

issues, and further actions required to address the backlog and staffing levels at PSB.

23

361.

Under the direction of the Court, MCSO shall commission an independent study to

24

determine: (1) the most efficient way for MCSO to allocate its personnel in light of

25

existing authorized staffing levels, the requirements and expectations of its served

26

communities, the requirements of this Court’s Orders, the timely elimination of the

27

existing backlog of PSB investigations, and state law; (2) the necessary staffing

28

level for MCSO to fulfill these obligations regardless of the existing staffing level;

- 13 -

1

and (3) the PSB staffing level required to maintain the timely completion of PSB

2

investigations in compliance with the Orders of this Court and state law. MCSO

3

shall (1) provide a draft Request for Proposals to the Court, the Monitor, and the

4

parties; (2) disclose credible bids to the Court, the Monitor, and the parties; and

5

(3) obtain Court approval of the methodology for the study. MCSO must ensure that

6

the study is completed within one year of the entry of this Order.

7

362.

The Court is aware that the MCSO has already engaged a consultant to undertake a

8

similar evaluation.

9

qualifications of the consultant already hired by MCSO and the outcome of that

10

study, the work of that consultant must comply with the Court’s requirements, supra

11

and will not be deemed to satisfy the terms of this Order absent the approval of this

12

Court. If MCSO wishes to obtain Court approval of the consultant it has already

13

hired, it must, as a prerequisite, provide the contracting documents to the Court, the

14

Monitor, and the parties within five business days of the entry of this Order; and it

15

must submit the consultant’s draft methodology to the Court, the Monitor, and the

16

parties within 30 days of the entry of this Order.

17

363.

Nevertheless, while the Court will consider both the

MCSO is required to provide access to personnel, documents, and facilities as

18

mandated by ¶ 145 of Doc. 606 so that the Monitor can perform his newly expanded

19

duties.

20

364.

To keep the parties and the Court informed, the MCSO shall report monthly on the

21

size of the backlog to the Monitor, the parties, and the Court. The Monitor’s

22

quarterly progress report will further assess the status of the backlog.

23

365.

The authority for MCSO to grant itself extensions in investigation deadlines granted

24

in ¶ 204 of Doc. 1765 is revoked. The Monitor shall be authorized to grant

25

reasonable extensions upon reviewing requests submitted to him by the Sheriff.

26

366.

At any time after the Monitor’s submittal of its second quarterly progress report, the

27

Court may revisit the contents of this order and make any changes it deems

28

appropriate.

- 14 -

1

367.

Should the Sheriff perceive any conflict between this order and the requirements of

2

state law, the Sheriff shall immediately raise the potential conflict with the Court by

3

motion.

4

368.

MCSO will continue to pay into the PSB Staffing Fund pursuant to ¶ 357 until

5

MCSO reports for twelve continuous months that it has no open investigations that

6

have exceeded the time by which Doc. 1765 ¶ 204 required that they be completed.

7

At that time, MCSO may petition the Court to dissolve the PSB Staffing Fund.

8

IT IS THEREFORE ORDERED granting Defendants’ Motion to Modify Second

9
10

Order (Doc. 2647) in part and denying it in part.
Dated this 8th day of November, 2022.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 15 -