Melendres, et al. v. Arpaio, et al

Filing 3075

FOURTH AMENDED SUPPLEMENTAL PERMANENT INJUNCTION/JUDGMENT ORDER - amending Paragraph 204 of the July 26, 2016 Second Amended Second Supplemental Permanent Injunction/Judgment Order (Doc. 1765 ) and Paragraphs 356-58 of the November 30, 2022 Amended Third Supplemental Permanent Injunction/Judgment Order (Doc. 2830 ) as follows (see document for complete details). Signed by Chief Judge G. Murray Snow on 8/30/24. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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

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and

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United States of America,

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v.

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Russ Skinner, in his official capacity as
Sheriff of Maricopa County, Arizona, et al.,

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FOURTH AMENDED
SUPPLEMENTAL PERMANENT
INJUNCTION/JUDGMENT ORDER

Plaintiff-Intervenor,

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No. CV-07-02513-PHX-GMS

Defendants.

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Pending before the Court is Defendants’ Motion for Approval of Staffing Study

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Pursuant to Paragraphs 361 and 362. (Doc. 2984). At the oral argument on that motion,

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the Court informed the parties that while it considered the staffing study useful in some

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respects, the staffing did not comply with the Court’s requirements in Paragraphs 361 and

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362. The failure to submit a compliant study thus frustrated the Court’s purposes in

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reducing the backlog of complaints against the MCSO in a sustainable way, curing the

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contempt originally imposed, and providing efficient and economic alternatives for the

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deployment of law enforcement officers to meet the requirements of the state law and the

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Court’s orders.

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The parties requested additional time to see if they could craft a resolution that

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would accomplish the purposes of the staffing study as it pertained to the backlog without

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requiring that the staffing study be redone. The Court granted this request. (Doc. 3012).

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Thereafter, the parties filed a Report of Joint Submission of Parties regarding Completion

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of Purposes of Staffing Study. (Doc. 3036). The Report advances two separate proposals

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which call for the elimination of the backlog by March 31, 2026. The MCSO/DOJ proposal

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further acknowledges that, to accomplish this result, Defendants must reduce the backlog

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by 63 PSB cases every month. (Id. at 10).

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To practically accomplish this backlog reduction, the MCSO/DOJ joint proposal
proposed that:
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The Court extend the time to 180 days in which the MCSO must complete

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all investigations. This, according to the joint proposers, would eliminate approximately

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23.6 cases per month from the backlog and would be more in-line with state law pertaining

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to other complaints. (Id. at 4-5).

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2. The MCSO appoint ten new PSB investigators by the end of the year. (Id. at 4).

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3. The MCSO double the efficiency of current investigations. (Id. at 4-5).

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4.

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The Court meet with the parties regularly to assess their progress towards

compliance. (Id. at 8-9).

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In evaluating this proposal, the Court had the following observations:

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1.

In establishing the PSB Staffing Fund and the requirement that funding

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occur for every month in which the backlog could not be reduced by 20 cases per month,

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the Court had in mind its initially imposed timeline for the completion of preliminary

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investigations. The Court also reserved the authority to adjust the minimum backlog

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reduction after the completion of the staffing study. (Doc. 2830 at ¶ 366). The Court

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further noted that it would consider relaxing the investigative timeline only “when

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significant progress is made towards the reduction of the backlog.” (Id. at ¶ 358). A

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significant number of the backlog reduction in the past year has come from the court-

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authorized diversions from the backlog, which was not the source of the reduction the Court

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had in mind. The Court is, nevertheless, willing to expand the investigative timelines to

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be more in compliance with state law. In doing so, however, it will increase the number

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of monthly backlog reductions that must occur to avoid the payment of funds into the PSB

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Staffing Fund. Such an increase will reflect the court’s grant of an increased time limit for

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investigation completion and be more in line with the amount of monthly minimum

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backlog reductions which the parties recognize are necessary to eliminate the backlog in a

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reasonable time.

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2.

While the MCSO/DOJ proposal suggested hiring ten new PSB investigators

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by the end of the year, it specified that this would not guarantee the increase of the current

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investigators by ten because “[t]he number at that time may vary depending on retirements

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or resignations, or if MCSO exceeds its goal of 10 new investigators.” (Doc. 3036 at 5).

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As the parties will recall, the staffing study recommended the addition of at least 13

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additional investigators to the PSB to reduce the backlog and thereafter function in

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compliance with state law. But the Court found the staffing study unacceptable because it

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in no way offered any analysis on which to conclude that 13 additional investigators would

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be sufficient to accomplish the required task or maintain adequate PSB operations

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thereafter. The analysis provided by the joint proposal itself notes that through the addition

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of ten investigators “MCSO anticipates that it will be able to reduce the backlog by an

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additional 9 cases per month.” (Id.). Nine additional closures per month is far fewer than

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the 63 necessary to timely reduce the backlog.

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3.

The MCSO offers no analysis suggesting that it can approximately double

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the case resolutions per month per investigator through investigative efficiencies. To date,

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and while working with years of backlog, the only effective method appears to have been

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to increase the number of investigators.

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While the Court recognizes the importance of accountability, with the lack

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of sufficient analysis and the absence of any enforcement mechanism, the Court is dubious

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that increased meetings with the Court to ascertain adequate compliance with the backlog

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reduction will prove fruitful.

Rather, increased meetings will likely result only in

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piecemeal micromanagement by the Court.

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implemented a mechanism by which, in the absence of adequate backlog reduction,

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additional funding must be provided to increase PSB personnel. The funding depends upon

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the extent to which the backlog is not reasonably reduced on a month-by-month basis.

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Prior to the completion of the staffing report, the Court reserved the right to adjust these

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numbers. (Doc. 2830 ¶ 366). In short, if the Court uses the mechanism in place and

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enhances the minimum quarterly number to be eliminated from the backlog in light of the

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additional timeline relief Defendants are requesting, it can, commensurate with the

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deadlines suggested by the Defendants themselves, reduce the backlog without being

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Nevertheless, the Court has already

overly involved in matters of MCSO administration.

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As a result, the Court drafted the outlines of a proposed order and submitted it to the

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parties for comment. In light of the comments of the parties, the Court addresses some

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aspects of the Peace Officer’s Bill of Rights, Ariz. Rev. Stat., Title 38, Chapter 8, Article 1.

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Among other things, that Peace Officer’s Bill of Rights provides time limits within

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which initial administrative investigations must be completed and also accords certain

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procedural rights and protections when an investigation may result in a disciplinary action.

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“Disciplinary action” is defined as “the dismissal, the demotion or any suspension of a law

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enforcement officer that is a result of misconduct or unsatisfactory performance.” A.R.S.

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§38-1101(3). The article also affirms a law enforcement’s right to appeal a disciplinary

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action.

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The statute provides that, in a usual case, the employer of a law enforcement officer

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has no more than 180 days after the employer has received qualifying notice of the

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complaint to complete the initial administrative investigation. A.R.S. § 38-1110(A). Per

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the statute, the initial administrative investigation is not complete until the employee is

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served with either a notice of discipline or a notice of findings. Id. As it pertains to the

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Defendants in this action, a notice of discipline is served after a pre-determination hearing

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determines that a law enforcement officer should be terminated, demoted or suspended and

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the law enforcement officer is so notified. (Doc. 1765 ¶¶ 183-228).

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A “notice of findings” is served when an investigation determines that anything

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other than “the dismissal, demotion or any suspension of a law enforcement officer” is the

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appropriate resolution to the investigation. A.R.S. § 38-1110(A). Thus a “notice of

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findings” includes, but is not limited to, a Closed Case Notification, Coaching, Written

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Reprimand or any other internal affairs investigation that imposes lesser discipline than

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“dismissal, demotion or suspension of a law enforcement officer.” Id. To the extent that

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the MCSO has adopted a different definition of what completes an investigation for

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purposes of removing it from the backlog, it is not in compliance with the enforceable

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timeline contained in the Peace Officer’s Bill of Rights.

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Upon additional reflection on its proposal, MCSO suggests that it may be unable to

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comply with the 180 day timeline effectively mandated by the Peace Officer’s Bill of

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Rights. A.R.S. § 38-1110(A). It offers, however, no reason why. There is no suggestion

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that timely compliance should be difficult in cases of “notice of finding” when no pre-

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determination hearing is required. Presumably then, the concern arises from cases where

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a pre-determination hearing is necessary. (Doc. 1765 ¶ 223); see A.R.S. §38-1101(3).

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This at least suggests the possibility that the MCSO has been removing cases from

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the backlog without complying with the notification requirements contained in the Peace

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Officer’s Bill of Rights and which notification standard police practice would also require

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be delivered to the Complainant. For the first time MCSO asserts that the Conduct

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Resolution Section is involved in the process—presumably providing pre-determination

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hearings in cases of notice of discipline. Yet, the MCSO has provided no evidence as to

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how many of the cases removed from the backlog still have not had their pre-determination

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hearings. Nor does it indicate generally how many investigations result in recommended

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disciplinary action requiring a pre-determination hearing; that the failure to conduct such

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determinations on a timely basis by command staff is justified, or the amount of time such

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pre-determination hearings take. The Defendants request that the use of the Staffing Fund

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in Paragraph 354 be expanded to permit expenditures on behalf of the Conduct Resolution

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Section. While the Court does not reject such an expanded use of the fund out of hand, it

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would require that a systemic and justifying need be demonstrated that ranks with the need

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for more PSB resources in resolving the backlog. No such need has yet been established.

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The Court further notes that in the interim, the Monitor may justify extensions in

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appropriate circumstances in individual cases, as set forth in Doc. 2830 ¶ 365.

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The article further affirms that a law enforcement officer may appeal from a decision

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in which discipline is imposed. See A.R.S. § 38-1106(A). If an officer does so, the law

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provides confidentiality for a limited additional time for the officer’s personnel files.

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A.R.S. § 38-1109(A). Any information about the investigation is excluded from that part

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of the personnel file of a law enforcement officer that is available for public inspection

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“until the investigation is complete or the employer has discontinued the investigation.”

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A.R.S. §38-1109(A). Further, information to be used in the officer’s appeal by either party

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is subject to limited disclosure requirements and may not be disseminated except to the

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appellant or “their lawful representatives.” A.R.S. § 38-1106(B). If an officer appeals a

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disciplinary action, then for purposes of the confidentiality of his investigative file, “the

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investigation is not complete until the conclusion of the appeal process.”

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§38-1109(B).

A.R.S.

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Defendants’ assertion, however, that this confidentiality extends beyond the

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personnel files and other disclosure requirements is incorrect. The statute is quite clear

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that all hearings on the officer’s appeal are open to the public. A.R.S. §38-1106 (J) (“all

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hearings pursuant to this section shall be open to the public. Executive sessions allowed . . .

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shall be limited to legal advice to a personnel appeals board or for deliberations.”) Since

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all hearings regarding the officer’s appeal of the pre-hearing determination are open to the

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public, then the result of the pre-hearing determination and the fact that the officer appealed

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that determination are not confidential by the statute’s design. In providing that hearings

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on appeals are open to the public, the statute authorizes public access to the information

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presented at the hearing. Thus, neither the result of the pre-hearing determination, nor the

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appeal made from it, are subject to the limited additional confidentiality extended to the

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investigative and personnel files.

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Moreover, pursuant to the statute, the employer bears the burden of proof on appeal.

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A.R.S. §38-1106 (G). It is difficult to ascertain in most cases how the employer could be

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reasonably expected to meet that burden in the absence of calling the complainant as a

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witness at the appeal. With that in mind, the suggestion that the statute – which applies

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only to the officer’s personnel and investigative files – prevents the complainant from

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knowing the pre-hearing determination makes little sense.

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Federal courts recognize an interest in public disclosure and accountability with law

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enforcement operations, especially in circumstances of misconduct. C.f. Uniformed Fire

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Officers Ass’n v. Blasio, 846 Fed. Appx. 25, 31 (“[T]he public has a stronger legitimate

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interest in the records of law enforcement officers than in those of other public

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employees.”); Ocasio v. U.S. Dep. of Justice, 70 F. Supp. 3d 469, 482 (finding that “the

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[c]ourt cannot conclude there is no public interest in the disclosure of the records” relating

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to “serious misconduct” of law enforcement); Kallstrom v. City of Columbus, 165 F. Supp.

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2d 686, 696 (holding that the “disclosure of public records, including police officer

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personnel files” achieves a “compelling state interest” of ensuring accountability in

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government).

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Restricting access to the details of the investigation found in the investigative and

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personnel files until the appeal is complete may be sensible, and may protect the appellate

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process. But that does not mean that the officer’s appeal, and per force the result of the

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pre-determination hearing that generated it, are kept from the public in general. The statute

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mandates otherwise.

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After having considered the comments of the Parties, the Court, now orders that

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Paragraph

204

of

its

Second

Amended

Second

Supplemental

Permanent

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Injunction/Judgment Order (Doc. 1765) and Paragraphs 356-358 of the Amended Third

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Supplemental Permanent Injunction/Judgment Order (Doc. 2830 ) be amended.

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IT IS THEREFORE ORDERED amending Paragraph 204 of the July 26, 2016

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Second Amended Second Supplemental Permanent Injunction/Judgment Order

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(Doc. 1765) and Paragraphs 356-58 of the November 30, 2022 Amended Third

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Supplemental Permanent Injunction/Judgment Order (Doc. 2830) as follows:

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a. Doc. 1765 - Second Amended Second Supplemental Permanent Injunction/

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Judgment Order

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204.

Internal affairs investigations (whether in PSB or a Division) will complete their

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administrative investigations within 180 calendar days of the initiation of the

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complaint. If the administrative investigation determines that no “Disciplinary

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Action” is appropriate, the investigation is complete when both: (1) the employee is

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served with the notice of findings1 and (2) the Complainant is notified consistent

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with Paragraph 246 at the Complainant’s last known point(s) of contact.

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If the MCSO Pre-Determination hearing concludes that “Disciplinary Action”2 is

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appropriate, the administrative investigation is complete when both: (1) the

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employee is served with the notice of discipline and (2) when the nature of the

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determined discipline (termination, demotion or suspension) is sent to the

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Complainant at the Complainant’s last known point(s) of contact. This notice to the

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Complainant shall inform the Complainant that the discipline may not be final, as

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the employee may pursue administrative and court appeals of the discipline. When

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discipline is appealed, and thus the investigation is extended, the MCSO shall

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inform the Complainant when the discipline becomes final. The MCSO shall file a

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monthly report with the Monitor in which it will identify all investigations which

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the PSB Commander has approved and closed but for which the pre-determination

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hearing has not been completed. Further, the MCSO shall report to the Monitor and

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the Parties within ten days of the dismissal of any discipline pursuant to

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A.R.S. § 38-1110(E).

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“Notice of findings” includes, but is not limited to, a Closed Case Notification, Coaching
Service Form, Written Reprimand or any other internal affairs investigation that imposes
lesser discipline on a law enforcement officer than “dismissal, demotion or suspension of
a law enforcement officer.” See A.R.S. § 38-1110(B).
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“Disciplinary Action” means the dismissal, the demotion or any suspension of a law
enforcement officer that is the result of misconduct or unsatisfactory performance.” A.R.S.
§ 38-1101(3).
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b. Doc. 2830 Amended Third Supplemental Permanent Injunction/ Judgment

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Order

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356.

Within ten business days of the entry of this order, the MCSO shall provide to the

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Monitor the number of administrative investigations remaining in the backlog that

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are open and have not been completed within the time limits required by the Court

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(or, in other words, the extent to which the backlog is changed by the extended

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timeline authorized above for Doc. 1765 ¶ 204 as amended). The Monitor shall

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have ten business days thereafter to certify the backlog to the parties and the Court.

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At the beginning of each month, the number of open cases whose investigations

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

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completed shall be the remaining backlog. The remaining backlog shall include not

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only the number of cases that were closed, but also the number of cases that were

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added to the backlog during that month. This backlog shall not include any cases

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for which the Monitor has granted an extension of the investigation deadline

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pursuant to ¶ 365 of this order.

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357.

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

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

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address the oldest cases first, without ignoring the continuing caseload. MCSO shall

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close at least 25 cases per quarter that were filed between 2015-2020. In their

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monthly report, the MCSO shall specify in which year each case eliminated from

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the backlog was filed.

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358.

Beginning on October 1, 2024, the MCSO will be required to reduce the backlog

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number remaining on the last day of the previous calendar-quarter (September 30,

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2024) by 45 cases per month for a minimum total reduction of 135 cases during the

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last calendar quarter of 2024. Beginning on January 1, 2025, the amount of required

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case reduction will increase to a 50 case reduction per month from the number of

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the backlog existing on the last day of the previous quarter (Dec. 31, 2024) for a

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minimum total reduction of 150 cases for the first calendar quarter of 2025.

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Beginning on April 1, 2025, the amount of required case reduction will increase to

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a 55 case reduction per month from the number of the backlog existing on the last

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day of the previous quarter (March 31, 2025) for a minimum total reduction of 165

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caseload reduction for the second calendar quarter of 2025. Beginning on July 1,

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2025, the minimum amount of required case reduction from the backlog number on

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the last day of the previous quarter (June 30, 2025) will increase to a 60 case

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reduction per month and a 180 minimum caseload reduction for the third calendar-

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quarter of 2025. This backlog reduction number of 60 per month and 180 per quarter

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will remain the required minimum backlog caseload reduction per quarter from the

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backlog number on the last day of the previous quarter until the backlog is

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eliminated. For each calendar-quarter in which PSB cannot reduce the remaining

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backlog by the requisite number of cases from the number of the backlog existing

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on the last day of the previous quarter, the MCSO and/or Maricopa County shall

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pay into the PSB Staffing Fund two times the amount identified in ¶ 338

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($191,415.12) for each month in that quarter in which the PSB did not reduce the

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backlog by the requisite number of cases specified for that month. For each

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calendar-quarter that MCSO reduces the remaining backlog by more than the

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minimum backlog reduction required to avoid the assessment to the PSB Staffing

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Fund, Defendants may credit the excess cases toward any month or months in the

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following quarter’s minimum backlog case reduction. The Defendants may apply

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excess credits only to months in the quarter immediately following the quarter in

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which the Defendants accrued the credits. For the month of September 2024, the

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MCSO and/or Maricopa County shall pay into the PBS Staffing Fund two times the

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amount identified in ¶ 338 above if they cannot reduce the backlog by twenty cases

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from the previous month. If, however, the new certification of the backlog in ¶ 356

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as amended results in an increase of more than twenty cases in the backlog from the

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backlog existing on August 31, 2024, the MCSO and defendant are released from

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paying into the PSB Staffing Fund for the month of September 2024 only. The

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Court may for good cause shown consider modifications to the payment schedule

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in this paragraph after October 1, 2025.

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Dated this 30th day of August, 2024.

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