Melendres, et al. v. Arpaio, et al

Filing 606

SUPPLEMENTAL PERMANENT INJUNCTION/JUDGMENT ORDER - that the Court's injunction of December 23, 2011 is made permanent. The Court's injunction of May 24, 2013 shall remain permanent. For removal of doubt, both the December 23, 2011 injuncti on and the May 24, 2013 injunction shall survive the termination of this Order until and unless specifically dissolved or modified by the Court or an appellate court of competent jurisdiction. IT IS FURTHER ORDERED that this Order is an appealable f inal judgment. The Clerk of Court is directed to enter judgment accordingly. IT IS FURTHER ORDERED that this Court retains jurisdiction over this case for the purposes of implementing this Order. Signed by Judge G Murray Snow on 10/2/2013. (See PDF for full details.)(KMG)

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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.,

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No. CV-07-02513-PHX-GMS
SUPPLEMENTAL PERMANENT
INJUNCTION/JUDGMENT ORDER

Plaintiffs,
v.
Joseph M. Arpaio, in his individual and
official capacity as Sheriff of Maricopa
County, AZ; et al.,
Defendants.
BACKGROUND

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On May 24, 2013, the Court issued Findings of Fact and Conclusions of Law after

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conducting a bench trial in this matter. (Doc. 579.) The Court held that Defendants’ operations at

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issue violated the Plaintiff class’s rights under the Fourth and Fourteenth Amendments to the

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United States Constitution.

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The Court permanently enjoined Defendants from the following:

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(1) Detaining, holding or arresting Latino occupants of vehicles based on a
reasonable belief, without more, that such persons are in the country without
authorization;

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(2) Following or enforcing its “LEAR” policy, as currently written, against any
Latino occupant of a vehicle in Maricopa County;
(3) Using race or Latino ancestry as a factor in determining whether to stop any
vehicle;
(4) Using race or Latino ancestry as a factor in making law enforcement decisions
with respect to whether any Latino occupant of a vehicle may be in the country
without authorization;

(5) Detaining Latino occupants of vehicles stopped for traffic violations for a
period longer than reasonably necessary to resolve the traffic violation in the
absence of reasonable suspicion that any of the vehicle’s occupants have
committed or are committing a violation of federal or state criminal law;

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(6) Detaining, holding, or arresting Latino occupants of a vehicle for violations of
the Arizona Human Smuggling Act without a reasonable basis for believing that
the necessary elements of the crime are present; and

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(7) Detaining, arresting, or holding persons who are occupants of motor vehicles
based on a reasonable suspicion that they are conspiring with their employer to
violate the Arizona Employer Sanctions Act.

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After issuing the injunctions, the Court held a status conference with the Parties on June

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14, 2013. (Doc. 582.) The Parties desired to negotiate the terms of a consent decree to ensure

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Defendants’ compliance with the injunctions. On August 16, the Parties filed a Proposed

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Consent Decree that contained both terms to which the parties were able to reach agreement, and

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terms on which they could not agree. (Doc. 592.) The Court held a hearing on August 30 at

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which it discussed both the terms agreed upon and the disputed terms with the Parties. (Doc.

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599.) As a result of the trial and the subsequent proceedings, the Court orders the following

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supplemental injunctive relief.

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REMEDIES

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I.

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1.

DEFINITIONS

The following terms and definitions shall apply to this Order:
a. “Boilerplate” means language that is stock, formulaic, appears repeatedly in different
reports, and fails to attest to the unique facts of an incident;

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b. “CAB” means the Community Advisory Board;

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c. “CAD” means “Computer Aided Dispatch,” the electronic system that tracks

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communications between MCSO deputies and dispatch while on patrol;
d. “CBP” means U.S. Customers and Border Protection;

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e. “Complainant” means any person, including a member of the public, MCSO deputy,

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detention officer, civilian employee, or posse member, who makes a complaint

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against MCSO;

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f. “Complaint” means any allegation of improper conduct made by a member of the

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public or MCSO personnel regarding MCSO services, policy or procedure, that

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alleges dissatisfaction with or misconduct by MCSO personnel;

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g. “Order” means this Order;

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h. “County” means Maricopa County, including its agents and employees;

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i. “Court” means the United States District Judge for the District of Arizona presiding

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over this case;
j. “Defendants” means defendants in the above-captioned action, i.e., Joseph M. Arpaio,
in his official capacity as Sheriff of Maricopa County, and the MCSO;
k. “Deputy” or “deputy” means any sworn law enforcement officer employed by or
working for MCSO, including Supervisors, patrol and reserve officers;

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l. “Discipline” means a personnel action for violation of any law, regulation, rule, or

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MCSO policy, including, but not limited to, an admonishment, written reprimand,

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suspension, demotion or termination;

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m. “Discriminatory Policing” means selective enforcement or non-enforcement of the

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law, including the selecting or rejecting of particular policing tactics or strategies,

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based on a person’s actual or perceived race or ethnicity. Discriminatory Policing

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does not include using a person’s race or ethnicity in any reliable suspect-specific

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description or for purposes of data collection;

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n. “District” refers to one of the seven police service areas of MCSO;

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o. “Effective Date” means the day this Order is entered by the Court;

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p. “Exigent Circumstances” means emergencies in which a reasonable person would

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believe that imminent death or bodily harm to a person or persons or the destruction

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of evidence is likely or as otherwise defined by law;

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q. “EIS” means Early Identification System;

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r. “Full and Effective Compliance” means compliance with all relevant provisions of

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this Order. The Defendants shall begin to be in Full and Effective Compliance with

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this Order when all of the following have been both completed and consistently

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maintained:

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i. A Monitor has been appointed pursuant to Paragraphs 119–121 of this Order.

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ii. The MCSO has formed an Implementation Unit pursuant to Paragraph 9 of

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this Order.

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iii. The MCSO has developed, and, pursuant to Paragraph 30, either the Monitor

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or the Court has approved, and the MCSO has fully implemented the Policies

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and Procedures and amendments to Policies and Procedures set out in Section

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V of this Order.

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iv. The MCSO has developed curriculum and training materials that have,

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pursuant to Paragraph 46 of this Order, been approved by the Monitor or the

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Court.

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v. The MCSO has developed and implemented a training schedule pursuant to
Paragraph 44 of this Order.
vi. The MCSO has trained all existing MCSO Supervisors, Deputies, and posse
members pursuant to Paragraphs 41–53 of this Order.

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vii. The MCSO has developed proposed protocols, including draft templates and

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instructions for Significant Operations and Patrols as set out in Section VI of

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this Order that have, pursuant to Paragraph 37, been approved by the Monitor

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or the Court, and have been implemented.

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viii.

The MCSO has provided an adequate number of Supervisors as well as

proper Deputy assignments pursuant to Paragraphs 82 and 84 of this Order.
ix. The MCSO has developed and implemented a system for performance
evaluations pursuant to Paragraph 98 of this Order.
x. The MCSO has developed and implemented eligibility criteria for assignment
to specialized units pursuant to Paragraph 101 of this Order.

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xi. The MCSO has developed and implemented an audit check plan to detect
Deputy misconduct pursuant to Paragraph 103 of this Order.

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xii. The MCSO has developed and implemented a system to collect traffic stop

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data and a protocol for audit checks of that system pursuant to Paragraphs 54–

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59 of this Order.

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xiii.

analysis of the traffic stop data pursuant to Paragraph 64 of this Order.

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xiv.

The MCSO has developed and implemented a system for electronic data

entry by Deputies pursuant to Paragraph 60 of this Order.

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The MCSO has developed and implemented a protocol for the periodic

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The MCSO has developed and implemented a system for the audio and

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video recording of traffic stops and a protocol for reviewing the recordings

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pursuant to Paragraphs 61–63 of this Order with the understanding that Full

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and Effective Compliance may be achieved once all traffic patrol vehicles that

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make traffic stops used by Specialized Units have been mounted with the

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audio and video equipment, so long as the remaining vehicles are timely

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equipped with the audio and video equipment according to the requirements

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of those Paragraphs.

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xvi.

The MCSO has formed a Unit to aid in the development and

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implementation of the EIS, developed and implemented the EIS, and trained

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all MCSO personnel on the use of the EIS pursuant to Paragraphs 72–81 of

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this Order.

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xvii.

The MCSO has developed and implemented a community outreach

program pursuant to Paragraphs 107–112 of this Order.
xviii. The MCSO has selected or hired a Community Liaison Officer pursuant to
Paragraphs 113–114 of this Order.
xix.

The MCSO has worked with Plaintiffs’ representatives and community

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representatives and created a Community Advisory Board pursuant to

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Paragraphs 115–116 of this Order.

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xx. The MCSO has conducted at least one comprehensive internal assessment

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pursuant to Paragraphs 12–13 of this Order.

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xxi.

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The Monitor has conducted a comprehensive assessment pursuant to

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Paragraphs 13 or 138 and has certified that the MCSO is in compliance with

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all of the scheduled obligations described above in Paragraph 1 and in

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compliance with all other periodic and/or continuing obligations in this Order

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since the Effective Date.

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s.

“IA” means Internal Affairs, the MCSO unit charged with conducting internal and
administrative investigations of MCSO deputies, agents, and employees;

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t. “ICE” means U.S. Immigration and Customs Enforcement;

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u. “Immigration-Related Law” means any civil or criminal offense related to

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immigration status;
v. “Immigration-Related Crime” means any statute imposing criminal punishment in
which immigration status is an element of the offense;

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w. “include” or “including” means “include or including, but not limited to”;

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x. “Investigatory Stop,” “Investigatory Contact,” or “Investigatory Detention” means a

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detention short of an arrest in accordance with Terry v. Ohio, 392 U.S. 1 (1968);

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y. “LEAR Policy,” means the MCSO policy described on page 2 and 113 of the Court’s

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May 24, 2013 Findings of Fact and Conclusions of Law of detaining persons believed

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to be in the country without authorization but whom they cannot arrest on state

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charges, in order to summon a supervisor and communicate with federal authorities;

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z. “MCSO” means the Sheriff of the Maricopa County Sheriff’s Office acting in his or

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her official capacity, including the MCSO’s agents, deputies, detention officers,

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Supervisors, employees (both sworn and unsworn), and posse volunteers;

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aa. “MCSO Implementation Unit” means the unit created by the MCSO and consisting of
MCSO Employees to facilitate implementation of this Order;

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bb. “MCSO Personnel” or “MCSO Employee” means all MCSO Employees, contractors

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and volunteers, including command staff, deputies, detention officers, civilian

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employees and posse volunteers;

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cc. “MDT” means Mobile Data Terminal, the computerized system used in MCSO
vehicles to conduct inquiries on individuals encountered on patrol;
dd. “Monitor” means a person or team of people who shall be selected to assess and
report on the Defendants’ implementation of this Order;
ee. “On-site Observation” means first-hand observation by the Monitor of MCSO
activities, e.g., ride-alongs with Deputies on patrol or attendance at MCSO meetings
or trainings;

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ff. “Parties” means Plaintiffs and Defendants collectively in the above-captioned action;

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gg. “Patrol Operations” means all MCSO law enforcement operations conducted by

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Deputies in a law enforcement support or patrol capacity which involves motor

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vehicle traffic stops, including Significant Operations as defined below. Jail or

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detention facility operations are not a part of Patrol Operations;

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hh. “Plaintiffs” means plaintiffs in the above-captioned action;

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ii. “Policies and Procedures” means written regulations or directives, regardless of the

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name of the regulation or directive, describing the duties, functions, and obligations

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of MCSO personnel, and providing specific direction in how to fulfill those duties,

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functions, or obligations. All Policies and Procedures should be available in

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hardcopy and electronically;

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jj. “Sheriff” means the current and future sheriffs of MCSO;

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kk. “Significant Operation” or “Significant Patrol” means any pre-planned Patrol

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Operation that will involve traffic stops of vehicles within Maricopa County

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involving 10 or more MCSO Personnel excluding posse members;

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ll. “Specialized Unit” means a temporary or permanent organization of deputies within

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MCSO whose operational objectives are focused on a specific law enforcement

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purpose beyond general patrol or criminal investigations;

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mm.

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“Supervisor” or “supervisor” means a sworn MCSO employee at the rank of

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sergeant or above (or anyone acting in those capacities) with oversight responsibility

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for MCSO personnel;

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nn. “Training” or “training” means MCSO instruction that aspires towards industry best

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practices and includes adult-learning methods that incorporate realistic role-playing

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scenarios, interactive exercises, traditional lecture formats, and testing and/or writings

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that indicate that MCSO personnel taking the Training comprehend the material

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taught;

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oo. “Vehicle stop” means any instance where a MCSO Deputy directs a civilian operating

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a motor vehicle of any type to stop and in which the driver and any passengers are

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detained for any length of time.
II.

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EFFECTIVE DATE, JURISDICTION AND PARTY REPRESENTATIVES

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2.

This Order shall become effective upon entry by the Court.

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3.

To ensure that the requirements of this Order are properly and timely implemented, the

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Court will retain jurisdiction over this action for all purposes until such time as the

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Defendants have achieved Full and Effective Compliance and maintained such

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compliance for no less than three years.

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4.

The Parties may agree to jointly ask the Court to terminate this Order if the Parties agree

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that Defendants have achieved Full and Effective Compliance and maintained such

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compliance for no less than three continuous years. If the Parties disagree on whether

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Defendants have achieved Full and Effective Compliance for no less than three

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continuous years, either Party may seek to terminate this Order. If Defendants move to

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terminate, Defendants must provide the Monitor and Plaintiffs with notice that they

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intend to do so at least 60 days prior to filing a motion to terminate. The Parties shall

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confer with each other and the Monitor to see if any disagreements can be resolved

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before Defendants file their motion with the Court. If, after a reasonable period of

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consultation and the completion of any audit or evaluation that Plaintiffs and/or the

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Monitor may wish to undertake, including On-Site Observations, document review, or

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interviews with the Defendants’ personnel, the Parties cannot resolve any compliance

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issues, the Defendants may file a motion to terminate this Order. If the Defendants move

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for termination of this Order, Plaintiffs will have 60 days after the receipt of the

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Defendants’ motion to object to the motion. If Plaintiffs do not object, the Court may

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grant the Defendants’ motion. If Plaintiffs do make an objection, the Court may hold a

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hearing on the motion, but at any rate shall resolve the dispute.

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5.

After Defendants have reached Full and Effective Compliance, Defendants shall also

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have the right to move to terminate any part, portion, or term of this Order if they believe

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that they have maintained compliance with such portion, part, or term of this Order for no

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less than three continuous years. At least 60 days prior to filing a motion to terminate,

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Defendants must provide the Monitor and Plaintiffs with notice that they intend to do so.

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The Parties shall confer with each other and the Monitor to see if any disagreements can

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be resolved before Defendants file their motion with the Court. If, after a reasonable

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period of consultation and the completion of any audit or evaluation that Plaintiffs and/or

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the Monitor may wish to undertake, including On-Site Observations, document review, or

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interviews with the Defendants’ personnel, the Parties cannot resolve any compliance

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issues, the Defendants may file a motion to terminate this Order. Plaintiffs shall have the

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right to oppose such motion within 60 days after receipt of the Defendants’ motion. If

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Plaintiffs do not object, the Court may grant the Defendants’ motion. If Plaintiffs do

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make an objection, the Court may hold a hearing on the motion, but at any rate shall

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resolve the dispute.

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6.

Compliance with this Order.

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At all times, the Defendants shall bear the burden of demonstrating Full and Effective

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This Order shall run against the Sheriff in his official capacity, as well as the MCSO. For

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purposes of implementation and enforcement of the Order, the representatives for the

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Parties shall be:

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a. Plaintiffs: The American Civil Liberties Union of Arizona (“ACLU-AZ”) and any

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other representative(s) designated by the ACLU-AZ;

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b. Defendants: Chief David Trombi and Captain Larry Farnsworth (or other designee

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selected by the Sheriff).

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8.

The Court, upon 60 days’ notice to the Parties, retains the right to modify or terminate

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this Order in whole or in part if it is satisfied that the Defendants have substantially

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complied with any or all of the terms of the Order for a period of three years, or if it is

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otherwise satisfied that a modification is justified.

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III.

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MCSO IMPLEMENTATION UNIT AND INTERNAL AGENCY-WIDE
ASSESSMENT

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disciplinary unit with the skills and abilities necessary to facilitate implementation of this

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Order. This unit shall be called the MCSO Implementation Unit and serve as a liaison

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between the Parties and the Monitor and shall assist with the Defendants’ implementation

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of and compliance with this Order. At a minimum, this unit shall: coordinate the

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Defendants’ compliance and implementation activities; facilitate the provision of data,

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documents, materials, and access to the Defendants’ personnel to the Monitor and

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Plaintiffs representatives; ensure that all data, documents and records are maintained as

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provided in this Order; and assist in assigning implementation and compliance-related

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tasks to MCSO Personnel, as directed by the Sheriff or his designee. The unit will

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include a single person to serve as a point of contact in communications with Plaintiffs,

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the Monitor and the Court.

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Defendants shall hire and retain, or reassign current MCSO employees to form an inter-

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MCSO shall collect and maintain all data and records necessary to: (1) implement this
order, and document implementation of and compliance with this Order, including data
and records necessary for the Monitor to conduct reliable outcome assessments,
compliance reviews, and audits; and (2) perform ongoing quality assurance in each of the
areas addressed by this Order. At a minimum, the foregoing data collection practices
shall comport with current professional standards, with input on those standards from the
Monitor.

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11.

Beginning with the Monitor’s first quarterly report, the Defendants, working with the unit

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assigned for implementation of the Order, shall file with the Court, with a copy to the

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Monitor and Plaintiffs, a status report no later than 30 days before the Monitor’s quarterly

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report is due. The Defendants’ report shall (i) delineate the steps taken by the Defendants

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during the reporting period to implement this Order; (ii) delineate the Defendants’ plans

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to correct any problems; and (iii) include responses to any concerns raised in the

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Monitor’s previous quarterly report.

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12.

The Defendants, working with the unit assigned for implementation of the Order, shall

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conduct a comprehensive internal assessment of their Policies and Procedures affecting

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Patrol Operations regarding Discriminatory Policing and unlawful detentions in the field

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as well as overall compliance with the Court’s orders and this Order on an annual basis.

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The comprehensive Patrol Operations assessment shall include, but not be limited to, an

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analysis of collected traffic-stop and high-profile or immigration-related operations data;

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written Policies and Procedures; Training, as set forth in the Order; compliance with

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Policies and Procedures; Supervisor review; intake and investigation of civilian

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Complaints; conduct of internal investigations; Discipline of officers; and community

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relations. The first assessment shall be conducted within 180 days of the Effective Date.

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Results of each assessment shall be provided to the Court, the Monitor, and Plaintiffs’

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representatives.

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13.

The internal assessments prepared by the Defendants will state for the Monitor and

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Plaintiffs’ representatives the date upon which the Defendants believe they are first in

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compliance with any subpart of this Order and the date on which the Defendants first

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assert they are in Full and Effective Compliance with the Order and the reasons for that

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assertion. When the Defendants first assert compliance with any subpart or Full and

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Effective Compliance with the Order, the Monitor shall within 30 days determine

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whether the Defendants are in compliance with the designated subpart(s) or in Full and

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Effective Compliance with the Order. If either party contests the Monitor’s determination

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it may file an objection with the Court, from which the Court will make the

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determination. Thereafter, in each assessment, the Defendants will indicate with which

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subpart(s) of this Order it remains or has come into full compliance and the reasons

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therefore. The Monitor shall within 30 days thereafter make a determination as to

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whether the Defendants remain in Full and Effective Compliance with the Order and the

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reasons therefore. The Court may, at its option, order hearings on any such assessments

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to establish whether the Defendants are in Full and Effective Compliance with the Order

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or in compliance with any subpart(s).
IV.

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14.

MONITOR REVIEW PROCESS

In any place where this Order provides for Defendants to submit policies, procedures,

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protocols or other materials to the Monitor for his or her review, Defendants shall submit

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such materials to the Monitor and provide a copy to Plaintiffs’ representatives within the

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specified time.

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15.

Plaintiffs shall have an opportunity to provide any comments or recommendations on the

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materials within 14 days of receipt. The Monitor shall thereafter communicate to the

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Parties the results of its review. If the Monitor has any concerns or recommendations

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regarding the materials, it will include those concerns or recommendations. The MCSO

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may then amend the materials and resubmit them to the Monitor within 14 days for

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further review. Either Party may apply to the Monitor for an extension of the deadlines in

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this Paragraph. In conducting its review, the Monitor may take into account industry best

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practices and the record in this litigation.

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16.

If the Monitor approves the matter submitted, the Monitor will make a record of his or

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her approval and inform both parties. In cases where neither party objects to the

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Monitor’s action, the Monitor’s determination will be final. When the Monitor approves

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such matter, no further action is needed before the MCSO implements the relevant

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policies, procedures, protocols or materials. The MCSO shall do so promptly and without

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delay.

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17.

If either Party does not agree with the Monitor’s determination, then the Party may make
a motion directly to the Court for resolution of the dispute. The non-moving Party may

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respond to such motion within 14 days of filing. The moving Party may file a reply

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within 7 days after that. Any policies, procedures, protocols or other materials subject to

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the dispute need not be implemented until the Court makes a determination.
V.

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18.

POLICIES AND PROCEDURES

MCSO shall deliver police services consistent with the Constitution and laws of the

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United States and State of Arizona, MCSO policy, and this Order, and with current

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professional standards. In conducting its activities, MCSO shall ensure that members of

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the public receive equal protection of the law, without discriminating based on actual or

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perceived race or ethnicity, and in a manner that promotes public confidence.

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19.

To further the goals in this Order, the MCSO shall conduct a comprehensive review of all

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Patrol Operations Policies and Procedures and make appropriate amendments to ensure

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that they reflect the Court’s permanent injunction and this Order.

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20.

The MCSO shall comply with and operate in accordance with the Policies and

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Procedures discussed in this Order and shall take all reasonable measures to ensure that

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all Patrol Operations personnel comply with all such Policies and Procedures.

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a.

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21.

Policies and Procedures to Ensure Bias-Free Policing

The MCSO shall promulgate a new, department-wide policy or policies clearly

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prohibiting Discriminatory Policing and racial profiling. The policy or policies shall, at a

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minimum:

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a. define racial profiling as the reliance on race or ethnicity to any degree in making law

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enforcement decisions, except in connection with a reliable and specific suspect

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description;

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b. prohibit the selective enforcement or non-enforcement of the law based on race or
ethnicity;
c. prohibit the selection or rejection of particular policing tactics or strategies or
locations based to any degree on race or ethnicity;

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d. specify that the presence of reasonable suspicion or probable cause to believe an

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individual has violated a law does not necessarily mean that an officer’s action is

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race-neutral; and

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e. include a description of the agency’s Training requirements on the topic of racial

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profiling in Paragraphs 48–51, data collection requirements (including video and

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audio recording of stops as set forth elsewhere in this Order) in Paragraphs 54–63 and

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oversight mechanisms to detect and prevent racial profiling, including disciplinary

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consequences for officers who engage in racial profiling.

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and consistently reinforce to subordinates that Discriminatory Policing is unacceptable.

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MCSO leadership and supervising Deputies and detention officers shall unequivocally

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Within 30 days of the Effective Date, MCSO shall modify its Code of Conduct to

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prohibit MCSO Employees from utilizing County property, such as County e-mail, in a

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manner that discriminates against, or denigrates, anyone on the basis of race, color, or

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national origin.

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The MCSO shall ensure that its operations are not motivated by or initiated in response to

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requests for law enforcement action based on race or ethnicity. In deciding to take any

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law enforcement action, the MCSO shall not rely on any information received from the

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public, including through any hotline, by mail, email, phone or in person, unless the

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information contains evidence of a crime that is independently corroborated by the

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MCSO, such independent corroboration is documented in writing, and reliance on the

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information is consistent with all MCSO policies.

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b.

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25.

Policies and Procedures to Ensure Bias-Free Traffic Enforcement

The MCSO will revise its policy or policies relating to traffic enforcement to ensure that

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those policies, at a minimum:

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a. prohibit racial profiling in the enforcement of traffic laws, including the selection of

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which vehicles to stop based to any degree on race or ethnicity, even where an officer

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has reasonable suspicion or probable cause to believe a violation is being or has been

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committed;

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b. provide Deputies with guidance on effective traffic enforcement, including the

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prioritization of traffic enforcement resources to promote public safety;

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c. prohibit the selection of particular communities, locations or geographic areas for

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targeted traffic enforcement based to any degree on the racial or ethnic composition

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of the community;
d. prohibit the selection of which motor vehicle occupants to question or investigate

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based to any degree on race or ethnicity;

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e. prohibit the use of particular tactics or procedures on a traffic stop based on race or

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ethnicity;

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f. require deputies at the beginning of each stop, before making contact with the

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vehicle, to contact dispatch and state the reason for the stop, unless Exigent

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Circumstances make it unsafe or impracticable for the deputy to contact dispatch;

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g. prohibit Deputies from extending the duration of any traffic stop longer than the time

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that is necessary to address the original purpose for the stop and/or to resolve any

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apparent criminal violation for which the Deputy has or acquires reasonable suspicion

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or probable cause to believe has been committed or is being committed;

17

h. require the duration of each traffic stop to be recorded;

18

i. provide Deputies with a list and/or description of forms of identification deemed

19

acceptable for drivers and passengers (in circumstances where identification is

20

required of them) who are unable to present a driver’s license or other state-issued

21

identification; and
j. instruct Deputies that they are not to ask for the Social Security number or card of any

22
23

motorist who has provided a valid form of identification, unless it is needed to

24

complete a citation or report.
c.

25
26
27

26.

Policies and Procedures to Ensure Bias-Free Detentions and Arrests

The MCSO shall revise its policy or policies relating to Investigatory Detentions and
arrests to ensure that those policies, at a minimum:

28
- 15 -

a. require that Deputies have reasonable suspicion that a person is engaged in, has

1
2

committed, or is about to commit, a crime before initiating an investigatory seizure;

3

b. require that Deputies have probable cause to believe that a person is engaged in, has
committed, or is about to commit, a crime before initiating an arrest;

4
5

c. provide Deputies with guidance on factors to be considered in deciding whether to

6

cite and release an individual for a criminal violation or whether to make an arrest;
d. require Deputies to notify Supervisors before effectuating an arrest following any

7
8

immigration-related investigation or for an Immigration-Related Crime, or for any

9

crime by a vehicle passenger related to lack of an identity document;
e. prohibit the use of a person’s race or ethnicity as a factor in establishing reasonable

10
11

suspicion or probable cause to believe a person has, is, or will commit a crime, except

12

as part of a reliable and specific suspect description; and

13

f. prohibit the use of quotas, whether formal or informal, for stops, citations, detentions,

14

or arrests (though this requirement shall not be construed to prohibit the MCSO from

15

reviewing Deputy activity for the purpose of assessing a Deputy’s overall

16

effectiveness or whether the Deputy may be engaging in unconstitutional policing).
d.

17

Laws

18
19

Policies and Procedures Governing the Enforcement of Immigration-Related

27.

The MCSO shall remove discussion of its LEAR Policy from all agency written Policies

20

and Procedures, except that the agency may mention the LEAR Policy in order to clarify

21

that it is discontinued.

22

28.

The MCSO shall promulgate a new policy or policies, or will revise its existing policy or

23

policies, relating to the enforcement of Immigration-Related Laws to ensure that they, at

24

a minimum:

25

a. specify that unauthorized presence in the United States is not a crime and does not

26

itself constitute reasonable suspicion or probable cause to believe that a person has

27

committed or is committing any crime;

28
- 16 -

1
2
3

b. prohibit officers from detaining any individual based on actual or suspected
“unlawful presence,” without something more;
c. prohibit officers from initiating a pretextual vehicle stop where an officer has

4

reasonable suspicion or probable cause to believe a traffic or equipment violation has

5

been or is being committed in order to determine whether the driver or passengers are

6

unlawfully present;

7

d. prohibit the Deputies from relying on race or apparent Latino ancestry to any degree

8

to select whom to stop or to investigate for an Immigration-Related Crime (except in

9

connection with a specific suspect description);

10

e. prohibit Deputies from relying on a suspect’s speaking Spanish, or speaking English

11

with an accent, or appearance as a day laborer as a factor in developing reasonable

12

suspicion or probable cause to believe a person has committed or is committing any

13

crime, or reasonable suspicion to believe that an individual is in the country without

14

authorization;

15

f. unless the officer has reasonable suspicion that the person is in the country unlawfully

16

and probable cause to believe the individual has committed or is committing a crime,

17

the MCSO shall prohibit officers from (a) questioning any individual as to his/her

18

alienage or immigration status; (b) investigating an individual’s identity or searching

19

the individual in order to develop evidence of unlawful status; or (c) detaining an

20

individual while contacting ICE/CBP with an inquiry about immigration status or

21

awaiting a response from ICE/CBP. In such cases, the officer must still comply with

22

Paragraph 25(g) of this Order. Notwithstanding the foregoing, an officer may (a)

23

briefly question an individual as to his/her alienage or immigration status; (b) contact

24

ICE/CBP and await a response from federal authorities if the officer has reasonable

25

suspicion to believe the person is in the country unlawfully and reasonable suspicion

26

to believe the person is engaged in an Immigration-Related Crime for which unlawful

27

immigration status is an element, so long as doing so does not unreasonably extend

28

the stop in violation of Paragraph 25(g) of this Order;

- 17 -

g. prohibit Deputies from transporting or delivering an individual to ICE/CBP custody

1
2

from a traffic stop unless a request to do so has been voluntarily made by the

3

individual;
h. require that, before any questioning as to alienage or immigration status or any

4
5

contact with ICE/CBP is initiated, an officer check with a Supervisor to ensure that

6

the circumstances justify such an action under MCSO policy and receive approval to

7

proceed. Officers must also document, in every such case, (a) the reason(s) for

8

making the immigration-status inquiry or contacting ICE/CBP, (b) the time

9

Supervisor approval was received, (c) when ICE/CBP was contacted, (d) the time it

10

took to receive a response from ICE/CBP, if applicable, and (e) whether the

11

individual was then transferred to ICE/CBP custody.
e.

12
13

29.

MCSO Policies and Procedures shall define terms clearly, comply with applicable law
and the requirements of this Order, and comport with current professional standards.

14
15

Policies and Procedures Generally

30.

Unless otherwise noted, the MCSO shall submit all Policies and Procedures and

16

amendments to Policies and Procedures provided for by this Order to the Monitor for

17

review within 90 days of the Effective Date pursuant to the process described in Section

18

IV. These Policies and Procedures shall be approved by the Monitor or the Court prior to

19

their implementation.

20

31.

Within 60 days after such approval, MCSO shall ensure that all relevant MCSO Patrol

21

Operation Personnel have received, read, and understand their responsibilities pursuant to

22

the Policy or Procedure. The MCSO shall ensure that personnel continue to be regularly

23

notified of any new Policies and Procedures or changes to Policies and Procedures. The

24

Monitor shall assess and report to the Court and the Parties on whether he/she believes

25

relevant personnel are provided sufficient notification of and access to, and understand

26

each policy or procedure as necessary to fulfill their responsibilities.

27
28

32.

The MCSO shall require that all Patrol Operation personnel report violations of policy;
that Supervisors of all ranks shall be held accountable for identifying and responding to

- 18 -

1

policy or procedure violations by personnel under their command; and that personnel be

2

held accountable for policy and procedure violations. The MCSO shall apply policies

3

uniformly.

4

33.

MCSO Personnel who engage in Discriminatory Policing in any context will be subjected

5

to administrative Discipline and, where appropriate, referred for criminal prosecution.

6

MCSO shall provide clear guidelines, in writing, regarding the disciplinary consequences

7

for personnel who engage in Discriminatory Policing.

8

34.

MCSO shall review each policy and procedure on an annual basis to ensure that the
policy or procedure provides effective direction to MCSO Personnel and remains

9
10

consistent with this Order, current law and professional standards. The MCSO shall

11

document such annual review in writing. MCSO also shall review Policies and

12

Procedures as necessary upon notice of a policy deficiency during audits or reviews.

13

MCSO shall revise any deficient policy as soon as practicable.
VI.

14
15

35.

PRE-PLANNED OPERATIONS

The Monitor shall regularly review the mission statement, policies and operations

16

documents of any Specialized Unit within the MCSO that enforces Immigration-Related

17

Laws to ensure that such unit(s) is/are operating in accordance with the Constitution, the

18

laws of the United States and State of Arizona, and this Order.

19

36.

The MCSO shall ensure that any Significant Operations or Patrols are initiated and

20

carried out in a race-neutral fashion. For any Significant Operation or Patrol involving 10

21

or more MCSO personnel, excluding posse members, the MSCO shall develop a written

22

protocol including a statement of the operational motivations and objectives, parameters

23

for supporting documentation that shall be collected, operations plans, and provide

24

instructions to supervisors, deputies and posse members. That written protocol shall be

25

provided to the Monitor in advance of any Significant Operation or Patrol.

26

37.

The MCSO shall submit a standard template for operations plans and standard

27

instructions for supervisors, deputies and posse members applicable to all Significant

28

Operations or Patrols to the Monitor for review pursuant to the process described in

- 19 -

1

Section IV within 90 days of the Effective Date. In Exigent Circumstances, the MCSO

2

may conduct Significant Operations or Patrols during the interim period but such patrols

3

shall be conducted in a manner that is in compliance with the requirement of this Order.

4

Any Significant Operations or Patrols thereafter must be in accordance with the approved

5

template and instructions.

6

38.

If the MCSO conducts any Significant Operations or Patrols involving 10 or more MCSO

7

Personnel excluding posse members, it shall create the following documentation and

8

provide it to the Monitor and Plaintiffs within 30 days after the operation:

9

a. documentation of the specific justification/reason for the operation, certified as

10

drafted prior to the operation (this documentation must include analysis of relevant,

11

reliable, and comparative crime data);

12
13
14
15
16
17

b. information that triggered the operation and/or selection of the particular site for the
operation;
c. documentation of the steps taken to corroborate any information or intelligence
received from non-law enforcement personnel;
d. documentation of command staff review and approval of the operation and operations
plans;

18

e. a listing of specific operational objectives for the patrol;

19

f. documentation of specific operational objectives and instructions as communicated to

20
21
22
23
24

participating MCSO Personnel;
g. any operations plans, other instructions, guidance or post-operation feedback or debriefing provided to participating MCSO Personnel;
h. a post-operation analysis of the patrol, including a detailed report of any significant
events that occurred during the patrol;

25

i. arrest lists, officer participation logs and records for the patrol; and

26

j. data about each contact made during the operation, including whether it resulted in a

27

citation or arrest.

28
- 20 -

1

39.

The MCSO shall hold a community outreach meeting no more than 30 days after any

2

Significant Operations or Patrols in the affected District(s). MCSO shall work with the

3

Community Advisory Board to ensure that the community outreach meeting adequately

4

communicates information regarding the objectives and results of the operation or patrol.

5

The community outreach meeting shall be advertised and conducted in English and

6

Spanish.

7

40.

The MCSO shall notify the Monitor and Plaintiffs within 24 hours of any immigration-

8

related traffic enforcement activity or Significant Operation involving the arrest of 5 or

9

more people unless such disclosure would interfere with an on-going criminal

10

investigation in which case the notification shall be provided under seal to the Court,

11

which may determine that disclosure to the Monitor and Plaintiffs would not interfere

12

with an on-going criminal investigation. In any event, as soon as disclosure would no

13

longer interfere with an on-going criminal investigation, MCSO shall provide the

14

notification to the Monitor and Plaintiffs. To the extent that it is not already covered

15

above by Paragraph 38, the Monitor and Plaintiffs may request any documentation

16

related to such activity as they deem reasonably necessary to ensure compliance with the

17

Court’s orders.
VII.

18
a.

19
20

41.

General Provisions

To ensure that the Policies and Procedures provided for by this Order are effectuated, the
MCSO shall implement the following requirements regarding Training.

21
22

TRAINING

42.

The persons presenting this Training in each area shall be competent instructors with

23

significant experience and expertise in the area. Those presenting Training on legal

24

matters shall also hold a law degree from an accredited law school and be admitted to a

25

Bar of any state and/or the District of Columbia.

26
27

43.

The Training shall include at least 60% live training (i.e., with a live instructor) which
includes an interactive component and no more than 40% on-line training. The Training

28
- 21 -

1

shall also include testing and/or writings that indicate that MCSO Personnel taking the

2

Training comprehend the material taught whether via live training or via on-line training.

3

44.

Within 90 days of the Effective Date, MCSO shall set out a schedule for delivering all

4

Training required by this Order. Plaintiffs’ Representative and the Monitor shall be

5

provided with the schedule of all Trainings and will be permitted to observe all live

6

trainings and all on-line training. Attendees shall sign in at each live session. MCSO

7

shall keep an up-to-date list of the live and on-line Training sessions and hours attended

8

or viewed by each officer and Supervisor and make that available to the Monitor and

9

Plaintiffs.

10

45.

scenarios, interactive exercises, as well as traditional lecture formats.

11
12

The Training may incorporate adult-learning methods that incorporate role-playing

46.

The curriculum and any materials and information on the proposed instructors for the

13

Training provided for by this Order shall be provided to the Monitor within 90 days of

14

the Effective Date for review pursuant to the process described in Section IV. The

15

Monitor and Plaintiffs may provide resources that the MCSO can consult to develop the

16

content of the Training, including names of suggested instructors.

17

47.

MCSO shall regularly update the Training to keep up with developments in the law and

18

to take into account feedback from the Monitor, the Court, Plaintiffs and MCSO

19

Personnel.

20

b.

21

48.

Bias-Free Policing Training

The MCSO shall provide all sworn Deputies, including Supervisors and chiefs, as well as

22

all posse members, with 12 hours of comprehensive and interdisciplinary Training on

23

bias-free policing within 240 days of the Effective Date, or for new Deputies or posse

24

members, within 90 days of the start of their service, and at least 6 hours annually

25

thereafter.

26

49.

The Training shall incorporate the most current developments in federal and Arizona law

27

and MCSO policy, and shall address or include, at a minimum:

28

a. definitions of racial profiling and Discriminatory Policing;

- 22 -

1
2
3
4
5
6
7

b. examples of the type of conduct that would constitute Discriminatory Policing as well
as examples of the types of indicators Deputies may properly rely upon;
c. the protection of civil rights as a central part of the police mission and as essential to
effective policing;
d. an emphasis on ethics, professionalism and the protection of civil rights as a central
part of the police mission and as essential to effective policing;
e. constitutional and other legal requirements related to equal protection, unlawful

8

discrimination, and restrictions on the enforcement of Immigration-Related Laws,

9

including the requirements of this Order;

10

f. MCSO policies related to Discriminatory Policing, the enforcement of Immigration-

11

Related Laws and traffic enforcement, and to the extent past instructions to personnel

12

on these topics were incorrect, a correction of any misconceptions about the law or

13

MCSO policies;

14
15

g. MCSO’s protocol and requirements for ensuring that any significant pre-planned
operations or patrols are initiated and carried out in a race-neutral fashion;

16

h. police and community perspectives related to Discriminatory Policing;

17

i. the existence of arbitrary classifications, stereotypes, and implicit bias, and the impact

18
19
20
21
22

that these may have on the decision-making and behavior of a Deputy;
j. methods and strategies for identifying stereotypes and implicit bias in Deputy
decision-making;
k. methods and strategies for ensuring effective policing, including reliance solely on
non-discriminatory factors at key decision points;

23

l. methods and strategies to reduce misunderstanding, resolve and/or de-escalate

24

conflict, and avoid Complaints due to perceived police bias or discrimination;

25
26
27
28

m. cultural awareness and how to communicate with individuals in commonly
encountered scenarios;
n. problem-oriented policing tactics and other methods for improving public safety and
crime prevention through community engagement;

- 23 -

o. the benefits of actively engaging community organizations, including those serving

1

youth and immigrant communities;

2

p. the MCSO process for investigating Complaints of possible misconduct and the

3

disciplinary consequences for personnel found to have violated MCSO policy;

4
5

q. background information on the Melendres v. Arpaio litigation, as well as a summary

6

and explanation of the Court’s May 24, 2013 Findings of Fact and Conclusions of

7

Law in Melendres v. Arpaio, the parameters of the Court’s permanent injunction, and

8

the requirements of this Order; and
r. instruction on the data collection protocols and reporting requirements of this Order.

9
10

c.

11

Related Laws

12

50.

Training on Detentions, Arrests, and the Enforcement of Immigration-

In addition to the Training on bias-free policing, the MCSO shall provide all sworn

13

personnel, including Supervisors and chiefs, as well as all posse members, with 6 hours

14

of Training on the Fourth Amendment, including on detentions, arrests and the

15

enforcement of Immigration-Related Laws within 180 days of the effective date of this

16

Order, or for new Deputies or posse members, within 90 days of the start of their service.

17

MCSO shall provide all Deputies with 4 hours of Training each year thereafter.

18

51.

The Training shall incorporate the most current developments in federal and Arizona law

19

and MCSO policy, and shall address or include, at a minimum:

20

a. an explanation of the difference between various police contacts according to the

21

level of police intrusion and the requisite level of suspicion; the difference between

22

reasonable suspicion and mere speculation; and the difference between voluntary

23

consent and mere acquiescence to police authority;

24
25
26
27

b. guidance on the facts and circumstances that should be considered in initiating,
expanding or terminating an Investigatory Stop or detention;
c. guidance on the circumstances under which an Investigatory Detention can become
an arrest requiring probable cause;

28
- 24 -

1

d. constitutional and other legal requirements related to stops, detentions and arrests,

2

and the enforcement of Immigration-Related Laws, including the requirements of this

3

Order;

4

e. MCSO policies related to stops, detentions and arrests, and the enforcement of

5

Immigration-Related Laws, and the extent to which past instructions to personnel on

6

these topics were incorrect, a correction of any misconceptions about the law or

7

MCSO policies;

8
9
10

f. the circumstances under which a passenger may be questioned or asked for
identification;
g. the forms of identification that will be deemed acceptable if a driver or passenger (in

11

circumstances where identification is required of them) is unable to present an

12

Arizona driver’s license;

13
14

h. the circumstances under which an officer may initiate a vehicle stop in order to
investigate a load vehicle;

15

i. the circumstances under which a Deputy may question any individual as to his/her

16

alienage or immigration status, investigate an individual’s identity or search the

17

individual in order to develop evidence of unlawful status, contact ICE/CBP, await a

18

response from ICE/CBP and/or deliver an individual to ICE/CBP custody;

19

j. a discussion of the factors that may properly be considered in establishing reasonable

20

suspicion or probable cause to believe that a vehicle or an individual is involved in an

21

immigration-related state crime, such as a violation of the Arizona Human Smuggling

22

Statute, as drawn from legal precedent and updated as necessary; the factors shall not

23

include actual or apparent race or ethnicity, speaking Spanish, speaking English with

24

an accent, or appearance as a Hispanic day laborer;

25

k. a discussion of the factors that may properly be considered in establishing reasonable

26

suspicion or probable cause that an individual is in the country unlawfully, as drawn

27

from legal precedent and updated as necessary; the factors shall not include actual or

28
- 25 -

1

apparent race or ethnicity, speaking Spanish, speaking English with an accent, or

2

appearance as a day laborer;
l. an emphasis on the rule that use of race or ethnicity to any degree, except in the case

3

of a reliable, specific suspect description, is prohibited;

4

m. the MCSO process for investigating Complaints of possible misconduct and the

5

disciplinary consequences for personnel found to have violated MCSO policy;

6

n. provide all trainees a copy of the Court’s May 24, 2013 Findings of Fact and

7
8

Conclusions of Law in Melendres v. Arpaio and this Order, as well as a summary and

9

explanation of the same that is drafted by counsel for Plaintiffs or Defendants and
reviewed by the Monitor or the Court; and

10

o. instruction on the data collection protocols and reporting requirements of this Order,

11

particularly reporting requirements for any contact with ICE/CBP.

12
d.

13
14

52.

Supervisor and Command Level Training

MCSO shall provide Supervisors with comprehensive and interdisciplinary Training on

15

supervision strategies and supervisory responsibilities under the Order. MCSO shall

16

provide an initial mandatory supervisor training of no less than 6 hours, which shall be

17

completed prior to assuming supervisory responsibilities or, for current MCSO

18

Supervisors, within 180 days of the Effective Date of this Order. In addition to this initial

19

Supervisor Training, MCSO shall require each Supervisor to complete at least 4 hours of

20

Supervisor-specific Training annually thereafter. As needed, Supervisors shall also

21

receive Training and updates as required by changes in pertinent developments in the law

22

of equal protection, Fourth Amendment, the enforcement of Immigration-Related Laws,

23

and other areas, as well as Training in new skills.

24
25

53.

The Supervisor-specific Training shall address or include, at a minimum:
a. techniques for effectively guiding and directing Deputies, and promoting effective

26

and constitutional police practices in conformity with the Policies and Procedures in

27

Paragraphs 18–34 and the Fourth and Fourteenth Amendment Training in Paragraphs

28

48–51;

- 26 -

1

b. how to conduct regular reviews of subordinates;

2

c. operation of Supervisory tools such as EIS;

3

d. evaluation of written reports, including how to identify conclusory, “canned,” or
perfunctory language that is not supported by specific facts;

4

e. how to analyze collected traffic stop data, audio and visual recordings, and patrol data

5

to look for warning signs or indicia of possible racial profiling or unlawful conduct;

6

f. how to plan significant operations and patrols to ensure that they are race-neutral and

7

how to supervise Deputies engaged in such operations;

8

g. incorporating integrity-related data into COMSTAT reporting;

9

h. how to respond to calls from Deputies requesting permission to proceed with an

10

investigation of an individual’s immigration status, including contacting ICE/CBP;

11

i. how to respond to the scene of a traffic stop when a civilian would like to make a

12

Complaint against a Deputy;

13
14

j. how to respond to and investigate allegations of Deputy misconduct generally;

15

k. evaluating Deputy performance as part of the regular employee performance
evaluation; and

16

l. building community partnerships and guiding Deputies to do the Training for

17

Personnel Conducting Misconduct Investigations.

18
VIII.

19

TRAFFIC STOP DOCUMENTATION AND DATA COLLECTION AND
REVIEW

20
a.

21
22

54.

Collection of Traffic Stop Data

Within 180 days of the Effective Date, MCSO shall develop a system to ensure that

23

Deputies collect data on all vehicle stops, whether or not they result in the issuance of a

24

citation or arrest. This system shall require Deputies to document, at a minimum:

25

a. the name, badge/serial number, and unit of each Deputy and posse member involved;

26

b. the date, time and location of the stop, recorded in a format that can be subject to

27
28

geocoding;
c. the license plate state and number of the subject vehicle;

- 27 -

1

d. the total number of occupants in the vehicle;

2

e. the Deputy’s subjective perceived race, ethnicity and gender of the driver and any

3

passengers, based on the officer’s subjective impression (no inquiry into an

4

occupant’s ethnicity or gender is required or permitted);

5
6
7
8
9

f. the name of any individual upon whom the Deputy runs a license or warrant check
(including subject’s surname);
g. an indication of whether the Deputy otherwise contacted any passengers, the nature of
the contact, and the reasons for such contact;
h. the reason for the stop, recorded prior to contact with the occupants of the stopped

10

vehicle, including a description of the traffic or equipment violation observed, if any,

11

and any indicators of criminal activity developed before or during the stop;

12

i. time the stop began; any available data from the E-Ticketing system regarding the

13

time any citation was issued; time a release was made without citation; the time any

14

arrest was made; and the time the stop/detention was concluded either by citation,

15

release, or transport of a person to jail or elsewhere or Deputy’s departure from the

16

scene;

17

j. whether any inquiry as to immigration status was conducted and whether ICE/CBP

18

was contacted, and if so, the facts supporting the inquiry or contact with ICE/CBP,

19

the time Supervisor approval was sought, the time ICE/CBP was contacted, the time

20

it took to complete the immigration status investigation or receive a response from

21

ICE/CBP, and whether ICE/CBP ultimately took custody of the individual;

22

k. whether any individual was asked to consent to a search (and the response), whether a

23

probable cause search was performed on any individual, or whether a pat-and-frisk

24

search was performed on any individual;

25
26
27
28

l. whether any contraband or evidence was seized from any individual, and nature of the
contraband or evidence; and
m. the final disposition of the stop, including whether a citation was issued or an arrest
was made or a release was made without citation.

- 28 -

1

55.

(e.g., citations, incident reports, tow forms) can be linked back to the stop.

2
3

MCSO shall assign a unique ID for each incident/stop so that any other documentation

56.

The traffic stop data collection system shall be subject to regular audits and quality

4

control checks. MCSO shall develop a protocol for maintaining the integrity and

5

accuracy of the traffic stop data, to be reviewed by the Monitor pursuant to the process

6

described in Section IV.

7

57.

MCSO shall explore the possibility of relying on the CAD and/or MDT systems to check

8

if all stops are being recorded and relying on in-car recording equipment to check

9

whether Deputies are accurately reporting stop length. In addition, MCSO shall

10

implement a system for Deputies to provide motorists with a copy of non-sensitive data

11

recorded for each stop (such as a receipt) with instructions for how to report any

12

inaccuracies the motorist believes are in the data, which can then be analyzed as part of

13

any audit. The receipt will be provided to motorists even if the stop does not result in a

14

citation or arrest.

15

58.

The MCSO shall ensure that all databases containing individual-specific data comply

16

with federal and state privacy standards governing personally-identifiable information.

17

MCSO shall develop a process to restrict database access to authorized, identified users

18

who are accessing the information for a legitimate and identified purpose as defined by

19

the Parties. If the Parties cannot agree, the Court shall make the determination.

20

59.

Notwithstanding the foregoing, the MCSO shall provide full access to the collected data

21

to the Monitor and Plaintiffs’ representatives, who shall keep any personal identifying

22

information confidential. Every 180 days, MCSO shall provide the traffic stop data

23

collected up to that date to the Monitor and Plaintiffs’ representatives in electronic form.

24

If proprietary software is necessary to view and analyze the data, MCSO shall provide a

25

copy of the same. If the Monitor or the Parties wish to submit data with personal

26

identifying information to the Court, they shall provide the personally identifying

27

information under seal.

28
- 29 -

b.

1
2

60.

Electronic Data Entry

Within one year of the Effective Date, the MCSO shall develop a system by which

3

Deputies can input traffic stop data electronically. Such electronic data system shall have

4

the capability to generate summary reports and analyses, and to conduct searches and

5

queries. MCSO will explore whether such data collection capability is possible through

6

the agency’s existing CAD and MDT systems, or a combination of the CAD and MDT

7

systems with a new data collection system. Data need not all be collected in a single

8

database; however, it should be collected in a format that can be efficiently analyzed

9

together. Before developing an electronic system, the MCSO may collect data manually

10

but must ensure that such data can be entered into the electronic system in a timely and

11

accurate fashion as soon as practicable.

12

c.

13

61.

Audio-Video Recording of Traffic Stops

The MCSO will install functional video and audio recording equipment in all traffic

14

patrol vehicles that make traffic stops, and shall commence regular operation and

15

maintenance of such video and audio recording equipment. MCSO shall prioritize the

16

installation of such equipment in all traffic patrol vehicles that makes traffic stops used

17

by Specialized Units that enforce Immigration-Related Laws, and such installation must

18

be complete within 180 days of the Effective Date. MCSO shall equip all traffic patrol

19

vehicles that make traffic stops with video and audio recording equipment within 2 years

20

of the Effective Date. Subject to Maricopa County code and the State of Arizona’s

21

procurement law, the Court shall choose the vendor for the video and audio recording

22

equipment if the Parties and the Monitor cannot agree on one.

23

62.

Deputies shall turn on any in-vehicle video and audio recording equipment as soon the

24

decision to initiate the stop is made and continue recording through the end of the stop.

25

MCSO shall repair or replace all non-functioning video or audio recording equipment, as

26

necessary for reliable functioning. Deputies who fail to activate and to use their recording

27

equipment according to MCSO policy or notify MCSO that their equipment is non-

28

functioning within a reasonable time shall be subject to Discipline.

- 30 -

1

63.

MCSO shall retain traffic stop written data for a minimum of 5 years after it is created,

2

and shall retain in-car camera recordings for a minimum of 3 years unless a case

3

involving the traffic stop remains under investigation by the MCSO or the Monitor, or is

4

the subject of a Notice of Claim, civil litigation or criminal investigation, for a longer

5

period, in which case the MCSO shall maintain such data or recordings for at least one

6

year after the final disposition of the matter, including appeals. MCSO shall develop a

7

protocol, to be reviewed by the Monitor pursuant to the process described in Section IV,

8

for reviewing the in-car camera recordings and for responding to public records requests

9

in accordance with the Order.
d.

10
11

64.

Review of Traffic Stop Data

Within 180 days of the Effective Date, MCSO shall develop a protocol for periodic

12

analysis of the traffic stop data described above in Paragraphs 54 to 59 (“collected traffic

13

stop data”) and data gathered for any Significant Operation as described in this Order

14

(“collected patrol data”) to look for warning signs or indicia or possible racial profiling or

15

other improper conduct under this Order.

16

65.

MCSO shall designate a group with the MCSO Implementation Unit, or other MCSO

17

Personnel working under the supervision of a Lieutenant or higher-ranked officer, to

18

analyze the collected data on a monthly, quarterly and annual basis, and report their

19

findings to the Monitor and the Parties. This review group shall analyze the data to look

20

for possible individual-level, unit-level or systemic problems. Review group members

21

shall not review or analyze collected traffic stop data or collected patrol data relating to

22

their own activities.

23

66.

MCSO shall conduct one agency-wide comprehensive analysis of the data per year,

24

which shall incorporate analytical benchmarks previously reviewed by the Monitor

25

pursuant to the process described in Section IV. The benchmarks may be derived from

26

the EIS or IA-PRO system, subject to Monitor approval. The MCSO may hire or contract

27

with an outside entity to conduct this analysis. The yearly comprehensive analysis shall

28

be made available to the public and at no cost to the Monitor and Plaintiffs.

- 31 -

1

67.

In this context, warning signs or indicia of possible racial profiling or other misconduct

2

include, but are not limited to:

3

a. racial and ethnic disparities in deputies’, units’ or the agency’s traffic stop patterns,

4

including disparities or increases in stops for minor traffic violations, arrests

5

following a traffic stop, and immigration status inquiries, that cannot be explained by

6

statistical modeling of race neutral factors or characteristics of deputies’ duties, or

7

racial or ethnic disparities in traffic stop patterns when compared with data of

8

deputies’ peers;
b. evidence of extended traffic stops or increased inquiries/investigations where

9

investigations involve a Latino driver or passengers;

10

c. a citation rate for traffic stops that is an outlier when compared to data of a Deputy’s

11
12

peers, or a low rate of seizure of contraband or arrests following searches and

13

investigations;
d. indications that deputies, units or the agency is not complying with the data collection

14

requirements of this Order; and

15

e. other indications of racial or ethnic bias in the exercise of official duties.

16
17

68.

When reviewing collected patrol data, MCSO shall examine at least the following:

18

a. the justification for the Significant Operation, the process for site selection, and the

19

procedures followed during the planning and implementation of the Significant

20

Operation;

21

b. the effectiveness of the Significant Operation as measured against the specific

22

operational objectives for the Significant Operation, including a review of crime data

23

before and after the operation;

24
25
26

c. the tactics employed during the Significant Operation and whether they yielded the
desired results;
d. the number and rate of stops, Investigatory Detentions and arrests, and the

27

documented reasons supporting those stops, detentions and arrests, overall and broken

28

down by Deputy, geographic area, and the actual or perceived race and/or ethnicity

- 32 -

1

and the surname information captured or provided by the persons stopped, detained

2

or arrested;

3

e. the resource needs and allocation during the Significant Operation; and

4

f. any Complaints lodged against MCSO Personnel following a Significant Operation.

5

69.

In addition to the agency-wide analysis of collected traffic stop and patrol data, MCSO

6

Supervisors shall also conduct a review of the collected data for the Deputies under his or

7

her command on a monthly basis to determine whether there are warning signs or indicia

8

of possible racial profiling, unlawful detentions and arrests, or improper enforcement of

9

Immigration-Related Laws by a Deputy. Each Supervisor will also report his or her

10

conclusions based on such review on a monthly basis to a designated commander in the

11

MCSO Implementation Unit

12

70.

If any one of the foregoing reviews and analyses of the traffic stop data indicates that a

13

particular Deputy or unit may be engaging in racial profiling, unlawful searches or

14

seizures, or unlawful immigration enforcement, or that there may be systemic problems

15

regarding any of the foregoing, MCSO shall take reasonable steps to investigate and

16

closely monitor the situation. Interventions may include but are not limited to

17

counseling, Training, Supervisor ride-alongs, ordering changes in practice or procedure,

18

changing duty assignments, Discipline, or of other supervised, monitored, and

19

documented action plans and strategies designed to modify activity. If the MCSO or the

20

Monitor concludes that systemic problems of racial profiling, unlawful searches or

21

seizures, or unlawful immigration enforcement exist, the MCSO shall take appropriate

22

steps at the agency level, in addition to initiating corrective and/or disciplinary measures

23

against the appropriate Supervisor(s) or Command Staff. All interventions shall be

24

documented in writing.

25

71.

In addition to the underlying collected data, the Monitor and Plaintiffs’ representatives

26

shall have access to the results of all Supervisor and agency level reviews of the traffic

27

stop and patrol data.

28
- 33 -

IX.

1
a.

2
3

72.

potentially problematic behaviors, including racial profiling, unlawful detentions and

6

arrests, and improper enforcement of Immigration-Related Laws within one year of the

7

Effective Date. MCSO will regularly use EIS data to promote lawful, ethical and

8

professional police practices; and to evaluate the performance of MCSO Patrol

9

Operations Employees across all ranks, units and shifts.

10
73.

otherwise expand the already existing role of the MCSO information technology

13

specialist to facilitate the development, implementation, and maintenance of the EIS.

14

MCSO shall ensure that there is sufficient additional staff to facilitate EIS data input and

15

provide Training and assistance to EIS users. This unit may be housed within Internal

16

Affairs (“IA”).

17
74.

responsible for capturing and inputting data.

20

23
24
25
26
27

MCSO shall develop and implement a protocol setting out the fields for historical data,
deadlines for inputting data related to current and new information, and the individuals

19

22

Within 180 days of the Effective Date, MCSO shall either create a unit, which shall
include at least one full-time-equivalent qualified information technology specialist, or

12

21

MCSO shall work with the Monitor, with input from the Parties, to develop, implement

MCSO Deputies and employees, including the identification of and response to

5

18

Development and Implementation of the EIS

and maintain a computerized EIS to support the effective supervision and management of

4

11

EARLY IDENTIFICATION SYSTEM (“EIS”)

75.

The EIS shall include a computerized relational database, which shall be used to collect,
maintain, integrate, and retrieve:
a. all misconduct Complaints or allegations (and their dispositions), excluding those
made by inmates relating to conditions of confinement or conduct of detention
officers (i.e,, any complaint or allegation relating to a traffic stop shall be collected
and subject to this Paragraph even if made by an inmate);
b. all internal investigations of alleged or suspected misconduct;

28
- 34 -

c. data compiled under the traffic stop data collection and the patrol data collection

1

mechanisms;

2

d. all criminal proceedings initiated, as well as all civil or administrative claims filed

3
4

with, and all civil lawsuits served upon, the County and/or its Deputies or agents,

5

resulting from MCSO Patrol Operations or the actions of MCSO Patrol Operation

6

Personnel;

7

e. all arrests;

8

f. all arrests in which the arresting Deputy fails to articulate probable cause in the arrest

9

report, or where an MCSO Supervisor, court or prosecutor later determines the arrest

10

was not supported by probable cause to believe a crime had been committed, as

11

required by law;
g. all arrests in which the individual was released from custody without formal charges

12

being sought;

13

h. all Investigatory Stops, detentions, and/or searches, including those found by the

14
15

Monitor, an MCSO supervisor, court or prosecutor to be unsupported by reasonable

16

suspicion of or probable cause to believe a crime had been committed, as required by

17

law;

18

i. all instances in which MCSO is informed by a prosecuting authority or a court that a

19

decision to decline prosecution or to dismiss charges, and if available, the reason for

20

such decision;

21

j. all disciplinary action taken against employees;

22

k. all non-disciplinary corrective action required of employees;

23

l. all awards and commendations received by employees;

24

m. Training history for each employee; and

25

n. bi-monthly Supervisory observations of each employee.

26
27

76.

The EIS shall include appropriate identifying information for each involved Deputy (i.e.,
name, badge number, shift and Supervisor) and civilian (e.g., race and/or ethnicity).

28
- 35 -

1

77.

MCSO shall maintain computer hardware, including servers, terminals and other

2

necessary equipment, in sufficient amount and in good working order to permit

3

personnel, including Supervisors and commanders, ready and secure access to the EIS

4

system to permit timely input and review of EIS data as necessary to comply with the

5

requirements of this Order.

6

78.

MCSO shall maintain all personally identifiable information about a Deputy included in

7

the EIS for at least five years following the Deputy’s separation from the agency.

8

Information necessary for aggregate statistical analysis will be maintained indefinitely in

9

the EIS. On an ongoing basis, MCSO shall enter information into the EIS in a timely,

10

accurate, and complete manner, and shall maintain the data in a secure and confidential

11

manner. No individual within MCSO shall have access to individually identifiable

12

information that is maintained only within EIS and is about a deputy not within that

13

individual’s direct command, except as necessary for investigative, technological, or

14

auditing purposes.

15

79.

The EIS computer program and computer hardware will be operational, fully

16

implemented, and be used in accordance with policies and protocols that incorporate the

17

requirements of this Order within one year of the Effective Date. Prior to full

18

implementation of the new EIS, MCSO will continue to use existing databases and

19

resources to the fullest extent possible, to identify patterns of conduct by employees or

20

groups of Deputies.

21

b.

22

80.

Training on the EIS

MCSO will provide education and training to all employees, including Deputies,

23

Supervisors and commanders regarding EIS prior to its implementation as appropriate to

24

facilitate proper understanding and use of the system. MCSO Supervisors shall be trained

25

in and required to use EIS to ensure that each Supervisor has a complete and current

26

understanding of the employees under the Supervisor’s command. Commanders and

27

Supervisors shall be educated and trained in evaluating and making appropriate

28

comparisons in order to identify any significant individual or group patterns. Following

- 36 -

1

the initial implementation of the EIS, and as experience and the availability of new

2

technology may warrant, MCSO may propose to add, subtract, or modify data tables and

3

fields, modify the list of documents scanned or electronically attached, and add, subtract,

4

or modify standardized reports and queries. MCSO shall submit all such proposals for

5

review by the Monitor pursuant to the process described in Section IV.

6

c.

7

81.

Protocol for Agency and Supervisory Use of the EIS

MCSO shall develop and implement a protocol for using the EIS and information

8

obtained from it. The protocol for using the EIS shall address data storage, data retrieval,

9

reporting, data analysis, pattern identification, identifying Deputies for intervention,

10

Supervisory use, Supervisory/agency intervention, documentation and audit. Additional

11

required protocol elements include:

12

a. comparative data analysis, including peer group analysis, to identify patterns of

13
14
15
16
17
18

activity by individual Deputies and groups of Deputies;
b. identification of warning signs or other indicia of possible misconduct, including, but
not necessarily limited, to:
i. failure to follow any of the documentation requirements mandated pursuant to
this Order;
ii. racial and ethnic disparities in the Deputy’s traffic stop patterns, including

19

disparities or increases in stops for minor traffic violations, arrests following a

20

traffic stop, and immigration status inquiries, that cannot be explained by

21

statistical modeling of race neutral factors or characteristics of Deputies’

22

specific duties, or racial or ethnic disparities in traffic stop patterns when

23

compared with data of a Deputy’s peers;

24
25
26

iii. evidence of extended traffic stops or increased inquiries/investigations where
investigations involve a Latino driver or passengers;
iv. a citation rate for traffic stops that is an outlier when compared to data of a

27

Deputy’s peers, or a low rate of seizure of contraband or arrests following

28

searches and investigations;

- 37 -

1

v. Complaints by members of the public or other officers; and

2

vi. other indications of racial or ethnic bias in the exercise of official duties;

3

c. MCSO commander and Supervisor review, on a regular basis, but not less than bi-

4

monthly, of EIS reports regarding each officer under the commander or Supervisor’s

5

direct command and, at least quarterly, broader, pattern-based reports;

6

d. a requirement that MCSO commanders and Supervisors initiate, implement, and

7

assess the effectiveness of interventions for individual Deputies, Supervisors, and

8

units, based on assessment of the information contained in the EIS;

9

e. identification of a range of intervention options to facilitate an effective response to

10

suspected or identified problems. In any cases where a Supervisor believes a Deputy

11

may be engaging in racial profiling, unlawful detentions or arrests, or improper

12

enforcement of Immigration-Related Laws or the early warning protocol is triggered,

13

the MCSO shall notify the Monitor and Plaintiffs and take reasonable steps to

14

investigate and closely monitor the situation, and take corrective action to remedy the

15

issue. Interventions may include but are not limited to counseling, Training,

16

Supervisor ride-alongs, ordering changes in practice or procedure, changing duty

17

assignments, Discipline, or other supervised, monitored, and documented action plans

18

and strategies designed to modify activity. All interventions will be documented in

19

writing and entered into the automated system;

20

f. a statement that the decision to order an intervention for an employee or group using

21

EIS data shall include peer group analysis, including consideration of the nature of

22

the employee’s assignment, and not solely on the number or percentages of incidents

23

in any category of information recorded in the EIS;

24
25
26
27

g. a process for prompt review by MCSO commanders and Supervisors of the EIS
records of all Deputies upon transfer to their supervision or command;
h. an evaluation of whether MCSO commanders and Supervisors are appropriately using
the EIS to enhance effective and ethical policing and reduce risk; and

28
- 38 -

i. mechanisms to ensure monitored and secure access to the EIS to ensure the integrity,

1

proper use, and appropriate confidentiality of the data.

2
X.

3
4

82.

SUPERVISION AND EVALUATIONS OF OFFICER PERFORMANCE

MCSO and the County shall ensure that an adequate number of qualified first-line

5

Supervisors are available to provide the effective supervision necessary to ensure that

6

Deputies are following the Constitution and laws of the United States and State of

7

Arizona, MCSO policy, and this Order. First-line Supervisors shall ensure that Deputies

8

are policing actively and effectively, are provided with the instruction necessary to

9

correct mistakes, and are held accountable for misconduct. To achieve these outcomes,

10

MCSO shall undertake the following duties and measures:

11

a.

12

83.

General Duties of Supervisors

MCSO Supervisors shall provide the effective supervision necessary to direct and guide

13

Deputies. Effective supervision requires that Supervisors: respond to the scene of certain

14

arrests; review each field interview card and incident report; confirm the accuracy and

15

completeness of Deputies’ daily activity reports; respond to each Complaint of

16

misconduct; ensure Deputies are working actively to engage the community and increase

17

public trust and safety; provide counseling, redirection, support to Deputies as needed,

18

and are held accountable for performing each of these duties.

19

84.

Within 120 days of the Effective Date, all patrol Deputies shall be assigned to a single,

20

consistent, clearly identified Supervisor. First-line field Supervisors shall be assigned to

21

supervise no more than twelve Deputies.

22

85.

First-line field Supervisors shall be required to discuss individually the stops made by

23

each Deputy they supervise with the respective Deputies no less than one time per month

24

in order to ensure compliance with this Order. This discussion should include, at a

25

minimum, whether the Deputy detained any individuals stopped during the preceding

26

month, the reason for any such detention, and a discussion of any stops that at any point

27

involved any immigration issues.

28
- 39 -

1

86.

On-duty field Supervisors shall be available throughout their shift to provide adequate

2

on-scene field supervision to Deputies under their direct command and, as needed, to

3

provide Supervisory assistance to other units. Supervisors shall be assigned to and shall

4

actually work the same days and hours as the Deputies they are assigned to supervise,

5

absent exceptional circumstances.

6

87.

MCSO shall hold Commanders and Supervisors directly accountable for the quality and

7

effectiveness of their supervision, including whether commanders and Supervisors

8

identify and effectively respond to misconduct, as part of their performance evaluations

9

and through non-disciplinary corrective action, or through the initiation of formal

10

investigation and the disciplinary process, as appropriate.

11

b.

12

88.

Additional Supervisory Measures

To ensure compliance with the terms of this Order, first-line Supervisors in any

13

Specialized Units enforcing Immigration-Related Laws shall directly supervise the law

14

enforcement activities of new members of the unit for one week by accompanying them

15

in the field, and directly supervise the in-the-field-activities of all members of the unit for

16

at least two weeks every year.

17

89.

A Deputy shall notify a Supervisor before initiating any immigration status investigation,

18

as discussed in Paragraph 28. Deputies shall also notify Supervisors before effectuating

19

an arrest following any immigration-related investigation or for an Immigration-Related

20

Crime, or for any crime related to identity fraud or lack of an identity document. The

21

responding Supervisor shall approve or disapprove the Deputy’s investigation or arrest

22

recommendation based on the available information and conformance with MCSO

23

policy. The Supervisor shall take appropriate action to address any deficiencies in

24

Deputies’ investigation or arrest recommendations, including releasing the subject,

25

recommending non-disciplinary corrective action for the involved Deputy, and/or

26

referring the incident for administrative investigation.

27
28

90.

MCSO Deputies shall submit documentation of all stops and Investigatory Detentions
conducted to their Supervisors by the end of the shift in which the action occurred.

- 40 -

1

Absent exceptional circumstances, within 72 hours of receiving such documentation, a

2

Supervisor shall independently review the information. Supervisors shall review reports

3

and forms for Boilerplate or conclusory language, inconsistent information, lack of

4

articulation of the legal basis for the action, or other indicia that the information in the

5

reports or forms is not authentic or correct. Appropriate disciplinary action should be

6

taken where Deputies routinely employ Boilerplate or conclusory language.

7

91.

As part of the Supervisory review, the Supervisor shall document any Investigatory Stops

8

and detentions that appear unsupported by reasonable suspicion or are otherwise in

9

violation of MCSO policy, or stops or detentions that indicate a need for corrective action

10

or review of agency policy, strategy, tactics, or Training. The Supervisor shall take

11

appropriate action to address all violations or deficiencies in Investigatory Stops or

12

detentions, including recommending non-disciplinary corrective action for the involved

13

Deputy, and/or referring the incident for administrative or criminal investigation.

14

92.

Supervisors shall use EIS to track each subordinate’s violations or deficiencies in

15

Investigatory Stops or detentions and the corrective actions taken, in order to identify

16

Deputies needing repeated corrective action. Supervisors shall notify IA. The Supervisor

17

shall ensure that each violation or deficiency is documented in the Deputy’s performance

18

evaluations. The quality and completeness of these Supervisory reviews shall be taken

19

into account in the Supervisor’s own performance evaluations. MCSO shall take

20

appropriate corrective or disciplinary action against Supervisors who fail to conduct

21

complete, thorough, and accurate reviews of Deputies’ stops and Investigatory

22

Detentions.

23

93.

Absent extraordinary circumstances, MCSO Deputies shall complete all incident reports

24

before the end of shift. MCSO field Supervisors shall review incident reports and shall

25

memorialize their review of incident reports within 72 hours of an arrest, absent

26

exceptional circumstances.

27
28

94.

As part of the Supervisory review, the Supervisor shall document any arrests that are
unsupported by probable cause or are otherwise in violation of MCSO policy, or that

- 41 -

1

indicate a need for corrective action or review of agency policy, strategy, tactics, or

2

Training. The Supervisor shall take appropriate action to address violations or

3

deficiencies in making arrests, including notification of prosecuting authorities,

4

recommending non-disciplinary corrective action for the involved Deputy, and/or

5

referring the incident for administrative or criminal investigation.

6

95.

Supervisors shall use EIS to track each subordinate’s violations or deficiencies in the

7

arrests and the corrective actions taken, in order to identify Deputies needing repeated

8

corrective action. The Supervisor shall ensure that each violation or deficiency is noted

9

in the Deputy’s performance evaluations. The quality of these supervisory reviews shall

10

be taken into account in the Supervisor’s own performance evaluations, promotions, or

11

internal transfers. MCSO shall take appropriate corrective or disciplinary action against

12

Supervisors who fail to conduct reviews of adequate and consistent quality.

13

96.

A command-level official shall review, in writing, all Supervisory reviews related to

14

arrests that are unsupported by probable cause or are otherwise in violation of MCSO

15

policy, or that indicate a need for corrective action or review of agency policy, strategy,

16

tactics, or Training. The commander’s review shall be completed within 14 days of

17

receiving the document reporting the event. The commander shall evaluate the corrective

18

action and recommendations in the Supervisor’s written report and ensure that all

19

appropriate corrective action is taken.

20

97.

MCSO Commanders and Supervisors shall periodically review the EIS reports and

21

information, and initiate, implement, or assess the effectiveness of interventions for

22

individual Deputies, Supervisors, and units based on that review. The obligations of

23

MCSO Commanders and Supervisors in that regard are described above in Paragraphs

24

81(c)–(h).

25

d.

26
27

98.

Regular Employee Performance Review and Evaluations

MCSO, in consultation with the Monitor, shall create a system for regular employee
performance evaluations that, among other things, track each officer’s past performance

28
- 42 -

1

to determine whether the officer has demonstrated a pattern of behavior prohibited by

2

MCSO policy or this Order.

3

99.

The review shall take into consideration all past Complaint investigations; the results of

4

all investigations; Discipline, if any, resulting from the investigation; citizen Complaints

5

and commendation; awards; civil or administrative claims and lawsuits related to MCSO

6

operations; Training history; assignment and rank history; and past Supervisory actions

7

taken pursuant to the early warning protocol.

8

100.

performance evaluations.

9
10

The quality of Supervisory reviews shall be taken into account in the Supervisor’s own

101.

Within 180 days of the Effective Date, MCSO shall develop and implement eligibility

11

criteria for assignment to Specialized Units enforcing Immigration-Related Laws. Such

12

criteria and procedures shall emphasize the individual’s integrity, good judgment, and

13

demonstrated capacity to carry out the mission of each Specialized Unit in a

14

constitutional, lawful, and bias-free manner. Deputies assigned to a Specialized Unit

15

who are unable to maintain eligibility shall be immediately re-assigned.

16
17
18
19
20
21
22
23
24
25
26
27
28
- 43 -

XI.

1
a.

2
3

102.

MISCONDUCT AND COMPLAINTS

Internally-Discovered Violations

MCSO shall require all personnel to report without delay alleged or apparent misconduct

4

by other MCSO Personnel to a Supervisor or directly to IA that reasonably appears to

5

constitute: (i) a violation of MCSO policy or this Order; (ii) an intentional failure to

6

complete data collection or other paperwork requirements required by MCSO policy or

7

this Order; (iii) an act of retaliation for complying with any MCSO policy; (iv) or an

8

intentional provision of false information in an administrative investigation or any

9

official report, log or electronic transmittal of information. Failure to voluntarily report or

10

document apparent misconduct described in this Paragraph shall be an offense subject to

11

Discipline.

12

b.

13

103.

Audit Checks

Within one year of the Effective Date, MCSO shall develop a plan for conducting

14

regular, targeted, and random integrity audit checks to identify and investigate Deputies

15

possibly engaging in improper behavior, including: Discriminatory Policing; unlawful

16

detentions and arrests; improper enforcement of Immigration-Related Laws; and failure

17

to report misconduct.

18

c.

19

104.

Complaint Tracking and Investigations

Subject to applicable laws, MCSO shall require Deputies to cooperate with administrative

20

investigations, including appearing for an interview when requested by an investigator

21

and providing all requested documents and evidence. Supervisors shall be notified when

22

a Deputy under their supervision is summoned as part of an administrative investigation

23

and shall facilitate the Deputy’s appearance, absent extraordinary and documented

24

circumstances.

25

105.

Investigators shall have access to, and take into account as appropriate, the collected

26

traffic stop and patrol data, Training records, Discipline history, and any past Complaints

27

and performance evaluations of involved officers.

28
- 44 -

1

106.

Records of Complaints and investigations shall be maintained and made available,

2

unredacted, to the Monitor and Plaintiffs’ representatives upon request. The Monitor and

3

Plaintiffs’ representatives shall maintain the confidentiality of any information therein

4

that is not public record. Disclosure of records of pending investigations shall be

5

consistent with state law.
XII.

6
a.

7
8

107.

COMMUNITY ENGAGEMENT

Community Outreach Program

To rebuild public confidence and trust in the MCSO and in the reform process, the
MCSO shall work to improve community relationships and engage constructively with

9
10

the community during the period that this Order is in place. To this end, the MCSO shall

11

create the following district community outreach program.

12

108.

Community Outreach and Public Information program in each MCSO District.

13
14

Within 180 days of the Effective Date, MCSO shall develop and implement a

109.

As part of its Community Outreach and Public Information program, the MCSO shall

15

hold a public meeting in each of MCSO’s patrol Districts within 90 days of the Effective

16

Date, and at least one meeting in each District annually thereafter. These meetings shall

17

be used to inform community members of the policy changes or other significant actions

18

that the MCSO has taken to implement the provisions of this Order. Summaries of audits

19

and reports completed by the MCSO pursuant to this Order shall be provided. The MCSO

20

shall clarify for the public at these meetings that it does not enforce immigration laws

21

except to the extent that it is enforcing Arizona and federal criminal laws.

22

110.

The meetings present an opportunity for MCSO representatives to listen to community

23

members’ experiences and concerns about MCSO practices implementing this Order,

24

including the impact on public trust. MCSO representatives shall make reasonable

25

efforts to address such concerns during the meetings and afterward.

26

111.

English- and Spanish-speaking MCSO Personnel shall attend these meetings and be

27

available to answer questions from the public. At least one MCSO Supervisor with

28

extensive knowledge of the agency’s implementation of the Order, as well as the

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1

Community Liaison Officer (described below) shall participate in the meetings.

2

Plaintiffs’ representatives shall be invited to attend.

3

112.

The meetings shall be held in locations convenient and accessible to the public. At least

4

one week before such meetings, the MCSO shall widely publicize the meetings using

5

English and Spanish-language television, print media and the internet.

6

b.

7

113.

Community Liaison Officer

Within 90 days of the Effective Date, MCSO shall select or hire a Community Liaison

8

Officer (“CLO”) who is a sworn Deputy fluent in English and Spanish. The hours and

9

contact information of the CLO shall be made available to the public including on the

10

MCSO website. The CLO shall be directly available to the public for communications

11

and questions regarding the MCSO.

12

114.

The CLO shall have the following duties:
a. to coordinate the district community meetings described above in Paragraphs 109 to

13

112;

14

b. to provide administrative support for, coordinate and attend meetings of the

15

Community Advisory Board described in Paragraphs 117 to 118;

16

c. to compile any Complaints, concerns and suggestions submitted to CLO by members

17
18

of the public about the implementation of this Order and the Court’s order of

19

December 23, 2011, and its findings of fact and conclusions of law dated May 24,

20

2013, even if they don’t rise to the level of requiring formal action by IA or other

21

component of the MCSO, and to respond to Complainants’ concerns;
d. to communicate concerns received from the community at regular meetings with the

22

Monitor and MCSO leadership; and

23

e. to compile concerns received from the community in a written report every 180 days

24

and share the report with the Monitor and the Parties.

25
c.

26
27
28

115.

Community Advisory Board

MCSO and Plaintiffs’ representatives shall work with community representatives to
create a Community Advisory Board (“CAB”) to facilitate regular dialogue between the

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1

MCSO and community leaders, and to provide specific recommendations to MCSO about

2

policies and practices that will increase community trust and ensure that the provisions of

3

this Order and other orders entered by the Court in this matter are met.

4

116.

The CAB shall have six members, three to be selected by the MCSO and three to be

5

selected by Plaintiffs’ representatives. Members of the CAB shall not be MCSO

6

Employees or any of the named class representatives, nor any of the attorneys involved in

7

this case. However, a member of the MCSO Implementation Unit and at least one

8

representative for Plaintiffs shall attend every meeting of the CAB. The CAB shall

9

continue for at least the length of this Order.

10

117.

The CAB shall hold public meetings at regular intervals of no more than four months.

11

The meeting space shall be provided by the MCSO. The CLO shall coordinate the

12

meetings and communicate with Board members, and provide administrative support for

13

the CAB.

14

118.

During the meetings of the CAB, members will relay or gather concerns from the

15

community about MCSO practices that may violate the provisions of this Order and the

16

Court’s previous injunctive orders entered in this matter and make reasonable efforts to

17

address such concerns. Members will also hear from MCSO Personnel on matters of

18

concern pertaining to the MCSO’s compliance with the orders of this Court.

19
XIII. INDEPENDENT MONITOR AND OTHER PROCEDURES REGARDING

20

ENFORCEMENT

21
a.

22
23

119.

agree on the selection of a Monitor to be appointed by the Court.

25

27
28

The Court shall appoint an Independent Monitor to assist with implementation of, and
assess compliance with, this Order. Within 60 days of the Effective Date, the Parties shall

24

26

Selection of the Monitor

120.

The Parties shall have an opportunity to separately interview prospective candidates if
they choose, as well as request additional information about prospective candidates’
background and experience, proposed annual fees and costs, proposed annual budget,

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1

including references and a list of recent consulting or monitoring work and the fees and

2

costs from that prior consulting or monitoring work as well as information as to whether

3

the candidate meet or exceeded any budgets for that prior consulting or monitoring work.

4

121.

If the Parties are unable to agree on a Monitor or an alternative method of selection

5

within 60 days of the Effective Date, each Party shall, no later than 70 days from the

6

Effective Date, submit the names and resumes of three candidates with experience as law

7

enforcement practices experts or monitors to the Court, and the Court shall select a

8

Monitor from among the qualified candidates.

9

122.

The Monitor shall be appointed for the term of this Order. In the event a Monitor is to be

10

replaced, the Parties shall select a new Monitor by the same process as above. The Court

11

may order the removal of the Monitor for any reason sua sponte, or upon Motion by any

12

party.

13

123.

Defendants shall provide the Monitor with permanent office space and reasonable office

14

support such as office furniture, secure internet access, telephones, secure document

15

storage, and photocopying, faxing and scanning equipment. Defendants shall bear all

16

reasonable fees and costs of the Monitor. However, the Parties recognize the importance

17

of ensuring that the fees and costs borne by Defendants are reasonable. In the event that

18

any dispute arises regarding the reasonableness or payment of the Monitor’s fees and

19

costs, Defendants, Plaintiffs, and the Monitor shall attempt to resolve such dispute

20

cooperatively prior to seeking the assistance of the Court. All Parties shall be included in

21

any communications related to such a dispute.

22

124.

The Monitor, at any time after his or her initial selection, may request authorization from

23

the Court to be allowed to hire or employ or contract with such additional persons or

24

entities as are reasonably necessary to perform the tasks assigned to the Monitor by this

25

Order or by the Court. The Monitor shall submit to the Court the task to be performed by

26

the proposed additional person or entity, the scope of the work to be performed, the

27

project fees and expenses associated with such work, the expected length of time for such

28

work, and the reasons the Monitor is unable to perform such work and requires the

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1

assistance of the additional person or entity and why existing MCSO personnel cannot

2

perform the task requested by the Monitor. Any person or entity hired or otherwise

3

retained by the Monitor to assist in furthering any provision of this Order shall be subject

4

to the provisions of this Order. The Monitor shall notify the Defendants and Plaintiffs’

5

representatives in writing if the Monitor wishes to hire such additional persons or entities.

6

The notice shall identify and describe the qualifications of the person or entity to be

7

hired, the monitoring tasks to be performed, the estimated cost and length of time of the

8

task, and explain why existing MCSO personnel cannot perform the task requested or

9

desired by the Monitor. If the County and Plaintiffs agree to the Monitor’s proposal, the

10

Monitor shall be authorized to hire or employ such additional persons or entities. The

11

County or Plaintiffs have 15 business days to state any disagreement with the proposal.

12

If the County and Plaintiffs are unable to reach agreement within 15 business days of

13

receiving notice of the disagreement by the other Party, the Court shall resolve the

14

dispute.

15

125.

Should any Party determine that the Monitor’s individual members, agents, employees, or

16

independent contractors have exceeded their authority or failed to satisfactorily perform

17

the duties required by this Order, the Party may petition the Court for such relief as the

18

Court deems appropriate, including replacement of the Monitor, and/or any individual

19

members, agents, employees, or independent contractors. The Party or Parties, as the case

20

may be, shall attempt to resolve such disputes cooperatively prior to seeking the

21

assistance of the Court. All Parties shall be included in any communications related to

22

such a dispute.

23

b.

24

126.

Role of the Monitor

The Monitor shall be subject to the supervision and orders of the Court, consistent with

25

this Order. The Monitor shall have the duties, responsibilities and authority conferred by

26

the Court and this Order, including, but not limited to: (1) reviewing the MCSO Patrol

27

Operations Policies and Procedures provided for by this Order and making

28

recommendations to the Court regarding the same; (2) reviewing a protocol with the

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1

Parties to ensure that any Significant Operations conducted by the MCSO are conducted

2

in a race-neutral fashion; (3) reviewing the curriculum, materials and proposed instructors

3

for Training required by this Order; (4) reviewing the collected traffic stop data and the

4

collected Saturation Patrol data to determine whether the data required to be gathered by

5

this Order is, in fact, being collected by the MCSO; (5) reviewing protocols regarding the

6

collection, analysis, and use of such data and determining whether the MCSO is in

7

compliance with those protocols; (6) reviewing the collected data to determine whether,

8

in the opinion of the Monitor, MCSO is appropriately reviewing the collected data to

9

determine possible isolated or systemic racial profiling occurring, and if so, reporting the

10

factual basis supporting that judgment to the Parties and the Court; (7) evaluating the

11

effectiveness of the MCSO’s changes in the areas of supervision and oversight and

12

reporting the same to the parties and the Court; (8) reviewing the corrective action taken

13

by the MCSO concerning any possible violations of this Order or MCSO policy and

14

procedures and reporting the same to the parties and the Court; (9) evaluating the

15

MCSO’s engagement with the communities affected by its activities as set forth by this

16

Order; and (10) assessing the MCSO’s overall compliance with the Order.

17

127.

To assess and report on the Defendants’ implementation of this Order and whether

18

implementation is resulting in the constitutional and professional treatment of individuals

19

by MCSO, the Monitor shall conduct the audits, compliance reviews and outcome

20

assessments specified below, and such additional audits and assessments as the Monitor

21

or the Parties deem appropriate.

22

128.

The ultimate arbiter of compliance is the Court and Parties may make their own

23

submissions regarding compliance separate from the Monitor’s reports. In any areas

24

where the Parties are not able to resolve issues with the Monitor—including those areas

25

where the Order provides for input from the Monitor—the Parties may submit their

26

grievances directly to the Court for resolution.

27
28

129.

In carrying out these duties, the Monitor shall be permitted to have ex parte
communications with the Parties.

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c.

1
2

130.

Monitoring Plan and Review Methodology

The Monitor shall file with the Court quarterly written, public reports covering the

3

reporting period that shall include:

4

a. a description of the work conducted by the Monitor during the reporting period;

5

b. a listing of each Order requirement which indicates whether each requirement has

6

been addressed by the MCSO, is the subject of sufficient Training, and whether the

7

MCSO is in compliance with that requirement of the Order in the judgment, opinion,

8

and experience of the Monitor;
c. the methodology and specific findings for each audit or review conducted;

9
10

d. for any requirements that were audited and reviewed and found not to have been fully

11

implemented in practice in the judgment, opinion, and experience of the Monitor, the

12

Monitor’s recommendations to the Court regarding necessary steps to achieve

13

compliance;
e. in the judgment, opinion, and experience of the Monitor an assessment of MCSO’s

14
15

progress in achieving the desired outcomes for each area covered by the Order, noting

16

issues of concern or particular achievement;

17

f. the methodology and specific findings for each outcome assessment conducted; and

18

g. a projection of the work to be completed during the upcoming reporting period and

19

any anticipated challenges or concerns related to implementation of the Order.

20

131.

The Monitor’s reports shall be public except for information covered by privacy laws or

21

that is otherwise confidential. If any information is redacted from the Monitor’s report, an

22

unredacted version shall be filed under seal with the Court and provided to the Parties.

23

The underlying data for each audit, review or assessment need not be made publicly

24

available but shall be retained by the Monitor and provided to either or both Parties upon

25

request.

26

132.

The Monitor shall provide a copy of quarterly reports to the Parties in draft form at least

27

21 business days prior to filing them with the Court to allow the Parties to provide written

28

comment on the reports. The Monitor shall consider the Parties’ responses and make any

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1

changes the Monitor deems appropriate before issuing the report. The Monitor shall

2

attach to his or her report copies of any comments submitted by the Parties.

3

133.

Within 60 days of his or her appointment, the Monitor shall develop a plan for

4

conducting the above audits, reviews and outcome assessments, and shall submit this plan

5

to the Parties for review and approval. In the event that the Parties cannot agree, the plan

6

will be submitted to the Court for final approval. This plan shall:

7

a. clearly delineate the requirements of the Order to be assessed for compliance,
indicating which requirements will be assessed together;

8

b. set out a schedule for conducting an initial audit or review of each requirement of the

9

Order, and periodic audits and reviews thereafter;

10

c. set out a schedule for conducting initial outcome assessments for each area of the

11

Order, and periodic assessments thereafter.

12
13

134.

Where the Monitor recommends and the Parties agree, the Monitor may refrain from

14

conducting an audit or review of a requirement previously found to have been fully

15

implemented in practice by the Monitor, or refrain from conducting an outcome

16

assessment if previous assessments indicate that the outcome intended by a requirement

17

has been achieved.

18

135.

At least 30 days prior to the initiation of any audit, review or assessment, the Monitor

19

shall submit a proposed methodology to the Parties. The Parties shall submit any

20

comments or concerns regarding the proposed methodology to the Monitor within 15

21

days of the proposed date of the assessment, review or audit. The Monitor shall modify

22

the methodology as necessary to address any concerns or shall inform the Parties in

23

writing of the reasons it is not modifying its methodology as proposed. If Parties do not

24

agree with the proposed methodology, the Monitor shall then file with the Court the

25

proposed methodology for approval.

26
27

136.

In conducting the outcome assessments, the Monitor should measure not only the
MCSO’s progress in implementing the provisions of this Order, but the effectiveness of

28
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1

the reforms. To do so, the Monitor shall take into account the following performance-

2

based metrics and trends:

3

a. Deputies’ awareness and comprehension of issues addressed by departmental policies
and Training;

4
5

b. data relating to the race and ethnicity of individuals stopped, detained and arrested by

6

the MCSO, including the rate at which investigations result in a citation or arrest;

7

c. data related to the documented reasonable suspicion or probable cause to stop, detain

8

or arrest individuals encountered on traffic stops, broken down by the actual or

9

perceived race or ethnicity of the person(s) stopped/arrested;

10

d. the use and deployment of Specialized Units;

11

e. the execution of any significant operations, including planning and site selection,

12

tactics employed, staffing and units involved, and the intended and actual results of

13

such operations;

14

f. the amount and quality of supervision provided by the MCSO’s chain of command;

15

g. the prevalence of civilian Complaints regarding biased policing or unlawful
detentions and arrests by MCSO Patrol Operation deputies;

16

h. the number and rate of Complaints that are accepted, sustained and not sustained,

17
18

overall and broken down by type, unit, geographic area and the actual or perceived

19

race or ethnicity of Complainants;

20

i. disciplinary outcomes for any violations of departmental policy;

21

j. whether any Deputies are the subject of repeated misconduct Complaints, civil suits,
or criminal charges, including for off-duty conduct; and

22

k. the level of MCSO engagement and participation with the community advisory board;

23
24

137.

To facilitate the Monitor’s outcome assessments, the Monitor may also conduct his or her

25

own periodic analysis of the traffic stop and Significant Operations data collected by the

26

MCSO pursuant to this Order, subject to the terms of this Order as to the Monitor’s

27

proposed hiring of assistance. The Monitor shall retain an individual or entity with

28
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1

expertise in social science research and statistics to conduct the survey if the Monitor

2

does not have this expertise him/herself.

3

138.

The Monitor shall conduct a comprehensive re-assessment each year after the Effective

4

Date to determine whether and to what extent the outcomes intended by this Order have

5

been achieved, and any modifications to the Order that he/she believes are necessary for

6

continued achievement in light of changed circumstances or unanticipated impact (or lack

7

of impact) of a requirement. This re-assessment shall also address areas of greatest

8

achievement and the requirements that appear to have contributed to this success, as well

9

as areas of greatest concern, including strategies for accelerating Full and Effective

10

Compliance. Based upon this comprehensive re-assessment, the Monitor may

11

recommend to the parties and the Court modifications to the Order that he/she believes

12

are necessary to achieve and sustain intended outcomes.

13

d.

14

139.

Monitor Recommendations and Technical Assistance

The Monitor may make additional recommendations to the Parties regarding measures

15

necessary to ensure timely, Full and Effective Compliance with this Order and its

16

underlying objectives. Such recommendations may include a recommendation to change,

17

modify, or amend a provision of the Order, a recommendation for additional Training in

18

any area related to this Order, or a recommendation to seek technical assistance. In

19

addition to making recommendations, the Monitor may also, at the request of the Parties,

20

provide technical assistance directly to the MCSO consistent with the Monitor’s

21

responsibilities under this Order. In the event that full and effective implementation of

22

this Order requires technical assistance beyond the scope of what the Monitor can

23

provide, Defendants shall reasonably arrange for prompt initiation of such technical

24

assistance consistent with the terms of this Order.

25

e.

26

140.

Communication between Monitor and Parties

The Monitor shall maintain regular contact with the Parties in order to ensure effective

27

and timely communication regarding the status of Defendants’ implementation of and

28

compliance with this Order.

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f.

1
2

141.

Public Statements, Testimony, Records, and Conflicts of Interest

Except as required or authorized by the terms of this Order or the Parties acting together:

3

neither the Monitor, nor any agent, employee, or independent contractor thereof, shall

4

make any public statements, outside of statements to the Court as contemplated in this

5

Order, with regard to any act or omission of the Defendants, or their agents,

6

representatives, or employees; or disclose non-public information provided to the

7

Monitor pursuant to the Order. Any press statement made by the Monitor regarding its

8

employment or monitoring activities under this Order shall first be approved by the

9

Parties.

10

142.

Unless such conflict is waived by the Parties, the Monitor shall not accept employment or

11

provide consulting services that would present a conflict of interest with the Monitor’s

12

responsibilities under this Order, including being retained (on a paid or unpaid basis) by

13

any current or future litigant or claimant, or such litigant’s or claimant’s attorney, in

14

connection with a claim or suit against Maricopa County or its departments, Deputies,

15

agents or employees.

16

143.

The Monitor is not a state or local agency, or an agent thereof, and accordingly the

17

records maintained by the Monitor shall not be deemed public records subject to public

18

inspection.

19

144.

The Monitor shall not be liable for any claim, lawsuit, or demand arising out of the

20

Monitor’s performance pursuant to this Order.

21

g.

22

145.

Access and Confidentiality

Defendants shall ensure that the Monitor has timely, full and direct access to all

23

personnel, documents, facilities and Order-related Trainings and meetings that the

24

Monitor reasonably deems necessary to carry out its duties. The Monitor shall cooperate

25

with the Defendants to access people and facilities in a reasonable manner that, consistent

26

with the Monitor’s responsibilities, minimizes interference with daily operations. To

27

facilitate his or her monitoring responsibilities, the Monitor may conduct On-Site

28
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1

Observations, visits and assessments without prior notice to the Defendants absent

2

Exigent Circumstances.

3

146.

Defendants may withhold from the Monitor any documents or data protected by the

4

attorney-client privilege. Should the Defendants decline to provide the Monitor access to

5

documents or data based on attorney-client privilege, the Defendants shall inform the

6

Monitor and Plaintiffs that it is withholding documents or data on this basis and shall

7

provide the Monitor and Plaintiffs with a log describing the documents or data.

8

147.

Defendants shall ensure that Plaintiffs’ representatives and their consultative experts and
agents shall have full and direct access to all Defendants’ staff, employees, facilities,

9
10

documents and data relevant to this Order upon reasonable notice. Plaintiffs’

11

representatives and their consultative experts and agents shall cooperate with the

12

Defendants to access involved personnel, facilities, and documents in a reasonable

13

manner that, consistent with Plaintiffs’ responsibilities to enforce this Order, minimizes

14

interference with regular duties.

15

148.

The Monitor and Plaintiffs shall provide the Defendants with reasonable notice of a

16

request for copies of documents. Upon such request, the Defendants shall provide in a

17

timely manner copies (electronic, where readily available) of the requested documents.

18

149.

The Monitor shall have access to all records and information relating to criminal

19

investigations relevant to this Order as permissible by law. The Monitor shall treat such

20

records as confidential and shall not disclose the same to any third party. The Monitor

21

and Plaintiffs shall have access to all documents in concluded or closed MCSO criminal

22

investigation files. The Monitor shall also have reasonable access to all arrest reports,

23

warrants, and warrant applications whether or not contained in open criminal

24

investigation files absent Exigent Circumstances.

25

150.

The Parties may make use of protective orders or agreements to ensure the confidentiality

26

of any non-public information as appropriate and necessary. Other than as expressly

27

provided herein, this Order shall not be deemed a waiver of any privilege or right the

28

Defendants may assert, including those recognized at common law or created by statute,

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1

rule or regulation, against any other person or entity with respect to the disclosure of any

2

document.

3

h.

4

151.

Modification and Enforcement of the Order

Where the Parties agree with the Monitor’s recommendations to change a provision of

5

the Order, the Parties may apply to the Court via stipulated Motion or other appropriate

6

filing to make the desired change.

7

152.

Plaintiffs’ representatives may seek enforcement of this Order if they determine that the

8

Defendants have failed to fully comply with any provision contained herein. Plaintiffs’

9

representatives are not required to prove that the MCSO is engaged in racial profiling in

10

order for the Court to find that Defendants have failed to fully comply. Plaintiffs may

11

demonstrate that the MCSO has failed to fulfill a particular obligation under this Order or

12

failed to make sustained and continuing progress on applicable performance-based

13

metrics.

14

153.

The Parties shall first attempt to resolve any dispute informally by notification and

15

conferral. If a dispute cannot be resolved informally, Plaintiffs’ representatives may

16

apply to the Court for appropriate relief, up to and including the imposition of contempt

17

sanctions. Interventions short of an imposition of contempt sanctions may include, but are

18

not limited to, additional oversight, further restrictions on agency activities, and

19

additional Training or reporting requirements.

20

154.

Defendants may move the Court for a protective order and/or other appropriate relief if

21

they reasonably believe Plaintiffs’ representative is abusing its rights under this Order or

22

acting solely to annoy or harass Defendants. Prior to moving for any such protective

23

order or other relief, Defendants shall be required to provide Plaintiffs with notice of their

24

intent to do so and shall confer with Plaintiffs in good faith to resolve any such dispute.

25

155.

The Parties shall notify each other of any court or administrative challenge to this Order.

26

In the event any provision of this Order is challenged in any local or state court, removal

27

to a federal court shall be sought by the Parties and transfer of venue to this District will

28

be sought.

- 57 -

1

156.

The Defendants agree to promptly notify Plaintiffs if any term of this Order becomes

2

subject to collective bargaining consultation and to consult with Plaintiffs in a timely

3

manner regarding the implications of any collective bargaining consultation in relation to

4

this Order.

5

157.

Defendants shall pay reasonable fees and costs incurred as a result of having to initiate

6

litigation to secure enforcement, should Plaintiffs prevail in such litigation. Nothing in

7

this provision affects the right of Plaintiffs to seek fees and costs for work performed in

8

the case prior to the Effective Date or in connection with any appeal taken by Defendants

9

of the Court’s May 24, 2013 Findings of Fact, Conclusions of Law and Order.

10

158.

Defendants reserve the right to move the Court to alter, amend, modify, or terminate this

11

Order at any time based on an adverse decision of an appellate court of competent

12

jurisdiction ruling on the Court’s Order dated December 23, 2011 and its Findings of

13

Fact, Conclusions of Law, and Order dated May 24, 2013.

14

159.

Nothing in this Section, nor in this Order is intended to, nor shall, constitute a waiver,

15

termination, abrogation, or ending of the appeal rights of the Defendants to challenge the

16

Court’s Order dated December 23, 2011 and its Findings of Fact, Conclusions of Law,

17

and Order dated May 24, 2013.

18

IT IS THEREFORE ORDERED that the Court’s injunction of December 23, 2011 is

19

made permanent. The Court’s injunction of May 24, 2013 shall remain permanent. For removal

20

of doubt, both the December 23, 2011 injunction and the May 24, 2013 injunction shall survive

21

the termination of this Order until and unless specifically dissolved or modified by the Court or

22

an appellate court of competent jurisdiction.
IT IS FURTHER ORDERED that this Order is an appealable final judgment. The Clerk

23
24

of Court is directed to enter judgment accordingly.

25

///

26

///

27

///

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1
2
3

IT IS FURTHER ORDERED that this Court retains jurisdiction over this case for the
purposes of implementing this Order.

Dated this 2nd day of October, 2013.

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