United States of America v. Maricopa, County of et al

Filing 18

MOTION for Summary Judgment by United States of America. (Aminfar, Amin)

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Thomas E. Perez Assistant Attorney General Dennis K. Burke United States Attorney Roy L. Austin, Jr. (IL Bar #6228785) Matthew Colangelo (NY Bar #4228797) Peter S. Gray (DC Bar #940031) Laurie A. Gelman (VA Bar #47743) Amin Aminfar (NC Bar #36589) U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (ph) 202-514-6225 / (fax) 202-514-4883 (email) [e-mail] Michael M. Walker (AZ Bar #20315) Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 (ph) 602-514-7500 / (fax) 602-514-7760 (email) [e-mail] Attorneys for the United States UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Maricopa County, Arizona; Maricopa County Sheriff's Office; and Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona, Defendants.

No. 2:10-cv-01878-LOA PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Plaintiff United States, by its undersigned counsel, moves for summary judgment on its prayer that Defendants be ordered to provide access to sources of information as required by Title VI of the Civil Rights Act of 1964, the Title VI implementing regulations issued by the Department of Justice, and related contractual assurances. 1

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This motion is predicated on Rule 56 of the Federal Rules of Civil Procedure, and is supported by the memorandum of points and authorities below, Plaintiff's Rule 56.1(a) statement of facts, the Declaration of Peter S. Gray and the exhibits attached thereto, and the record in this action. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff United States respectfully submits this memorandum of points and authorities in support of its motion for summary judgment. INTRODUCTION In accordance with settled law, the United States seeks immediate access to documents, staff, and facilities that have been unlawfully withheld by Defendants Maricopa County, the Maricopa County Sheriff's Office ("MCSO"), and Sheriff Joseph M. Arpaio. As described in this memorandum, there is no dispute as to any material fact and the United States is entitled to judgment as a matter of law. Title VI of the Civil Rights Act of 1964 prohibits recipients of federal financial assistance from discriminating against any person on the ground of race or national origin. As one means of ensuring that this mandate is satisfied, DOJ's Title VI regulations provide that every federal fund recipient "shall permit access" to such "sources of information, and its facilities, as may be pertinent to ascertain compliance" with the law. 28 C.F.R. § 42.106(c). The Ninth Circuit has long made clear that these requirements give the United States "substantial latitude in scrutinizing policies and practices" of federal fund recipients. United States v. El Camino Cmty. Coll. Dist., 600 F.2d 1258, 1259-60 (9th Cir. 1979). See infra Part II.A. Defendants are subject to Title VI because they have accepted millions of dollars from the United States Department of Justice ("DOJ") for their programs and activities. See infra Part II.B. Defendants also signed a contract for each grant of federal funds from DOJ, expressly agreeing that they will comply with Title VI and its access requirements. See infra Part II.C. Pursuant to these requirements, the United States has, since March 2009, sought Defendants' voluntary cooperation with an 2

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investigation of alleged national origin discrimination in MCSO's police practices and jail operations. Yet, despite their clear obligations and express contractual promises, Defendants MCSO and Arpaio have refused to allow the United States to review their federally-funded programs for compliance with the law. And although Defendant Maricopa County agrees with the United States that Defendants are obligated to cooperate, the County has not been able to provide access to MCSO's documents, facilities, or staff. See infra Part II.D. Transparent administration of MCSO's police practices and jail operations is critical to the United States' obligation to ensure that public funds are not being used to finance illegal racial discrimination. In his message to Congress proposing the enactment of Title VI, President Kennedy explained: "Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, or results in racial discrimination." Civil Rights and Job Opportunities--Message from the President, 109 Cong. Rec. 11,156, 11,161 (1963), reprinted in 1963 U.S.C.C.A.N. 1526, 1534. obstruct reasonable review of their activities. To allow the United States to ensure that no person is being subjected to unlawful discrimination by MCSO, the United States requests that the Court enter declaratory and injunctive relief directing Defendants to produce all requested documents and allow access to all requested staff and facilities within thirty days (as identified in the Statement of Facts and accompanying exhibits), and to comply promptly with all future requests for access. See infra Part II.D; SOF ¶¶ 36-39, 72.1 BACKGROUND In June 2008, the United States, through the DOJ Civil Rights Division, opened a preliminary inquiry into allegations that MCSO was engaged in a pattern or practice of All references in this Memorandum to "SOF ¶ __" are to the Plaintiff's Statement of Undisputed Facts filed herewith pursuant to Local Civil Rule 56.1(a). 3
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This objective cannot be

achieved if recipients of federal funds evade their accountability obligations and

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discriminatory law enforcement. First Am. Compl. ¶ 22. On March 10, 2009, the United States notified Defendants that DOJ was initiating an investigation regarding alleged discrimination in MCSO's police practices and jail operations. SOF ¶ 34. Shortly thereafter, the United States sought an initial production of documents covering the period from January 1, 2007, to the date of production (the "First Request"); and separately met with Defendants to explain that its investigation would involve document review, tours of MCSO facilities, and interviews with MCSO staff and jail inmates. SOF ¶¶ 35-41. After an initial agreement to cooperate and the production of eleven pages of records, SOF ¶¶ 43-46, MCSO reversed course. SOF ¶¶ 47-49. In a letter to the Attorney General on May 29, 2009, MCSO informed the United States that it would not cooperate with the investigation. SOF ¶ 47. And on July 7, 2009, Defendant Arpaio held a press conference to announce publicly that MCSO would not cooperate with the United States' investigation. SOF ¶ 49. Over a month later, in August 2009, MCSO advised that it would consider limited cooperation by preparing a partial "position paper . . . relating to the limited English proficiency (LEP) policy in the jails." SOF ¶ 51. MCSO advised that it would produce its partial position paper by October 2009, and asked the United States to "[p]lease confirm that this timeline is acceptable to you." SOF ¶ 52. The United States responded that "[g]iven the MCSO's failure to comply with the prior agreed upon timeline and its failure to provide us with access to documents and persons with relevant information, we cannot agree to a further extension until October [2009]. We respectfully request that the MCSO submit its position statement and answers to the questions no later than August 21, [2009,] and that we be allowed access to MCSO facilities to review documents and interview MCSO personnel and inmates as soon as possible." SOF ¶ 55. Despite this exchange, MCSO did not produce any information in August 2009, or in October 2009; MCSO did not produce any further information at all until it 4

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submitted a partial position paper to the United States in June 2010. SOF ¶¶ 51-57. This production fell far short of access to all of the information the United States sought: it addressed only allegations regarding the LEP policy in MCSO's jails while saying nothing at all about the allegations of discriminatory police practices; it did not agree to permit access to the requested staff and facilities; and the production of documents was responsive to only two of the fifty-one requests in the First Request. SOF ¶¶ 58-59. Accordingly, on August 3, 2010, the United States notified Defendants that absent voluntary cooperation within two weeks, the United States would commence litigation to compel access to all of the requested information. SOF ¶ 60. In a further exchange of detailed correspondence, the United States made clear that efforts to foreclose progress on the investigation by offering only limited cooperation would not be acceptable: "MCSO cannot contend that it is voluntarily complying with the Department's investigation by choosing a selective portion of the investigation as to which it will provide a partial and dilatory response, while steadfastly continuing to refuse to produce the vast majority of the requested documents or to permit access to any relevant facilities or personnel." SOF ¶ 62. After a meet-and-confer held at MCSO's request, MCSO advised the United States on August 27, 2010, that it would not provide access to the vast majority of the requested sources of information. SOF ¶¶ 72-73. The United States notified Defendants on September 2 that they were not in compliance with Title VI, its implementing regulations, and the related assurance agreements. SOF ¶ 74. This lawsuit followed. ARGUMENT I. Review of Defendants' noncompliance with Title VI is proper in this Court. First, this matter is properly before this Court. Title VI directs agencies to adopt regulations that effectuate its requirements, and provides that "[c]ompliance with any requirement adopted pursuant to this section may be effected . . . by any other means 5

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authorized by law." 42 U.S.C. § 2000d-1. The Title VI implementing regulations specify that the "other means authorized by law" include "[a]ppropriate proceedings brought by the Department to enforce any rights of the United States under any law of the United States . . . or any assurance or other contractual undertaking." 28 C.F.R. § 42.108(a)(1); see also Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 603 n.24 (1983) (noting that "the Federal Government can always sue any recipient who fails to comply with the terms of the grant agreement" under Title VI) (opinion of White, J.). In addition, any prerequisites to suit have been met. Judicial action to effect compliance with the Title VI regulations may be sought after "(1) [t]he responsible Department official has determined that compliance cannot be secured by voluntary means, (2) [t]he action has been approved by the Attorney General,2 and (3) [t]he recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance." 28 C.F.R. § 42.108(d); see also 42 U.S.C. § 2000d-1. As set out in detail in the accompanying Statement of Facts, the United States undertook exhaustive efforts to secure Defendants' voluntary compliance with its investigation, including efforts spanning more than a year after Defendants MCSO and Sheriff Arpaio held a press conference to announce publicly that they would not cooperate with the United States. See generally SOF ¶¶ 34-73. On September 2, 2010, after a final meet-and-confer failed to secure MCSO's full cooperation, the United States notified Defendants pursuant to 42 U.S.C. § 2000d-1 and 28 C.F.R. § 42.108(d) that MCSO had failed to comply, that the United States had determined that compliance could not be secured by voluntary means, and that this lawsuit would follow. SOF ¶ 74. All administrative requirements have therefore been satisfied. This function is delegated to the Assistant Attorney General for Civil Rights. See 28 C.F.R. § 0.50 ("The following functions are assigned to . . . the Assistant Attorney General, Civil Rights Division: (a) Enforcement of all Federal statutes affecting civil rights . . . and authorization of litigation in such enforcement . . . ."); see also 28 C.F.R. § 42.112(c). 6
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II.

There is no dispute of fact that Defendants' failure to provide the United States with access to the requested documents, staff, and facilities violates Title VI, the implementing regulations, and related contractual assurances. A party is entitled to summary judgment if "there is no genuine issue as to any

material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). As described below, there is no material dispute that the United States is entitled to investigate the use of its funds by Defendants through access to those documents, staff, and facilities that the United States has determined would aid in that investigation. First, the Title VI regulations and related contractual assurances compel federal fund recipients to provide access to pertinent sources of information within the United States' broad discretion. See infra Part II.A. Second, there is no dispute of fact that Defendants are recipients of federal financial assistance, and are therefore bound by the Title VI access regulations and assurance agreements. See infra Parts II.B and II.C. Third, there is no dispute that Defendants have unlawfully failed or refused to provide access to the sources of information that the United States determined were pertinent to ascertain compliance with Title VI. See infra Part II.D. The United States is therefore entitled to judgment as a matter of law. A. Title VI requires accountability for public funds by allowing DOJ to access all sources of information that may be pertinent to determine compliance with the law.

Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. DOJ has issued regulations to implement the statute. See 42 U.S.C. § 2000d-1; 28 C.F.R. §§ 42.101 to 42.112. Among other obligations, the Title VI regulations require "[a]ccess to sources of information" to permit the United States to ensure that all non-discrimination requirements are being met. 28 C.F.R. § 42.106(c). The access regulations provide that "[e]ach recipient shall permit access by the responsible Department official . . . to such of its books, records, accounts, and other sources of information, and its facilities, 7

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as may be pertinent to ascertain compliance" with Title VI and the implementing regulations.3 Id. (emphasis added). The regulations also require that "[e]ach recipient shall keep such records and submit to the responsible Department official or his designee timely, complete, and accurate compliance reports at such times, and in such form and containing such information, as the responsible Department official or his designee may determine to be necessary to . . . ascertain whether the recipient has complied or is complying with this subpart." Id. § 42.106(b). These regulations permit the United States to exercise broad discretion in determining what sources of information "may be pertinent" to ascertain compliance with Title VI. The Ninth Circuit has held that "[i]n exercising its investigatory powers" under Title VI, a federal agency "must have substantial latitude in scrutinizing policies and practices of the institution" for possible discrimination. El Camino, 600 F.2d at 1259-60 (applying the identical Title VI access regulation promulgated by the Department of Health, Education, and Welfare). Federal grant recipients are bound to comply with the Title VI access The obligation to provide access to pertinent sources of information is not unique to DOJ, but rather is a universal feature of the federal grant-making system. Every single federal agency that has promulgated Title VI regulations includes requirements that are identical or substantially similar to those in the DOJ access regulation. See 7 C.F.R. § 15.5(c) (Dep't of Agric.); 22 C.F.R. § 209.6(c) (Agency for Int'l Dev.); 15 C.F.R. § 8.7(c) (Dep't of Commerce); 45 C.F.R. § 1203.6(c) (Corp. for Nat'l & Cmty. Serv.); 32 C.F.R. § 195.7(c) (Dep't of Defense); 34 C.F.R. § 100.6(c) (Dep't of Educ.); 10 C.F.R. § 1040.89-3 (Dep't of Energy); 40 C.F.R. § 7.85 (Envtl. Protection Agency); 41 C.F.R. § 101-6.209-3 (Gen. Servs. Admin.); 45 C.F.R. § 80.6(c) (Dep't of Health & Human Servs.); 6 C.F.R. § 21.9(c) (Dep't of Homeland Sec.); 24 C.F.R. § 1.6(c) (Dep't of Hous. & Urban Dev.); 43 C.F.R. § 17.5(c) (Dep't of the Interior); 29 C.F.R. § 31.5(c) (Dep't of Labor); 14 C.F.R. § 1250.105(c) (NASA); 45 C.F.R. § 1110.6(c) (Nat'l Found. on the Arts & Humanities); 45 C.F.R. § 611.6(c) (Nat'l Sci. Found.); 10 C.F.R. § 4.33 (Nuclear Regulatory Comm'n); 5 C.F.R. § 900.406(c) (Office of Personnel Mgmt.); 13 C.F.R. § 112.9(c) (Small Bus. Admin.); 22 C.F.R. § 141.5(c) (Dep't of State); 18 C.F.R. § 1302.6(c) (Tenn. Valley Auth.); 49 C.F.R. § 21.9(c) (Dep't of Transp.); 38 C.F.R. § 18.6(c) (Dep't of Veterans Affairs); 18 C.F.R. § 705.6(c) (Water Resources Council). 8
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requirements not only by regulation but also by contract. The Title VI regulations require that every application for federal financial assistance "shall, as a condition to its approval . . . , contain or be accompanied by an assurance that the program will be conducted . . . in compliance with all requirements imposed by or pursuant to this subpart." 28 C.F.R. § 42.105(a)(1). The Ninth Circuit has long held that the United States may enforce its rights under both the Title VI access regulations and related assurance agreements to compel access to pertinent documents, staff, and facilities when evaluating compliance with a recipient's non-discrimination obligations. In United States v. Phoenix Union High School District, 681 F.2d 1235 (9th Cir. 1982), the United States Department of Education sought access to school district records in order to determine whether the school district was complying with Title VI in its student assignment policies. Id. at 1236-37. Noting the "congressionally mandated duty to investigate whether public programs receiving federal funds are complying with Title VI," id. at 1238, the Ninth Circuit held that both the Title VI access regulation,4 and the contractual assurance that the school district had signed agreeing to comply with that regulation, "place[] a clear responsibility on the School District to cooperate with the Department of Education's investigation to determine whether the School District is complying with the requirements of Title VI." Id. at 1237. The Ninth Circuit reached the same outcome in El Camino, compelling the defendant to comply with requests for access to information from the Department of Health, Education, and Welfare under that Department's Title VI regulations, and noting that "we cannot excuse the College for its failure to comply with the regulations that it accepted in obtaining federal funding." 600 F.2d at 1259-60. Every other court to consider the question has likewise concluded that the United The section of the Department of Education's Title VI regulation on which the Ninth Circuit relied in Phoenix is identical to the corresponding DOJ regulation at issue in this case. Compare 34 C.F.R. § 100.6(c), with 28 C.F.R. § 42.106(c). 9
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States may enforce its Title VI regulations (and regulations that implement related statutes prohibiting discrimination in federally-funded programs) to compel access to pertinent information. In United States v. County of Fairfax, for example, the United States alleged employment discrimination by Fairfax County in violation of the Safe Streets Act5 and Title VII. 629 F.2d 932, 935-36 (4th Cir. 1980). The United States also alleged that Fairfax County "had refused to supply the Department of Justice with data necessary to a determination of whether the County was in compliance with the non-discrimination provisions of . . . the [Safe Streets Act] and the regulations promulgated thereunder." Id. at 936 & n.3 (citing 28 C.F.R. § 42.106); see also United States v. County of Fairfax, 19 Fair Empl. Prac. Cas. (BNA) 753, 754-55 (E.D. Va. 1979) (citing 28 C.F.R. § 42.207). The district court held both that the County was required to maintain records needed to ascertain compliance with its nondiscrimination obligations, and that "the refusal of the County to supply the Department of Justice with the information it requested was in error." County of Fairfax, 19 Fair Empl. Prac. Cas. (BNA) at 75. On appeal, the Fourth Circuit directed that the district court amend its remedial order to include prospective relief to ensure the United States' ability to access pertinent information, holding that "[i]n granting injunctive relief, [the district court] should both have required compliance with the record keeping and disclosure requirements of existing law, and imposed requirements for periodic reports to enable it to monitor compliance with the decree." County of Fairfax, 629 F.2d at 941-42 & n.11. Other courts have reached the same result. See, e.g., Freeman v. Cavazos, 939 The non-discrimination provision of the Safe Streets Act is modeled on Title VI and prohibits discrimination on the basis of race, national origin, or other protected grounds "in connection with any programs or activity funded . . . with funds made available under this chapter." 42 U.S.C. § 3789d(c)(1). The Safe Streets Act implementing regulations contain an access requirement analogous to that in the Title VI regulations, which provides: "Each recipient shall . . . [p]ermit reasonable access . . . to its books, documents, papers, and records, to the extent necessary to determine whether the recipient is complying with" the statute. 28 C.F.R. § 42.207(a)(2). 10
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F.2d 1527, 1531 (11th Cir. 1991) (holding that the DeKalb County School District was required to comply with Department of Education regulations requiring cooperation with a Title VI and Section 504 investigation); United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1040-41 (5th Cir. 1984) (applying regulations issued by the Department of Health and Human Services under Section 504, which incorporate the Title VI access requirements, and holding that the defendant "must allow [HHS] access to the facility and information requested for the purposes of investigating a complaint of discrimination on the basis of handicap"); cf. Lopez v. Metro. Gov't of Nashville, 594 F. Supp. 2d 862, 867 (M.D. Tenn. 2009) (relying on the DOJ and Department of Education implementing regulations for Title IX, which expressly incorporate the Title VI regulations of both agencies, and holding that "[i]t would be anomalous to charge the United States with enforcement of Title IX but, at the same time, preclude it from obtaining information relevant to its enforcement responsibilities"). B. There is no dispute of fact that Defendants are subject to Title VI and its implementing regulations as recipients of federal financial assistance from DOJ.

There is no dispute of fact that Defendants are subject to the broad access requirements in the Title VI regulations. At all times relevant to this enforcement action, Defendants have been recipients of federal financial assistance from DOJ. The DOJ Office of Justice Programs ("OJP"), Bureau of Justice Assistance ("BJA"), administers federal grant programs that provide funding to state, local, territorial, and tribal criminal justice systems, including law enforcement agencies. SOF ¶ 1. Since 2008, Maricopa County has received over $13.5 million in federal funds through three grants from OJP, each of which is currently open. SOF ¶¶ 2-9. In applying for each of these grants, the County stated that it would provide sub-awards to MCSO for specific law enforcement purposes. SOF ¶¶ 4, 6, 8. The DOJ Office of Community Oriented Policing Services ("COPS") advances the practice of community oriented policing by administering grant programs that fund 11

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state, local, and tribal law enforcement agencies. SOF ¶ 10. In 2007, MCSO was awarded a grant of $449,999 from COPS. SOF ¶ 11. This COPS grant is currently open, and MCSO has drawn down funds from this grant. SOF ¶¶ 12-13. In addition, the DOJ Criminal Division, Asset Forfeiture and Money Laundering Section ("AFMLS") administers the DOJ Equitable Sharing Program. SOF ¶ 14. Through the Equitable Sharing Program, the Attorney General transfers a share of forfeited property and proceeds to state and local law enforcement agencies that directly participate in an investigation or prosecution that results in a federal forfeiture. Id. MCSO participates in the Equitable Sharing Program and, since July 1, 2006, has received over $550,000 into the equitable sharing account it maintains through AFMLS. SOF ¶¶ 15-21. The grant funds that Maricopa County and MCSO have received through OJP, COPS, and the Equitable Sharing Program constitute federal financial assistance under Title VI. See 28 C.F.R. § 42.102(c). Maricopa County and MCSO are both recipients of this federal financial assistance. See 28 C.F.R. § 42.102(f) (defining "recipient" to mean any political subdivision "to whom Federal financial assistance is extended, directly or through another recipient"); SOF ¶¶ 1-21. There is therefore no dispute of fact that, as recipients of federal financial assistance through OJP, COPS, and the Equitable Sharing Program, Maricopa County and MCSO are subject to Title VI and its implementing regulations in their federally-funded programs or activities. C. Defendants signed contractual assurances in which they agreed to comply with Title VI and with all requirements imposed pursuant to the DOJ regulations.

In addition to being subject to Title VI and its implementing regulations as recipients of federal financial assistance, there is no dispute of fact that Defendants are contractually bound by the assurance agreements that they signed each time they applied for federal grant funds. 1. OJP contractual assurances. For each of the three OJP grants that Maricopa County has received since 2008 and that is currently open, the County certified that it 12

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would comply with the requirements listed in the OJP Standard Assurances. SOF ¶¶ 2-9, 22. By agreeing to the OJP Standard Assurances, the County agreed in broad terms that it "hereby assures and certifies compliance with all applicable Federal statutes, regulations, policies, guidelines, and requirements . . . ." SOF ¶ 23. In addition to this broad assurance, the County also specifically certified that "[i]t will comply with all lawful requirements imposed by the awarding agency, specifically including any applicable regulations, such as [the DOJ Title VI regulations at] 28 C.F.R. [part] 42 . . . ." SOF ¶ 24. MCSO is bound by the assurances that the County signed as to grants for which MCSO received sub-awards. See 28 C.F.R. § 42.105(b); SOF ¶¶ 4, 6, 8. 2. COPS contractual assurances. MCSO also signed contractual assurances that it would comply with its obligations under Title VI. As a condition of receiving its COPS grant in 2007, MCSO certified that it would "abide by the grant terms and conditions as outlined in the [COPS] Assurances and Certifications." SOF ¶¶ 25-27. In agreeing to abide by the COPS Assurances, MCSO agreed that "it will comply with all legal and administrative requirements that govern the applicant for acceptance and use of federal grant funds." SOF ¶ 28. In addition to this broad assurance, MCSO agreed in particular that "[i]t will comply with all requirements imposed by the Department of Justice as a condition or administrative requirement of the grant, . . . and with all other applicable program requirements, laws, orders, regulations, or circulars." SOF ¶ 29. The COPS Assurances further specify, and MCSO agreed, that the civil rights requirements with which it would comply include those contained in 28 C.F.R. Part 42, Subpart C (which contains the DOJ Title VI regulations). Id. 3. Equitable Sharing Program contractual assurances. In addition, MCSO is bound by the contractual assurances it signed as a participant in the DOJ Equitable Sharing Program. In order to participate in the Equitable Sharing Program, law enforcement agencies must annually complete an Equitable Sharing Agreement and Certification form, and submit a signed affidavit. SOF ¶ 30. For each year within the 13

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scope of the United States' First Request, from 2007 through the present, MCSO submitted an Equitable Sharing Agreement and signed affidavit that enabled it to be recertified as a participant in the Equitable Sharing Program. SOF ¶¶ 30-33. The Equitable Sharing Agreement was accompanied by instructions providing that "[a]gencies receiving assistance are required to permit DOJ investigators access to records and any other sources of information as may be necessary to determine compliance with civil rights laws." SOF ¶ 31. And each annual affidavit certified that MCSO "is in compliance with the nondiscrimination requirements of [Title VI] and [its] Department of Justice implementing regulations." SOF ¶¶ 31-33. There is no dispute of fact that these contractual assurances ­ agreed to as an express condition of receiving OJP, COPS, and Equitable Sharing Program funds ­ require that Defendants comply with the Title VI regulations. See, e.g., Lau v. Nichols, 414 U.S. 563, 568-69 (1974) ("Respondent school district contractually agreed to `comply with Title VI . . . and all requirements imposed by or pursuant to the Regulation' of HEW. . . . The Federal Government has the power to fix the terms on which its money allotments to the States shall be disbursed."). D. There is no dispute of fact that Defendants have refused to provide the requested access, and the United States is therefore entitled to injunctive relief as a matter of law.

As recipients of federal financial assistance, Defendants are bound to comply with the access requirements in the Title VI regulations and related assurances. There is no dispute of fact that MCSO has refused to permit access to pertinent sources of information that DOJ has requested to determine compliance with Title VI. MCSO informed the United States by letter to the Attorney General in May 2009 that it would not cooperate with this investigation, and MCSO held a press conference in July 2009 to state its position publicly. SOF ¶¶ 47, 49. Although MCSO produced limited documents nearly a year later, in June 2010, MCSO then made clear once again that it would not cooperate in full with the United States' investigation. SOF ¶¶ 57-73. On August 27, 2010, MCSO advised the United States that, although it would not 14

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identify specific requests to which it was objecting, "[w]e . . . certainly did not agree that every document DOJ requested is required to be produced in a Title VI investigation." SOF ¶ 73. As to the production of those unspecified documents that it would agree to disclose, MCSO advised that it would not agree to any deadline at all. Id. ("[W]e did not agree to a September 10, 2010 deadline at our meeting, and we cannot agree to one now. . . . We can advise you of timing more specifically as matters progress."). Nor did MCSO agree to provide access by a date certain to the specific staff and facilities the United States requested. SOF ¶ 73. MCSO's obligation under the law is to provide such access as "may be pertinent to ascertain compliance" with Title VI. § 42.106(b). 28 C.F.R. § 42.106(c); see also id. MCSO is not entitled to determine unilaterally what access it will

provide, nor may it refuse all reasonable deadlines after eighteen months of attempts by the United States to secure access. See El Camino, 600 F.2d at 1260; see also Baylor, 736 F.2d at 1040-41, 1050 (directing the defendant to allow the United States access to the facility and information requested within thirty days); County of Fairfax, 629 F.2d at 941-42 & n.11 (holding that the district court abused its discretion in failing to compel the defendant to submit scheduled compliance reports). Moreover, Defendant Maricopa County has itself agreed that MCSO's response violates the Title VI requirements, and instructed MCSO to provide access to the information that the United States seeks. SOF ¶ 64. MCSO, however, has refused to comply with the County's instruction. SOF ¶ 65. There is no genuine dispute of fact that MCSO has refused to provide the requested access, and Maricopa County has not secured MCSO's compliance. MCSO has raised a number of objections to the United States' request, but none of those objections excuse its failure to comply with the law. First, MCSO has contended that its obligation to cooperate with the United States' investigation may be satisfied in part by documents it has already produced in the lawsuit captioned Melendres v. Arpaio, No. 2:07-cv-02513-PHX-GMS (D. Ariz.). See SOF ¶ 73. Even 15

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assuming that the Melendres document production ­ which was subject to the scope and limitation requirements of Fed. R. Civ. P. 26(b) rather than the broader Title VI access regulations ­ could satisfy some part of the Defendants' obligation in this case, MCSO itself has acknowledged that its Melendres production is partially responsive to only eleven of the United States' fifty-one document requests. SOF ¶ 73. And the Melendres document production of course does not satisfy Defendants' obligation to allow pertinent staff interviews and facility tours. Second, MCSO has argued that an unspecified portion of the United States' request is unrelated to allegations of national origin discrimination. SOF ¶ 70. This determination is not MCSO's to make, see 28 C.F.R. §§ 42.106(b), (c); and is in any case incorrect. All of the items sought in the First Request seek information regarding MCSO's operations that "may be pertinent to ascertain compliance" with Title VI, as permitted by 28 C.F.R. § 42.106(c).6 See SOF ¶ 71. As a large law enforcement agency, MCSO engages in numerous activities that may implicate Title VI, and the United States is obliged to understand these operations thoroughly in order to make an adequate Title VI assessment. The inability to access and review all of the policies and procedures informing an officer's actions, for example, could risk an incorrect assessment of those actions. Indeed, the Title VI regulations expressly authorize the types of requests made here: "The investigation should include, whenever appropriate, a review of the pertinent practices and policies of the recipient, the circumstances

The First Request is divided into six categories of requested records. SOF ¶ 39. The first three categories ­ "organizational structure and general information," "policies, procedures, and related materials," and "training" ­ are pertinent to determining whether any evidence of national origin discrimination is part of an official or unofficial policy. See id. The fourth and fifth categories ­ "incident reports, complaints, and investigations," and "accountability" ­ are pertinent to determining whether MCSO's police practices and complaint responses comply with the Title VI non-discrimination requirements. See id. The final category, "limited English proficiency," is pertinent to determining whether MCSO's jail practices discriminate on the basis of national origin. See id. 16

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under which the possible noncompliance . . . occurred, and other factors relevant to a determination . . . ." 28 C.F.R. § 42.107(c). All items listed in the First Request fall well within the "substantial latitude" that the United States possesses in exercising its Title VI investigative powers. El Camino, 600 F.2d at 1260. Nor can MCSO contend that some portion of its operations is exempt from Title VI review. By the terms of the statute, the entirety of MCSO's operations may be examined for compliance with Title VI. See 42 U.S.C. § 2000d (prohibiting discrimination in "any program or activity" that receives federal financial assistance); id. § 2000d-4a(1)(A) ("[T]he term `program or activity' and the term `program' mean all of the operations of . . . a department, agency, special purpose district, or other instrumentality of a State or of a local government." (emphasis added)). Because there is no dispute of fact that Defendants have failed to provide access to sources of information that are pertinent to ascertain compliance with Title VI, the United States is entitled to judgment as a matter of law. The United States requests that the Court direct Defendants to comply within thirty days by responding in full to the First Request and by allowing access to the staff and facilities set out in the United States' August 25, 2010, letter to MCSO. SOF ¶ 36-39, 72. This timeframe is more than reasonable, especially in an investigation already pending for eighteen months. Cf. Baylor, 736 F.2d at 1040-41, 1050. CONCLUSION Plaintiff respectfully requests that this Court grant Plaintiff's Motion for Summary Judgment and compel Defendants to provide immediate access to the requested documents, staff, and facilities. Plaintiff also requests that this Court enjoin Defendants to comply with all future requests that may be pertinent to Plaintiff's investigation of alleged national origin discrimination in MCSO's police practices and jail operations.

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Dated: September 13, 2010

Respectfully submitted, Thomas E. Perez Assistant Attorney General Dennis K. Burke United States Attorney /s/ Amin Aminfar Roy L. Austin, Jr. (IL Bar #6228785) Matthew Colangelo (NY Bar #4228797) Peter S. Gray (DC Bar #940031) Laurie A. Gelman (VA Bar #47743) Amin Aminfar (NC Bar #36589) U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (ph) 202-514-6255 / (fax) 202-514-4883 (email) [e-mail] Michael M. Walker (AZ Bar #20315) Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 (ph) 602-514-7500 / (fax) 602-514-7760 (email) [e-mail] Attorneys for the United States

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