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

Filing 41

STATEMENT of of Facts in Support of their Response to Plaintiff's Motion for Summary Judgment by Defendants Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Index and Exhibits 1-4, # 2 Exhibit 5, # 3 Exhibits 6-8, # 4 Exhibits 9-18, # 5 Exhibits 19-22)(Popolizio, Joseph)

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

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William R. Jones, Jr., Bar #001481 John T. Masterson, Bar #007447 Joseph J. Popolizio, Bar #017434 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: [phone] Fax: [phone] w j o n e s @ j s h f i r m .c o m [e-mail] [e-mail] Attorneys for Defendants Maricopa County Sheriff's Office and Joseph M. Arpaio 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. Defendants, through counsel undersigned, submit their Separate Statement of Facts in Response to Plaintiff's Motion for Summary Judgment. 1. On March 10, 2009, the United States Department of Justice ("DOJ") NO. CV10-01878-PHX-GMS DEFENDANTS' SEPARATE STATEMENT OF FACTS IN SUPPORT OF RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

initiated an investigation of the MCSO in accordance with the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. §14141("§14141") and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. §3789d ("Safe Streets Act"), and the National Origin Component of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§2000d-2000d-7 ("Title VI") of the Safe Streets Act, 42 U.S.C. §3789d(c). (See Ex. 1 ­ U.S. Department of Justice letter dated March 10, 2009 and PSOF Ex. 29)
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2.

As stated in its opening letter, the DOJ was investigating "alleged

patterns and practices of discriminatory police practices and unconstitutional searches and seizures conducted by the MCSO, and on allegations of national origin discrimination, including failure to provide meaningful access to MCSO services for limited English proficient ("LEP") individuals." (Id.) 3. On March 25, 2009, Merrily A. Friedlander, Chief of the

Coordination and Review Section ("COR") of the Civil Rights Division ("CRD") sent the Maricopa County Attorney's Office ("MCAO") a follow up letter wherein she explained that the COR was the DOJ section which investigated Title VI complaints. (See Ex. 2 ­ Merrily A. Friedlander letter dated March 25, 2009 and PSOF Ex. 32) 4. In this March 25, 2009 letter, Ms. Friedlander explained that the

investigation of MCSO stemmed from a "complaint alleging discrimination on the basis of national origin (Hispanic) by the Maricopa County Sheriff's Office (MCSO) in the operation of its jail facilities." (Id.) 5. The referenced allegation specifically described the alleged lack of a

language assistance policy for LEP inmates and the existence of an alleged English only policy in the jails as the basis for the Title VI investigation. (Id.) 6. investigation. (Id.) 7. Instead, it specifically requested a response to information requested The March 25, 2009 letter did not mention a Title VI police practices

in Paragraphs 43-51 of the First Request for Documents and Information which accompanied it. (Id.) 8. All nine of these requests exclusively addressed LEP issues and were

listed under a section entitled "Limited English Proficiency." (See Ex. 3 ­ First Request for Documents and Information dated March 25, 2009 and PSOF Ex. 33) 9. On April 30, 2009, representatives of DOJ's Special Litigation

Section ("SPL") and COR met with MCAO and MCSO representatives to discuss the
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investigations and the First Request for Documents and Information. (See Ex. 23 ­ Affidavit of Clarisse McCormick, Esq.) 10. During the meeting, DOJ attorneys stated that one part of the

investigation, the police patterns and practices investigation, was being handled by SPL, while the Title VI portion of the investigation was being handled by COR. (Id.) 11. COR representatives explained that their investigation was focused

on national origin discrimination in the jail facilities and consisted of two components: investigation of the allegations of a lack of guidance and access to LEP inmates and allegations that the jail facilities had an English only policy. (Id.) 12. At no time during the April 30, 2009 meeting did COR suggest that

police practices, or any practices outside the jail facilities, were part of its Title VI investigation. (Id.) 13. Before the MCSO submitted its LEP position paper pursuant to the

First Request for Documents and Information, SPL, COR and counsel for MCSO and the Sheriff had numerous conversations pertaining to deadlines for Title VI related responses. (See Ex. 19 ­ Affidavit of Robert N. Driscoll, Esq.) 14. These conversations, however, addressed only the LEP investigation;

at no point during any conversation did COR suggest that they sought information outside of the LEP investigation. (Id.) 15. Not until August 3, 2010, when Assistant Attorney General Thomas

E. Perez sent a letter to counsel regarding the Title VI portion of the investigation, did the DOJ suggest that police practices were a component of the Title VI investigation. (Id.; see also Ex. 4 - Thomas E. Perez letter dated August 3, 2010 and PSOF Ex. 56) 16. In his August 3, 2010 letter, Mr. Perez acknowledged that MCSO had

responded to the LEP investigation, the only Title VI investigation of which the DOJ had informed MCSO. (Id.; see also Ex. 2 - Friedlander letter dated March 25, 2009 and PSOF Ex. 32)
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17.

MCSO submitted its LEP position paper in response to the LEP

investigation as requested. (See Ex. 5 - MCSO Position Statement dated June 14, 2010 and PSOF Ex. 55) 18. The position paper itself was 53 pages in length, accompanied by 85

exhibits comprising approximately 800 pages of supporting documentation. (Id.) 19. Defendants have provided and the United States has otherwise

received information and access relevant to its investigation. (See Ex. 19 - Affidavit of Robert N. Driscoll, Esq.; Ex. 20 - Affidavit of Chief Gerard Sheridan; Ex. 21 Affidavit of Lt. Ernest Alcala; and Ex. 22 - Affidavit of Sgt. James Seibert) 20. Defendants have allowed and/or offered access to MCSO staff, as

well as the MCSO jail facilities set out in the United States August 25, 2010 letter to MCSO. (Id.) 21. Defendants have also provided voluminous documentation in

response to the United States First Request for Documents and Information, despite a disagreement regarding the proper scope of the United States' investigation and the surreptitious tactics the United States employed to obtain information and documents with the use of another federal agency, the Department of Homeland Security ("DHS"). (Id.) 22. The United States initiated an investigation alleging that MCSO

discriminates on the basis of national origin (Hispanic) in the operation of its jail facilities, specifically alleging that the MCSO lacks a language assistance policy for limited English proficient (LEP) inmates. (See Amended Complaint; see also Ex. 2 ­ Friedlander letter dated March 25, 2009 and PSOF Ex. 32) 23. Despite a mention of discriminatory police practices in its initial

correspondence to Sheriff Arpaio on March 9, 2009, the DOJ sent a longer, more detailed correspondence on March 25, 2009 in which it limited the scope of its investigation of alleged national origin discrimination by the MCSO to alleged discrimination against limited English proficient inmates in the Maricopa County jails. (See Ex. 1 ­ DOJ letter
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dated March 10, 2009; see also Ex. 2 ­Friedlander letter dated March 25, 2009 and PSOF Ex. 29 and 32) 24. The March 25, 2009 letter defined the DOJ's investigation into

alleged MCSO Title VI non-compliance by referring only to a complaint regarding language discrimination against Hispanics in the operation of its jails; in that letter, however, the DOJ did not reveal that it intended to expand its investigation beyond the MCSO's operation of jail facilities and, specifically, the LEP program to MCSO's police function. It did not do so until August 2010. (See Ex. 2 ­ Friedlander letter dated March 25, 2009 and PSOF Ex. 32; see also Ex. 19 - Affidavit of Robert N. Driscoll, Esq.; Ex. 6 ­ Robert N. Driscoll, Esq. letter dated August 5, 2010 and PSOF Ex. 57; Ex. 7 ­ Robert N. Driscoll, Esq. letter dated August 13, 2010 and PSOF Ex. 61) 25. As a result, the scope of the United States' compliance

review/investigation and its First Request went far beyond what is reasonable with regard to the Title VI compliance review/investigation it defined. (Id.) 26. Accordingly, Sheriff Arpaio and previous counsel expressed concern

with a federal government investigation of MCSO that went well beyond language efficiency programs in the Maricopa County Jail System and, instead, delved into venue of MCSO law enforcement/police function--regardless of the investigation that the United States itself defined. (Id.) 27. The Sheriff and counsel were entitled to question and did question

the apparent unreasonableness of the government's probe. (Id.; see also Ex. 8 ­ Robert N. Driscoll, Esq. letter dated May 29, 2009; Ex. 9 ­ Robert N. Driscoll, Esq. letter dated June 18, 2009; and Ex. 10 ­ Robert N. Driscoll, Esq. letter dated August 27, 2010 and PSOF Ex. 66) 28. With the United States own communication defining the scope of its

investigation, the unreasonableness of the scope of the United States' request for information and investigation is clear. (Ex 2 ­ Friedlander letter dated March 25, 2009 and PSOF Ex. 32; see also Ex. 19 - Affidavit of Robert N. Driscoll, Esq.)
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29.

The MCSO questioned the propriety of the United States'

investigation and the unreasonable scope of its first request. (See Ex. 6 ­ Driscoll letter dated August 5, 2010 and PSOF Ex. 57; Ex. 19 - Affidavit of Robert N. Driscoll, Esq.; see also Ex. 8 ­Driscoll letter dated May 29, 2009; Ex. 9 ­ Driscoll letter dated June 18, 2009; and Ex. 10 ­ Driscoll letter dated August 27, 2010 and PSOF Ex. 66) 30. As a result, the United States covertly investigated the MCSO by

using the Department of Homeland Security (DHS) to obtain information and documentation that the DOJ desired, but to which it was not entitled, in this investigation. (See Ex. 8 ­ Driscoll letter dated May 29, 2009 and Ex. 19 ­ Affidavit of Robert N. Driscoll, Esq.) 31. The DOJ surreptitiously entered into a document sharing

arrangement and deceptive scheme with the DHS to obtain interviews of MCSO employees without the consent and outside the presence of counsel. (Id.) 32. The DOJ admittedly devised a plan whereby DHS would collect

MCSO documents and witness statements as a part of its routine audit of MCSO, with the understanding that the DOJ would do the same with information gathered in its investigation. (Id.) 33. Yet pursuant to MCSO counsel's inquiry, the DOJ made repeated

assurances that DHS did not have any role in DOJ's investigation. (Id.) 34. At no time did the DOJ bring their information sharing agreement

with DHS to the attention of MCSO counsel's attention. (Id.) 35. Interviews of represented MCSO individuals occurred despite the

fact that the DOJ attorneys knew that the individuals interviewed were represented by counsel and that the DOJ had not received the consent of counsel to conduct interviews, in violation of Rule 4.2(a), Arizona Rules of Professional Conduct, 4.2(a) of the District of Columbia Rules of Professional Conduct. (Id.) 36. Title VI is a funding statute that prohibits intentional race, color and
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national origin discrimination. As the United States has specifically defined it, the instant

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Title VI investigation focuses on alleged national origin discrimination in the Maricopa County Jails. (See Ex. 6 ­ Driscoll letter dated August 5, 2010 and PSOF Ex. 57; see also Ex. 19 - Affidavit of Robert N. Driscoll, Esq.) 37. Nevertheless, The United States has taken the position, that its police

practices investigation under Section 14141 falls under the umbrella of its Title VI investigation and that it had the power to compel the MCSO, Sheriff Arpaio and Maricopa County to provide it with information under Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. §14141 and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. §3789d. (Id.; see also Ex. 7 ­ Driscoll letter dated August 13, 2010 and PSOF Ex. 61) 38. Defendants disagreed with this proposition and questioned the United

States fusing of its Title VI national origin-jail investigation, with its Section 14141 investigation into MCSO's police practices. (See Ex. 6 ­ Driscoll letter dated August 5, 2010, PSOF Ex. 57; Ex. 7 ­ Driscoll letter dated August 13, 2010, PSOF Ex. 61; see also Ex. 8 ­ Driscoll letter dated May 29, 2009; Ex. 9 ­ Driscoll letter dated June 18, 2009; Ex. 10 ­ Driscoll letter dated August 27, 2010, PSOF Ex. 66; and Ex. 19 Affidavit of Robert N. Driscoll, Esq.) 39. The Title VI investigation is directed only toward the alleged national

origin discrimination in the jails. (See Ex. 2 ­Friedlander letter dated March 25, 2009, PSOF Ex. 32; see also Ex. 6 ­ Driscoll letter dated August 5, 2010, PSOF Ex. 57; Ex. 7 ­Driscoll letter dated August 13, 2010, PSOF Ex. 61; see also Ex. 8 ­ Driscoll letter dated May 29, 2009; Ex. 9 ­Driscoll letter dated June 18, 2009; Ex. 10 ­Driscoll letter dated August 27, 2010, PSOF Ex. 66; and Ex. 19 - Affidavit of Robert N. Driscoll, Esq.) 40. The Section 14141 investigation presents police practices issues that

do not implicate national origin (for example, use of force and firearms training, canine policies, overtime policies and searches and seizure) and do not fall under the umbrella of the subject Title VI investigation with which Sheriff Arpaio and the MCSO have
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complied. (See Ex. 7 ­Driscoll letter dated August 13, 2010, PSOF Ex. 61 and Ex. 19 Affidavit of Robert N. Driscoll, Esq.) 41. Sheriff Arpaio and the MCSO identified a genuine disagreement

regarding the unreasonableness of the scope of a police practices and national origin investigation under Title VI before the filing of this action and the instant Motion. (See Ex. 8 ­ Driscoll letter dated May 29, 2009 and Ex. 19 - Affidavit of Robert N. Driscoll, Esq.) 42. The Sheriff and MCSO had every right to question the United States'

approach to these investigations and offered to resolve this disagreement cooperatively through negotiations. (See Ex. 6 ­ Driscoll letter dated August 5, 2010, PSOF Ex. 57; Ex. 7 ­ Driscoll letter dated August 13, 2010, PSOF Ex. 61; and Ex. 19 - Affidavit of Robert N. Driscoll, Esq.) 43. The Sheriff and the MCSO explained their disagreement with the

scope of the United States' Title VI investigation in this regard, yet the United States filed this action and this Motion complaining that the Sheriff and the MCSO have failed to cooperate--despite the facts. The United States has taken the position that its authority in a Title VI investigation is unlimited. (See Amended Complaint; see also Ex. 10 ­ Driscoll letter dated August 27, 2010, PSOF Ex. 66; Ex. 8 ­ Driscoll letter dated May 29, 2009; Ex. 9 ­ Driscoll letter dated June 18, 2009; and Ex. 19 - Affidavit of Robert N. Driscoll, Esq.) 44. In an August 24, 2010 meeting between DOJ and MCSO counsels,

the DOJ would not acknowledge that any issue was beyond the scope of the Title VI investigation (including issues of use of force, to discipline of deputies, to uniform and dress policies). (See Ex. 10 ­ Driscoll letter dated August 27, 2010, PSOF Ex. 66; see also Ex. 6 ­ Driscoll letter dated August 5, 2010, PSOF Ex. 57; Ex. 8 ­Driscoll letter dated May 29, 2009; Ex. 9 ­ Driscoll letter dated June 18, 2009; and Ex. 19 Affidavit of Robert N. Driscoll, Esq.)
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45.

The United States contended that every document typically requested

in a police practices investigation, is also relevant to a Title VI investigation limited to alleged national origin discrimination in the Maricopa County Jails. (Id.) 46. The MCSO became the subject of three independent investigations in

a matter of weeks after the change in Administration in Washington, D.C.: 1) the Civil Rights Division Special Litigation Section's investigation into alleged pattern and practices of Constitutional or legal violations; 2) the Coordination and Review Section's investigation into allegations of discrimination against LEP individuals, and; 3) the Department of Homeland Security's investigation into the MCSO's 287(g) program (notwithstanding the complete absence of any previous complaints or concern from ICE or DHS under the Memorandum of Agreement.) (See Ex. 8 ­ Driscoll letter dated May 29, 2009 and Ex. 19 - Affidavit of Robert N. Driscoll, Esq.; see also PSOF Ex. 44) 47. In fact, the DOJ's 100 day Progress Report released in April 2009,

treated the mere decision to open an investigation of the MCSO as an accomplishment in and of itself, despite the fact that the merits and/or actual facts being investigated have yet to be determined. (Id.) 48. Moreover, the Civil Rights Division Deputy acknowledged that

media reports provided the basis of the investigations, and that the DOJ was not yet in possession of the facts that would establish a Constitutional violation. (Id.) 49. Furthermore, in February 2009, four Democratic members of the

House Judiciary Committee publicly called for an investigation of Sheriff Arpaio, despite acknowledging the absence of any federal investigation establishing any misconduct of Sheriff Arpaio or MCSO. (Id.; see also Ex. 11 ­ U.S. House of Representatives

Committee on the Judiciary letter dated February 12, 2009; Ex. 12 ­ U.S. House of Representatives Judiciary Committee Press Release dated February 13, 2009; and Ex. 13 ­ CNS News article entitled "Sheriff Arpaio has `no intention' of testifying before Conyers Committee on alleged immigration enforcement abuses" dated March 16, 2009)
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50.

The United States argues that "[t]ransparent 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." (Dkt. 18, p. 4) 51. It also cites to an internet article regarding Sheriff Arpaio's

unwillingness to cooperate with the Department of Justice (DOJ). (Id.; see also Ex. 13 CNS News article entitled "Sheriff Arpaio has `no intention' of testifying before Conyers Committee on alleged immigration enforcement abuses" dated March 16, 2009) 52. Transparency does not require the "free access to the entire office"

(MCSO) that the DOJ insists upon. (See Ex. 14 ­ July 7, 2009, 5:43 p.m. article "Arpaio Done Cooperating with DOJ"; see also PSOF Ex. 47) 53. Certainly, Robert Driscoll, Esq. and Sheriff Arpaio were both critical

of the ethical questionability of the DOJ's investigation of MCSO, including the political nature of the investigation; yet the DOJ inappropriately insisted on unfettered access to the MCSO, and the unreasonable scope of the investigation. (Id.; see Ex. 6 ­ Driscoll letter dated August 5, 2010, PSOF Ex. 57; Ex. 8 ­Driscoll letter dated May 29, 2009; Ex. 9 ­ Driscoll letter dated June 18, 2009; Ex. 10 ­ Driscoll letter dated August 27, 2010, PSOF Ex. 66; and Ex. 19 - Affidavit of Robert N. Driscoll, Esq.) 54. Nevertheless, the United States has actually been the beneficiary of

the transparency and access it desires to conduct its compliance review under Title VI, despite objections and hyperbole. (Id.) 55. Despite the unreasonableness and improprieties of the United States'

investigation, Sheriff Arpaio has granted the United States access to MCSO staff and facilities as the United States requested in its August 25, 2010 letter, contrary to the United States' contention. (See Ex. 21 - Affidavit of Lt. Ernest Alcala; and Ex. 22 Affidavit of Sgt. James Seibert)
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56.

Within twelve (12) days of their appearance, the undersigned counsel

met with five Assistant U.S. Attorneys in Phoenix to discuss the United States' First Request and its investigation of MCSO, generally. (See Ex. 20 - Affidavit of Chief Gerard Sheridan) 57. On November 2, 2010, five Assistant U.S. Attorneys met with

MCSO Chiefs Jerry Sheridan and Jack MacIntyre, as well as defense counsel, William R. Jones, John T. Masterson and Joseph J. Popolizio at the offices of Jones, Skelton & Hochuli, P.L.C. (Id.) 58. As a result of that meeting, Chiefs Sheridan and MacIntyre pledged

that the United States would receive access to MCSO facilities, staff, and inmates as requested. (Id.) 59. During the November 2, 2010 meeting, Chief Sheridan offered to

commence the requested tours of the MCSO facilities that very afternoon. (Id.) 60. The United States declined that offer and, instead, elected to return

the following week to tour the MCSO facilities. (Id.) 61. One week later, on the morning of November 9, 2010, a team of DOJ

Attorneys from Washington, D.C. met with MCSO command staff and counsel at 4th Avenue Jail. (See Ex. 20 - Affidavit of Chief Gerard Sheridan; Ex. 21 - Affidavit of Lt. Ernest Alcala; and Ex. 22 - Affidavit of Sgt. James Seibert) 62. During that meeting, MCSO command staff, once again, pledged to (See Ex. 20 - Affidavit of Chief Gerard

cooperate with the DOJ's investigation. Sheridan) 63.

At the conclusion of that meeting, a the DOJ attorney team began a (See Ex. 20 - Affidavit of Chief Gerard

day-long tour of the Maricopa County Jails.

Sheridan; Ex. 21 - Affidavit of Lt. Ernest Alcala; and Ex. 22 - Affidavit of Sgt. James Seibert) 64. Accompanied by MCSO tour guides Sergeant James Seibert and
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Lieutenant Ernest Alcala, as well as officers assigned to a given facility selected at

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random, the DOJ team toured Fourth Avenue (including Central Intake), Durango, Estrella, Towers, Lower Buckeye, and In Tents jail facilities--i.e. all of the Maricopa County jail facilities that the United States requested to tour. (See Ex. 21 - Affidavit of Lt. Ernest Alcala; and Ex. 22 - Affidavit of Sgt. James Seibert) 65. (Id.) 66. request. (Id.) 67. During the jail tours, the DOJ team spoke directly to MCSO MCSO personnel and counsel complied with the DOJ team's every Defense attorneys Popolizio and Masterson also attended the tours.

detention officers, all of whom were allowed to speak freely with the DOJ Attorneys. (Id.) 68. As the tours occurred, MCSO detention officers answered the DOJ

Attorney team's questions regarding the particular jails, including pods within the jails, jail programs, the provision of medical care, as well as inmate (including LEP inmate) access to programs and medical care. (Id.) 69. Neither defense counsel nor present command staff curtailed the open

dialogue between the MCSO officers and the members of the DOJ team. (Id.) 70. In addition, during the facility tours, DOJ Attorney team members

also spoke with Correctional Health Services (CHS) personnel, the medical professionals who provide medical care to inmates in the Maricopa County Jail system. (Id.) 71. During the tours, members of the U.S. Attorney team requested

medical and grievance forms available at each facility. (Id.) 72. 73. Each request was granted without hesitation. (Id.) Furthermore, MCSO Sergeant James Seibert provided the DOJ

Attorneys with MCSO duty rosters as requested and pledged to provide inmate rosters the next morning when the DOJ Attorneys were scheduled to commence inmate and command staff interviews. (Id.)
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74.

As initially agreed, inmate and MCSO command staff interviews

were scheduled to commence on November 10, 2010. (See Ex. 20 - Affidavit of Chief Gerard Sheridan) 75. 76. The United States, however, postponed their commencement. (Id.) Instead, the U.S. Attorneys elected to commence inmate interviews

on November 16, 2010 and to postpone command staff interviews indefinitely. (Id.) 77. As with the inmate interviews, MCSO has pledged cooperation

regarding the DOJ interviews of MCSO staff which will occur in the future. (Id.) 78. The MCSO is patiently awaiting word from the DOJ regarding when

it would like to commence MCSO staff interviews. (Id.) 79. The DOJ has already received interviews of MCSO officials,

however. Pursuant to an agreement with MCSO, the DOJ has received videotapes and transcripts of interviews with 21 top MCSO officials in connection with Melendres v. Arpaio, et al, No. CV-07-2413-PHX-GMS, a case involving allegations of racial profiling by the MCSO. 80. Pursuant to the United States' request, inmate interviews were

scheduled to occur November 16, 17, 18, 19, 22, 23, 24, and 30, as well as December 2 and 3, 2010; these interviews have proceeded as requested, unless the teams of Assistant United States Attorneys and their interpreters altered their requested schedule. (See Ex. 21 - Affidavit of Lt. Ernest Alcala; and Ex. 22 - Affidavit of Sgt. James Seibert) 81. The MCSO/Sheriff Arpaio has accommodated every request by a

DOJ interview team to alter the inmate interview schedule, also. (Id.) 82. In addition, MCSO staff accommodated the United States by

accepting the United States requested inmate interview schedule, by providing it with legal rooms to conduct ex parte interviews at each facility and by accommodating several teams consisting of Assistant United States Attorneys and interpreters to conduct interviews simultaneously. (See Ex. 20 - Affidavit of Chief Gerard Sheridan; Ex. 21 Affidavit of Lt. Ernest Alcala; and Ex. 22 - Affidavit of Sgt. James Seibert)
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83.

All of this occurred in addition to the previously scheduled tours and

visits of other organizations. (Id.) 84. The United States' requested inmate interview schedule was as

follows: November 16, 2010 (two teams--one full day/one just in the afternoon); November 17 and 18, 2010 (two teams all day); November 19, 2010 (one team all day); November 22 and 23, 2010 (two teams all day); November 24, 2010 (one team all day); November 30, December 2, and December 3, 2010 (two teams all day). (Id.) 85. Through December 3, 2010, the DOJ teams, pursuant to their

requests, conducted approximately 54 hours of interviews of 86 inmates selected from inmate rosters at Estrella, Durango, Tents, and Lower Buckeye jails. (Id.) 86. 87. And more interviews may occur in the future. (Id.) The postponement of the command staff interviews was, in part, due

to the voluminous MCSO documentation that the United States had received on November 5, 2010 via overnight delivery in response to the First Request and pursuant to the pledge of MCSO Chiefs at the aforementioned November 2, 2010 meeting. (Id.) 88. The documentation consisted of all of the MCSO policies (1101

pages) that the United States requested within the First Request. (Id.) 89. The MCSO has provided other documentation in response to the

DOJ's First Request and before the filing of this action and Motion. (See Ex. 15 ­ Maricopa County Attorney's Office letter dated May 12, 2009, PSOF Ex. 39; Ex. 16 ­ Robert N. Driscoll, Esq. letter dated August 25, 2009; Ex. 17 ­ Robert N. Driscoll, Esq. letter dated September 16, 2009; and Ex. 18 ­ Robert N. Driscoll, Esq. letter dated August 27, 2010 regarding first Melendres cross-reference list of documents, PSOF Ex. 67) 90. These designated documents go beyond DOJ's requests associated

with LEP and into the realm of police function, despite the dispute between the parties regarding the proper scope of the Title VI investigation. (Id.)
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91.

Moreover, the DOJ has presumably received documentation and

interview information pursuant to its "deal" with the DHS. (See Ex. 18 ­ Driscoll letter dated August 27, 2010 regarding first Melendres cross-reference list of documents, PSOF Ex. 67 and Ex. 19 - Affidavit of Robert N. Driscoll, Esq.) 92. What's more, the MCSO has designated documents disclosed in

Melendres v. Arpaio, et al, No. CV-07-2513-PHX-GMS, (approximately 12,850 pages) as responsive to the DOJ's First Request, as requested in the August 25, 2010 letter. (Id.) 93. 94. It did so on August 27, 2010. (Id.) Further, the MCSO has also provided 11 documents associated with

grievance and visitation processes, as well as 808 pages of documents in support of its LEP position paper. (See Ex. 20 - Affidavit of Chief Gerard Sheridan) 95. 96. But the production does not stop there. (Id.) On December 10, 2010, the MCSO and Sheriff Arpaio sent via

Federal Express a hard drive containing 931 gigabytes of documentation responsive to the First Request, also. (Id.) 97. As discussed with the DOJ, even more is yet to come. As the DOJ is

aware, undersigned counsel has received 116 boxes of documents in response to the First Request, which must be either placed in electronic format or made available to DOJ counsel for review, to avoid the exorbitant cost of reproducing hundreds of thousands of pages. (Id.)

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DATED this 10th day of December, 2010. JONES, SKELTON & HOCHULI, P.L.C.

By/s/Joseph J. Popolizio William R. Jones, Jr. John T. Masterson Joseph J. Popolizio 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Maricopa County Sheriff's Office and Joseph M. Arpaio ORIGINAL electronically filed this 10th day of December, 2010. COPIES of the foregoing e-mailed this 10th day of December, 2010, to: Thomas E. Perez, Assistant Attorney General Dennis K. Burke, United States Attorney Roy L. Austin, Jr. Matthew Colangelo Peter S. Gray Laurie A. Gelman Admin Aminfar U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Attorneys for the United States Michael M. Walker Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Attorneys for the United States Thomas K. Irvine Cynthia R. Estrella Polsinelli Shughart, P.C. One East Washington, Suite 1200 Phoenix, Arizona 85004 Attorneys for Maricopa County /s/Joseph J. Popolizio

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