Michael Kiefer

The Republic | azcentral.com

Acting on a judge's request, a U.S. Department of Justice prosecutor has filed a proposed order to show cause as to whether Maricopa County Sheriff Joe Arpaio should be held in criminal contempt of federal court.

U.S. District Court Judge Susan Bolton asked for the proposed order to use as a "charging document" to continue criminal proceedings against the embattled sheriff. She has yet to sign the order.

The proposed order, submitted Monday morning by DOJ attorney John Keller, accuses Arpaio of violating a December 2011 preliminary injunction to stop the Sheriff's Office from enforcing federal civil immigration law.

That injunction was imposed by another U.S. District Court judge, Murray Snow, who presided over a racial-profiling lawsuit against Arpaio and his office.

But Arpaio and his chief deputies ignored the injunction and continued to detain immigrants as part of his hard line against illegal immigration.

In May, Snow found Arpaio and several of his top administrators in civil contempt of court. Then, in October, he referred Arpaio and three others to the U.S. Attorney for Arizona for criminal contempt proceedings. The U.S. Attorney recused his office and it went to the Justice Department.

During a court hearing last week, Justice Department prosecutor John Keller told Bolton that the statute of limitations may have run out on separate charges against Arpaio and three others — Chief Deputy Jerry Sheridan, Capt. Steve Bailey and defense attorney Michele Iafrate — for withholding materials requested by the court.

Bolton asked all the attorneys to file briefs as to that matter.

She also determined that the maximum penalty Arpaio could face is six months in jail — which essentially designates the charge as a misdemeanor — and asked to set a bench trial for Dec. 6. Arpaio's criminal defense attorney, Mel McDonald, said he would ask for a jury trial.

Criminal-contempt proceedings for Sheriff Joe Arpaio begin Tuesday

Then Bolton asked Keller to draft the proposed order to show cause on the single charge of willfully violating the injunction.

"The preliminary injunction also ordered that the mere fact that someone was in the country without authorization did not provide, without more facts, reasonable suspicion or probable cause to believe that such a person had violated state law," Keller wrote in the proposed order.

"Arpaio violated that order by causing the MCSO to detain persons the MCSO believed to be in the country without authorization but against whom MCSO had no state charges, and thereby acted in disobedience or resistance to a lawful writ, process, order, rule, decree, or command of a court of the United States," he wrote.

Attorneys for Arpaio filed an objection to the show of cause stating it "contained improper evidentiary conclusions." Arpaio's response also claimed that "no evidence has been submitted" and that the order should be "stricken" and a new order "devoid of such inflammatory rhetoric."

Keller responded with a motion of his own acknowledging that "any evidence introduced in the Melendres civil proceedings does not yet constitute evidence in this criminal case."

Keller added that the show of cause "merely serves to provide the defendant with notice of the allegations against him."

Bolton gave Arpaio's legal team until 5 p.m. Tuesday to respond to the DOJ.