Megan Cassidy, Dianna M. Náñez, and Michael Kiefer

The Republic | azcentral.com

Federal prosecutors said Tuesday they will pursue a criminal-contempt charge against Maricopa County Sheriff Joe Arpaio for defying orders to halt the immigration-enforcement operations that made him a national lightning rod.

If convicted, Arpaio could spend up to six months in jail.

The move has few precedents in U.S. history, as prosecutors endorsed a federal judge's findings that the lawman intentionally violated the judge's orders.

Dozens of protesters who lined the sidewalk outside the federal courthouse Tuesday morning erupted in cheers, hugs and tears when they heard the news.

They moved toward the courthouse doors, circled and shouted: “Si se puede! Si se puede!” ( "Yes, we can!")

Arpaio has not yet officially been charged. U.S. District Judge Susan Bolton asked the federal government to write an order to show cause for her to sign by Wednesday. That will serve as a charging document for the case to go forward against Arpaio.

The sheriff blasted the move as politically motivated, coming on the eve of the start of early voting for the Nov. 8 election, in which he is running for his seventh term. He said he has done nothing wrong.

“My point is this was strictly a political attack on this sheriff in this campaign," Arpaio said in comments to The Arizona Republic.

“I am not going to surrender. I am going to fight this all the way. And I expect to be re-elected.”

Announcement of the charge, which came minutes into the start of the criminal-contempt proceedings, surprised even those closest to the lawsuit.

“Usually a set status conference is a meeting between the court and council to discuss legal issues,” said Mel McDonald, Arpaio’s defense attorney. “We had no clue that they were going to come here today and make the announcements that they made.”

McDonald said Arpaio will plead not guilty.

Legal experts say the judge and attorneys have little historical guidance moving forward with the case.

“As rare as it is to have a federal judge refer the head of a law-enforcement agency for prosecution, it is even rarer that the Department of Justice would pick up that gauntlet and move forward with the charge,” said Paul Charlton, a former U.S. attorney for the District of Arizona. “It’s unheard of.”

U.S. Department of Justice attorney John Keller said the government will continue to investigate additional allegations against Arpaio, two aides and a defense attorney over concealing evidence — and therefore obstruction of justice — but will not proceed with a criminal case at this time.

Although the federal judge presiding over the racial-profiling case referred Arpaio and three others for consideration of criminal contempt, Keller said the statute of limitations may have run out for the allegations against the others.

Bolton said she is not sure, and asked for a pause on the statute-of-limitations clock so that all sides could discuss that issue.

Fallout from a racial-profiling case

Arpaio’s criminal case stems from a lawsuit filed in 2007 that alleged Arpaio’s immigration patrols amounted to discriminatory policing of Latinos.

U.S. District Judge G. Murray Snow issued a December 2011 order that barred the Sheriff’s Office from detaining individuals solely on the belief they were in the country illegally, and without being suspected of a state crime.

Arpaio’s deputies, however, continued the practice for at least 18 months thereafter.

Critics of the lawman said the defiance was political, that he ignored the federal court in order to maintain his hard-line immigration platform.

Arpaio’s attorneys admitted to the violations in civil-contempt hearings last year but maintained they were the result of miscommunications and confusion, not willful defiance.

Generally, the difference between civil and criminal contempt of court is intent. Only criminal contempt can result in jail time.

Largely because of Arpaio’s age — he is 84 — Bolton ruled that a sentencing cap of six months is appropriate on the contempt charge.

A tentative trial date was set for Dec. 6. Arpaio’s attorney asked for a jury trial.

The six-month cap suggests the case will be tried as a misdemeanor, although it was not explicitly stated in court.

Only a felony conviction can force an elected official out of office in Arizona, according to state statute.

The others referred by Snow for possible charges of criminal contempt — Chief Deputy Jerry Sheridan, Capt. Steve Bailey and defense attorney Michele Iafrate — will not face immediate charges.

Arpaio’s charge stems from a December 2011 federal-court order that barred his agency from enforcing federal immigration law. The other defendants were not involved in this allegation.

Snow’s additional referrals for criminal contempt involved allegations that the sheriff, Sheridan, Bailey and Iafrate withheld evidence from the court.

Arpaio and Sheridan are accused of failing to turn over 50 hard drives related to a Seattle-based confidential informant named Dennis Montgomery.

Sheridan, Iafrate and Bailey were referred for criminal contempt for concealing nearly 1,500 identification cards that should have been turned over to the court-appointed monitor.

DOJ officials did not respond to requests for an interview after court proceedings but issued the following statement.

“The matter was referred to the Justice Department’s Public Integrity Section, and at a status hearing today before U.S. District Judge Susan R. Bolton, the department informed the court that it intends to proceed to trial against Sheriff Arpaio on the criminal contempt charges but, because of procedural defects, will not be proceeding against the other individuals. The court ordered the department to file a revised order redacting the contempt matters against the other individuals and set a preliminary trial date of Dec. 6, 2016.”

'I didn’t do anything wrong. It’s just politics'

The criminal charge is particularly ill-timed for the self-proclaimed “America's toughest sheriff,” with the general election less than a month away.

His campaign released a statement hours after the hearing, attributed to Arpaio.

“First and foremost, it is clear that the corrupt Obama Justice Department is trying to influence my re-election as Sheriff of Maricopa County," the statement said. "It is no coincidence that this announcement comes 28 days before the election and the day before early voting starts. It is a blatant abuse of power and the people of Maricopa County should be as outraged as I am."

Can Sheriff Joe Arpaio win re-election in the face of a criminal-contempt referral?

Arpaio, in comments to The Republic, echoed the theme.

“Let’s put the cards on the table: Tomorrow begins early voting. This has to come out on the eve of early voting?

“But this sheriff will never surrender. I’m going to continue running for office. This Obama administration will do anything.

“I’m not going to settle. I didn’t do anything wrong. It’s just politics. It’s not the first time.”

Arpaio said his attorneys were aggressively appealing the civil action that gave rise to the criminal-contempt charge.

“One day the truth will come out,” he said.

A community reacts

Protesters lined the sidewalk outside the courthouse, as many do whenever a hearing pertains to Sheriff Joe Arpaio.

They rallied near what has become a fixture at the hearings: a massive, inflatable doll depicting the lawman in shackles and striped jail garb.

Diaz: Wanting Joe Arpaio behind bars is not vengeance, it's about justice

The crowd started small until a group of students from high schools across Phoenix joined the protest. They held hands and protest signs. Others raised their fists in the air. They shouted, “This is what community looks like!”

After the hearing, civil-rights advocate Lydia Guzman said she had mixed feelings about the case’s trajectory. She had hoped Arpaio and the others would have been charged with all of the criminal referrals.

“This is like seeing a snake trying to slither away,” she said. “If the one person that is being charged will be the head of the snake, then that’s the way we’re going to have to do it.”

Sagal Hassan, 16, said she joined the protest on her fall break to show unity among "brown and black people" who she argues have been racially profiled by Arpaio and the Maricopa County Sheriff’s Office.

“I’m here to protest against Arpaio because he should be in jail,” she said. “He’s not above the law. I am tired of him harassing Latinos and intimidating the Latino community. He needs to be elected out of office.”

As Hassan spoke, protesters behind her chanted in Spanish: “Que queremos? Justicia! Cuando? Ahora!” ("What do we want? Justice! When? Now!")

As protesters waited for the judge's’ decision, they alternated between chants and political speeches. One organizer rallied the crowd with a chant: “Va caer! Va caer! El Arpaio va caer! ("He will fall! He will fall! Arpaio, he will fall!")

Phoenix resident Viridiana Hernandez told the crowd that the community wants Arpaio to pay for ignoring court orders tied to the 2011 racial-profiling case, for the fear he induced among Latino families, and for the years of suffering he caused.

In the meantime, she said, they must do more than protest, they must work to see him voted out of office in November.

When Carlos Garcia, a community organizer with Phoenix migrant-rights group Puente, took the microphone, he said he had an announcement — the judge’s decision was in.

“Arpaio will go to trial on December sixth!” he said.

As the cheers died down and the protest ended, organizers called on people to join them in a door-to-door canvassing effort later that day to encourage people to vote against re-electing Arpaio.

Liz Gomez, 28, held her 8-year-old son’s hand as she walked away from the courthouse. She spoke with her mother in Spanish. The women said they are undocumented migrants.

“We have to stand up,” said Gomez's mother, Francis Figueroa, 47, in Spanish, as she watched her grandson hold his sign depicting Arpaio behind bars. “This man is disgraceful. He has torn our families apart. He must face justice.”

Figueroa told a story of a neighbor, a mother, her friend.

She said the woman was driving her children to school when a Maricopa County sheriff's deputy stopped her for a traffic violation.

"She was deported," Figueroa said. "Her children were left here alone."

Figueroa's grandson, Luis Gomez, clutched his sign close to the Batman T-shirt he wore. He looked up at his grandmother, then at his mother.

“I'm in third grade. We’re Mexicans,” the boy said. “Mexicans work hard. Arpaio isn’t nice.”

Liz Gomez, smiling at her son, said she was happy a judge had ordered a trial. But she had doubts.

“I want there to be justice,” she said in Spanish. “I want him to be treated the way any person who broke the law would be treated. Let him spend time in jail like we would have to."

What’s next in the campaign

The news is almost certain to play a role in Arpaio’s re-election campaign, but it’s unclear to what extent.

Historically, his votes have been buoyed by a bloc of die-hard fans, and fundraising emails often use his court battles as a rallying cry when the sheriff appears to be in legal danger.

Campaign manager Chad Willems said the DOJ's decision will spark outrage among Maricopa County voters.

"We now see that the corrupt Obama Department of Justice will go to any lengths to damage Arpaio politically, that they’re even now are engaged in electioneering against the sheriff," he said. "If anybody out there believes that this decision is anything but pure politics and politically motivated, they are living on a different planet."

Asked for comment, the campaign of Arpaio’s Democratic challenger Paul Penzone issued the following statement Tuesday.

“No one is above the law, and today’s announcement in court epitomizes the strength of the judicial system. The federal courts have been responsible and ethical in the oversight of these criminal violations by Sheriff Arpaio. I have utmost confidence that our voters will make the right decision to repair the damage that has been done to our community.”