Megan Cassidy

The Republic | azcentral.com

Dozens of protesters had assembled outside Phoenix’s federal courthouse Tuesday morning, toting homemade signs, musical instruments and a rolling, 20-foot inflatable Sheriff Joe Arpaio in jail garb.

It was an especially spirited rally for those who had championed the same message for years — for the federal government to hold Arpaio criminally responsible for his treatment of Latinos.

They would have to wait for their answer.

U.S. District Judge G. Murray Snow had weighed potential penalties to be imposed against Arpaio, the next step after Snow’s finding earlier this month that the lawman and three of his aides were in civil contempt of court.

But the judge stopped short of issuing any official orders, including whether he would refer Arpaio and his top brass at the Maricopa County Sheriff's Office to federal prosecutors for criminal-contempt proceedings.

At times, though, Snow seemed to telegraph that the answer would be yes.

He noted that the lawman's aides could be subject to a number of penalties — including termination — under the finding of civil contempt. But because Arpaio was an elected official, Snow's abilities to impose severe penalties on the lawman, whom Snow said he considered the "most culpable," were limited.

"The one person I can't put at risk (to have) skin in the game is your client," Snow told Arpaio's attorney. "... I can’t touch him in a civil-contempt proceeding."

8-year-old class-action lawsuit

Tuesday's hearing was the latest in what has been an 8-year-old class-action lawsuit, in which Arpaio’s deputies were found to have singled out Latinos during law-enforcement operations.

On May 13, Snow found that Arpaio, Chief Deputy Jerry Sheridan, Lt. Joe Sousa and retired aide Brian Sands had violated three of his orders stemming from the underlying case. The finding amounted to civil contempt, but left open what the remedies would look like and whether the U.S. Attorney’s Office would be tapped for criminal charges.

Both defense attorneys and plaintiffs agreed on some of the penalty groundwork before this week, and Snow set aside Tuesday to hash out the differences.

Key issues included whether Maricopa County would be financially responsible for the lawman’s intentional violations, how much money should compensate victims of MCSO’s unlawful detentions, and what types of reforms were necessary over the agency’s internal affairs.

Instead of ruling, Snow had set a timetable at the end of the hearing. In the next month, Snow will receive final proposals from both sides, "take stock" of their content, and later issue an order on remedies and his decision on any criminal referrals.

Snow additionally floated the idea of more contempt hearings after learning that the agency had yet to comply with orders he issued in October 2013.

Anticipation high

There was a Black Friday feel on the sixth floor of Phoenix’s federal courthouse before the hearing began at 9 a.m. A crush of onlookers gathered at the doorway and competed for seating in the spectator gallery. Court marshals ushered in the defendants and attorneys first, followed by public viewers in increments of 30.

Inside the courtroom, Snow stood at a podium behind his bench rather than sitting and struck a conversational tone with the case’s many attorneys. He encouraged the parties to power through their arguments and aired his thoughts on many of the fine points.

Compensation for victims

Snow indicated he would strike a compromise on one of the key issues arising from the contempt proceedings: how much to compensate those who were detained by deputies solely on suspicion for being in the country illegally rather than for a state crime. Snow banned the practice in December 2011 but found that the agency continued the practice for at least 17 months thereafter.

Plaintiffs’ attorneys from the American Civil Liberties Union and Covington & Burling LLP said Tuesday that MCSO and the plaintiffs disagreed on the amount of compensation to be awarded to the victims. The plaintiffs had proposed a minimum of $1,500 for the first hour of detention, with $1,000 for increments of 20 minutes over that time; MCSO suggested amounts of $500 and $35 for those detentions.

Snow seemed to agree on $1,000 for the first hour of detention and $200 for every 20 minutes thereafter.

Internal-affairs reforms

Attorneys spent the bulk of Tuesday arguing what types of reforms were appropriate for the office’s internal-affairs unit. Snow’s contempt ruling found that the current system was designed to excuse bad behavior rather than hold employees responsible.

Snow also said although he aimed to maintain the authority of the sheriff as an elected official, he said he needed to strike a balance between Arpaio’s powers and the need for reforms over the agency’s internal-affairs process.

Snow said he was inclined to hand over internal-affairs leadership to an outside party — whether it be to the monitor, himself or to another entity.

“I don’t have confidence anymore about the direction of the Maricopa County Sheriff’s Office,” he said.

Snow added, however, that he hoped to “rehabilitate” the agency and wanted some of the current staff to learn how to conduct an appropriate internal investigation themselves.

Plaintiffs’ attorneys and attorneys from the U.S. Department of Justice offered their opinions on the details of these reforms. They both agreed that Arpaio and Sheridan should relinquish their controls over the internal affairs to a third party — whether it’s to a monitor already appointed by the court to ensure compliance or another entity.

DOJ attorneys joined the case last year as part of a settlement agreement in a separate racial-profiling lawsuit against the Sheriff’s Office.

Defense attorneys didn’t outwardly object to the idea of handing the internal affairs to a separate party but said the sheriff should maintain control over termination decisions.

Criminal charges?

Snow saved the most contested topic of the day for last. He singled out Arpaio and Sheridan as the two he would “seriously consider” referring for criminal-contempt prosecution, and then added new allegations and new names to the list.

Snow said he would also consider defense attorney Michele Iafrate and sheriff's Capt. Steve Bailey for the same referral after finding the two had worked to hide evidence from the court’s monitor.

The judge also said it was clear Arpaio and Sheridan committed perjury before the court, but said the Department of Justice was tuned into the case enough to make the decision whether to prosecute.

Plaintiffs’ attorneys had requested all of the possibilities in their Friday memorandum, but Snow on Tuesday limited plaintiffs’ comments on the matter.

“I would just add that the plaintiff class were injured by the conduct that’s at issue here by Sheriff Joe Arpaio and Chief Deputy Jerry Sheridan,” said Cecillia Wang, a plaintiffs’ attorney with the ACLU Immigrants' Rights Project. “We do have an interest in seeing that justice is done.”

Snow then turned to Arpaio’s criminal-contempt attorney Mel McDonald. He asked why the defense had proposed Arpaio pay $100,000 to a civil-rights organization and offer a public apology when such remedies were deemed insufficient last year at the outset of the contempt hearings.

McDonald noted that the offers still stood, but in addition to the other internal-affairs and victim-compensation proposals. The offers, he said, were an attempt to prove Arpaio had “skin in the game,” and shouldn’t face criminal-contempt charges.

“I think it would be devastating to the Sheriff’s Office, to the sheriff, to the county, and I don’t think it’s necessary,” he said.