Seventeen-year-old racial profiling case returns to the Ninth Circuit

PHOENIX (CN) — A federal appeals panel considered Wednesday whether a federal judge can give decision-making authority to a court-appointed monitor in a nearly two-decade class action over racial profiling by Arizona's Maricopa County Sheriff’s Office. 

In his third injunctive order since finding that then-county Sheriff Joe Arpaio implemented racist policies of “immigration sweeps” in which Latinos were disproportionately detained on suspicions of non-citizenship, U.S. District Judge G. Murray Snow vested authority in a third party monitor to decide when and how to intake and route misconduct complaints in an effort to catch up with a growing backlog of complaint investigations. 

In a Wednesday afternoon appeal hearing before a three-judge Ninth Circuit panel, the sheriff’s office argued that the order violated federal civil rules of procedure by giving judicial power to a third party.

“The powers of the monitor should be advisory only,” sheriff’s office attorney Eric Fraser told the panel. “He should be making recommendations to the district court that the district court then implements.”

Attorneys representing the class and the United States argued that the order doesn’t give the monitor unconstitutional power because the decisions of the monitor are always subject to judicial review. Both appellees are open to a remand to clarify that the monitor’s decisions are subject to Snow’s approval if appealed by the sheriff’s office. 

“We wouldn’t object to a very limited remand,” U.S. attorney Natasha Babazadeh told the panel.

In the November 2022 injunctive order, Snow found then-Sheriff Paul Penzone in civil contempt for failing to take proper steps to catch up on a backlog of misconduct complaints stemming from the reign of his predecessor Arpaio. Arpaio was found in civil contempt in 2016 and convicted of criminal contempt in 2017, but he was pardoned by then-President Donald Trump just weeks before his sentencing. 

When Penzone took over for Arpaio in 2017, he was tasked with filling seven vacant internal investigator positions and decreasing the average time it took to complete an investigation from more than 600 days down to 85 or fewer. By 2023, the list of uninvestigated complaints — including accusations of violence and sexual assault by sheriff’s deputies and correctional officers — remained at more than 2,000. 

Snow appointed former chief of the Rochester Police Department Robert Warshaw as a third party monitor in 2013 to ensure the sheriff’s office complied with Snow’s orders. Warshaw, a former associate director of the White House Office of National Drug Control Policy, had previously been appointed as a monitor over the Oakland Police Department in 2010. Snow appointed him on recommendation from the American Civil Liberties Union of Arizona. 

Now, after nine years of monitoring, the situation hadn’t improved. 

“The court was faced with a dire situation,” class attorney Amy Heath told the panel Wednesday. “Years of worsening non-compliance with its orders that it put in place to remedy constitutional violations.”

Civil Rule of Procedure 53 limits the authority of a monitor to that of an advisory position that can make recommendations for the court’s approval. Rule 65 prohibits injunctions that give a non-judicial officer discretion to determine the terms of an injunction. Snow’s injunction gave the monitor the authority to decide what types of misconduct complaints are taken up, and what divisions they are sent to for investigation. 

Heath argued that Snow didn’t have to follow civil rules of procedure because the judge's “equitable authority” as a federal judge grants him the power to delegate monitors with limited executive power over a government office. Further, she argued that the power inherently comes with the opportunity for judicial review. While the sheriff’s office is bound by the monitor’s directions, she said, it can always appeal those directions to Snow for a final say.

Both she and Babazadeh told the panel they are open to it, remanding the order back to Snow with instructions to include clarifying language that judicial review is always an option. 

U.S. Circuit Judge Susan Graber raised that point with Fraser during his rebuttal, asking what he’s fighting for if his opponents agree that judicial review is an option. 

“It seems like you’re fighting something that is a shadow,” the Bill Clinton appointee told him.

Fraser said after-the-fact judicial review doesn’t work in a practical sense, because by the time an issue is brought to Snow, the complaint has already been routed to a specific division for investigation.

U.S. Circuit Judge Marsha Berzon asked why they can’t just go to the judge while a complaint is routed to one division and ask him to reroute it to another.

“In the meantime we’ve squandered all those resources,” Fraser answered. “If the judge agrees with us, we’ve now wasted that time and we’re back to square one.”

Berzon, also a Bill Clinton appointee, didn’t seem to mind that possibility.

“It just doesn’t sound very consequential what you’re upset about,” she said. 

U.S. Circuit Judge Clifford Wallace, a Richard Nixon appointee, rounded out the panel.

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