PASADENA, Calif. (CN) - A lawyer for Arizona's Maricopa County told the Ninth Circuit Tuesday the county is not liable for Sheriff Joe Arpaio's racial profiling of Latino drivers because Arpaio was not acting on its behalf.
In September 2007, retired Mexican school teacher Manuel Ortega claimed in class action he was in the United States on a tourist visa when he was stopped by officers in Cave Creek, Arizona, handcuffed and jailed for nine hours.
In 2013, Arizona U.S. District Judge Grant Murray Snow issued a permanent injunction enjoining Arpaio and the Maricopa County Sheriff's Office from stopping and discriminating against Latino drivers and passengers.
The injunction was expanded in October of that year to make changes in the way the county trained supervisors and deputies. Snow appointed independent monitor Robert Warshaw to ensure compliance with the court's orders.
Last year, a federal judge substituted the sheriff's office with Maricopa County, leading to an appeal to the Ninth Circuit.
At Tuesday morning's oral argument at the Richard H. Chambers Courthouse in Pasadena the county's attorney Richard Walker of Walker & Peskind told a Ninth Circuit panel that the county was not liable for Arpaio's civil rights violations because neither the official nor his deputies were acting on the county's behalf.
Circuit Judge Marsha Berzon, a Bill Clinton appointee, said she was "somewhat skeptical" of the merits of the appeal. She noted that previous state case law indicted that the sheriff's office was a "subdivision of the county" and "whether named or not, the county is responsible for the sheriff in its official capacity."
She asked, "Are those just irrelevant?"
"As a matter of state case law, I think you have very strong parallels to the facts that led to the [U.S. Supreme] court's conclusion in McMillian that the sheriff was not acting on behalf of the county," Walker said.
In the 1997 civil rights case McMillian v. Monroe County, the high court considered whether an Alabama sheriff was a policymaker for the county in the case of a man who spent six years in prison on a capital murder charge. The man's sentence was later overturned.
Ortega's attorney Stanley Young insisted that the Maricopa County controlled Arpaio and his deputies and was liable.
"All of the case law says the sheriff sued in his official capacity is in effect the county. And he is the county with respect to the law enforcement issues here," Young, of Covington & Burling, said.
Berzon wondered why the parties were so concerned.
"This whole appeal just seems so airy from both sides. I don't see why you care. I'm not sure you do," she said.
"We think it's useful for the county to be in the case because it is the party who is paying for the injunctive relief to be implemented," Young said.
The attorney urged the court to throw out the legal challenge on procedural grounds, arguing that the county waited too long to file the appeal.
In September, the county petitioned the U.S. Supreme Court to hear its challenge of the decision making it a co-defendant in the case. Berzon said during the hearing that the high court had declined to pick up the case.
Arpaio is facing contempt charges for defying the federal court's orders.
Dubbed "America's Toughest Sheriff," the 83-year-old official has faced a litany of charges that he misused funds, neglected to investigate sexual assaults including the rape of a 13-year-old girl with a mental disability, and ran jails in violation of inmates' constitutional rights.
The U.S. Department of Justice sued Arpaio in 2012 claiming that since 2006 he has targeted Latinos based on their race, color or nationality, discriminated against Latino inmates who spoke limited English, and retaliated against critics of his office with baseless civil, criminal and administrative actions.
Circuit Judges Susan Graber and John Clifford Wallace joined Berzon on the panel. The court did not indicate when it would rule.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.