Ninth Circuit affirms monitor’s authority in Maricopa County racial profiling case 

PHOENIX (CN) — The Ninth Circuit on Monday affirmed an Arizona federal judge’s delegation of decision-making authority to a court-appointed monitor in a nearly two-decade class action over racial profiling by the 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 suspicion 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 31-page opinion published Monday morning, a three-judge panel rejected the sheriff’s contention that Snow violated the U.S. Constitution’s separation of powers principle and Civil Rules of Procedure 53 and 65, the former of which limits the authority of a court-appointed monitor to an advisory role.

Because the George W. Bush appointee relied on his “inherent equitable powers” as a federal judge rather than rule 53, the limits imposed by rule 53 don’t apply, the panel found.

“Rule 53 does not apply to the third order for several reasons,” U.S. Circuit Judge Clifford Wallace wrote for the panel. “First, neither the first order nor the order appointing the monitor relies upon it. With no indication that the court relied on the authority conferred by Rule 53 to appoint the monitor in the first place, the sheriff’s remaining arguments fall flat.”

Rule 53 applies to the role of a “special master,” which differs from a court-appointed monitor in that a special master is tasked only with “quasi-judicial” functions and has more limited authority than a monitor. If Snow were to delegate decision-making power to a special master under Rule 53, then the sheriff’s office would have a stronger case.

“That the district court did not direct the monitor to carry out many of the functions authorized by Rule 53 reinforces our conclusion that the rule was not the source of the monitor’s authority at any juncture,” wrote Wallace, a Richard Nixon appointee.

Even if the monitor was appointed under Rule 53, the panel found, Snow has the authority to order additional remedies using his inherent equitable powers.

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.

After 11 years of monitoring, the situation hasn’t improved. Snow floated stricter sanctions against the sheriff’s office, now led by Russ Skinner, in July, but hasn’t yet finalized an order.

The appeal isn’t the first the sheriff’s office has filed in the 17-year-old case.

“Despite clear and narrow court orders, the MCSO has now filed five appeals in total, all of which have been rejected by the court of appeals,” Christine Wee senior staff attorney for the American Civil Liberties Union of Arizona, which represents the plaintiff class, said in a statement to Courthouse News. “Since the district court’s first order in this case in 2013, the monitor’s oversight of the MCSO is a crucial step to ensure accountability and protect the civil rights and liberties of Maricopa County residents. It is critically important to recall that this litigation and subsequent court orders are a result of a decades-long case in which the MCSO was found to have violated the constitution by racially profiling and unlawfully detaining Latinx people.”

The sheriff’s office opposed Warshaw’s appointment and the administrative power Snow gave him in 2022, telling the panel in March that Warshaw’s role should be reduced to simply offering advice rather than making decisions. But the judges seemed unsympathetic to their arguments, reminding the sheriff’s attorney any decision the monitor makes is still subject to judicial review if the defendants ask for it.

The third order not specifically authorizing judicial review served as one of the sheriff’s main points in his claim that the appointment violates separation of powers. But the panel found the third order works in tandem with the first two, which do specifically call for judicial review.

Lastly, the panel rejected claims that the appointment of the monitor violates Civil Rule of Procedure 65, which requires injunctions to state their terms specifically to avoid accidental noncompliance.

“The supplemental injunctions’ terms in this case are a far cry from the enigmatic,” Wallace wrote. “Taking into account the specificity of the previous supplemental injunctions’ terms and MCSO’s history of noncompliance with those terms, the paragraphs at issue are not so vague that the sheriff cannot understand what is required of him.”

U.S. Circuit Judges Susan Graber and Marsha Berzon, both Bill Clinton appointees, rounded out the panel.

Neither Sheriff Skinner didn’t reply to a request for comment. The Department of Justice declined.

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