Wednesday, April 4, 2012

Arpaio, Dept. of Justice At Impasse Because of Confusion Between Two Similar Words

"Astrology" vs. "astronomy".  "Compliment" vs. "complement".  We all have pairs of words that are so similar - or, sound so similar - that they can confuse us. "Precede" vs. "proceed".  "Loose"  vs. "lose".  Sometimes, the confusion can lead us into trouble... especially when our attorney does not correct us.  "Monitor" vs. "master".  There can be no other sane explanation.  Can there?

Earlier today (Tuesday), the U.S. Department of Justice ("DOJ") announced that negotiations between it and the Maricopa County Sheriff's Office "MCSO") had broken down because the MCSO walked back from previous acceptances that an "independent monitor" would be appointed as part of any settlement of allegations of racial profiling and other missteps by the MCSO.

The DOJ released a letter it sent to the MCSO's private counsel earlier The Sheriff promptly issued a responsive press release provocatively (read: tabloid-esque) headlined:

The release claims that the DOJ is incorrect and that it first insisted upon a monitor yesterday.  But, it then (repeatedly) defines the monitor as making decisions, taking authority, usurping.  Here are the complete paragraphs, with the attempts at defining the independent monitor's role highlighted:

Appointment of an outside monitor essentially usurps the powers and duties of
an elected Sheriff and transfers them to a person or group of persons selected by
the federal government. Every policy decision, every operation, every new
program in the jails and in enforcement, virtually everything would have to be
approved by the monitor
, nullifying the authority of the elected Sheriff and
eviscerating the will of the citizens of Maricopa County. 
“I am the constitutionally and legitimately elected Sheriff and I absolutely refuse
to surrender my responsibility
to the federal government. And so to the Obama
administration, who is attempting to strong arm me into submission only for its
political gain, I say, ‘This will not happen, not on my watch!’” 
Sheriff's Deputy Director and Attorney Jack MacIntyre says a federal monitor is
the most extreme proposal
, particularly in light of the fact that the federal
government has refused to provide any details or proof as to how they came to
the conclusion that Maricopa County Sheriff’s Office employees engage in
patterns and practices of racial profiling as well as other unsupported claims that
the DOJ has widely publicized.  

Reading this left me surprised.  I thought a monitor was more of a watchdog than the master, more a set of eyes looking over your shoulder than the brains of the operation.  So, some research was in order.

Sure enough, it was not hard to find other situations where law enforcement agencies had agreed with the Department of Justice to permit an independent monitor.  Here is one where Prince George's County P.D. (Maryland) and the DOJ together picked an independent monitor because the P.D. had been investigated for use of force and excessive force issues.  Note that the monitor was to "evaluate" the implementation of reforms, "provide technical assistance", and "issue regular reports" in order to ensure compliance with the parties' agreement.

Here is another one where the parties chose two former law enforcement officers to monitor the New Jersey State Police after they were investigated for racially discriminatory traffic stops.  Again, the monitor was to "ensure that the state is implementing the terms of the decree."  How?  They "

The agreement between the DOJ and New Jersey State P.D. was in 2000.  How did it turn out?  Well, they were able to dissolve the consent decree in 2004 and a 2006 expert opinion found that the independent monitors and the NJSP both worked together and great improvements were made.  At that point, the NJSP was considering voluntarily retaining its own outside monitor to audit its progress.  (The report also runs through several other police agencies and their monitor situations.)

It would seem that an "independent monitor" does not quite fit the descriptions used in the MCSO press release.  But, the problem becomes crystal clear when reading this article about  recent court hearings about the ongoing consent decree battles in federal court regarding the Oakland (CA) Police Department.  The consent decree was entered into in 2003, and there has been an independent monitor since.  However, the monitoring team has noted in its most recent quarterly audits that not only has there not been progress but there has been backsliding in some areas.  Therefore, the judge is considering beginning proceedings to place the police department into "receivership".  Now, THAT sounds like control!

Read a bit further and you see that two civil rights attorneys who have been active in the case for many years are now pushing the judge to appoint a federal MASTER to take control of the department.  That would - or, could, depending on conflicts with constitutions and laws, such as Arpaio hinted at - remove significant decision-making from the Oakland Police Chief, City Manager, etc.  Which is another reason why it is obviously more complex than what the DOJ was apparently asking the MCSO to agree to.

It is understandable that Arpaio and his close staff (e.g. "Deputy Director and Attorney" MacIntyre) might confuse "monitor" and "master".  It is less understandable that their highly paid Jones, Skelton & Hochuli attorney, Joseph Popolizio, would be unclear.  And, any attorney trying to best represent his client - as opposed to one permitting a disagreement to be stretched out for as long as possible - would make sure that their client clearly understands the distinctions.

"Surrender" vs. "Comply".  "Master" vs. "monitor".  It seems clear to most of us in Maricopa County, doesn't it?  You know, the ones who are really paying the bill for the squabbles, the private attorneys and impending litigation.

We welcome your comments about this post. Or, if you have something unrelated on your mind, please e-mail to info-at-arizonaspolitics-dot-com or call 602-799-7025. Thanks.

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