U.S. Department
of Justice
Maricopa County v. Melendres Opposition to Certiorari
No. 18-735
In the Supreme Court of the United States
MARICOPA COUNTY, ARIZONA, PETITIONER
v.
MANUEL DE JESUS ORTEGA MELENDRES, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
NOEL J. FRANCISCO
Solicitor General Counsel of Record
ERIC S. DREIBAND
Assistant Attorney General
THOMAS E. CHANDLER
ELIZABETH P. HECKER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
1. Whether Arizona sheriffs are final policymakers for their counties concerning law enforcement in
light of Arizona’s constitution, statutes, and case law.
2. Whether petitioner is not obligated to fund cer- tain remedies ordered by the district court on
the the- ory that Arizona law bars petitioner from funding rem- edies for willful or intentional
misconduct.
3. Whether the district court abused its discretion in entering the injunctive relief in this case.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 2
Argument....................................................................................... 9
Conclusion ................................................................................... 19
TABLE OF AUTHORITIES
Cases:
Braillard v. Maricopa Cnty., 232 P.3d 1263
(Ariz. Ct. App. 2010), cert. denied, 563 U.S. 1008
(2011) ...................................................................................... 4
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004) ................................................................. 16
Flanders v. Maricopa Cnty., 54 P.3d 837
(Ariz. Ct. App. 2002) ........................................................... 11
Franklin v. Zaruba, 150 F.3d 682 (7th Cir. 1998),
cert. denied, 525 U.S. 1141 (1999) ............................... 13, 14
Grech v. Clayton Cnty., 335 F.3d 1326
(11th Cir. 2003).................................................................... 13
Knight v. C.D. Vernon, 214 F.3d 544 (4th Cir. 2000) ... 13, 14
Leavitt v. Jane L., 518 U.S. 137 (1996)................................ 16
Lewis v. Casey, 518 U.S. 343 (1996)............................... 18, 19
McMillian v. Monroe Cnty.,
520 U.S. 781 (1997).............................................. 5, 10, 11, 12
Milliken v. Bradley, 433 U.S. 267 (1977) .............................. 7
North Carolina State Bd. of Educ. v. Swann,
402 U.S. 43 (1971) ............................................................... 15
Rizzo v. Goode, 423 U.S. 362 (1976) ....................... 7, 8, 17, 18
Scott v. O’Grady, 975 F.2d 366 (7th Cir. 1992),
cert. denied, 508 U.S. 942 (1993) ................................. 13, 14
State v. Schallock, 941 P.2d 1275 (Ariz. 1997) .................... 14
(III)
IV
Cases—Continued: Page
Stone v. City & County of San Francisco, 968 F.2d 850 (9th Cir. 1992), cert. denied, 506 U.S. 1081
(1993) .................................................................................... 15
United States v. County of Maricopa, 889 F.3d 648 (9th Cir. 2018), cert. denied, No. 18-498
(Mar. 25, 2019)........................................................... 8, 10, 12
Constitution and statutes:
U.S. Const.:
Amend. IV...................................................................... 2, 3
Amend. XI........................................................................ 13
Amend. XIV....................................................................... 2
42 U.S.C. 1983 .................................................................... 2, 10
Ariz. Rev. Stat. Ann.:
§ 11-251(1) (Supp. 2018) .................................................. 13
§ 11-981(A)(2) (2012) ............................................. 9, 14, 16
Miscellaneous:
Restatement (Third) of Agency (2006)................................ 15
In the Supreme Court of the United States
No. 18-735
MARICOPA COUNTY, ARIZONA, PETITIONER
v.
MANUEL DE JESUS ORTEGA MELENDRES, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 4-15) is reported at 897 F.3d 1217. The order of the
district court (Pet. App. 20-236) is not published in the Federal Supplement but is available at
2016 WL 2783715. The district court’s second amended second supplemental permanent injunction (Pet.
App. 237-318) is not pub- lished in the Federal Supplement but is available at 2016 WL 3996453. The
district court’s order regarding victim compensation (Pet. App. 319-336) is not pub- lished in the
Federal Supplement but is available at 2016 WL 4415038.
JURISDICTION
The judgment of the court of appeals was entered on July 31, 2018. A petition for rehearing was
denied on September 7, 2018 (Pet. App. 16-17). The petition for a writ of certiorari was filed on
December 6, 2018. The
(1)
2
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. In 2007, private parties brought this class action against petitioner, then-Sheriff Joseph
Arpaio, and the Maricopa County Sheriff’s Office (MCSO) under 42 U.S.C. 1983, alleging that the
defendants had en- gaged in discriminatory policing against Latinos in vio- lation of the Fourth
and Fourteenth Amendments. Pet. App. 6. The district court later granted the United States’
unopposed motion to intervene. See D. Ct. Doc. 1239 (Aug. 13, 2015).
The defendants moved to dismiss MCSO from the case on the ground that MCSO did not have a legal ex-
istence separate from petitioner. D. Ct. Doc. 39, at 19- 20 (Sept. 29, 2008). The district court
denied the mo- tion, noting that Arizona law was unsettled on whether county police forces have
separate legal existences from the counties that they serve. 598 F. Supp. 2d 1025, 1039.
In 2009, with petitioner’s consent, the plaintiffs filed a joint motion and stipulation to dismiss
petitioner from the lawsuit without prejudice. The motion stated that “Defendant Maricopa County
[wa]s not a necessary party at th[at] juncture for obtaining the complete relief sought,” but that
the dismissal was “without prejudice to rejoining” petitioner as a defendant at a later time “if
doing so becomes necessary to obtain complete relief.” Pet. App. 344.
The district court entered a preliminary injunction against the remaining defendants in December
2011, 836 F. Supp. 2d 959, 994, and the court of appeals af- firmed, 695 F.3d 990, 1002-1003
(Melendres I). In doing so, the court of appeals found no clear error in the dis- trict court’s
determination that the named plaintiffs had
3
shown a sufficient likelihood that they would be seized in violation of the Fourth Amendment to
establish standing for purposes of seeking a preliminary injunc- tion. Id. at 997-999.
2. The district court conducted a bench trial, and held MCSO and Arpaio liable for constitutional
viola- tions. 989 F. Supp. 2d 822. The court found that MCSO had conducted pretextual traffic stops
to determine whether vehicle occupants were authorized to be in the country, had used Hispanic
ancestry or race as part of the evidence to establish reasonable suspicion for sus- pected
state-law immigration violations, and had con- ducted other discriminatory traffic stops. Id. at
860- 879, 895-905.*
The district court enjoined MCSO from continuing its unlawful practices, and explained that “after
consul- tation with the parties” it would “order additional steps that may be necessary to
effectuate the merited relief.” 989 F. Supp. 2d at 827-828. The parties submitted a joint report
identifying terms for a consent decree on which they agreed and terms on which they had not agreed.
See D. Ct. Doc. 592 (Aug. 16, 2013).
After a hearing, the district court entered a Supple- mental Permanent Injunction. 2013 WL 5498218
(Oct. 2, 2013). The order directed MCSO to promulgate poli- cies prohibiting racial profiling,
policies to ensure bias-
__________
* As relevant to standing, the district court concluded at trial that the lead plaintiff had been
injured by the defendants’ past conduct. 989 F. Supp. 2d at 891. It further concluded that the
plaintiffs were entitled to injunctive relief “to the extent that [the challenged] prac- tices
violate the constitutional rights of the plaintiff class,” id. at 890, without making findings
there that the lead plaintiff or another in- dividual plaintiff had shown a likelihood that they
would be sub- jected to the challenged practices again. Petitioner has pressed no argument
regarding standing before this Court.
4
free traffic enforcement, detentions, and arrests, and policies clarifying that state officers
could not arrest or detain individuals based on suspected unlawful pres- ence in the United States.
Id. at *8-*10. The court re- quired MCSO to provide additional training to officers. Id. at
*13-*17. And it appointed an independent moni- tor and established other mechanisms to monitor com-
pliance. Id. at *17-*22, *30-*35. In addition, the court directed changes to MCSO’s processes for
supervising employees and handling misconduct and complaints. Id. at *25-*28.
3. The court of appeals affirmed the district court’s findings and virtually all of the injunctive
relief. 784 F.3d 1254, 1265-1267 (Melendres II). It vacated a portion of the remedial order
addressing metrics for in- ternal investigations and officer misconduct, finding that the metrics
were flawed insofar as they directed the monitor to assess officer misconduct “unrelated to the
constitutional violations found by the district court.” Id. at 1267.
In addition, the court of appeals concluded that the MCSO was not in fact a separate legal entity
from peti- tioner. 784 F.3d at 1260. The court relied on an inter- vening decision of the Arizona
Court of Appeals, Braillard v. Maricopa County, 232 P.3d 1263, 1260
(2010), cert. denied, 563 U.S. 1008 (2011), which had held that MCSO was not a separate legal
entity from petitioner and concluded that MCSO could not be sued in its own right. 784 F.3d at
1260. The court of appeals dismissed MCSO from the case and substituted peti- tioner in its place.
Ibid.
4. Petitioner sought a writ of certiorari. It argued that the court of appeals had erred in
substituting peti- tioner as a defendant, because petitioner could not be
5
held liable for the actions of Sheriff Arpaio under the principles of policymaker liability set
forth in McMil- lian v. Monroe County, 520 U.S. 781 (1997). It argued that under McMillian, Arizona
sheriffs are policymak- ers for the State, not their respective counties, in the area of law
enforcement. See Pet. at 11-19, Maricopa Cnty. v. Melendres, 136 S. Ct. 799 (2016) (No. 15-376);
Pet. Cert. Reply Br. at 4-9, Melendres, supra (No. 15-376). This Court denied the petition. 136 S.
Ct. at 799.
5. Petitioner then filed a second notice of appeal in the court of appeals, from the same district
court orders that Arpaio and MCSO had “appealed from previously in Melendres II.” 815 F.3d 645, 647
(Melendres III). The court of appeals dismissed the appeal as untimely. Id. at 649. The court found
that it lacked authority to create an equitable exception to the timing require- ments and that, in
any event, there had been “no unfair- ness” in the substitution of petitioner for MCSO. Id. at 650.
The court relied on petitioner’s stipulation that it would be rejoined as a defendant “if doing so
bec[ame] necessary to obtain complete relief.” Ibid. The court also reiterated its conclusion that
petitioner could be held liable for the actions of its sheriff under McMillian because Arizona
sheriffs are policymakers for their counties in the area of law enforcement. Ibid.
6. In 2014, MCSO revealed to the district court that it had discovered a substantial amount of
evidence that it had failed previously to disclose to the plaintiffs. The undisclosed evidence
included drivers’ licenses, identi- fication cards, passports, and other property belonging to
members of the plaintiff class, as well as video record- ings of traffic stops. Pet. App. 64-73,
85-89. The district court entered an Order to Show Cause why MCSO, the sheriff, and certain senior
MCSO officials should not be
6
held in civil contempt for violating pretrial discovery or- ders and failing to take steps
necessary to ensure MCSO’s compliance with the preliminary injunction. D. Ct. Doc. 880, at 8, 12
(Feb. 12, 2015).
The district court held 21 days of contempt hearings, Pet. App. 20, 227-228, and then issued
findings of fact regarding civil contempt, id. at 20-236. The court found that the sheriff and
several of his command staff inten- tionally had failed to implement the preliminary injunc- tion.
Id. at 23-64. The court also determined that MCSO had violated its discovery obligations by failing
to turn over “considerable evidence of misconduct” rel- evant to plaintiffs’ claims. Id. at 227;
see id. at 64-114. In addition, the court concluded that MCSO’s investiga- tion of the undisclosed
evidence confirmed that MCSO had “manipulat[ed]” its investigations and disciplinary procedures to
avoid accountability for its constitutional violations. Id. at 229; see id. at 114-225. Based on
these findings, the court held the sheriff and several of MCSO’s command staff in civil contempt.
Id. at 235. The court invited the parties to make submissions on the appropriate relief. Id. at 21.
After considering the parties’ submissions, the dis- trict court entered a Second Amended Second
Supple- mental Permanent Injunction (Second Supplemental Injunction). Pet. App. 237. The Second
Supplemental Injunction “revised MCSO’s disciplinary matrix, con- flict of interest and
whistleblower policies, training re- quirements for internal affairs staff, and complaint in- take
and tracking procedures.” Id. at 8. It “vested the independent monitor with the authority to
supervise and direct internal investigations related to the Plaintiff class and to inquire and
report on other internal inves- tigations.” Ibid. It also directed the appointment of an
7
“independent investigator with disciplinary authority to investigate and decide discipline for
internal investiga- tions deemed invalid by the court.” Ibid. And it di- rected the creation of a
victim compensation fund. Ibid.
The district court explained that the injunction was tailored to
address the “particularly egregious and ex- traordinary” facts of the case and the broad scope of
the constitutional violations, which “involve[d MCSO’s] highest ranking command staff, and flow[ed]
into its management of internal affairs investigations.” Pet. App. 238-239. The court recognized
that “[a]ppropriate consideration must be given to principles of federalism in determining the
availability and scope of equitable relief.” Id. at 246 (quoting Rizzo v. Goode, 423 U.S. 362, 379
(1976)). But it explained that its ordered relief was warranted because previous remedies had “not
[been] effective due to Defendants’ deliberate failures and ma-
nipulations.” Id. at 249.
7. The court of appeals affirmed. Pet. App. 4-15.
The court of appeals explained that district courts have “broad discretion to fashion injunctive
relief,” and exceed that discretion only if such relief is “aimed at eliminating a condition that
does not violate the Consti- tution or does not flow from such a violation.” Pet. App.
9 (quoting Milliken v. Bradley, 433 U.S. 267, 282 (1977)). It further explained that “where the
enjoined party has a ‘history of noncompliance with prior orders,’ and particularly where the trial
judge has ‘years of ex- perience with the case at hand,’” a district court should have a “‘great
deal of flexibility and discretion in choos- ing the remedy best suited to curing the violation.’”
Id. at 9-10 (quoting 784 F.3d at 1265).
8
Applying those principles, the court of appeals deter- mined that the district court had not abused
its discre- tion in the Second Supplemental Injunction. It held that the challenged provisions
“flow from MCSO’s vio- lations of court orders, constitutional violations, or both.” Pet. App. 11.
The court rejected petitioner’s ar- gument that the Second Supplemental Injunction was contrary to
Rizzo, supra, explaining that Rizzo did not involve a pattern of police misconduct. Pet. App. 12.
The court further determined that the remedies were “necessary to ensure MCSO’s compliance with
court or- ders” in light of the defendants’ “‘deliberate failures and manipulations.’” Id. at 13
(citation omitted). The court acknowledged petitioner’s argument that the election of a new sheriff
might render some of the in- junctive relief unnecessary, but noted that the district court had
“offered to modify its prior orders, where ap- propriate, to accommodate these changed circumstanc-
es.” Ibid.
The court of appeals also rejected petitioner’s con- tention that it could not be liable for the
sheriff’s actions because the sheriff was not a final policymaker for the county. Pet. App. 13-14.
The court explained that it had “already—thrice—rejected this argument,” id. at 13, in decisions
that were binding on the panel, id. at 14 (dis- cussing Melendres II, Melendres III, and United
States v. County of Maricopa, 889 F.3d 648, 651 (9th Cir. 2018), cert. denied, No. 18-498 (Mar. 25,
2019)).
Finally, the court of appeals rejected petitioner’s ar- gument that it could not be required to
fund compliance with the injunction because Arizona law did not author- ize funding remedies for
willful misconduct. Pet. App. 14-15. The court explained that petitioner’s argument
9
was “premised entirely on a state law * * * that per- mits payment from insurance or self-insurance
funds for employee conduct ‘within the scope of employment or authority.’” Id. at 14 (quoting Ariz.
Rev. Stat. Ann. § 11-981(A)(2) (2012)). It noted that petitioner argued that, “[b]y negative inference,” that
statute disallowed payments for “employee conduct outside the scope of employment.” Ibid. The court
concluded that, “even assuming, without deciding, that this reading were cor- rect, and assuming
without deciding that the acts of MCSO’s employees were outside the scope of employ- ment or
authority,” petitioner’s argument would fail be- cause “[a] state statute prohibiting payment for
valid federal court-ordered remedies does not excuse a de- fendant from complying with those
remedies.” Ibid. In any event, the court reasoned, “the statute that [peti- tioner] cites would, at
most, prevent payment from in- surance or self-insurance funds,” not payment from other sources,
including those the county “uses to fund its normal operations.” Id. at 15. Finally, the court con-
cluded, petitioner’s argument was barred because it was contrary to petitioner’s concession in
Melendres III that it was required under state law to fund compliance with the district court’s
injunctive orders. Ibid.
ARGUMENT
Petitioner seeks this Court’s review of whether Ari- zona sheriffs are final policymakers for their
counties on matters of law enforcement (Pet. 18-28), whether pe- titioner is immune from funding
relief here on the the- ory that Arizona law bars funding remedies for willful or intentional
misconduct (Pet. 28-32), and whether the district court abused its discretion in ordering the
relief in the Second Supplemental Injunction (Pet. 32-35). The court of appeals’ disposition of
these claims does
10
not conflict with any decision of this Court or another court of appeals. Further review is not
warranted.
1. Certiorari is not warranted to review the court of appeals’ conclusion that Arizona sheriffs are
policymak- ers for their counties concerning law enforcement. This Court denied review of that
state-law-specific issue in an earlier decision in this case. 136 S. Ct. 799. It also denied review
of that question in United States v. County of Maricopa, 889 F.3d 648, 651 (9th Cir. 2018), No.
18-498 (Mar. 25, 2019). The same result is appro- priate here.
a. The court of appeals’ determination of the policy- maker status of Arizona sheriffs reflects a
correct ap- plication of McMillian v. Monroe County, 520 U.S. 781 (1997). In McMillian, a Section
1983 case, the Court assessed whether Alabama sheriffs were policymakers for the State or for their
respective counties in the area of law enforcement by examining the Alabama Consti- tution, the
Alabama Code, and relevant case law. In concluding that sheriffs were officers of the State, the
Court found “especially important” the designation of sheriffs as state officers under Alabama’s
Constitution. Id. at 787. The Court also relied in part on the Alabama Supreme Court’s conclusion
“that sheriffs are state of- ficers, and that tort claims brought against sheriffs based on their
official acts therefore constitute suits against the State.” Id. at 789. In addition, the Court
viewed the State’s responsibility for judgments against sheriffs as “strong evidence in favor of
the * * * con- clusion that sheriffs act on behalf of the State.” Ibid. Because Alabama was under
the jurisdiction of the Eleventh Circuit, the Court also “defer[red] considera- bly to” the court
of appeals’ “expertise in interpreting Alabama law.” Id. at 786.
11
In reaching its conclusion with respect to Alabama sheriffs, this Court emphasized that it was not
setting forth a uniform rule for all sheriffs. See McMillian, 520 U.S. at 795. It explained that
while such approach “might [make it] easier to decide cases,” it “would ig- nore a crucial axiom of
our government: the States have wide authority to set up their state and local govern- ments as
they wish.” Ibid. Given States’ authority over their own governments, the Court concluded, it was
“en- tirely natural that both the role of sheriffs and the im- portance of counties vary from State
to State, [and] there is no inconsistency created by court decisions that declare sheriffs to be
county officers in one State, and not in another.” Ibid.
The court of appeals correctly determined in Melen- dres III and County of Maricopa that Arizona
sheriffs are policymakers on matters of law enforcement for their counties, not for the State,
under the principles in McMillian. The court relied on the Arizona Constitu- tion, which designates
the office of the sheriff as “cre- ated in and for each organized county of the state,” and
provisions of Arizona law “explicitly stat[ing] that sher- iffs are ‘officers of the county.’”
County of Maricopa, 889 F.3d at 651 (citations and emphasis omitted). It also properly took into
account provisions of Arizona law au- thorizing the county board of supervisors to supervise
sheriffs’ performance of their duties and requiring each county to pay its sheriff’s expenses,
including expenses incurred in complying with injunctive relief against the sheriff and his office.
Ibid. Finally, it properly deter- mined that the most pertinent state court decision also signaled
that sheriffs are county policymakers with re- spect to law enforcement. Ibid. (discussing Flanders
v. Maricopa Cnty., 54 P.3d 837 (Ariz. Ct. App. 2002)).
12
Petitioner’s contrary arguments lack merit. Peti- tioner invokes (Pet. 21-22) several unpublished
district court decisions and an intermediate state court decision declining to find counties liable
under principles of respondeat superior for tortious conduct by sheriff’s of- fice employees in
performing particular duties. But as petitioner acknowledges, whether a sheriff is a policy- maker
for the county or the State under Section 1983 turns on a separate legal inquiry from whether a
county is liable in tort for actions of sheriff’s office employees under principles of respondeat
superior. See Pet. 21 (acknowledging that “respondeat superior liability plays no role in § 1983
jurisprudence”). Petitioner also relies on McMillian’s statement that “[a]s the basic forms of
English government were transplanted in our country, it also became the common understanding here”
that sheriffs are state officers. Pet. 22 (quoting McMillian, 520 U.S. at 794). But this Court went
on to observe that “the importance of counties and the nature of county government have varied
historically from re- gion to region, and from State to State,” and it recog- nized that, as a
result, courts would reach different con- clusions regarding whether sheriffs in particular States
were officers of the county or the State. McMillian, 520
U.S. at 795.
b. The court of appeals’ conclusion regarding the status of Arizona sheriffs does not present any
conflict warranting this Court’s intervention. As this Court ex- plained in McMillian, the
classification of officials as policymakers for the State or the county “is dependent on an
analysis of state law.” 520 U.S. at 786. Because no other court of appeals appears to have
considered whether Arizona sheriffs are county or state officials on
13
matters of law enforcement policy, the application of McMillian to Arizona sheriffs implicates no conflict.
Petitioner is mistaken in asserting (Pet. 27-28) a con- flict between the decision below and
decisions that con- sidered the status of sheriffs under distinct state-law schemes. Grech v.
Clayton County, 335 F.3d 1326 (11th Cir. 2003) (en banc), held that a Georgia sheriff was not
acting on behalf of the county when he main- tained a policy permitting invalid arrest warrants to
re- main in a state database. Six judges concluded that Georgia sheriffs are final policymakers for
the State in the area of law enforcement, id. at 1330-1348 (plurality opinion), but six other
judges disagreed, id. at 1349- 1364. Accordingly, the court did not adopt any categor- ical holding
on the status of Georgia sheriffs. Id. at 1347 n.46 (plurality opinion). In any event, the plurality’s conclusion
that Georgia sheriffs were state policymakers rested on provisions of Georgia law that differ from the
corresponding provisions of Arizona law. For exam- ple, whereas Georgia courts had held that county com-
missions cannot influence how sheriffs spend their funds, id. at 1339, Arizona law provides for counties to
“[s]upervise the official conduct of” all county officers, including the sheriff, to ensure that
they “faithfully per- form their duties and direct prosecutions for delinquen- cies,” Ariz. Rev.
Stat. Ann. § 11-251(1) (Supp. 2018).
The decision below likewise does not conflict with Franklin v. Zaruba, 150 F.3d 682 (7th Cir.
1998), cert. denied, 525 U.S. 1141 (1999), or Knight v. C.D. Vernon, 214 F.3d 544 (4th Cir. 2000).
Franklin, a sovereign im- munity case, held that sheriffs in Illinois were not state officials for
purposes of the Eleventh Amendment. 150 F.3d at 684-685. In doing so, the court relied in part on
Scott v. O’Grady, 975 F.2d 366 (7th Cir. 1992),
14
cert. denied, 508 U.S. 942 (1993), in which the court had held that sheriffs generally act on
behalf of Illinois counties when executing law enforcement duties. Franklin, 150 F.3d at 684-685.
O’Grady, in turn, rested on an examination of Illinois law. 975 F.2d at 370-372. Knight similarly
held that North Carolina sheriffs were not policymakers for their counties when making sher- iff’s
office personnel decisions, based on an analysis of North Carolina law. 214 F.3d at 552-553. Those
state- specific rulings do not conflict with the Ninth Circuit’s analysis of the status of sheriffs
under Arizona law.
2. Certiorari is also not warranted to review peti- tioner’s contention (Pet. 28-32) that it cannot
be re- quired to fund the relief in this case on the theory that Arizona law bars funding remedies
for willful or inten- tional misconduct.
a. As the court of appeals explained, petitioner’s contention is flawed in numerous respects.
First, peti- tioner draws a negative implication from a provision of state law that authorizes
“payment from insurance or self-insurance funds” for employee conduct “‘within the scope of
employment or authority.’” Pet. App. 14 (quot- ing Ariz. Rev. Stat. Ann. § 11-981(A)(2) (2012)). As
the court of appeals explained, petitioner’s negative- implication argument would “at most” support
the con- clusion that payments from insurance funds could not be used to compensate for employee
conduct outside the scope of employment or authority. Id. at 15. That pro- vision does not suggest
any limitation on the use of other county funds. Ibid. In any event, as the govern- ment explained
below, an employee’s conduct does not fall outside the scope of employment simply because it
involves intentional or willful misconduct. See State v. Schallock, 941 P.2d 1275, 1284 (Ariz.
1997) (intentional
15
misconduct may be within scope of employment, includ- ing when the misconduct was “incidental to
[the em- ployee’s] position and authority as” an agent of the em- ployer); see also Restatement
(Third) of Agency § 7.07 cmt. c (2006) (“Intentional torts and other intentional wrongdoing may be
within the scope of employment.”).
Second, as the court of appeals held, “[a] state stat- ute prohibiting payment for valid federal court-
ordered remedies does not excuse a defendant from complying with those remedies.” Pet. App. 14.
Under our federal system, “state policy must give way when it operates to hinder vindication of federal
constitutional guarantees.” North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45 (1971); see
Stone v. City & County of San Fran- cisco, 968 F.2d 850, 862 (9th Cir. 1992) (“[O]therwise valid state
laws * * * cannot stand in the way of a fed- eral court’s remedial scheme if the action is essential to
enforce the scheme.”), cert. denied, 506 U.S. 1081 (1993). If a federal court properly adjudicates a viola-
tion of, and orders a remedy authorized by, federal law, a State may not frustrate federal law by restricting its
political subdivision’s ability to provide the funding nec-essary for compliance.
Third, in any event, petitioner waived any argument that it is not required to fund the injunctive
relief in this case when it conceded that Arizona law required it to “bear the financial costs
associated with complying with the district court’s [previous] injunction[s],” which were also
aimed at remedying willful misconduct. 815 F.3d at 650. See, e.g., D. Ct. Doc. 579, at 125 (May 24,
2013) (finding that “MCSO[’s] discrimination against Hispan- ics was intentional”). As the court of
appeals explained, after having made that concession, petitioner “cannot change its position now.”
Pet. App. 15.
16
b. The decision below does not conflict with any de- cision of this Court or any other court.
Petitioner iden- tifies no decision holding that a government can avoid its remedial obligations
under federal law by enacting a statute prohibiting the expenditure of governmental funds to cover
the costs of compliance. And in any event, the court of appeals’ decision is independently
supported by alternative grounds. The court below sep- arately concluded that petitioner
misunderstood Ariz. Rev. Stat. Ann. § 11-981(A)(2) (2012). Pet. App. 14-15. That state-law holding
does not implicate any conflict, and this Court has held that certiorari is generally un- warranted
to review a court of appeals’ interpretation of state law. Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1, 16 (2004); see Leavitt v. Jane L., 518 U.S. 137, 144 (1996) (per curiam). The court’s
case-specific waiver holding, see Pet. App. 15, is also sufficient to support the judgment below,
and does not implicate any conflict.
3. Finally, petitioner’s argument that the Second Supplemental Injunction constituted an abuse of
discre- tion (Pet. 32-35) does not warrant this Court’s review. This case involves a uniquely
intrusive injunction di- rected at a state law-enforcement agency. The court or- dered changes to
the supervision of deputies, required additional training, directed the promulgation of new
conflict-of-interest and whistleblower policies, and placed additional responsibilities under the
supervision of an independent monitor. Pet. App. 8. That extensive federal oversight of state
law-enforcement operations raises serious federalism concerns.
Nevertheless, the petition should be denied. As an initial matter, petitioner does not make any
targeted
17
challenge to particular provisions of the Second Supple- mental Injunction it regards as outside
the district court’s discretion. Rather, petitioner lists (Pet. 32-35) various provisions of the
injunction and then asserts that the injunction should be vacated in its entirety. But the parties
were in agreement on many of the terms of the injunction. For example, the parties agreed on
changes to deputies’ supervision, Pet. App. 294, and on the appointment of an independent
investigator to in- vestigate and, if appropriate, impose discipline based on particular types of
misconduct, id. at 302-318. Peti- tioner has neither developed a focused challenge to par- ticular
provisions of the court’s order nor offered a basis to conclude that the entire decree is
deficient. And to the extent that petitioner has concerns directed at particular provisions of the
decree, as the court of ap- peals noted, “the district court has offered to modify its prior
orders, where appropriate, to accommodate * * * changed circumstances,” including the election of a
new sheriff and other personnel changes, and has already granted some requests for modifications.
Id. at 13. Moreover, although the district court’s injunction is un- usually intrusive, the court
found that injunction appro- priate because of “particularly egregious and extraordi- nary facts,”
including constitutional violations that in- volved MCSO’s “highest ranking command staff, and
flow[ed] into its management of internal affairs investi- gations.” Id. at 238-239.
b. The court of appeals’ conclusion that the district court did not abuse its discretion with
respect to injunc- tive relief on the facts of this case does not conflict with any decision of
this Court. Contrary to petitioner’s sug- gestion (Pet. 34-35), the decision below does not
conflict with Rizzo v. Goode, 423 U.S. 362 (1976), in which this
18
Court determined that an injunction against a police de- partment that mandated specific procedures
for han- dling civilian complaints and internal discipline failed to account for federalism
concerns. In concluding that the injunction in Rizzo was unduly intrusive, this Court re- lied on
the fact that the district court “found that the evidence did not establish the existence of any
policy on the part of the named petitioners to violate the legal and constitutional rights of the
plaintiff classes.” Id. at 368; see id. at 371-377. In contrast, the district court here found that
“the Defendants were systematically violat- ing the Fourth and Fourteenth Amendment rights of the
Plaintiff class in several different respects including the adoption of unconstitutional policies.”
Pet. App. 248; see id. at 238-239 (finding “constitutional violations [that] are broad in scope,
involve [MCSO’s] highest ranking command staff, and flow into its management of internal affairs
investigations”). Moreover, much of the remedial order in this case—unlike in Rizzo—was imposed
only after the district court found “persistent disregard for the [court’s] orders” on the part of
the de- fendants as well as “an intention to violate and manipu- late the laws and policies
regulating their conduct.” Id. at 22. This Court’s holding in Rizzo thus does not es- tablish that
the district court abused its discretion un- der the materially distinct circumstances of this
case.
Lewis v. Casey, 518 U.S. 343 (1996), is similarly in- apposite. In Lewis, a class of plaintiffs
alleged that the Arizona Department of Corrections had failed to pro- vide access to adequate legal
research facilities, depriv- ing them of their right of access to the courts. Id. at
346. The district court found only two instances of ac- tual harm to plaintiffs, yet imposed a
broad injunction that effected “sweeping changes” to the department’s
19
practices. Id. at 347. This Court held that the “two in- stances [of harm] were a patently
inadequate basis for a conclusion of systemwide violation and imposition of systemwide relief.” Id.
at 359. Additionally, the Court held that the injunction was improper because it “was developed
through a process that failed to give ade- quate consideration to the views of state prison author-
ities.” Id. at 362. In contrast, the district court here specifically found systemic violations,
see, e.g., Pet. App. 62-63, 238, and consistently gave county authori- ties the opportunity to
investigate alleged misconduct and to provide input into appropriate remedies. The court of
appeals’ case-specific conclusion that the dis- trict court did not abuse its discretion in its
injunctive order thus does not conflict with this Court’s prior deci- sions rejecting different
injunctions, or otherwise pre- sent any conflict warranting further review.
CONCLUSION
The petition for writ of certiorari should be denied. Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
ERIC S. DREIBAND
Assistant Attorney General
THOMAS E. CHANDLER
ELIZABETH P. HECKER
Attorneys
APRIL 2019