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Arpaio’s cooperation pledge with feds includes conditions, legal threat

Maricopa County Sheriff Joe Arpaio. (Photo by Evan Wyloge/Arizona Capitol Times)

After initially resisting a federal civil-rights investigation, Maricopa County Sheriff Joe Arpaio is now asking the feds for a little cooperation or he’s ready to go to court.

Arpaio’s attorneys made his demand in a letter today, which is the deadline the Department of Justice’s Civil Rights Division gave the sheriff to decide whether to cooperate in overhauling his office.

Attorney Joseph Popolizio of Jones, Skelton and Hochuli wrote in the letter that MCSO’s “supposed lack of cooperation” was ancient history and it has been more than cooperative since June, when both sides reached an agreement for the DOJ to drop a lawsuit seeking to force Arpaio to turn over documents and provide employees for interviews.

And now MCSO wants the DOJ to turn over the evidence it gathered in a three-year investigation that alleges MCSO has engaged in “pattern and practice” of racial profiling of Hispanics and mistreating Hispanic inmates who speak only Spanish.

“Sheriff Joseph M. Arpaio and the MCSO are certainly interested in participating in constructive dialogue, but constructive dialogue can only occur if the DOJ provides the facts and information on which it bases its findings,” Popolizio wrote.

He ended his letter with: “Please know, however, that we stand ready to litigate this matter should the DOJ refuse to provide the information we seek.”

Assistant Attorney General Thomas Perez, who heads the Civil Rights Division, said the MCSO must agree to judicial oversight of an overhaul of its policies and training or else the DOJ will file a lawsuit forcing the changes.

Popolizio wrote that DOJ blindsided MCSO with a Dec. 15 announcement of the findings because the agency learned about them only an hour before a hastily called news conference in which DOJ inaccurately portrayed MCSO’s cooperation in the investigation.

Popolizio said a DOJ spokeswoman, Xochitl Hinojosa, has also said MCSO won’t get a statistical study relied upon by DOJ in its investigation except by court order.

Hinojosa did not respond to requests for comment.

He said he hopes DOJ isn’t bent on filing a lawsuit.

A scholar who has written extensively about federal takeovers of police agencies and a spokesman for a North Carolina GOP sheriff who is also under investigation for racial profiling said the DOJ tactics in the Arpaio case are nothing new.

“They don’t tell you what you’re being investigated for,” said Heather Mac Donald, a fellow with the Manhattan Institute, a conservative think tank.

Randy Jones, a spokesman for the Alamance County (N.C.), Sheriff’s Office, said his agency has been under investigation since November 2009 and DOJ has said only that it is a probe of racial profiling and illegal searches and seizures.

“None of this makes any sense to us,” Jones said. He added that there are suspicions the probe is politically motivated since the allegations surfaced just before Sheriff Terry Johnson was re-elected for a third term and the sheriff’s office is part of the 287(g) program, which allows for a local agency to enforce immigration law.

He said the cooperation has been one-sided with DOJ simply imposing its will on the sheriff’s office. For instance, Jones said DOJ insisted that it be the only one that can issue press releases concerning the investigation and didn’t want the sheriff’s office to release them.

DOJ has since filed suit in federal court to prevent the Alamance county attorney from sitting in on interviews with deputies and other employees. The county attorney says that he is required by rules of the state bar to sit in on the interviews since he represents the sheriff’s office.

Perez said when he was in Phoenix last month that more police departments were under investigation for civil rights violations than any time in history and that most were cooperative and some even asked for a federal review.

The New Orleans Police Department was one of them.

New Orleans police spokesman Frank Robertson III said a consent decree his department signed became effective last month, but the department has been working for months installing the changes. The department had been steeped in corruption and racial profiling, according to a DOJ report.

Robertson said the consent decree calls for a major overhaul of the department and there are four to six federal agents working throughout the department closely monitoring the compliance.

He said MCSO can expect drastic changes if it reaches an agreement.

“I know for us it was (drastic),” he said. “A lot of people probably aren’t going to take to that change because they’re not used to it.”

Assistant U.S. Attorney General Roy Austin, who led the investigation of MCSO, said an agreement will effectively have to be an overhaul of the Sheriff’s Office, including rewritten policies, retraining of deputies, and setting up a system so people can complain about the Sheriff’s Office.

Austin said there would also be a monitor who will work in the Sheriff’s Office to provide daily oversight.

“Being under consent decree that the Justice Department forged is an extremely onerous, costly burden on departments,” said Mac Donald, who set out in her book “Are Cops Racist” to prove that police act in response to behavior and not race.

She said that when Perez took his position in the Obama administration he made it known that he was going to do more “pattern and practice” investigations and be aggressive in getting departments to enter into consent decrees, holding up the one signed by the Los Angeles Police Department in the 1990s as the model.

She said LAPD spent about $40 million trying to comply in the first year and $50 million a year afterward, pulling 350 officers off the street to comply with paperwork.

“The LAPD consent decree was absurdly detailed in its prescriptive requirements about report filing, it was administered with a complete lack of understanding on the part of the court monitor that police have something other to do than write reports, that they’re supposed to be out on the streets fighting crime,” Mac Donald said.

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