A darling of the far right and a longtime adversary of civil rights groups and immigration activists, “America’s toughest sheriff,” will soon face Justice Department lawyers in Washington in a years-long legal saga over whether he intentionally defied federal orders to stop racially profiling Latinos.
A special section of the Justice Department — dedicated to investigating corruption in publicly elected offices — will decide whether Maricopa County Sheriff Joe Arpaio should face criminal contempt-of-court charges, according to a ruling filed Friday in U.S. District Court.
The decision followed several other blows for the Arizona sheriff in the protracted case. In May, U.S. District Judge G. Murray Snow ruled that Arpaio and his aides — Chief Deputy Jerry Sheridan, Capt. Steve Bailey and his former attorney, Michele Iafrate — had intentionally ignored federal orders to stop racially profiling Latinos at traffic stops and in “saturation patrols” of predominantly Latino neighborhoods.
On Aug. 19, Snow referred the sheriff and three of his associates to be prosecuted for criminal contempt of court.
The decision was almost without precedent, so unusual that even the Justice Department initially seemed unsure of what, exactly, would happen next.
“It’s atypical. It’s not every day that we get referred to for a referral order from a judge on a sheriff,” Justice Department spokesman Cosme Lopez told The Washington Post last week. “Once the U.S. attorney reviews everything with our team, the process will commence. What process is that and how long does it take? We don’t know.”
Arpaio vowed to challenge the referral and will refuse to accept a plea agreement or resign as sheriff, his defense attorney told The Post. It is unclear what lasting consequences the threat of criminal prosecution will have for the Republican sheriff, who is unlikely to be jailed and is up for reelection in November.
Arpaio’s ongoing legal battles did not hurt him in Tuesday’s primary election in Arizona, where he easily beat out his three Republican challengers, according to early results.
Legal experts said Snow’s referral was a symbolic one: Even if Arpaio is prosecuted, contempt of court is a misdemeanor that carries a maximum of six months in jail, and it is not likely that Arpaio would spend much time behind (his own) bars.
“He’s really taking a stance that ‘Sheriff Joe’ is not above the law,” Cara Rabe-Hemp, a criminal justice professor at Illinois State University familiar with the case, told The Post. “That anyone can be held accountable for their behavior — even if you’re a very popular sheriff.”
The Maricopa County Sheriff’s Office declined to comment, referring all inquiries about the case to Arpaio’s criminal defense attorney, Mel McDonald.
“Very simply, he’s not going to resign and he’s not going to accept a plea agreement to something he didn’t do,” McDonald told The Post, referring to the charge that Arpaio willfully ignored court orders to stop racially profiling Latinos. “We provided the court page after page after page of all the efforts that had been made to carry out the judge’s order.”
McDonald said Sunday that the latest development in the case was disappointing from a logistics standpoint. McDonald had looked forward to working with the U.S. attorney in Arizona because he has had a long relationship with the office; he served as U.S. attorney there from 1981 to 1985.
The filing cited unspecified conflicts of interest as the reason for recusing prosecutors in Arizona and shifting the case to Washington.
“My hope is to reach out to the Department of Justice once they assign somebody [to the case] and open a dialogue with them,” McDonald told The Post. “The problem, I think, is not going to be to find somebody. The problem is going to be for somebody to get up to snuff on the case. I mean, the record is staggering.”
‘America’s toughest sheriff’
Arpaio, who bills himself as “America’s toughest sheriff,” has long been a polarizing figure, known for his hard-line stance on illegal immigration and his media-loving exploits, such as forcing his inmates to wear pink underwear and sleep outdoors in “Tent City Jail.”
Love him or hate him, over the past 23 years, nothing has seemed to tarnish Arpaio’s popularity in Maricopa County, where he has been handily reelected sheriff.
Arpaio reemerged in the national spotlight last year as an early supporter of now-Republican presidential candidate Donald Trump. The two have some history: Arpaio was one of the first public figures to jump on Trump’s obstinate mission to “seek the truth” about President Obama’s birth certificate.
“You are the only one with the ‘guts’ to do this,” Trump scrawled on a printed article about the birther movement to Arpaio in 2012. “Keep up the good fight.”
More recently, Arpaio has campaigned alongside Trump in Arizona — to the chagrin of even some members of their party. Sen. Jeff Flake (Ariz.) asked the local GOP to renounce sponsorship of a joint campaign event in the state.
Last month, the sheriff was invited to speak on the final night of the Republican National Convention in Cleveland. There, he amplified his — and Trump’s — tough talk on immigration.
“We have terrorists coming over our border, infiltrating our communities and causing massive destruction and mayhem. We have criminals penetrating our weak border security system and committing serious crime,” Arpaio told cheering convention-goers. “I am supporting Donald Trump because he is a leader. He produces results and is the only candidate for president ready to get tough in order to protect Americans.”
Trump, in turn, has said little publicly about Arpaio, although in January he put out a statement saying he has “great respect” for the sheriff.
It is unclear what effect, if any, the possible contempt-of-court charges will have on Arpaio’s relationship to the Trump campaign, which last week seemed to waver slightly on its promise that 11 million illegal immigrants would be booted from the country should Trump be elected.
Trump plans to speak in Phoenix on Wednesday, his fourth campaign visit to Arizona.
I will be making a major speech on ILLEGAL IMMIGRATION on Wednesday in the GREAT State of Arizona. Big crowds, looking for a larger venue.
— Donald J. Trump (@realDonaldTrump) August 28, 2016
Arpaio also plans to speak at the event before Trump’s appearance, several Arizona media outlets reported.
A long legal saga
Friday’s court filing was just the latest and most significant step in a years-long legal saga that started when, in 2008, the American Civil Liberties Union and other groups joined a class-action lawsuit that alleged a pattern and practice of racial profiling and unlawful traffic stops by the agency.
The lawsuit triggered findings and actions over several years against the Maricopa County Sheriff’s Office.
First, a preliminary injunction was issued, ordering the deputies to stop detaining people based solely on their perceived immigration status.
In 2013, a judge found evidence that Arpaio’s deputies were conducting traffic stops using unlawful racial bias, so the judge issued a supplemental injunction that appointed a court-ordered monitor to oversee the sheriff’s office.
In May, Snow found Arpaio and his three associates in civil contempt of court — among other findings that included “multiple misstatements of fact while under oath” and allegations that Arpaio was having a Seattle-based informant investigate Snow during the trial, KJZZ reported.
In July, another supplemental injunction stripped Arpaio’s authority over certain internal affairs cases.
Snow’s Aug. 19 referral for a criminal contempt charge essentially found that Arpaio and his agency not only continued to violate the judge’s orders, but did so willfully.
The decision was seen as a hard-won victory for those who have protested Arpaio’s law-enforcement tactics for years. There remains documented evidence of racial bias in arrests and searches conducted by some MCSO deputies, according to a recent study by the Arizona State University Center for Violence Prevention and Community Safety. The annual report analyzed a year’s worth of MCSO traffic-stop data, from July 2014 through June 2015, and concluded that more than 10 percent of deputies are still showing racial bias in their stops.
On Thursday, Arpaio’s campaign manager questioned the timing of the federal judge’s decision, made 10 days before Tuesday’s Republican primary election.
“I am not impugning his motives or questioning [Judge Snow’s] integrity,” campaign manager Chad Willems told the Associated Press. “It just seems whenever a major decision comes out, the timing is curious.”
Now it appears that the decision of whether to file criminal contempt charges against Arpaio will rest with Justice Department.
“The saga of this case, it’s incredible,” Andre Segura, a senior lawyer with the ACLU Immigrants’ Rights Project, told The Post. “There are so many layers.”
‘The racial profiling, the distrust’
Developments in this years-long case have quickly spread through a network of people who had been watching for every court filing and judge’s ruling “like a hawk,” said Arizona state Sen. Martin Quezada (D).
In downtown Phoenix, it is not uncommon to see protesters outside Arpaio’s office. Throughout the racial-profiling case, an oversize balloon of Arpaio in prison garb and handcuffs would periodically appear upon the steps of the U.S. district courthouse there, a few blocks away.
“I think this really signals a kind of a step toward justice after many, many years of fighting Arpaio in court and dealing with his targeting of my community and many people in Maricopa County through his racial profiling,” Quezada told The Post. “The wheels of justice turn very, very slowly at times, but they do turn and we achieved a great milestone.”
Quezada, whose legislative district is made up of nearly 70 percent Latino residents, said racial profiling by the Maricopa County sheriff’s deputies has created distrust between the community and law enforcement.
“We know that if you have brown skin, if you’re going to listen to Spanish music, if you are going to be driving an older vehicle or in any way look like what the sheriff’s department perceives is anyone who doesn’t belong in this country, [then] you’re going to get pulled over regardless of what your immigration status is,” Quezada said. “The corruption and the illegal activities of the sheriff’s department have really tarnished some other good law-enforcement agencies that aren’t out there to harass and intimidate people.”
Any celebration by activist groups over the likelihood that Arpaio may face a criminal trial was quickly tempered by the realization that their fight was not over, said Carlos Garcia, director of the human-rights group Puente Movement, one of several groups that have protested Arpaio’s practices for years.
“For us it’s very important to remember the victims of Arpaio, the people caught in his raids, who suffered abuse in his jails,” Garcia told The Post.
Last Monday, three days after Snow’s referral, members of Puente and other activists sought to do just that at yet another downtown Phoenix rally. They brought the giant Arpaio balloon out once more — this time to the U.S. attorney’s office — to make it known that their goal was to see the sheriff prosecuted.
The crowd included those who previously had been illegally detained by MCSO deputies, Garcia told The Post. Afterward, three of those women, including two undocumented immigrants, met with staff members of Leonardo’s office to share their experiences. The staff told Garcia, who was there, that they were taking the matter seriously.
Arpaio appeared to sail through Arizona’s primary election Tuesday, garnering 66 percent of the votes as of Wednesday morning, according to early results. Of his three Republican challengers in the sheriff’s race, the next closest was Dan Saban, with about 26 percent of the votes as of Wednesday morning.
On primary day, Arpaio told the AP that his strong connection with voters would help him overcome negative attention from the case.
John Nance, a Republican, voted for Arpaio and told the AP his opponents wouldn’t be an improvement.
“I’ve liked him all these years, pink underwear and all,” Nance told the AP. “I just think why not ride that horse until it dies.”
Arpaio now faces what could be his toughest race yet in the November general election. Last month, the Arizona Republic reported a new independent poll that showed Democratic candidate Paul Penzone leading Arpaio in the race by three points.
Even if Arpaio loses his bid for sheriff, Garcia and other activists said that would only be a superficial solution to the problem.
“I think it’s one thing to remove Arpaio by any means, whether it’s going to be through prosecution, he resigned, gets voted out,” Garcia told The Post. “But it’s important that the culture that he’s created goes with him. The abuse, the racial profiling, the distrust in the immigrant communities — all that needs to be mended.”
This post, originally published on Aug. 29, has been updated.