The man formerly known as “America’s toughest sheriff” is facing federal criminal contempt charges for allegedly continuing with his racially profiling “immigration patrols” and detentions in defiance of a federal order. The trial ended last month, and the judge is expected to issue a ruling soon.
This week, I received two unsolicited emails purporting to be from Arpaio’s wife — one from “Mrs. Joe Arpaio,” and another from “Ava Arpaio.” Both — with the same text — were fundraising emails for Arpaio’s legal defense.
The email itself is something. Unsurprisingly, Ava Arpaio says the charges against her husband were politically motivated and timed to do maximum damage to his reelection campaign. (After 24 years in office, the 85-year-old Arpaio was finally defeated last year.) This section is particularly interesting:
You know, most Americans know Joe as “America’s Toughest Sheriff.” But I know him as a kind, simple and loving man.
During his 24 years as the longest serving Sheriff in Maricopa County, folks have heard about him putting criminals in pink underwear in “tent cities” in the desert, but not very many people know that he also gave shelter to abandoned and endangered cats, dogs and other animals in his jails and had the prisoners care for them and to save them.
That’s the kind of man Joe is.
I don’t doubt that Ava Arpaio loves her husband and that she intended this as a compliment. And I suppose that if you think it is commendable for a man to treat animals better than he treats the human beings entrusted to his care, then you’re free to donate. I suspect, however, that most people won’t see this particular passage in a light as complimentary to Joe Arpaio as Ava Arpaio seems to see it.
But I was also drawn to another phrase in the email. Apparently, Arpaio’s defense fund is being handled by a group called the National Center for Police Defense (NCPD), a nonprofit organization. That means that donations to Arpaio’s defense are, as the email put it, “100 percent tax-deductible.” The link in the email takes you to this page, which includes the following copy:
Sheriff Joe Arpaio has spent his entire life in public service, and now, he’s under attack for upholding the laws of the land and needs your support to fight this legal battle.
Justice Department hold-overs from the Obama administration and their allies won’t rest until they see him wearing prison orange.
The National Center for Police Defense needs your immediate support to help fund his defense.
Will you use the form below to make the most generous donation you can afford? Your gift is 100% tax deductible and will be put to immediate use!
Something about that seems a bit off. Everyone facing criminal charges deserves a robust legal defense, even if he or she can’t afford one. And yes, that even includes a buffoonish sheriff who spent most of his career running roughshod over the civil and constitutional rights of others. And of course we have nonprofit groups such as the ACLU and the Equal Justice Initiative, which provide pro-bono legal defense in criminal cases. But I can’t recall another example in which a nonprofit solicited tax-deductible donations specifically for one defendant. So I consulted with Marcus Owens, an expert on nonprofit law and partner at the D.C. law firm Loeb & Loeb.
Owens says that if you’re facing criminal charges, you certainly have the right to set up a legal defense fund. Or a friend could do it for you. But donations to that fund are not tax-exempt, and the IRS would not let you get tax-exempt status. In fact, Owens says large donations may even be subject to an additional gift tax. Donors would give because they support you, or perhaps because they feel you’ve been wronged. But there would be no tax-based incentive to give.
So what about EJI or the ACLU? “A group like the ACLU files for nonprofit status to ‘defend human and civil rights secured by law.’ That’s the language you use,” Owens says. “You then need to have an independent board that decides which cases to take that fit with your mission.”
These groups can use individual cases they have already agreed to take in their fundraising materials, but you can’t start a nonprofit solely to benefit the legal defense of one specific person.
The National Center for Police Defense (NCPD) does appear to have a mission statement. This is from the group’s website:
The National Center for Police Defense, Inc. (NCPD), is dedicated to helping law enforcement officers in their time of need. Helping with the legal process when they do their job and are rewarded with a grand jury hearing that could lead to a possible indictment, or are severely injured and out on sick leave and need financial or legal assistance until they are back on their feet. NCPD isn’t only about legal defense for Law Enforcement. NCPD is about help! “NCPD is the only organization that helps protect you from the system that you protect and serve, at your time of crisis.”
In addition to Arpaio, the group also claims to have assisted or to be assisting Betty Shelby, the white Tulsa police officer recently acquitted in the shooting death of unarmed black motorist Terence Crutcher, as well as Anthony Federico, a Rockville Centre, N.Y., officer facing charges for allegedly hitting a man in the head with his Taser, then lying about the incident.
So does that mean the group is legit? It might. But dig a little further, and it all gets murky again. According to Charity Navigator, NCPD received its tax-exempt status in December 2015. That’s about five months after a federal judge sent U.S. marshals to seize evidence from Arpaio’s office. It’s also about five months before the same judge held Arpaio in criminal contempt. In other words, the group was founded just as it started to become clear that Arpaio was facing some pretty serious legal troubles. According to the email sent out under Ava Arpaio’s name, NCPD has already given some $350,000 to her husband’s defense. (The email also included a photo of NCPD’s president presenting Arpaio with an oversize check for $250,000.) That’s interesting, because according to Charity Navigator, NCPD took in just $388,952 in revenue in 2016. Which means that in its first year of existence, NCPD gave about 90 percent of its revenue to Joe Arpaio’s legal defense.
Owens says that in some cases, someone might start a nonprofit for the specific purpose of aiding victims of some traumatic event, such as a natural disaster or a plane crash. “In those cases, you’ll often seen language indicating that any money collected beyond what the victims need will be spent at the organization’s discretion.”
Arpaio’s criminal case probably is pretty traumatic to Arpaio, but it obviously isn’t in the same category as a plane crash or natural disaster. But language similar to what Owens describes exists on the NCPD’s Arpaio page as well.
The National Center for Police Defense, Inc. (NCPD) is a 501©3 non-profit organization. All contributions are tax-deductible as allowed by law, and are made with the understanding that NCPD has complete discretion and control over the use of all donated funds. If we receive more than we need for any one law enforcement officer’s case, the remaining funds will be used to assist other officers and/or to help further other programs.
Owens says there’s a lot of gray area in nonprofit law. Which means whether or not what NCPD is doing for Arpaio is technically legal may be open to interpretation. “What we may be seeing here is a paper adherence to the requirements,” Owens says. “Based on what you’ve told me, this is an organization that is aware of the need to appear to have an independent board, but the board doesn’t seem to be all that independent. It may be a shell so Arpaio can solicit tax-deductible donations. I would think a state attorney general or the IRS might want to take a look.”
At the very least, it’s all a bit unseemly. Arpaio has been on the public dole for nearly all of his professional life. He now stands accused of abusing his authority and violating the constitutional rights of the people he was elected to serve. I’d argue that if he can’t afford an attorney, he ought to be given the same taxpayer-funded defense any other indigent defendant would get when facing federal charges, which would be the federal public defender. Of course, he’d still have the right to set up a defense fund. And his supporters would have the right to donate to it. I’m just not sure why taxpayers should subsidize those donations.
All of which raises one final question: Who is the NCPD? The answer isn’t exactly clear. The group doesn’t list its board of directors on its website. There’s no phone number. I sent a query to the only email address listed on the site but didn’t receive a response.
The only listed staff member on the NCPD website is James Fotis, listed as the president. Prior to his current gig, Fotis was the longtime head of a group called the Law Enforcement Alliance of America (LEAA). That, too, was a pretty shadowy group. For more than 15 years, the LEAA ran exploitative, often misleading ads in state attorney general, state supreme court and other state races across the country. But the group never disclosed its donors and rarely talked to the press about its funding. Here’s a Time magazine profile of the group from 2015:
Wedged between a nail salon and a pizza shop in a strip mall about 25 miles south of Washington, D.C., is a postal supply store where a small brass mailbox sits stuffed with unopened envelopes.
It’s the unlikely home of one of the country’s most mysterious political hit squads.
The Law Enforcement Alliance of America once had offices in a nearby office park, but it abandoned them more than a year ago. It hasn’t filed required IRS reports in two years, and its leaders, once visible on television and in congressional hearings, have all but vanished.
But the nonprofit that calls itself “the nation’s largest coalition of law enforcement professionals, crime victims and concerned citizens” still has teeth. It has succeeded in helping knock out 12 state-level candidates in 14 years, including an Arkansas judicial candidate last year. In doing so, the group helped launch the current governors of Texas and Nevada to their stepping-stone positions as state attorneys general.
The LEAA uses brute tactics — parachuting into otherwise small-dollar races close to the end and buying up TV ads that accuse candidates of siding with “baby killers” and sexual predators.
According to the Time report, written by the Center for Public Integrity, the LEAA was created in the 1990s by the National Rifle Association in an effort to get police officers and law enforcement groups on board with the gun rights movement. The NRA stopped funding LEAA in 2010. Sometime in the early 2000s, the LEAA began to focus more on pushing law-and-order candidates in state elections. Despite its name, the Time/CPI report points out that police organizations have distanced themselves from the LEAA. Even the head of the nation’s largest police union told the author of the report, “If we have ever agreed with them, it’s been totally coincidental.” Though the LEAA never disclosed its donors, it has also apparently received funding from fiscally conservative groups such as Americans for Tax Reform and the U.S. Chamber of Commerce — presumably on the assumption that tough-on-crime candidates also tend to be fiscally conservative.
I first learned about the LEAA through its involvement in Mississippi Supreme Court elections. I’ve been covering the state’s death investigation system for over 10 years now, in particular the tenure of discredited medical examiner Steven Hayne and his sidekick, the “bite mark” and “tool mark” specialist Michael West. One of the first Mississippi Supreme Court justices to question West’s credibility was former justice Charles McRae. He did so in a lonely dissenting opinion in the case of Levon Brooks, who had been convicted of raping and killing a 3-year-old girl. Brooks was convicted almost entirely due to West’s bite-mark testimony, which McRae found dubious. When McRae was up for reelection, the LEAA took out ominous ads noting that McRae “was the only judge to reverse the conviction of the murderer of a 3-year-old.”
McRae lost. In 2007, Levon Brooks was exonerated and released from prison. Kennedy Brewer was also exonerated and released. He had been convicted and sentenced to death for a remarkably similar crime. It would turn out that the same man committed both murders.
In 2008, the LEAA ran more vicious attack ads against Mississippi Supreme Court Justice Oliver Diaz, one of the few members of that court to question the credibility of Hayne, who even a federal appeals court now concedes has been “discredited.” The LEAA ad accused Diaz of siding with “baby killers.” One of the cases mentioned was that of Jeffrey Havard, who still sits on Mississippi’s death row. But in Havard’s case, even Hayne now concedes that his testimony was in error. He also claims the little girl in the case was never sexually assaulted, as prosecutors claimed at trial. Havard will have an evidentiary hearing later this summer. The LEAA ads were condemned by a judicial integrity committee but eventually pulled by local TV stations for being unfair. Diaz lost, too.
Joe Arpaio shouldn’t get a taxpayer-subsidized boutique defense. He deserves whatever defense his own money and the money of his supporters can buy or, alternately, he should get a public defender. That said, we should all hope that his case is resolved with fairness and justice — two values that Arpaio and Fotis spent much of their careers denying to other people.