After four years of depositions and hearings and motions, a federal judge in Phoenix entered a preliminary injunction against Arpaio and the sheriff’s office, noting that “states do not have the inherent authority to enforce the civil provisions of federal immigration law.” He ordered Arpaio to stop detaining anyone not suspected of a state or federal crime — simply being in the United States illegally is not a crime, only a civil violation.
That was in December 2011. And that’s when Arpaio’s defiance of the court began. Over the next five years, two federal judges found that Arpaio wasn’t abiding by the injunction, was regularly telling the news media he wouldn’t abide by it, continued to have deputies make immigration-based stops and even made “multiple intentional misstatements of fact under oath,” one judge wrote. U.S. District Judge G. Murray Snow wrote last year that Arpaio made false statements about his department “in an attempt to obstruct any inquiry into their further wrongdoing or negligence,” and that Arpaio and his chief deputy “have a history of obfuscation and subversion of this Court’s orders that is as old as this case and did not stop after they themselves became the subjects of civil contempt.”
So after 21 days of hearings in 2015, Snow found Arpaio in civil contempt of court. But the judge felt that Arpaio still had no interest in complying with his orders to provide information on immigration enforcement or to stop making immigration arrests. So last year Snow took the extraordinary step of referring the sitting sheriff of Maricopa County to another judge for a charge of criminal contempt of court, with a possible six-month jail sentence. (Arpaio was defeated for reelection in November.)
Over Arpaio’s objection, that judge — U.S. District Judge Susan R. Bolton — heard the case herself, without a jury. (An appeal on that issue was pending before the U.S. Supreme Court when Trump issued his pardon.) Bolton found Arpaio guilty, citing his numerous statements to the news media and his actions in continuing to detain Latino motorists. Despite his knowledge of injunctions ordering him to stop immigration enforcement, Bolton concluded, Arpaio “broadcast to the world and to his subordinates that he would and they should continue ‘what he had always been doing.’ ” She set his sentencing for Oct. 5, and he faced up to six months in jail. But Friday night, President Trump pardoned Arpaio before he could be sentenced.
In the run-up to Trump’s decision, Arpaio’s supporters were pleading with Trump and Attorney General Jeff Sessions to intervene in the case. The National Center for Police Defense delivered 40,000 petitions to the Justice Department in June and raised $500,000 for his legal defense. Jim Fotis, the president and founder of the group, said he watched Arpaio’s trial in June and said he was shocked when Bolton found the sheriff guilty. “I don’t believe he ever would have been convicted by a jury of his peers,” Fotis said.
After the pardon, Fotis said, “President Trump recognized Sheriff Arpaio was doing his job, following the law and this is why he deserves to be pardoned.”
The plaintiffs who sued Arpaio on behalf of the original motorist called the pardon “a punch in the gut for the people of Maricopa County.” Cecillia Wang, one of the lead lawyers in the case from the American Civil Liberties Union Foundation, said, “This is the official presidential endorsement of racism. And it’s appalling when you had, in this context, a sheriff who willfully violated court orders. A law enforcement official who has been held accountable for violating court orders has been excused by the president of the United States.”
Wang noted that the injunctions requiring the Maricopa County Sheriff’s Office to stop racial profiling and which required a monitor to file regular reports on the office’s practices remain in place. “He can pardon Arpaio,” Wang said, “but he can’t change the truth that Arpaio violated people’s constitutional rights and violated the court orders that stopped him from violating those constitutional rights.”
Arpaio, now 85, had already drawn national attention for making jail inmates wear pink uniforms and housing them outdoors in tents. He willingly joined the federal immigration enforcement program “287(g),” which deputized local law enforcement to enforce federal immigration law. But after Barack Obama was elected, the administration stopped authorizing 287(g) for street enforcement, and Maricopa County was no longer authorized after 2009.
In the meantime, the original plaintiff in the case, Manuel de Jesus Ortega Melendres, had attracted the ACLU’s legal help, and four other plaintiffs who had been stopped and jailed on suspicion of being in the country illegally joined the case. In December 2011, Snow said that Maricopa County’s belief that it was authorized to detain people on the knowledge or suspicion that they are in the country illegally was “incorrect as a matter of law.” He said that, based on the evidence he’d seen so far, “it would be possible for a fact finder to conclude that the MCSO engaged in an intentional policy of racial discrimination.” It is a crime to enter the country illegally, or to misrepresent your status, but solely being present without authorization “is only a civil violation,” Snow noted, which is why many police chiefs and sheriffs are reluctant to hold immigrants on the civil detainers obtained by federal immigration authorities.
In a preliminary injunction, Snow ordered Maricopa County to refrain from “detaining any person based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States.” In May 2013, after further hearings, Snow made that injunction permanent.
Jack Wilenchik, Arpaio’s lawyer in the contempt case, said that Arpaio and his staff didn’t understand the initial injunction in 2011. “Surely the judge doesn’t mean we’re not supposed to cooperate with immigration officers,” Wilenchik said. “If we run across somebody in a lawful stop? We call up immigration … The order has to be clear and definite. You can’t be convicted of a crime if the order is unclear and vague.”
Snow didn’t think it was unclear, and by late 2014, disturbed by reports that Arpaio’s deputies were still stopping people and turning them over to immigration without a crime being committed, as well as Arpaio’s frequent statements to the press, started raising the specter of a criminal contempt case. “Sheriff Arpaio readily concedes that mistakes have been made,” his previous lawyer A. Melvin McDonald wrote, “in the communication and, in some instances, implementation of court orders. He genuinely regrets those mistakes.”
But Snow noted that Arpaio was issuing defiant news releases, including one that said, “Regardless of the Obama Administration’s policy, I am going to continue to enforce all of the illegal immigration laws” despite the injunctions prohibiting him from doing so. In 2013, Arpaio’s chief deputy was videotaped in a training session for deputies in which he called Snow’s injunction “ludicrous” and “crap.” Snow noted that on the video, the chief deputy and Arpaio are seen directing deputies not to take seriously the court’s order directing them to track the race and ethnicity of individuals they stop.” The plaintiffs found that deputies had been confiscating personal property from people they had detained, including passports and cellphones, and illegally detained people for at least 17 months after the preliminary injunction was issued.
So Snow held contempt hearings over 21 days in 2015 and found Arpaio in civil contempt. “Defendants have engaged in multiple acts of misconduct, dishonesty, and bad faith,” Snow concluded. “They have demonstrated a persistent disregard for the orders of this Court, as well as an intention to violate and manipulate the laws and policies regulating their conduct.” The judge ruled that Arpaio understood the preliminary injunction and knowingly and intentionally failed to implement it. When Arpaio claimed that it was his subordinates who had failed to take action, Snow responded, “that explanation is neither credible nor acceptable as a matter of fact or law.”
The judge took the extremely rare step of referring the case to another judge for criminal contempt prosecution. “If the sheriff had evidenced a genuine desire to comply with the orders of this court,” Snow wrote in August 2016, “it would be a different matter. The court has exhausted all of its other methods to obtain compliance.”
Because prosecutors elected to seek only a six-month maximum sentence, the trial did not automatically require a jury. This outraged Arpaio and his supporters. “It’s like trying a criminal case to the victim,” Wilenchik said, because the federal court was both charging and hearing the case, though with a different judge. Wilenchik asked the Supreme Court to rule on the issue before trial, but it did not.
Bolton held a five-day bench trial in late June and early July. She found that Arpaio knew well what he was doing. In an interview with Fox News in April 2012, Arpaio said, “I will never give in to control by the federal government,” and he told “PBS NewsHour” later that month, “I’m still going to do what I’m doing. I’m still going to arrest illegal aliens coming into this country.”
Bolton wrote, “Not only did Defendant abdicate responsibility, he announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.” She found him guilty of criminal contempt of court.
“It was a show trial,” Wilenchik said. He quoted Supreme Court Justice Antonin Scalia, who said that “criminal contempt of court is the most dangerous thing in the world … This case was political from the start. Caused by the Obama administration.”
Arpaio would have won a jury trial, Wilenchik said. “I don’t think a jury would have bought that, and that’s why the president of the United States doesn’t buy it.” He said that “a pardon is intended to be a check on the system. In this case, a pardon is important to do what the people want.”
Arpaio tweeted Friday night, “Thank you @realdonaldtrump for seeing my conviction for what it is: a political witch hunt by holdovers in the Obama justice department!”