Time is running out for Maricopa County Sheriff Paul Penzone.
In a few weeks, U.S. District Court Judge G. Murray Snow plans to cite Penzone and the Maricopa County Sheriff’s Office for contempt of court in a 15-year-old racial profiling lawsuit. years which began under the predecessor of Penzone. The ongoing trial Ortega Melendres v. Arpaio dates back to the reign of former Sheriff Joe Arpaio. In 2016, Arpaio was found guilty of contempt of court orders in Melendres, as well.
The class action was originally filed in 2007 on MCSO’s racial profiling practices. After a 2011 injunction and a subsequent 2013 finding that Arpaio had engaged in illegal practices as a sheriff, MCSO was required to comply with a long list of court warrants.
But Penzone did not fully comply with orders. The reason for the impending contempt finding stems from the bureau’s internal investigations division, the Office of Professional Standards, which investigates complaints about the conduct of deputies, detention officers and other staff.
For years, the sheriff’s office faced a significant backlog in processing these complaints. Despite a long-standing mandate from the courts that all internal investigations must be completed within 85 days – and for some divisions, within 60 days – the average time currently stands at more than 600 days per investigation. The agency has more than 2,100 open investigations. In 2021, the Sheriff’s Office initiated 1,172 misconduct allegations and 1,204 in 2020.
To an audience in August, Snow announced his intention to hold Penzone in defiance of the backlog. The official order will likely be issued within the next few weeks.
The contempt order is important. Maricopa County is already spending millions due to lawsuit Melendres Cases: $29 million for compliance with related court orders last year alone, according to county budget documents. This figure does not include attorney fees and other court costs, an MCSO spokesperson confirmed to Phoenix New Times.
The finding of contempt could allow the court to take other steps, such as additional penalties, to force MCSO to comply. It’s also a blow to Penzone’s record after years of positioning himself as a reformer for the long-troubled sheriff’s office.
Christine Wee, lead attorney for the American Civil Liberties Union of Arizona, which is currently representing plaintiffs in the lawsuit, wrote in an email to new times that she hoped the contempt finding would serve as a “push” for the sheriff to “realize, after more than five years, the importance of an effective, competent and fair misconduct investigation system”.
Calbert Gillett, a spokesman for the sheriff’s office, declined to comment on the matter. “Our position has been clarified in our pleadings before the U.S. District Court regarding this matter,” Gillett said in a statement to New times. Lawyers for the sheriff’s office have acknowledged that the sheriff’s office is not complying with court orders and wrote in a recent filing that the agency is “firmly committed to reducing its backlog of investigations and completing timely internal investigations”.
The Maricopa County Sheriff’s Office is facing a new contempt of court ruling in a 15-year-old lawsuit.
James Deak
“It’s just completely out of control”
The extent of MCSO’s investigation backlog – and how significant it is – can be seen in the agency’s monthly closed case reports, which give a preview in the usually secretive workings of the Home Affairs Office. The reports include brief summaries of complaint investigations closed that month.
A case highlighted in a recent report began on July 13, 2017, when the bureau opened an investigation into a charge that a sheriff’s deputy groped a subject during an arrest. It took the agency just under five years to complete its investigation before it closed on June 7, 2022. In those five years, at least based on the brief summary made public, investigators reviewed footage of the camera focused on the body of the incident and came to no conclusion.
“The deputy’s body-worn camera placement did not show his hand movements during the search, so there was not enough evidence to prove or disprove that the deputy sexually assaulted the plaintiff,” according to the summary.
In some cases, however, the allegations were substantiated, but it took employees years to face any discipline. In another case, a detention officer was accused of assaulting his wife. The charge was ultimately dismissed and the employee was suspended. It took almost three years for the case to be closed.
In another instance, an officer’s use of a stun gun on an inmate was found to be unwarranted. A second officer was blamed for not intervening in the incident. All of this, according to the report, was captured on prison surveillance video, but it took more than two and a half years for a conclusion to be reached in the case or for one of the officers to be disciplined.
“It’s completely out of control,” said longtime Phoenix community organizer Sylvia Herrera. Herrera is a member of the Community Advisory Council, a five-member group created under Melendres review policies at the sheriff’s office and ensure dialogue between the sheriff and the public.
The relationship between the council and the sheriff has been strained lately, Herrera said. “There is resistance. There is no cooperation,” she noted. Often, she felt that the advice was treated as “a thorn in the side”.
For years, the board has repeatedly reminded Penzone and agency management of the mounting backlog and traffic stoppage reports that kept showing racial disparities in the treatment of white and Hispanic drivers, Herrera said. But the backlog continued to grow.
On September 7, 2021, Snow appointed a “management expert” to investigate the backlog of complaints. That expert was Michael Gennaco, a California law enforcement attorney. Gennaco spent the next few months studying the inner workings of the sheriff’s office.
He found that the backlog of cases had grown “exponentially” under Penzone’s watch. In 2018, according to Gennaco’s work and previous reports from a forensic monitor of Melendres, it took approximately 204 days for the investigation to be closed. This was more than double what was required by the court order. At the end of 2020, it took an average of 520 days to close an investigation. By 2021, that number had risen to 663 days. In the first quarter of 2022, it had fallen slightly to 611.
For investigators, the workload is essentially “self-destructive”, Gennaco concluded. Complaint investigators in prisons currently have an average of 76 cases open at a time. The recommended number is about a dozen. One of the causes of this, Gennaco found, was that the number of investigators working in the Internal Affairs Office had remained the same for four years – despite the office’s claims that it had increased its staff. No less than seven budgeted positions within the office have remained vacant for years.
“While the foundations for the myriad constitutional violations identified in this case, including the widespread corruption of the internal investigative process, lie at the feet of former Sheriff Arpaio, it has been more than five years since Sheriff Penzone was at the helm of MCSO,” Gennaco wrote in the report.
It was Penzone’s responsibility to fix the problem, he continued.
Not only does the backlog impact liability, but it also affects worker morale. Two detention officers – one who currently works at the agency and the other who recently left – said new times employees are frustrated with the backlog. The two spoke on condition of anonymity as they are not authorized to speak to the media. Frivolous complaints — involving “the most absurd things in the world,” one officer said — can still take months or years to resolve.
The officer backed Snow’s plans to intervene in the business office but said “for me and a lot of other officers, it doesn’t go far enough.” He wants to see the whole complaints process overhauled, he said.
New Oversight Role for the Sheriff’s Office
Once Penzone is despised, what happens next? Almost 15 years after the Melendres cases, after all, the court battles show no signs of slowing down.
On Gennaco’s recommendation, Snow is set to appoint a “constitutional police authority” in his contempt decision to provide oversight and direction to the Internal Affairs Bureau. That role would go beyond the role of longtime court-appointed comptroller Robert Warshaw, who oversees compliance at the sheriff’s office. In a September court filing, the ACLU suggested that Warshaw also be considered for the new role.
The new authority, Wee explained, would be “entirely independent” of the sheriff’s office and would report to Snow. He would also be armed with “the authority to oversee and repair the internal and external functioning of the MCSO’s internal affairs system and its gross mishandling of misconduct investigation cases,” she said.
The sheriff’s office offered only a delicate pushback to this idea. In an August oral argument, attorneys for the office wrote that while the agency “does not oppose the general concept of an independent CPA,” it “concerns that the development of this new and complex role…will take considerable time, thus slowing down efforts to deal with the growing backlog of cases”.
The office would be willing to work with the authority if Snow created the role, the lawyers wrote.
Details of the CPA and other consequences of the contempt decision will become clearer when Snow’s draft order is filed.
The agency also faces deadlines set out in a new state law signed by Gov. Doug Ducey in July. House Bill 2347 gives law enforcement 180 days to complete allegations of misconduct, although it sets out six exceptions. An agency with a court-appointed monitor, such as the sheriff’s office, has 365 days.
Herrera considers the upcoming contempt decision a victory, she said. But more is needed.
“It looks like, okay, the backlog is going to be resolved. And so, what’s going to happen next?” said Herrera. “I just see this as the start of what’s to come.”
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