Opposition Brief — Maricopa County, Arizona, Petitioner v. Manuel de Jesus Ortega Melendres, et al.

Supreme Court briefApr 10, 2019

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No. 18-735

In the Supreme Court of the United States

MARICOPA COUNTY, ARIZONA, PETITIONER

MANUEL DE JESUS ORTEGA MELENDRES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

ERIC S. DREIBAND

Assistant Attorney General

THOMAS E. CHANDLER

ELIZABETH P. HECKER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether Arizona sheriffs are final policymakers

for their counties concerning law enforcement in light

of Arizona’s constitution, statutes, and case law.

2. Whether petitioner is not obligated to fund certain remedies ordered by the district court on the theory that Arizona law bars petitioner from funding remedies for willful or intentional misconduct.

3. Whether the district court abused its discretion in

entering the injunctive relief in this case.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 9

Conclusion ................................................................................... 19

TABLE OF AUTHORITIES

Cases:

Braillard v. Maricopa Cnty., 232 P.3d 1263

(Ariz. Ct. App. 2010), cert. denied, 563 U.S. 1008

(2011) ...................................................................................... 4

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) ................................................................. 16

Flanders v. Maricopa Cnty., 54 P.3d 837

(Ariz. Ct. App. 2002) ........................................................... 11

Franklin v. Zaruba, 150 F.3d 682 (7th Cir. 1998),

cert. denied, 525 U.S. 1141 (1999) ............................... 13, 14

Grech v. Clayton Cnty., 335 F.3d 1326

(11th Cir. 2003) .................................................................... 13

Knight v. C.D. Vernon, 214 F.3d 544 (4th Cir. 2000) ... 13, 14

Leavitt v. Jane L., 518 U.S. 137 (1996) ................................ 16

Lewis v. Casey, 518 U.S. 343 (1996) ............................... 18, 19

McMillian v. Monroe Cnty.,

520 U.S. 781 (1997).............................................. 5, 10, 11, 12

Milliken v. Bradley, 433 U.S. 267 (1977) .............................. 7

North Carolina State Bd. of Educ. v. Swann,

402 U.S. 43 (1971) ............................................................... 15

Rizzo v. Goode, 423 U.S. 362 (1976) ....................... 7, 8, 17, 18

Scott v. O’Grady, 975 F.2d 366 (7th Cir. 1992),

cert. denied, 508 U.S. 942 (1993) ................................. 13, 14

State v. Schallock, 941 P.2d 1275 (Ariz. 1997) .................... 14

(III)

Cases—Continued:

Page

Stone v. City & County of San Francisco, 968 F.2d

850 (9th Cir. 1992), cert. denied, 506 U.S. 1081

(1993) .................................................................................... 15

United States v. County of Maricopa, 889 F.3d 648

(9th Cir. 2018), cert. denied, No. 18-498

(Mar. 25, 2019)........................................................... 8, 10, 12

Constitution and statutes:

U.S. Const.:

Amend. IV...................................................................... 2, 3

Amend. XI........................................................................ 13

Amend. XIV ....................................................................... 2

42 U.S.C. 1983 .................................................................... 2, 10

Ariz. Rev. Stat. Ann.:

§ 11-251(1) (Supp. 2018) .................................................. 13

§ 11-981(A)(2) (2012) ............................................. 9, 14, 16

Miscellaneous:

Restatement (Third) of Agency (2006) ................................ 15

In the Supreme Court of the United States

No. 18-735

MARICOPA COUNTY, ARIZONA, PETITIONER

MANUEL DE JESUS ORTEGA MELENDRES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 4-15)

is reported at 897 F.3d 1217. The order of the district

court (Pet. App. 20-236) is not published in the Federal

Supplement but is available at 2016 WL 2783715. The

district court’s second amended second supplemental

permanent injunction (Pet. App. 237-318) is not published in the Federal Supplement but is available at

2016 WL 3996453. The district court’s order regarding

victim compensation (Pet. App. 319-336) is not published in the Federal Supplement but is available at

2016 WL 4415038.

JURISDICTION

The judgment of the court of appeals was entered on

July 31, 2018. A petition for rehearing was denied on

September 7, 2018 (Pet. App. 16-17). The petition for a

writ of certiorari was filed on December 6, 2018. The

(1)

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. In 2007, private parties brought this class action

against petitioner, then-Sheriff Joseph Arpaio, and

the Maricopa County Sheriff ’s Office (MCSO) under

42 U.S.C. 1983, alleging that the defendants had engaged in discriminatory policing against Latinos in violation of the Fourth and Fourteenth Amendments. Pet.

App. 6. The district court later granted the United

States’ unopposed motion to intervene. See D. Ct. Doc.

1239 (Aug. 13, 2015).

The defendants moved to dismiss MCSO from the

case on the ground that MCSO did not have a legal existence separate from petitioner. D. Ct. Doc. 39, at 1920 (Sept. 29, 2008). The district court denied the motion, noting that Arizona law was unsettled on whether

county police forces have separate legal existences from

the counties that they serve. 598 F. Supp. 2d 1025, 1039.

In 2009, with petitioner’s consent, the plaintiffs filed

a joint motion and stipulation to dismiss petitioner from

the lawsuit without prejudice. The motion stated that

“Defendant Maricopa County [wa]s not a necessary

party at th[at] juncture for obtaining the complete relief

sought,” but that the dismissal was “without prejudice

to rejoining” petitioner as a defendant at a later time “if

doing so becomes necessary to obtain complete relief.”

Pet. App. 344.

The district court entered a preliminary injunction

against the remaining defendants in December 2011,

836 F. Supp. 2d 959, 994, and the court of appeals affirmed, 695 F.3d 990, 1002-1003 (Melendres I). In doing

so, the court of appeals found no clear error in the district court’s determination that the named plaintiffs had

shown a sufficient likelihood that they would be seized

in violation of the Fourth Amendment to establish

standing for purposes of seeking a preliminary injunction. Id. at 997-999.

2. The district court conducted a bench trial, and

held MCSO and Arpaio liable for constitutional violations. 989 F. Supp. 2d 822. The court found that MCSO

had conducted pretextual traffic stops to determine

whether vehicle occupants were authorized to be in the

country, had used Hispanic ancestry or race as part of

the evidence to establish reasonable suspicion for suspected state-law immigration violations, and had conducted other discriminatory traffic stops. Id. at 860879, 895-905. *

The district court enjoined MCSO from continuing

its unlawful practices, and explained that “after consultation with the parties” it would “order additional steps

that may be necessary to effectuate the merited relief.”

989 F. Supp. 2d at 827-828. The parties submitted a

joint report identifying terms for a consent decree on

which they agreed and terms on which they had not

agreed. See D. Ct. Doc. 592 (Aug. 16, 2013).

After a hearing, the district court entered a Supplemental Permanent Injunction. 2013 WL 5498218 (Oct.

2, 2013). The order directed MCSO to promulgate policies prohibiting racial profiling, policies to ensure bias*

As relevant to standing, the district court concluded at trial that

the lead plaintiff had been injured by the defendants’ past conduct.

989 F. Supp. 2d at 891. It further concluded that the plaintiffs were

entitled to injunctive relief “to the extent that [the challenged] practices violate the constitutional rights of the plaintiff class,” id. at 890,

without making findings there that the lead plaintiff or another individual plaintiff had shown a likelihood that they would be subjected to the challenged practices again. Petitioner has pressed no

argument regarding standing before this Court.

free traffic enforcement, detentions, and arrests, and

policies clarifying that state officers could not arrest or

detain individuals based on suspected unlawful presence in the United States. Id. at *8-*10. The court required MCSO to provide additional training to officers.

Id. at *13-*17. And it appointed an independent monitor and established other mechanisms to monitor compliance. Id. at *17-*22, *30-*35. In addition, the court

directed changes to MCSO’s processes for supervising

employees and handling misconduct and complaints.

Id. at *25-*28.

3. The court of appeals affirmed the district court’s

findings and virtually all of the injunctive relief.

784 F.3d 1254, 1265-1267 (Melendres II). It vacated a

portion of the remedial order addressing metrics for internal investigations and officer misconduct, finding

that the metrics were flawed insofar as they directed

the monitor to assess officer misconduct “unrelated to

the constitutional violations found by the district court.”

Id. at 1267.

In addition, the court of appeals concluded that the

MCSO was not in fact a separate legal entity from petitioner. 784 F.3d at 1260. The court relied on an intervening decision of the Arizona Court of Appeals,

Braillard v. Maricopa County, 232 P.3d 1263, 1260

(2010), cert. denied, 563 U.S. 1008 (2011), which had

held that MCSO was not a separate legal entity from

petitioner and concluded that MCSO could not be sued

in its own right. 784 F.3d at 1260. The court of appeals

dismissed MCSO from the case and substituted petitioner in its place. Ibid.

4. Petitioner sought a writ of certiorari. It argued

that the court of appeals had erred in substituting petitioner as a defendant, because petitioner could not be

held liable for the actions of Sheriff Arpaio under the

principles of policymaker liability set forth in McMillian v. Monroe County, 520 U.S. 781 (1997). It argued

that under McMillian, Arizona sheriffs are policymakers for the State, not their respective counties, in the area

of law enforcement. See Pet. at 11-19, Maricopa Cnty. v.

Melendres, 136 S. Ct. 799 (2016) (No. 15-376); Pet. Cert.

Reply Br. at 4-9, Melendres, supra (No. 15-376). This

Court denied the petition. 136 S. Ct. at 799.

5. Petitioner then filed a second notice of appeal in

the court of appeals, from the same district court orders

that Arpaio and MCSO had “appealed from previously

in Melendres II.” 815 F.3d 645, 647 (Melendres III).

The court of appeals dismissed the appeal as untimely.

Id. at 649. The court found that it lacked authority to

create an equitable exception to the timing requirements and that, in any event, there had been “no unfairness” in the substitution of petitioner for MCSO. Id. at

650. The court relied on petitioner’s stipulation that it

would be rejoined as a defendant “if doing so bec[ame]

necessary to obtain complete relief.” Ibid. The court

also reiterated its conclusion that petitioner could be

held liable for the actions of its sheriff under McMillian

because Arizona sheriffs are policymakers for their

counties in the area of law enforcement. Ibid.

6. In 2014, MCSO revealed to the district court that

it had discovered a substantial amount of evidence that

it had failed previously to disclose to the plaintiffs. The

undisclosed evidence included drivers’ licenses, identification cards, passports, and other property belonging

to members of the plaintiff class, as well as video recordings of traffic stops. Pet. App. 64-73, 85-89. The district

court entered an Order to Show Cause why MCSO, the

sheriff, and certain senior MCSO officials should not be

held in civil contempt for violating pretrial discovery orders and failing to take steps necessary to ensure

MCSO’s compliance with the preliminary injunction.

D. Ct. Doc. 880, at 8, 12 (Feb. 12, 2015).

The district court held 21 days of contempt hearings,

Pet. App. 20, 227-228, and then issued findings of fact

regarding civil contempt, id. at 20-236. The court found

that the sheriff and several of his command staff intentionally had failed to implement the preliminary injunction. Id. at 23-64. The court also determined that

MCSO had violated its discovery obligations by failing

to turn over “considerable evidence of misconduct” relevant to plaintiffs’ claims. Id. at 227; see id. at 64-114.

In addition, the court concluded that MCSO’s investigation of the undisclosed evidence confirmed that MCSO

had “manipulat[ed]” its investigations and disciplinary

procedures to avoid accountability for its constitutional

violations. Id. at 229; see id. at 114-225. Based on these

findings, the court held the sheriff and several of

MCSO’s command staff in civil contempt. Id. at 235.

The court invited the parties to make submissions on

the appropriate relief. Id. at 21.

After considering the parties’ submissions, the district court entered a Second Amended Second Supplemental Permanent Injunction (Second Supplemental

Injunction). Pet. App. 237. The Second Supplemental

Injunction “revised MCSO’s disciplinary matrix, conflict of interest and whistleblower policies, training requirements for internal affairs staff, and complaint intake and tracking procedures.” Id. at 8. It “vested the

independent monitor with the authority to supervise

and direct internal investigations related to the Plaintiff

class and to inquire and report on other internal investigations.” Ibid. It also directed the appointment of an

“independent investigator with disciplinary authority to

investigate and decide discipline for internal investigations deemed invalid by the court.” Ibid. And it directed the creation of a victim compensation fund. Ibid.

The district court explained that the injunction was

tailored to address the “particularly egregious and extraordinary” facts of the case and the broad scope of the

constitutional violations, which “involve[d MCSO’s]

highest ranking command staff, and flow[ed] into its

management of internal affairs investigations.” Pet.

App. 238-239. The court recognized that “[a]ppropriate

consideration must be given to principles of federalism

in determining the availability and scope of equitable

relief.” Id. at 246 (quoting Rizzo v. Goode, 423 U.S. 362,

379 (1976)). But it explained that its ordered relief was

warranted because previous remedies had “not [been]

effective due to Defendants’ deliberate failures and manipulations.” Id. at 249.

7. The court of appeals affirmed. Pet. App. 4-15.

The court of appeals explained that district courts

have “broad discretion to fashion injunctive relief,” and

exceed that discretion only if such relief is “aimed at

eliminating a condition that does not violate the Constitution or does not flow from such a violation.” Pet. App.

9 (quoting Milliken v. Bradley, 433 U.S. 267, 282

(1977)). It further explained that “where the enjoined

party has a ‘history of noncompliance with prior orders,’

and particularly where the trial judge has ‘years of experience with the case at hand,’ ” a district court should

have a “ ‘great deal of flexibility and discretion in choosing the remedy best suited to curing the violation.’ ” Id.

at 9-10 (quoting 784 F.3d at 1265).

Applying those principles, the court of appeals determined that the district court had not abused its discretion in the Second Supplemental Injunction. It held

that the challenged provisions “flow from MCSO’s violations of court orders, constitutional violations, or

both.” Pet. App. 11. The court rejected petitioner’s argument that the Second Supplemental Injunction was

contrary to Rizzo, supra, explaining that Rizzo did not

involve a pattern of police misconduct. Pet. App. 12.

The court further determined that the remedies were

“necessary to ensure MCSO’s compliance with court orders” in light of the defendants’ “ ‘deliberate failures

and manipulations.’ ” Id. at 13 (citation omitted). The

court acknowledged petitioner’s argument that the

election of a new sheriff might render some of the injunctive relief unnecessary, but noted that the district

court had “offered to modify its prior orders, where appropriate, to accommodate these changed circumstances.” Ibid.

The court of appeals also rejected petitioner’s contention that it could not be liable for the sheriff ’s actions

because the sheriff was not a final policymaker for the

county. Pet. App. 13-14. The court explained that it had

“already—thrice—rejected this argument,” id. at 13, in

decisions that were binding on the panel, id. at 14 (discussing Melendres II, Melendres III, and United States

v. County of Maricopa, 889 F.3d 648, 651 (9th Cir. 2018),

cert. denied, No. 18-498 (Mar. 25, 2019)).

Finally, the court of appeals rejected petitioner’s argument that it could not be required to fund compliance

with the injunction because Arizona law did not authorize funding remedies for willful misconduct. Pet. App.

14-15. The court explained that petitioner’s argument

was “premised entirely on a state law * * * that permits payment from insurance or self-insurance funds

for employee conduct ‘within the scope of employment

or authority.’ ” Id. at 14 (quoting Ariz. Rev. Stat. Ann.

§ 11-981(A)(2) (2012)). It noted that petitioner argued

that, “[b]y negative inference,” that statute disallowed

payments for “employee conduct outside the scope of

employment.” Ibid. The court concluded that, “even

assuming, without deciding, that this reading were correct, and assuming without deciding that the acts of

MCSO’s employees were outside the scope of employment or authority,” petitioner’s argument would fail because “[a] state statute prohibiting payment for valid

federal court-ordered remedies does not excuse a defendant from complying with those remedies.” Ibid. In

any event, the court reasoned, “the statute that [petitioner] cites would, at most, prevent payment from insurance or self-insurance funds,” not payment from

other sources, including those the county “uses to fund

its normal operations.” Id. at 15. Finally, the court concluded, petitioner’s argument was barred because it was

contrary to petitioner’s concession in Melendres III

that it was required under state law to fund compliance

with the district court’s injunctive orders. Ibid.

ARGUMENT

Petitioner seeks this Court’s review of whether Arizona sheriffs are final policymakers for their counties

on matters of law enforcement (Pet. 18-28), whether petitioner is immune from funding relief here on the theory that Arizona law bars funding remedies for willful

or intentional misconduct (Pet. 28-32), and whether the

district court abused its discretion in ordering the relief

in the Second Supplemental Injunction (Pet. 32-35).

The court of appeals’ disposition of these claims does

not conflict with any decision of this Court or another

court of appeals. Further review is not warranted.

1. Certiorari is not warranted to review the court of

appeals’ conclusion that Arizona sheriffs are policymakers for their counties concerning law enforcement. This

Court denied review of that state-law-specific issue in

an earlier decision in this case. 136 S. Ct. 799. It also

denied review of that question in United States v.

County of Maricopa, 889 F.3d 648, 651 (9th Cir. 2018),

No. 18-498 (Mar. 25, 2019). The same result is appropriate here.

a. The court of appeals’ determination of the policymaker status of Arizona sheriffs reflects a correct application of McMillian v. Monroe County, 520 U.S. 781

(1997). In McMillian, a Section 1983 case, the Court

assessed whether Alabama sheriffs were policymakers

for the State or for their respective counties in the area

of law enforcement by examining the Alabama Constitution, the Alabama Code, and relevant case law. In

concluding that sheriffs were officers of the State, the

Court found “especially important” the designation of

sheriffs as state officers under Alabama’s Constitution.

Id. at 787. The Court also relied in part on the Alabama

Supreme Court’s conclusion “that sheriffs are state officers, and that tort claims brought against sheriffs

based on their official acts therefore constitute suits

against the State.” Id. at 789. In addition, the Court

viewed the State’s responsibility for judgments against

sheriffs as “strong evidence in favor of the * * * conclusion that sheriffs act on behalf of the State.” Ibid.

Because Alabama was under the jurisdiction of the

Eleventh Circuit, the Court also “defer[red] considerably to” the court of appeals’ “expertise in interpreting

Alabama law.” Id. at 786.

In reaching its conclusion with respect to Alabama

sheriffs, this Court emphasized that it was not setting

forth a uniform rule for all sheriffs. See McMillian,

520 U.S. at 795. It explained that while such approach

“might [make it] easier to decide cases,” it “would ignore a crucial axiom of our government: the States have

wide authority to set up their state and local governments as they wish.” Ibid. Given States’ authority over

their own governments, the Court concluded, it was “entirely natural that both the role of sheriffs and the importance of counties vary from State to State, [and]

there is no inconsistency created by court decisions that

declare sheriffs to be county officers in one State, and

not in another.” Ibid.

The court of appeals correctly determined in Melendres III and County of Maricopa that Arizona sheriffs

are policymakers on matters of law enforcement for

their counties, not for the State, under the principles in

McMillian. The court relied on the Arizona Constitution, which designates the office of the sheriff as “created in and for each organized county of the state,” and

provisions of Arizona law “explicitly stat[ing] that sheriffs are ‘officers of the county.’ ” County of Maricopa,

889 F.3d at 651 (citations and emphasis omitted). It also

properly took into account provisions of Arizona law authorizing the county board of supervisors to supervise

sheriffs’ performance of their duties and requiring each

county to pay its sheriff ’s expenses, including expenses

incurred in complying with injunctive relief against the

sheriff and his office. Ibid. Finally, it properly determined that the most pertinent state court decision also

signaled that sheriffs are county policymakers with respect to law enforcement. Ibid. (discussing Flanders v.

Maricopa Cnty., 54 P.3d 837 (Ariz. Ct. App. 2002)).

Petitioner’s contrary arguments lack merit. Petitioner invokes (Pet. 21-22) several unpublished district

court decisions and an intermediate state court decision

declining to find counties liable under principles of

respondeat superior for tortious conduct by sheriff ’s office employees in performing particular duties. But as

petitioner acknowledges, whether a sheriff is a policymaker for the county or the State under Section 1983

turns on a separate legal inquiry from whether a county

is liable in tort for actions of sheriff ’s office employees

under principles of respondeat superior. See Pet. 21

(acknowledging that “respondeat superior liability

plays no role in § 1983 jurisprudence”). Petitioner also

relies on McMillian’s statement that “[a]s the basic

forms of English government were transplanted in our

country, it also became the common understanding

here” that sheriffs are state officers. Pet. 22 (quoting

McMillian, 520 U.S. at 794). But this Court went on to

observe that “the importance of counties and the nature

of county government have varied historically from region to region, and from State to State,” and it recognized that, as a result, courts would reach different conclusions regarding whether sheriffs in particular States

were officers of the county or the State. McMillian, 520

U.S. at 795.

b. The court of appeals’ conclusion regarding the

status of Arizona sheriffs does not present any conflict

warranting this Court’s intervention. As this Court explained in McMillian, the classification of officials as

policymakers for the State or the county “is dependent

on an analysis of state law.” 520 U.S. at 786. Because

no other court of appeals appears to have considered

whether Arizona sheriffs are county or state officials on

matters of law enforcement policy, the application of

McMillian to Arizona sheriffs implicates no conflict.

Petitioner is mistaken in asserting (Pet. 27-28) a conflict between the decision below and decisions that considered the status of sheriffs under distinct state-law

schemes. Grech v. Clayton County, 335 F.3d 1326

(11th Cir. 2003) (en banc), held that a Georgia sheriff

was not acting on behalf of the county when he maintained a policy permitting invalid arrest warrants to remain in a state database. Six judges concluded that

Georgia sheriffs are final policymakers for the State in

the area of law enforcement, id. at 1330-1348 (plurality

opinion), but six other judges disagreed, id. at 13491364. Accordingly, the court did not adopt any categorical holding on the status of Georgia sheriffs. Id. at 1347

n.46 (plurality opinion). In any event, the plurality’s

conclusion that Georgia sheriffs were state policymakers rested on provisions of Georgia law that differ from

the corresponding provisions of Arizona law. For example, whereas Georgia courts had held that county commissions cannot influence how sheriffs spend their

funds, id. at 1339, Arizona law provides for counties to

“[s]upervise the official conduct of ” all county officers,

including the sheriff, to ensure that they “faithfully perform their duties and direct prosecutions for delinquencies,” Ariz. Rev. Stat. Ann. § 11-251(1) (Supp. 2018).

The decision below likewise does not conflict with

Franklin v. Zaruba, 150 F.3d 682 (7th Cir. 1998), cert.

denied, 525 U.S. 1141 (1999), or Knight v. C.D. Vernon,

214 F.3d 544 (4th Cir. 2000). Franklin, a sovereign immunity case, held that sheriffs in Illinois were not state

officials for purposes of the Eleventh Amendment.

150 F.3d at 684-685. In doing so, the court relied in

part on Scott v. O’Grady, 975 F.2d 366 (7th Cir. 1992),

cert. denied, 508 U.S. 942 (1993), in which the court had

held that sheriffs generally act on behalf of Illinois

counties when executing law enforcement duties.

Franklin, 150 F.3d at 684-685. O’Grady, in turn, rested

on an examination of Illinois law. 975 F.2d at 370-372.

Knight similarly held that North Carolina sheriffs were

not policymakers for their counties when making sheriff ’s office personnel decisions, based on an analysis of

North Carolina law. 214 F.3d at 552-553. Those statespecific rulings do not conflict with the Ninth Circuit’s

analysis of the status of sheriffs under Arizona law.

2. Certiorari is also not warranted to review petitioner’s contention (Pet. 28-32) that it cannot be required to fund the relief in this case on the theory that

Arizona law bars funding remedies for willful or intentional misconduct.

a. As the court of appeals explained, petitioner’s

contention is flawed in numerous respects. First, petitioner draws a negative implication from a provision of

state law that authorizes “payment from insurance or

self-insurance funds” for employee conduct “ ‘within the

scope of employment or authority.’ ” Pet. App. 14 (quoting Ariz. Rev. Stat. Ann. § 11-981(A)(2) (2012)). As

the court of appeals explained, petitioner’s negativeimplication argument would “at most” support the conclusion that payments from insurance funds could not

be used to compensate for employee conduct outside the

scope of employment or authority. Id. at 15. That provision does not suggest any limitation on the use of

other county funds. Ibid. In any event, as the government explained below, an employee’s conduct does not

fall outside the scope of employment simply because it

involves intentional or willful misconduct. See State v.

Schallock, 941 P.2d 1275, 1284 (Ariz. 1997) (intentional

misconduct may be within scope of employment, including when the misconduct was “incidental to [the employee’s] position and authority as” an agent of the employer); see also Restatement (Third) of Agency § 7.07

cmt. c (2006) (“Intentional torts and other intentional

wrongdoing may be within the scope of employment.”).

Second, as the court of appeals held, “[a] state statute prohibiting payment for valid federal court-ordered

remedies does not excuse a defendant from complying

with those remedies.” Pet. App. 14. Under our federal

system, “state policy must give way when it operates to

hinder vindication of federal constitutional guarantees.”

North Carolina State Bd. of Educ. v. Swann, 402 U.S.

43, 45 (1971); see Stone v. City & County of San Francisco, 968 F.2d 850, 862 (9th Cir. 1992) (“[O]therwise

valid state laws * * * cannot stand in the way of a federal court’s remedial scheme if the action is essential to

enforce the scheme.”), cert. denied, 506 U.S. 1081

(1993). If a federal court properly adjudicates a violation of, and orders a remedy authorized by, federal law,

a State may not frustrate federal law by restricting its

political subdivision’s ability to provide the funding necessary for compliance.

Third, in any event, petitioner waived any argument

that it is not required to fund the injunctive relief in this

case when it conceded that Arizona law required it to

“bear the financial costs associated with complying with

the district court’s [previous] injunction[s],” which were

also aimed at remedying willful misconduct. 815 F.3d

at 650. See, e.g., D. Ct. Doc. 579, at 125 (May 24, 2013)

(finding that “MCSO[’s] discrimination against Hispanics was intentional”). As the court of appeals explained,

after having made that concession, petitioner “cannot

change its position now.” Pet. App. 15.

b. The decision below does not conflict with any decision of this Court or any other court. Petitioner identifies no decision holding that a government can avoid

its remedial obligations under federal law by enacting a

statute prohibiting the expenditure of governmental

funds to cover the costs of compliance. And in any

event, the court of appeals’ decision is independently

supported by alternative grounds. The court below separately concluded that petitioner misunderstood Ariz.

Rev. Stat. Ann. § 11-981(A)(2) (2012). Pet. App. 14-15.

That state-law holding does not implicate any conflict,

and this Court has held that certiorari is generally unwarranted to review a court of appeals’ interpretation

of state law. Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1, 16 (2004); see Leavitt v. Jane L., 518 U.S.

137, 144 (1996) (per curiam). The court’s case-specific

waiver holding, see Pet. App. 15, is also sufficient to

support the judgment below, and does not implicate any

conflict.

3. Finally, petitioner’s argument that the Second

Supplemental Injunction constituted an abuse of discretion (Pet. 32-35) does not warrant this Court’s review.

This case involves a uniquely intrusive injunction directed at a state law-enforcement agency. The court ordered changes to the supervision of deputies, required

additional training, directed the promulgation of new

conflict-of-interest and whistleblower policies, and

placed additional responsibilities under the supervision

of an independent monitor. Pet. App. 8. That extensive

federal oversight of state law-enforcement operations

raises serious federalism concerns.

Nevertheless, the petition should be denied. As an

initial matter, petitioner does not make any targeted

challenge to particular provisions of the Second Supplemental Injunction it regards as outside the district

court’s discretion. Rather, petitioner lists (Pet. 32-35)

various provisions of the injunction and then asserts

that the injunction should be vacated in its entirety. But

the parties were in agreement on many of the terms of

the injunction. For example, the parties agreed on

changes to deputies’ supervision, Pet. App. 294, and on

the appointment of an independent investigator to investigate and, if appropriate, impose discipline based on

particular types of misconduct, id. at 302-318. Petitioner has neither developed a focused challenge to particular provisions of the court’s order nor offered a basis

to conclude that the entire decree is deficient. And

to the extent that petitioner has concerns directed at

particular provisions of the decree, as the court of appeals noted, “the district court has offered to modify its

prior orders, where appropriate, to accommodate * * *

changed circumstances,” including the election of a new

sheriff and other personnel changes, and has already

granted some requests for modifications. Id. at 13.

Moreover, although the district court’s injunction is unusually intrusive, the court found that injunction appropriate because of “particularly egregious and extraordinary facts,” including constitutional violations that involved MCSO’s “highest ranking command staff, and

flow[ed] into its management of internal affairs investigations.” Id. at 238-239.

b. The court of appeals’ conclusion that the district

court did not abuse its discretion with respect to injunctive relief on the facts of this case does not conflict with

any decision of this Court. Contrary to petitioner’s suggestion (Pet. 34-35), the decision below does not conflict

with Rizzo v. Goode, 423 U.S. 362 (1976), in which this

Court determined that an injunction against a police department that mandated specific procedures for handling civilian complaints and internal discipline failed to

account for federalism concerns. In concluding that the

injunction in Rizzo was unduly intrusive, this Court relied on the fact that the district court “found that the

evidence did not establish the existence of any policy on

the part of the named petitioners to violate the legal and

constitutional rights of the plaintiff classes.” Id. at 368;

see id. at 371-377. In contrast, the district court here

found that “the Defendants were systematically violating the Fourth and Fourteenth Amendment rights of

the Plaintiff class in several different respects including

the adoption of unconstitutional policies.” Pet. App.

248; see id. at 238-239 (finding “constitutional violations

[that] are broad in scope, involve [MCSO’s] highest

ranking command staff, and flow into its management

of internal affairs investigations”). Moreover, much of

the remedial order in this case—unlike in Rizzo—was

imposed only after the district court found “persistent

disregard for the [court’s] orders” on the part of the defendants as well as “an intention to violate and manipulate the laws and policies regulating their conduct.” Id.

at 22. This Court’s holding in Rizzo thus does not establish that the district court abused its discretion under the materially distinct circumstances of this case.

Lewis v. Casey, 518 U.S. 343 (1996), is similarly inapposite. In Lewis, a class of plaintiffs alleged that the

Arizona Department of Corrections had failed to provide access to adequate legal research facilities, depriving them of their right of access to the courts. Id. at

346. The district court found only two instances of actual harm to plaintiffs, yet imposed a broad injunction

that effected “sweeping changes” to the department’s

practices. Id. at 347. This Court held that the “two instances [of harm] were a patently inadequate basis for

a conclusion of systemwide violation and imposition of

systemwide relief.” Id. at 359. Additionally, the Court

held that the injunction was improper because it “was

developed through a process that failed to give adequate consideration to the views of state prison authorities.” Id. at 362. In contrast, the district court here

specifically found systemic violations, see, e.g., Pet.

App. 62-63, 238, and consistently gave county authorities the opportunity to investigate alleged misconduct

and to provide input into appropriate remedies. The

court of appeals’ case-specific conclusion that the district court did not abuse its discretion in its injunctive

order thus does not conflict with this Court’s prior decisions rejecting different injunctions, or otherwise present any conflict warranting further review.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted.