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The American Civil Liberties Union of Arizona In The Courts
The ACLU of Arizona undertakes litigation when doing so is the most effective way to advance a civil liberties concern. We file lawsuits that will have an impact on people's rights by setting a legal precedent or affecting the policies and actions of public officials. We both provide direct legal representation to people and file amicus (friend-of-the-court) briefs addressing civil liberties issues in cases initiated by others. All the ACLU's legal work is on a pro bono basis; we never charge clients for our legal services.
Markham v. City of Surprise. The ACLU of Arizona, the ACLU Women’s Rights Project and Aiken Schenk Hawkins & Ricciardi P.C. filed a lawsuit on August 27, 2015 on behalf of Nancy Markham, a domestic violence survivor and single mother of two who was threatened with eviction from her home in Surprise, Arizona because of calls that she made to 911 to seek assistance against her abusive ex-boyfriend. The local ordinance in question allows law enforcement to pressure landlords to evict tenants who place more than four calls to police in 30 days or for crimes occurring at the property, even when the tenant is the victim. The case challenges the enforcement of the so-called “nuisance ordinance” as a violation of Ms. Markham’s First Amendment right to seek police assistance and disregards the Fair Housing Act’s prohibition on gender discrimination, among other claims. On March 21, 2016 we successfully reached a settlement with Defendants that includes the repeal of the ordinance.
Jacobson v. U.S. Dept. of Homeland Security. On November 20, 2014 the ACLU of Arizona together with the ACLU of San Diego and filed a federal lawsuit on behalf of local residents of Arivaca, Arizona challenging U.S. Border Patrol’s obstruction of efforts to monitor abuses at an interior checkpoint near the town of Arivaca. The lawsuit asserts that Border Patrol has infringed and restricted First Amendment rights by threatening plaintiffs with arrest for engaging in constitutionally protected speech while they monitor activities of Border Patrol at the checkpoint. Plaintiffs’ motion for a preliminary injunction to halt the Border Patrol’s checkpoint practices was denied in September 2015. Defendants’ filed a motion to dismiss in November 2015. Plaintiffs’ filed their reply to that motion on April 27, 2016.
Riley v. City of Prescott. On August 8, 2011 the ACLU of Arizona, with the firm Martin and Bonnett, filed a federal lawsuit against Prescott, Arizona Mayor Kuykendall and other officials on behalf of KayAnne Riley. KayAnne was fired from her job with the Yavapai County Humane Society (YHS), a City contractor after pressure from Mayor Kuykendall because she had spoken out about past acts of retaliation and bullying by the Mayor and the City. KayAnne was very well qualified for her job as a former war correspondent, with a public relations background and former Marine. The Mayor’s actions in seeking her firing were consistent with his history of retaliatory acts against City employees critical of his administration. In December 2011 a partial settlement was reached with the YHS defendants. In return for a payment to KayAnne Riley, those defendants were dismissed from the case. The court denied the remaining defendants’ motion to dismiss in February 2012. A hearing on cross-motions for summary judgment following discovery took place on February 11, 2014. The court subsequently denied both motions but made important findings about plaintiff’s case stating that there was ample evidence for a jury to conclude that defendants had impermissibly acted against her in retaliation for her protected rights of speech. The defendants’ filed an interlocutory appeal of the decision to deny Mayor Kuykendall qualified immunity, which was denied by the Ninth Circuit on April 5, 2016. Proceedings, including a possible trial, will continue in the district court.
Doe v. Johnson. In June 2015, the ACLU of Arizona filed a lawsuit challenging the inhumane and unconstitutional conditions in detention facilities used by the U.S. Border Patrol in the Tucson Sector. The lawsuit comes after several months of investigation and fact-finding including interviews with 75 men and women who described appalling conditions including being detained in freezing, overcrowded, and filthy cells for extended periods of time, no access to beds, soap, showers, adequate meals and water, medical care, and lawyers in violation of constitutional standards and Border Patrol’s own policies. The case was filed in federal district court in Tucson. Co-counsel in the case includes the National Immigration Law Center, the American Immigration Council, the ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP.
Soon after filing the lawsuit, plaintiffs prevailed on a motion for expedited discovery allowing experts to visit specific Tucson Sector Border Patrol stations to gather evidence. The court also required the Border Patrol to produce certain information about their detention practices. When they destroyed some video recordings in violation of the court’s order, the court issued sanctions against them, requiring them to immediately produce video recordings and other data to us. On December 7, 2015, based on analysis of large amounts of evidence produced through the expedited discovery process, plaintiffs filed a motion for a preliminary injunction to halt the government’s unlawful detention practices while the lawsuit continues. We are waiting for a decision on the motion for a preliminary injunction. On January 11, 2016, the federal court granted plaintiffs’ motion allowing the case to continue as a class action and ruled against the government’s motion to dismiss the case, deciding that plaintiffs’ constitutional claims on behalf of migrants detained in the Tucson Sector could move forward.
Puente Arizona v. Arpaio. In June 2014, the ACLU of Arizona with co-counsel University of California- Irvine Law Immigrant Rights Clinic, National Day Laborer Organizing Network and the Law Office of Ray A. Ybarra Maldonado filed a challenge to the Maricopa County Sheriff’s Office (MCSO) and Maricopa County Attorney’s Office (MCAO) enforcement of state laws passed by Arizona legislature in 2007 and 2008 that turn immigrants into felons for working to provide for their families. Since then, MCSO has arrested over 790 workers under the laws. The suit alleges that Arizona statutes, A.R.S. § 13-2008 and § 13-2009, are preempted by federal law and violate the Equal Protection Clause of the U.S. Constitution. In June 2015, plaintiffs filed a second amended complaint to include an as-applied challenge to the MCSO and MCAO’s enforcement of the state forgery statute to target undocumented workers in the employment context.
On August 7, 2014, plaintiffs filed a motion for a preliminary injunction, which was granted on January 5, 2015. In his order, Judge David Campbell put a stop to the workplace raids noting that they cause irreparable harm and that plaintiffs are likely to succeed with their legal challenge. The defendants appealed that decision to the Ninth Circuit Court of Appeals and on May 5, 2016 the appellate panel reversed the grant of the preliminary injunction on preemption grounds. Plaintiffs have filed a petition for en banc re-consideration by the Ninth Circuit.
ACLU of Arizona & ACLU of San Diego & Imperial Counties v. Department of Homeland Security. For years, advocates have documented persistent allegations of child abuse by Department of Homeland Security officials, in particular Border Patrol agents holding children in their custody. In June 2014, at the height of the unprecedented migration of unaccompanied children entering the United States, the ACLU filed an administrative complaint with DHS documenting 116 allegations of child abuse. Although high-ranking officials initially conceded that there were problems that needed investigation, DHS subsequently shut down all investigations. In December 2014, the ACLU filed a Freedom of Information Act request with DHS, seeking any and all records pertaining to allegations of child abuse or other mistreatment. The agency failed to timely respond to the FOIA request. With Cooley LLP and the ACLU of San Diego, we filed a federal lawsuit to compel DHS to search for, and turn over, those documents. Since the filing of the lawsuit, the government has identified roughly 60,000 pages of potentially responsive records and production of those records is ongoing. The government has been ordered to complete its production of responsive records by July 8, 2016.
Arizona Dream Act Coalition (ADAC) v. Brewer. The ACLU, in partnership with other civil rights organizations filed a lawsuit challenging an Executive Order issued by Governor Brewer on August 15, 2012 directing the Arizona Department of Transportation and the Arizona Motor Vehicles Department to deny driver’s licenses to Deferred Action for Childhood Arrivals (DACA) recipients. Under that federal program, immigrant youth who meet certain criteria are allowed to stay and work in the country. An estimated 80,000 youth in Arizona are eligible for the program. The ACLU filed a class action complaint on November 29, 2012, alleging that the Governor’s order is unconstitutional in violation of the 14th Amendment’s Equal Protection Clause by discriminating against certain non-citizens and the Supremacy Clause by interfering with federal authority on immigration matters.
On May 16, 2013, the district court denied plaintiffs’ request for preliminary relief but found that they were “likely to succeed” on their equal protection claim since Arizona continued to grant driver’s licenses to other “deferred action” groups. The court dismissed plaintiffs’ preemption claim based on the fact that Arizona was infringing on federal prerogatives by determining for itself that the DACA recipients were not “authorized” to be in this country. Following the court’s order, and in an effort to get out from under the lawsuit, in September 2013, Governor Brewer expanded the driver’s license ban to include all individuals granted deferred action. The failure of the district court to grant a preliminary injunction and the dismissal of the supremacy clause claim were appealed to the Ninth Circuit Court of Appeals. In July 2014, a unanimous panel reversed the trial judge and ordered that the preliminary injunction sought by plaintiffs should be granted.
Efforts by the Governor and the state of Arizona to reverse the block and keep the ban in place were rejected by the Supreme Court, and in January 2015 a federal court permanently blocked Arizona’s denial of licenses to DREAMers. That decision was upheld by the Ninth Circuit on April 5, 2016. Defendants are now seeking en banc review.
Franco-Gonzalez v. Napolitano. The ACLU of Arizona is co-counsel on this case with the ACLU of Southern California, ACLU Immigrants' Rights Project, ACLU of San Diego, Public Counsel, Mental Health Advocacy Services, the Northwest Immigrant Rights Project and Sullivan & Cromwell, LLP. Plaintiffs are mentally ill immigrants detained in Arizona, California and Washington asking the court to require the federal government to provide independent competency evaluations for individuals who may be suffering from a mental illness and to appoint counsel in cases where one cannot represent themselves on account of their disability. Plaintiffs prevailed on key issues including class certification and preliminary injunctions, culminating in partial summary judgment ordering the government to appoint “Qualified Representatives” for class members who are incompetent to represent themselves and to provide a fair hearing where the government must prove that further detention is warranted for any class member who has been detained for more than six months. On October 29, 2014 the court issued an order requiring the government to conduct mental health screenings of detainees, provide information regarding detainees’ mental health to immigration judges, and establish a specified system for inquiring into and evaluating the competency of detainees to represent themselves. On March 2, 2015, the court appointed a special monitor for 25 months to ensure the government’s compliance.
Jail & Prison Conditions
Parsons v. Ryan. On March 22, 2012 we filed a lawsuit challenging the inhumane and unconstitutional failures of the Arizona Department of Corrections (ADC) to provide minimally adequate medical, mental health and dental care to people in state custody, and to end the abusive conditions in the solitary confinement units. The ACLU of Arizona is co-counsel in the case with the ACLU National Prison Project, Prison Law Office, Arizona Center for Disability Law, Perkins Coie and Jones Day.
U.S. District Court Judge Neil Wake denied the defendant’s motion to dismiss in October 2012 allowing discovery to proceed. Significant discovery was undertaken, including tours of the prisons and reports by the five plaintiffs’ experts showing system-wide problems with the prisons' health care and excessive use of solitary confinement. Discovery was especially challenging, since the ADC subcontracted its medical services to a private contractor called Wexford shortly after we filed our complaint; Wexford was later removed and replaced by Corizon, the largest private medical provider for prisoners in the country. Plaintiffs’ motion for class certification was granted by the court on March 6, 2013 and the U.S. Court of Appeals for the Ninth Circuit affirmed that ruling in June 2014.
In October 2014, just before the beginning of trial, plaintiffs’ reached a settlement with defendants’, which was approved by the court in February 2015. The settlement, on behalf of the more than 33,000 prisoners in Arizona’s state prisons, requires the ADC to meet more than 100 health care performance measures, covering issues such as care for prisoners with diabetes, hypertension, and other chronic conditions; care for pregnant prisoners; and dental care. The settlement also requires the ADC to overhaul the rules for prisoners with serious mental illnesses in solitary confinement. Instead of spending all but six hours a week in their cells, such prisoners will now have a minimum of 19 hours a week outside the cell, and this time must include mental health treatment and other programming. ADC must also restrict guards' use of pepper spray on these prisoners, using it only as a last resort when necessary to prevent serious injury or escape
The settlement provides for ongoing monitoring and oversight by the plaintiffs' lawyers to make sure the state is complying with its terms. Based on defendants’ own audits, expert review of medical files and complaints from class members demonstrating severely deficient medical care, plaintiffs’ counsel submitted a notice of substantial noncompliance with the court on April 11, 2016. Plaintiffs’ are asking the court to intervene to ensure their compliance with the settlement. Mediation was held on March 1 and a status conference is scheduled for May 18, 2016.
Graves v. Arpaio. In 1977, Community Legal Services filed a lawsuit to improve conditions of confinement and medical treatment for the class of all pre-trial detainees in the Maricopa County jail system. A settlement was reached requiring significant changes in the operation of the jails in order to provide humane and constitutional treatment. In 2001, the Maricopa County Sheriff’s Office sought to eliminate the previous judgment and end federal court oversight. In October 2005, the ACLU of Arizona and ACLU National Prison Project intervened in the case to ensure continued oversight. After a three-week trial in August 2008, Judge Wake ruled that there were continuing and serious constitutional problems in the conditions faced by all pre-trial detainees, including in the areas of medical and mental health care, food service, recreation and overcrowding. He stated that the plaintiffs had prevailed and are entitled to attorneys’ fees, and that the Court would continue to monitor for two years to assure implementation of the judgment. It is a far-reaching and important victory for the many thousands of pre-trial detainees confined in any Maricopa County Jail. The defendants’ appealed that decision but the Ninth Circuit Court of Appeals ruled that the district court was correct in finding that the MCSO did not meet constitutional standards in several areas of jail operations, and in keeping the consent decree in place. At this point, medical and mental health care are the only aspects of the original decree that remain under federal court supervision.
In August 2013, Maricopa County commissioners and the Sheriff asked the court to lift the 2008 order. Following an evidentiary hearing in March 2014 where the ACLU presented information about the ongoing deficiencies in the jails, including expert testimony, Judge Wake ruled in September 2014 that the order must remain. The court found that the jails do not provide detainees with adequate medical and mental health care and that court supervision and involvement of plaintiffs must continue. The ACLU and co-counsel continue to conduct monitoring visits and records review as part of the oversight in this case. On April 1, 2016 plaintiffs’ counsel filed a motion to enforce the 2008 order. The motion, which was filed with an expert report by a psychiatrist who visited the jails, shows that detainees who have been declared incompetent to stand trial due to their mental health problems languish in jail without receiving necessary treatment.
White Mountain Health Center v. Maricopa County. The ACLU of Arizona, with the ACLU Criminal Law Reform Project, filed a brief in support of a medical marijuana dispensary that sought to service qualified patients in Sun City under the Arizona Medical Marijuana Act (“AMMA”), an initiative voted into law by Arizona citizens. We support White Mountain's fight against both the Arizona Attorney General and the Maricopa County Attorney who, rather than complying with the law, have subverted the will of Arizona citizens by refusing to provide this qualified dispensary with the relevant permits and certificates to provide much-needed and prescribed medical marijuana to patients in our state. The ACLU's brief addresses the specific issue of whether the Arizona government can shirk its obligations under Arizona law under a non-existent threat of federal prosecution. The trial court ruled in favor of our client, agreeing that the AMMA is not preempted by federal law, and that local governmental employees did not risk prosecution by federal agents for merely administering the AMMA pursuant to state law and regulation. The trial court ordered all defendants to comply with their duties under the AMMA. Maricopa County then appealed this ruling and filed an emergency motion to stay the trial court’s ruling. The trial court denied the motion to stay, and the county filed an emergency motion with the Court of Appeals. The Court of Appeals held oral argument on December 20, 2012 and denied the county’s motion within a few hours. After holding the case to await decisions in related cases, the defendants’ appeal on the merits has been briefed and was argued in March 2016 in the Court of Appeals. We are waiting for a decision. Maricopa County also filed a Petition to Transfer the case to the Arizona Supreme Court, but the Arizona Supreme Court denied the petition.
Law Enforcement Misconduct
Cox v. Voyles. On July 22, 2015, the ACLU, the ACLU of Arizona, and the law firm Perkins Coie filed suit against the Sheriff, the County Attorney, and the Clerk of the Superior Court in Pinal County, Arizona, for their enforcement of Arizona’s civil asset forfeiture laws. These laws, which are particularly egregious in Arizona, allow police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be charged with or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.
In this case, Pinal County law enforcement used this unconstitutional scheme against Rhonda Cox, an innocent county resident, to seize and keep her used truck, violating her First, Fourth, Fifth, and Fourteenth Amendments rights. In order to keep her truck, the state didn’t have to prove that she did anything wrong – let alone criminal. In addition, the County Attorney’s office informed Ms. Cox that the state’s civil asset forfeiture laws would doubly punish her if she pursued her claim and didn’t win—in the end, she would lose her truck and have to pay the county’s attorneys’ fees and investigation costs, which would exceed the value of her truck. Ms. Cox couldn’t absorb the financial risk involved, so she was forced to withdraw her claim and give up her truck to the authorities.
Rodriguez v. Does. On July 28, 2014, the ACLU filed a lawsuit on behalf of Araceli Rodriguez, the mother of a sixteen year-old boy who was killed by agents of the United States Border Patrol and/or officers of U.S. Customs and Border Protection (CBP) on October 10, 2012. The fatal shooting of Jose Antonio is not an isolated incident. United States Border Patrol agents have been responsible for multiple, unjustified deadly shootings and physical abuses along the U.S.-Mexico border over the past several years. Jose Antonio’s killing is one of the latest and most egregious of these incidents. Counsel in the case includes the national ACLU Immigrants’ Rights Project, the ACLU of San Diego, local Arizona attorneys Roberto Montiel and Luis Parra and Morrison and Foerster, LLP. At the time the lawsuit was filed, the defendants in this case asked the court to seal the name of the agent suspected of shooting Jose Antonio from the public record. On November 13, 2014, the judge denied the defendants’ motion to seal and the name of the agent, Lonnie Swartz, was made known in the public record. Agent Swartz’s motion to dismiss the case is pending with the court. Declining to rule in favor of the defendants’ motion to dismiss, the court ruled on July 9, 2015 that Fourth Amendment protections did extend to Jose Antonio, allowing the case to go forward. Defendants have appealed that ruling to the Ninth Circuit Court of Appeals.
ACLU Foundation of Arizona v. Dept. of Homeland Security. In response to U.S. Customs and Border Protection (CBP) ignoring our requests for records about their interior enforcement policies and practices in southern Arizona, the ACLU of Arizona filed a lawsuit on April 28, 2014 against the agency under the Freedom of Information Act (FOIA). Border Patrol conducts extensive and wide-ranging interior enforcement operations far from the border resulting in cases of civil liberties abuses including unlawful vehicle stops and searches, excessive use of force, racial profiling, destruction of private property and trespassing. The lawsuit seeks agency policies, stop data and complaints, among other things, about checkpoints and roving patrols. The government has started producing some records, which are being reviewed by counsel and some of which were used in a report released in October 2015, “Record of Abuse: Lawlessness and Impunity in Border Patrol's Interior Enforcement Operations". Co- counsel in the case includes Professor Derek Bambauer and Professor Jane Yakowitz Bambauer at the University of Arizona Law School.
Valle Del Sol v. State of Arizona. On May 17, 2010, the ACLU of Arizona joined with other legal groups, including the ACLU Immigrants’ Rights Project, National Immigration Law Center, Mexican American Legal Defense and Education Fund, Asian Pacific American Legal Center, National Day Labor Organizing Network, NAACP and Munger Tolles to file a constitutional challenge to the anti-immigrant state law, SB 1070. In addition to preemption concerns under the Supremacy Clause, Plaintiffs argue that the Arizona law invites racial profiling against people of color by law enforcement in violation of the equal protection guarantee and prohibition on unreasonable seizures under the 14th and Fourth Amendments, and infringes on the free speech rights of day laborers and others in Arizona.
The plaintiffs sought a preliminary injunction to prevent all or portions of the law from being implemented on the July 29, 2010 effective date. On July 22, 2010 oral argument was heard by Judge Susan Bolton, in both the ACLU case and in the case brought by the U.S. Department of Justice, which also sought to enjoin the law as being preempted by federal laws and actions. On July 28, 2010, ruling in the DOJ case, the judge agreed with the arguments of the ACLU, and the federal government, and enjoined the key provisions of SB 1070 from going into effect until fully litigated. Arizona appealed the decision to the Ninth Circuit Court of Appeals and oral argument took place on November 1, 2010. With the ACLU participating as amicus, the Ninth Circuit Court of Appeals affirmed this important result and the State sought interlocutory review by the U.S. Supreme Court.
In February 2012, plaintiffs’ renewed motion for a preliminary injunction was granted, enjoining the provisions criminalizing solicitation for day labor work. Arizona appealed that decision to the Ninth Circuit Court of Appeals but the trial court decision was affirmed. Additionally, in another important ruling, the Ninth Circuit affirmed Judge Bolton’s injunction on the provision of the law criminalizing “harboring” or transporting persons who are not lawfully in the country. Further, on March 4, 2013, the Ninth Circuit upheld the district court’s injunction against the provisions of SB1070 regarding day laborers. Thus, the majority of the provisions of this draconian law have been permanently enjoined and have not gone into effect.
In December 2011, the U.S. Supreme Court agreed to review the injunction granted by Judge Bolton on the key provisions of SB 1070, and upheld by the Ninth Circuit, in the federal government’s case, U.S. v. Arizona. The case was argued before the Supreme Court in April 2012, and an opinion issued on June 25, 2012. The Supreme Court upheld most of Judge Bolton’s ruling but, unfortunately, reversed and remanded on the key “show me your papers” provision. The Court found that it was not on its face unconstitutional, but, depending how it was implemented, the law may not survive.
After the U.S. v. Arizona opinion was issued, the Valle Del Sol plaintiffs filed another challenge to the remainder of SB 1070, arguing the discriminatory intent of the legislators, especially former state Senator Russell Pearce, in drafting and enacting the law. Plaintiffs and defendants filed motions for summary judgment, which were decided on September 4, 2015. In her decision, Judge Bolton ruled in favor of plaintiffs by permanently enjoining the day labor provisions of the law but ruled against plaintiffs on remaining counts including the “show me your papers” provision of the law. Plaintiffs are preparing an appeal to the Ninth Circuit.
Ortega Melendres v. Arpaio. In a case that started in 2008, the ACLU, the ACLU of Arizona, MALDEF and Covington and Burling, LLP are representing plaintiffs in a class action lawsuit against Maricopa County Sheriff Joe Arpaio, the Maricopa County Sheriff’s Office and Maricopa County for racial discrimination against Latinos. The lawsuit charges that Sheriff Arpaio and the Maricopa County Sheriff’s Office (MCSO) have unlawfully instituted a pattern and practice of targeting Latino drivers and passengers in Maricopa County for traffic stops, investigations and arrests based on their race and ethnicity. MCSO’s practices discriminate on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment, and have resulted in prolonged traffic stops and baseless extended detentions, in violation of the Fourth Amendment.
Following a three-week trial in July 2012, Judge G. Murray snow issued a decision on May 24, 2013, finding that the Sheriff and MCSO had an agency wide pattern and practice of using race to target Latinos for investigation and detention, and for illegal stops and seizures, in violation of fundamental rights protected by the U.S. Constitution. In his order, Judge Snow permanently enjoined the specific practices that violated constitutional rights.
In October 2013, a remedial order was entered by Judge Snow requiring the MCSO to develop new written policies in relevant areas including a clear prohibition on improper use of race in law enforcement decisions, increased training for deputies, comprehensive data collection for every vehicle stop, and new mechanisms to communicate with the impacted Latino community. A court-appointed monitor was selected to assess and report on the compliance efforts over the next four years. The ACLU of Arizona has been closely involved with compliance efforts including commenting on draft policies, training curriculum and community outreach efforts by the monitor and the Community Advisory Board in the case.
After various discoveries about improper MCSO procedures related to this case, Judge Snow issued an Order to Show Cause in February 2015 determine the MCSO’s violations and appropriate sanctions for failing to comply with the preliminary injunction in this case, violating their discovery obligations and additional court orders. A month before the hearing was scheduled to take place, Sheriff Arpaio and Deputy Chief Sheridan submitted a court filing in which they admitted contempt of the court’s orders and proposed various remedies. Defendants also proposed cancelling the evidentiary hearing, which Judge Snow denied. The contempt hearing began in April 2015 where the court heard testimony from various MCSO officials including the Sheriff. The testimony included information about the Sheriff’s involvement in ordering deputies to take action contrary to the court’s orders as well as revelations that the MCSO was investigating Judge Snow and his wife. The hearing was scheduled to continue in June but the proceedings were suspended upon the defendants’ filing of a motion to recuse based on alleged biases by Judge Snow. In early July 2015, Judge Snow denied the defendants’ motion to recuse himself. The contempt proceedings wrapped up on November 20, 2015. On May 13, 2016, the court issued a decision finding Maricopa County Sheriff Joe Arpaio and his top deputies in contempt for repeatedly violating court orders. Plaintiffs will submit a brief to the court in advance of a hearing on May 31, 2016 to determine remedies for the violations, as well as possible criminal contempt.
Planned Parenthood Arizona v. Brnovich. On June 4, 2015 the ACLU of Arizona joined the ACLU Reproductive Freedom Project, Planned Parenthood, the Center for Reproductive Rights and Squire, Patton, Boggs LLC to challenge a law passed by the Arizona Legislature that forces doctors to mislead patients by telling them that it may be possible to reverse a medication abortion. SB 1318 is part of a recent wave of restrictions on safe, legal abortion based on bad medicine that prevent doctors from providing medical care based on the best evidence available and their medical judgment. Our clients include several Arizona health care providers who object to the law as a violation of the First Amendment rights by forcing them to covey state-mandated information to their patients that is not medically credible. The providers also challenge the law on behalf of their patients who are subjected to false, misleading and/or irrelevant information in violation of their rights under the Fourteenth Amendment. The law was scheduled to take effect on July 3, 2015 but defendants entered into a stipulated temporary restraining order with plaintiffs halting the enforcement of the law. At the close of the 2016 session, Arizona legislators passed, and Gov. Ducey signed, a repeal of the law being challenged in this case.
Public Records Cases
ACLU-AZ v. Arizona Department of Corrections. In September 2013, the ACLU of Arizona made two records requests to the Arizona Department of Corrections (ADC) seeking information about the lethal injection drugs to be used in the October 2013 executions of Edward Howard Schad Jr. and Robert Glen Jones Jr. There are questions about the safety and legality of the lethal injection drugs being used by states around the nation. The ADC, citing a state law that makes the identity of persons who perform ancillary functions in an execution confidential, denied the majority of the requested documents. In October 2013, the ACLU of Arizona filed a lawsuit in state court seeking to compel the ADC to release the records pertaining to the lethal injection drugs. State law is clear that records of official state business must be made available to the public. Prior to the executions, we moved for a temporary restraining order seeking the immediate release of the sought after public records. A concurrent case in federal court brought by the Federal Public Defender’s Office forced the ADC to release the name of the manufacturer of the drug, the expiration date of the drug, the lot number of the drug, and the National Drug Code of the drug. Subsequently, the court denied plaintiffs’ motion for a temporary restraining order. On March 23, 2015, the Superior Court held oral arguments on summary judgment motions. The court subsequently ordered defendants to submit the complete records to the court in camera so the court could determine if defendants properly withheld information. On February 3, 2016, the Superior Court found for Defendants. The ACLU filed a notice of appeal with the Arizona Court of Appeals and will file its opening brief on July 14, 2016.
Hodai v. City of Tucson. In March 2014, the ACLU of Arizona filed a lawsuit in Arizona Superior Court in Pima County on behalf of journalist Beau Hodai following the City of Tucson’s refusal to provide documents sought through a public records request. The documents requested information about a now common policing technology known as a “Stingray,” devices that emit signals to cell phone towers in order to force phones in the vicinity to connect to them. These powerful devices can reveal unique ID numbers and traffic data, as well as the device’s location. The City’s position in refusing to turn over the records is based on a non-disclosure agreement between the Tucson Police Department and the Harris Corporation, which produces the Stingray devices. The non-disclosure agreement prohibits the City from providing information about the device unless Harris allows it. The denial of records by the City is in violation of state public records law. The trial court ruled against plaintiffs request for records on December 11, 2014. The ACLU of Arizona appealed to the Arizona Court of Appeals, which held oral arguments on December 2, 2015. On January 7, 2016, the Court of Appeals held that Defendants failure to promptly release records related to cases where Stingray was used violated Arizona public records law. The court also found that Defendants had improperly withheld records that did not reveal technical aspects of Stingray but that the TPD may continue to conceal other information. The appeals court remanded to the trial court for the disclosure of some documents and on the question of attorneys’ fees, which was argued in the trial court on May 9, 2016.