melendres v. arpaio #1422 sept 30 2015 transcript - day 8 evidentiary hearing
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1735
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres,et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
)))))))))))
No. CV 07-2513-PHX-GMS
Phoenix, ArizonaSeptember 30, 20158:50 a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE G. MURRAY SNOW
(Evidentiary Hearing Day 8, Pages 1735-2006)
Court Reporter: Gary Moll401 W. Washington Street, SPC #38Phoenix, Arizona 85003(602) 322-7263
Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1736
A P P E A R A N C E S
For the Plaintiffs:American Civil Liberties Union FoundationImmigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm StreetSan Francisco, California 94111
American Civil Liberties Union FoundationImmigrants' Rights ProjectBy: Andre Segura, Esq.125 Broad Street, 18th FloorNew York, New York 10004
American Civil Liberties Union of ArizonaBy: Daniel J. Pochoda, Esq.P.O. Box 17148Phoenix, Arizona 85011
Covington & Burling, LLPBy: Lauren E. Pedley, Esq.1 Front Street, 35th FloorSan Francisco, California 94111
Covington & Burling, LLPBy: Stanley Young, Esq.
By: Michelle L. Morin, Esq.333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065
For the Defendant Maricopa County:Walker & Peskind, PLLCBy: Richard K. Walker, Esq.By: Charles W. Jirauch, Esq.SGA Corporate Center16100 N. 7th Street, Suite 140Phoenix, Arizona 85254
For the Movants Christine Stutz and Thomas P. Liddy:Broening, Oberg, Woods & Wilson, PCBy: Terrence P. Woods, Esq.P.O. Box 20527Phoenix, Arizona 85036
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1737
A P P E A R A N C E S
For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:
Iafrate & AssociatesBy: Michele M. Iafrate, Esq.649 N. 2nd AvenuePhoenix, Arizona 85003
Jones, Skelton & Hochuli, PLCBy: A. Melvin McDonald, Jr., Esq.By: John T. Masterson, Esq.By: Joseph T. Popolizio, Esq.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012
For the Intervenor United States of America:U.S. Department of Justice - Civil Rights DivisionBy: Paul Killebrew, Esq.950 Pennsylvania Avenue NW, 5th FloorWashington, D.C. 20530
U.S. Department of Justice - Civil Rights DivisionBy: Cynthia Coe, Esq.601 D. Street NW, #5011Washington, D.C. 20004
For Deputy Chief Jack MacIntyre:Dickinson Wright, PLLCBy: Gary L. Birnbaum, Esq.1850 North Central Avenue, Suite 1400Phoenix, Arizona 85004
For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLPBy: Greg S. Como, Esq.2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012
For Timothy J. Casey:Adams & Clark, PCBy: Karen Clark, Esq.520 E. Portland StreetPhoenix, Arizona 85004
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1738
A P P E A R A N C E S
Also present:Sheriff Joseph M. ArpaioExecutive Chief Brian SandsChief Deputy Gerard SheridanDeputy Chief Jack MacIntyreLieutenant Joseph Sousa
I N D E X
Witness: Page
TIMOTHY J. CASEY
Cross-Examination by Mr. Masterson 1747Cross-Examination by Mr. Como 1808Cross-Examination by Mr. Walker 1828Redirect Examination by Ms. Wang 1831Examination by the Court 1850
JOHN MacINTYRE
Direct Examination by Mr. Pochoda 1864Cross-Examination by Mr. Popolizio 1937Redirect Examination by Mr. Pochoda 1943
BRIAN SANDS
Direct Examination by Mr. Young 1947Cross-Examination by Mr. Popolizio 1968Cross-Examination by Mr. Como 1971Examination by the Court 1978
JOSEPH M. ARPAIO
Direct Examination by Mr. Young 1982
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1739
E X H I B I T S
No. Description Admitted
28 Phoenix New Times article by Ray Stern, 1893Arpaio's Request for Court-Appointed Lawyer
Not What It Seems, Sheriffs Official Says dated12/2/2014
30 Arizona Republic article by Daniel Gonzalez, 1885Federal judge halts Arpaio's worksite raids
dated 1/6/2015
32 Dkt. 235 - Defendants' Response in Opposition 1899to Plaintiffs' Motion for Sanctions dated12/11/2009
213 Email Chain from J. Sousa to B. Jakowinicz, 1827et al., re "Melendres Order on SummaryJudgment" dated October 19, 2012Sousa Depo Exhibit 193
2285 E-mail from Tim Casey to Amy Lake, Jerry 1845Sheridan, John MacIntyre, David Trombi, LarryFarnsworth, Russ Skinner copying Eileen Henry,Alana Borie, Thomas Liddy, Christine Stutz,and James Williams Re: Melendres - LegalQuestion about dated 6/3/2014 (MELC166742)
2536 E-mail from Joseph Sousa to Brett Palmer 1761copying Tim Casey, Rollie Seebert, Brian Sands,David Trombi, and Eileen Henry - Putting outtraining reference the court order dated1/11/2012 (CaseySub 000003)
2828A Video Clip 1 DOJ Disk 1 of 2, April 2012 to 1994July 2012
2829A Video Clip 1 CBS Evening News, DOJ, Racial 1997Profiling dated 4/5/2012
2831A Video Clip 1 Fox News, Follow the Money dated 19991/11/2012
2832B Video Clip 2 Newsmaker with John Hook - Fox, 2000Sheriff comments on Obama Investigation,Immigration, Reaching out Hispanics, and Possedated 1/27/2013
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1740
P R O C E E D I N G S
THE COURT: Please be seated.
THE CLERK: This is civil case number 07-2513,
Melendres, et al., v. Arpaio, et al., on for continuation of
evidentiary hearing.
THE COURT: I guess we'll need to have the parties
announce as usual. Please do.
MS. WANG: I'm sorry, Your Honor. Good morning.
Cecillia Wang of the ACLU, with Andre Segura, for the
plaintiffs.
MR. YOUNG: Good morning, Your Honor. Stanley Young,
Michelle Morin, and Lauren Pedley, Covington & Burling, for
plaintiffs.
MS. COE: Good morning, Your Honor. Cynthia Coe and
Paul Killebrew for the United States.
THE COURT: Good morning.
MR. POCHODA: Good morning. Dan Pochoda of the ACLU
of Arizona for plaintiffs.
MR. MASTERSON: Good morning, Judge Snow. John
Masterson, Joe Popolizio, for Sheriff Arpaio, and with us is
Holly McGee to assist us.
MR. WALKER: Good morning, Your Honor. Richard Walker
appearing on behalf of Maricopa County.
MR. McDONALD: Good morning, Judge Snow. Mel McDonald
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1741
appearing specially on behalf of Sheriff Joe Arpaio.
THE COURT: Good morning.
MR. COMO: Good morning, Judge. Greg Como on behalf
of Brian Sands.
MR. BIRNBAUM: Good morning, Your Honor. Gary
Birnbaum, special counsel for Deputy Chief MacIntyre.
Mr. MacIntyre will be here for the testimonial part of this
morning.
MS. IAFRATE: Good morning, Your Honor. Michele
Iafrate on behalf of Sheriff Arpaio and the alleged unnamed
contemnors.
THE COURT: I've read defendants' response to the
motion to quash -- I'm sorry. I've read plaintiffs' response
to the motion to quash. Seems pretty reasonable to me.
MR. POPOLIZIO: Good morning, Your Honor. Plaintiff
did make several concessions, and there was an admission that
the wrong subpoena may have been filed with a return date of
September 30th as opposed to October 5th.
Even with that said, Your Honor, defendant -- excuse
me, plaintiffs' response reveals something that I think is
problematic and very important. They claim that the issue or
issues that may arise that would give them the right to seek
discovery of correspondence, e-mails, even metadata in their
native format and whatnot, leaving that issue aside for a
second, arose in April and then in May of 2015. We're at end
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1742
of September, the very last day, we're in the midst of trial,
and a subpoena was served last Friday.
THE COURT: What about their argument that you just
informed them that you were going to insist on a separate
subpoena to Mr. Zullo a couple of weeks ago?
MR. POPOLIZIO: Well, that was a subpoena for his
appearance. However, there have been monitor requests for
information which the plaintiffs get on these very issues. So
they have information. I think what --
THE COURT: What, monitor requests for information
that the monitor has provided to plaintiffs, you're saying?
MR. POPOLIZIO: I believe that plaintiff has copies of
those also, Your Honor.
THE COURT: All right.
MR. POPOLIZIO: So I think what the focus should be
on, Your Honor, is if this did arise, if this was an idea in
their head in April and May of 2015, the subpoena or any other
discovery should have been sought earlier. It wasn't.
So now we're basically on the eve of a scheduled
deposition of next week, and I know that they say that they had
moved that deposition. We're in the midst of this contempt
hearing that's been ongoing, and this is the first time that
they've asked for anything like this.
I think that a motion for protective order is in order
here, Your Honor, and that the subpoena should be quashed.
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1743
THE COURT: Ms. Morin.
MS. MORIN: Yes, Your Honor. First, the --
THE COURT: Would you please approach the podium.
MS. MORIN: Sorry.
Thank you, Your Honor. I apologize for that.
First of all, the information that the e-mail
production and the production of documents to the monitor was
made at the discretion of the person providing the information.
That revelation was made in September, and the transcript
excerpt from Sergeant Anglin's deposition is included in our
response. So that the need for additional discovery requests
to make sure that all of the relevant and responsive documents
are produced was known long ago, that's not an accurate
statement.
Also, the PST production that MCSO made was not
provided until late August, I believe, and early September, and
only upon review of that does it become clear that the e-mail
productions by MCSO have not included --
THE COURT: Cold Case Posse.
MS. MORIN: -- comprehensively the personal e-mail
accounts of both Posseman Zullo and Detective Mackiewicz.
So, for example, you can see when you have one copy
that was sent to an MCSO request from, for example, a
Detective Mackiewicz -- sorry, to an MCSO e-mail account from a
Detective Mackiewicz personal e-mail account, if there's not
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1744
another copy that is produced, that other personal e-mail
account hasn't been comprehensively searched.
So upon review, it becomes clear -- it has become
clear more recently that we did need to serve these additional
document requests to make sure that we get all the relevant
documents.
THE COURT: Thank you.
Mr. Popolizio, do you have any final words?
MR. POPOLIZIO: No, Your Honor. I just ask that
motion be granted. And I'll step up here so that everybody can
hear me. And I would like to bring to light that plaintiffs'
argument is that there isn't an official policy with regard to
the gathering of information, but when they cite information --
or excuse me, testimony of Detective Anglin, he states that he
had desired to be thorough. That's the only testimony that
they cite.
The other reason they cite for wanting this
information is that basically, they want discovery on the
targeting of elected officials, Your Honor. I know that
there's been discussion --
THE COURT: Well, I'm not sure that I'm going to admit
that, but I'm not sure that it's not discoverable, if any of it
turns up.
MR. POPOLIZIO: Well, I would just bring -- I would
just submit to the Court that I don't believe that that's an
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1746
defendants in their response.
Defendants -- I'm sorry. I keep mixing the parties.
When plaintiffs have narrowed the scope of their
subpoena, I'm going to enforce that narrowed scope of subpoena.
MR. POPOLIZIO: Will the timeline be --
THE COURT: Time line's the same.
MR. POPOLIZIO: -- enforced, too?
THE COURT: Time lines the same.
MR. POPOLIZIO: I just want to just -- I know that
you've denied it, but the burden placed on Mr. Zullo, basically
even with this extended time limit, it gives him six business
days.
THE COURT: Well, if you're going to respond to me --
I mean, it seems to me like the request has been pretty
narrowed to matters that are quite relevant to this lawsuit.
If you are going to come back and tell me that it involves
thousands of documents, then I'll consider that.
MR. POPOLIZIO: Okay. Very well, Your Honor. Thank
you.
THE COURT: Um-hum.
MS. WANG: Thank you, Your Honor.
THE COURT: Are we ready to proceed? Is Mr. Casey
here? I know --
He's here. All right. So we can go ahead.
(Pause in proceedings.)
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1747
THE COURT: Who's conducting the cross-examination?
Is that going to be you, Mr. Popolizio?
MR. POPOLIZIO: No, Your Honor. I'm making room --
THE COURT: Oh, okay.
MR. POPOLIZIO: -- right now.
THE COURT: Are you doing the cross-examination,
Mr. Masterson?
MR. MASTERSON: I am, Judge.
(Pause in proceedings.)
MR. CASEY: Good morning, Your Honor.
THE COURT: Good morning.
(Pause in proceedings.)
THE COURT: Just to remind you, Mr. Casey, I'm sure I
don't need to, but I'm going to remind you anyway that the oath
that you took yesterday is still effective for the remainder of
your testimony.
MR. CASEY: I understand.
THE COURT: Mr. Masterson.
MR. MASTERSON: Thank you, Judge.
TIMOTHY J. CASEY,
recalled as a witness herein, having been previously duly
sworn, was examined and testified further as follows:
CROSS-EXAMINATION
BY MR. MASTERSON:
Q. Good morning, Mr. Casey.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1748
A. Good morning.
Q. You still have some exhibits up there in front of you?
A. I do.
Q. Would you please take a look at Exhibit 187.
A. I have it.
Q. And that's an e-mail you sent to various folks at MCSO?
A. It is.
Q. And what's the date of that, please?
MS. CLARK: Excuse me. I don't have that exhibit.
THE COURT: You remember, we kind of need --
MR. MASTERSON: Oh, yeah.
THE COURT: -- to put them up.
(Pause in proceedings.)
BY MR. MASTERSON:
Q. Okay. I think I just asked you whether you sent that to
various people at MCSO informing them of the preliminary
injunction, is that accurate?
A. That is.
Q. And you sent that to Chief Sands, Chief MacIntyre, Chief
Sheridan, and Lieutenant Sousa.
MS. WANG: Objection, leading.
THE COURT: I'm going to allow that.
MR. MASTERSON: Judge, I'm cross-examining, so I think
I can lead all day.
MS. WANG: I don't think that's right, Your Honor.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1749
THE COURT: Well, I'm going to allow a fair amount of
leeway.
THE WITNESS: Yes, those are the people I sent it to.
BY MR. MASTERSON:
Q. You did not send this to Sheriff Arpaio, correct?
A. No, I did not.
Q. And you did not send it to his assistant, Amy Lake.
A. That's correct.
Q. And I think you told us you sent it to Chief Sands because
he was your primary contact.
A. That's correct.
Q. You sent it to Chief Sheridan as a courtesy copy?
A. That's correct.
Q. Chief MacIntyre as a courtesy copy?
A. That's also correct.
Q. And Lieutenant Sousa because you were told to do so by
Chief Sands.
A. I believe that -- that's my best memory as why I would have
copied him on it.
Q. Now, I think you told us that you believe you spoke with
Chief Sands, Chief MacIntyre, and Sheriff Arpaio, on the 23rd,
December 23rd, and told them about the preliminary injunction?
A. As I mentioned yesterday, John, I am -- I know that I
talked to Chief Sands. I did not remember talking to MacIntyre
or Arpaio until I did a document search pursuant to the
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1750
plaintiffs' subpoena and found the e-mail that was referenced
yesterday between my partner and I. And that indicates to me
that I had a -- I must have had a communication with them on
the 23rd, because I wrote the e-mail at 9:26 at night about
their responses to the injunction.
Q. Okay. You're right. I recall you saying that now.
And I think you told us -- I don't remember if you
told us in your deposition or whether you told us yesterday
that you -- you believe you talked with Chief Sands first
because he would have been your primary contact at that time.
A. It would have been, yes.
Q. And Chief Sands was very supportive and had absolutely no
resistance whatsoever to the preliminary injunction.
A. That's correct.
MS. WANG: Objection, leading.
THE COURT: I'm going to allow it.
BY MR. MASTERSON:
Q. Now, I know you said that you -- you looked at some e-mails
and that kind of refreshed your recollection about possibly
meeting with some people on December 23rd.
Do you remember that?
A. I can tell you it wasn't a meeting on December 23rd; I
believe this is all done telephonically.
Q. Ah, okay. And your recollection was refreshed when you saw
the meeting to Mr. Williams.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1751
A. Yes.
Q. But are you still telling me today you don't recall those
telephone conversations?
MS. WANG: Objection, leading.
THE COURT: I'm going to allow it.
THE WITNESS: I do not to this day remember talking to
either Jack MacIntyre or Sheriff Arpaio on the 23rd.
BY MR. MASTERSON:
Q. And yesterday we looked at Exhibit 2534. And you don't
need to take a look at that; I'm just going to ask you a quick
question: Was it your testimony yesterday that there were not
any billing entries for December 23rd, 2011, in your billing
records that are reflected in Exhibit 2534?
A. Yes. Yeah, for whatever reason, I did not bill for that
time.
Q. Christmas spirit?
A. I don't think that was the reason; I just didn't do it, I
forgot.
Q. All right. I want to ask you about -- and this may be a
little difficult for you, because I think you just told me you
really don't remember a telephone call with the sheriff, but
I'm going to try to maybe see if I can prod your memory a
little.
Do you recall talking with us at your deposition about
reporting to the sheriff an adverse ruling from the court?
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1752
MS. WANG: Objection, compound; leading.
THE COURT: I'll allow it.
THE WITNESS: I know at some point I did speak to
Sheriff Arpaio between the 23rd and the beginning of the year.
BY MR. MASTERSON:
Q. Okay. Did you report what you characterized as an adverse
ruling to him?
A. Yes. Yes.
Q. And I think you told us you don't particularly like
delivering bad news like adverse rulings to clients.
A. I don't think any lawyer likes to deliver bad news, but's
part of what we have to do, yeah.
Q. But in this instance, you were pleasantly by surprised by
Sheriff Arpaio's response, correct?
MS. WANG: Objection, leading; mischaracterizes the
testimony.
MS. COE: Join, Your Honor.
MS. CLARK: Objection, mental impressions, Judge.
THE COURT: Well, let me just deal with the mental
impression first. If Masterson's asking the question,
Masterson can waive any mental impression privilege, can he
not?
MS. CLARK: Judge, I would like to make a record on
this. What I would like to assert is that if Mr. Masterson
asks any questions of Mr. Casey, it waives not only mental
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1754
THE COURT: What was the other objection?
MS. WANG: I believe it was leading and
mischaracterizes the testimony.
THE COURT: All right. Do you know, Ms. Wang, I'm
going to tell you in response to that what I often tell juries:
It's their job to pay close attention, and so they need to pay
close attention. I have paid very close attention.
Mr. Masterson can ask whatever he wants. I remember
the testimony. I happen to have been there in the deposition,
as you know, and I'm going to allow him to ask the question.
MS. WANG: Yes, Your Honor.
BY MR. MASTERSON:
Q. I don't want to mischaracterize your testimony.
Did you tell us in your deposition that to your,
quote, great pleasure, end quote, quote, there was absolutely
no resistance, end quote, to the preliminary injunction from
Sheriff Arpaio when you --
A. Yes.
Q. -- first told him about the preliminary injunction?
A. Yes.
Q. But he didn't like losing, right?
A. That's correct.
Q. And in your experience as a lawyer with your clients
over -- 26 years, was that it?
A. This is the 26th year. I'm starting my 26th; I finished
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1755
25.
Q. Based on your experience, do your clients like losing? I'm
not saying your clients lose all the time. I'm just asking if
that happens, do they like it?
A. No client likes to lose, but it is -- it's why we have this
civil justice system. There will be a winner; there will be a
loser.
Q. And do they sometimes express their dismay to you when you
tell them they lost a particular issue, whether it be a motion
or otherwise?
A. They do, it's not unusual.
Q. Now, you sent a copy of the preliminary injunction to
Deputy Chief MacIntyre as a courtesy.
A. Yes.
Q. But it was not your expectation that Deputy Chief MacIntyre
would do anything about the preliminary injunction.
A. That's right. He was not in the chain of command. He had
no -- to my knowledge, he had absolutely no authority to do
anything. I copied him on the reasons I told the plaintiffs'
lawyer, Cecillia, yesterday.
Q. And you also sent a copy of the preliminary injunction to
Chief Deputy Sheridan as a courtesy.
A. Yes.
Q. And again, you told us yesterday that you had no
expectations of Chief Sheridan to do anything about the
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1756
preliminary injunction.
A. Chief Sheridan was -- yes, he was not involved at this
stage in anything to do with the preliminary injunction.
Q. You know, when you -- and maybe you're just not going to
know the answer to this, but when you -- you recall having
conversations, telephone conversations -- and this is where I
may be muddying it up since I'm still not sure whether you
remember this or not -- but if you remember having telephone
conversations with MCSO folks about the preliminary injunction
on December 23rd, 2011, do you know where you were?
A. Yeah, I was in -- I was in my office.
Q. Okay.
A. Yes.
Q. Did you use your office phone or cell phone? Do you have
any recollection on that?
A. I can't tell you for certain, but I will tell you that I
had Brian Sands -- I had almost everyone's cell phone number in
my phone so I could call them, and my -- my best estimate here
is that it was on my cell phone going to Brian Sands'
cell phone.
Q. At the time -- and we're talking about December 23, 2011 --
at the time the preliminary injunction came out, is it your
testimony that Chief Sheridan was largely an unknown person to
you? And I think yesterday you said an unknown commodity.
Is that accurate?
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1757
A. It is.
Q. You never met with Chief Sheridan about the preliminary
injunction.
A. I have no memory of that, and I do not believe I ever met
with Jerry Sheridan about the preliminary injunction. He just
was not involved at that stage.
Q. Now, Ms. Wang asked you several questions about meetings
you might have had before December 23, 2011. I know it was
yesterday, but do you remember a little bit about that?
A. I do remember that.
Q. Obviously, none of those meetings or conversations would
have been about the preliminary injunction because it hadn't
happened yet, right?
A. That's correct.
Q. And after December 23, 2011, you do recall talking to the
sheriff, and I'm thinking you told us within a couple weeks,
maybe?
A. I have a time record on -- I'm going off of memory; I know
it's in these exhibits -- the 26th, the 27th, something like
that, for a .4, which is no more than 24 minutes. And I know
for certain we talked about the Court's injunction, and I know
for certain we talked about the effects of the injunction on
the office.
Q. And you know for certain that the sheriff's response was
absolutely no resistance whatsoever to the order.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1758
A. Yes.
Q. Could you please take a look at Exhibit 2534.
A. 2534?
Q. Yes, sir.
A. I'm sorry. I've got the wrong one.
Yes, I have it.
Q. Ms. Wang asked you a few questions about -- well, let's
look at the sentence that says: "Arpaio is conflicted on how
he feels."
Do you see that?
A. I do.
Q. Ms. Wang asked you a couple of questions about that
yesterday. Again, in your deposition you told us there was no
resistance from Sheriff Arpaio when you told him about the
preliminary injunction, right?
A. That's correct.
Q. But he didn't like to lose, right?
A. That's right.
Q. And that was what you were talking about when you said he
was conflicted; you weren't talking about him being conflicted
over the preliminary injunction.
A. That's --
MS. WANG: Objection, leading.
THE COURT: I'll allow it.
THE WITNESS: That is my best memory. That's exactly
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1759
what that's about.
BY MR. MASTERSON:
Q. Yesterday -- or, excuse me, at the deposition Ms. Wang
asked you if the sheriff was conflicted about the preliminary
injunction. Your testimony was no -- I don't want to
mischaracterize. Your testimony was, quote, No, I can't say
that, end quote.
Is that accurate?
A. That is accurate.
Q. Yesterday you told us Sheriff Arpaio had no reservations
about the preliminary injunction, that he was not conflicted
about that, but that he did not like to lose, and that's what
he conveyed to you when you told him about the preliminary
injunction.
A. Yes, plus the other things I shared yesterday, but yes,
that is true.
Q. Could you please take a look at Exhibit 2536.
A. Yes, I have it.
Q. Do you recall this particular e-mail? You're copied. It's
an e-mail from Lieutenant Sousa, you're copied, and the subject
is: "Putting out training reference the court order."
You see that?
A. Yes.
Q. Do you recall this e-mail?
A. I did not until I had it pulled up earlier this year when I
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1760
was told that this was an issue. I didn't remember this until
then, but I re -- my memory was jogged when I saw Brett
Palmer's scenarios.
Q. So when you say "I pulled this up earlier this year," do
you mean out of your own e-mail system?
A. Yeah. I got word that there was some issue about whether
or not I had reviewed scenarios and signed off on scenarios.
And I believe I indicated in my deposition, I think it was Tom
Liddy who shared that there was some finger-pointing, and I
asked my paralegal to see if we had, since the file was over at
Michele Iafrate's office, my original file, if we had anything
on the system dated this time period, because Tom had given me
some dates.
Q. Okay. So you found this in your own e-mail system at your
office.
A. Yes.
Q. And I assume you keep e-mails such as this as a regular
part of your law practice.
A. Yeah. During the case, yes.
Q. And this was an e-mail from Lieutenant Sousa copying you
that had to do with Melendres versus Arpaio, correct?
A. It is.
MR. MASTERSON: Move to admit Exhibit 2536, Your
Honor.
MS. WANG: No objection.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1761
MS. CLARK: No objection, Your Honor.
MR. WALKER: No objection.
MR. COMO: No objection.
THE COURT: Admitted. Exhibit 2536 is admitted.
(Exhibit No. 2536 is admitted into evidence.)
BY MR. MASTERSON:
Q. Now, I already told you about the subject line. It's
"Putting out training reference the court order."
You see that?
A. I do.
Q. And in that, Lieutenant Sousa is --
MR. MASTERSON: Could we publish this, please, Judge?
THE COURT: Yes.
BY MR. MASTERSON:
Q. Do you see the paragraph that's headed "Judge Snow's
order"?
A. Yes.
Q. And then the language below says: "The Court is enjoining
MCSO from detaining any person based solely on knowledge,
without more, that the person is in the country without
unlawful authority."
A. I do see that.
Q. And then it goes on to say: "To be clear, the Court is not
enjoining MCSO from enforcing valid state laws or detaining
individuals when officer" -- probably should say 'officers' --
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1762
but "when officer have reasonable suspicion that individuals
are violating a state criminal law."
See that?
A. I do.
Q. And I know the order was 40 pages, but does that accurately
reflect at least a part of that order?
A. Yes. My memory is this was taken off of my December 23rd
e-mail where -- I know they're typos -- but this is right from
the Court's order, because I think this cite is where I got it
from.
Q. Okay. So this did come from something you sent to MCSO.
A. On December 23rd.
Q. And right now, when you take a look at this e-mail of
January 11, 2012, what MCSO is trying to do is comply with
Judge Snow's order of December 23, 2011.
MS. COE: Objection, lack --
MS. WANG: Objection; foundation, leading.
MS. COE: Lacks foundation.
THE COURT: Sustained.
BY MR. MASTERSON:
Q. Well, let's talk about what was going on during this period
of time. Did you send information to MCSO that contains the
language that's in the paragraph under Judge Snow's order to
MCSO?
A. Yes. That's Exhibit 187 that you showed me earlier.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1763
Q. And did you give MCSO any instructions on what to do with
it?
A. Jerry -- excuse me, I said "Jerry." I apologize.
Brian Sands and I talked, as I mentioned, I believe,
yesterday, about things that we thought would be appropriate to
make sure MCSO was in compliance. What's up on the screen
right now was one of the things Brian Sands and I talked about.
The Court did not order MCSO to undergo voluntary
training, but if I remember correctly, I recommended that that
would be a good thing to do. Brian Sands was supportive,
agreed that it was a good thing to do.
My understanding is that this document that is on the
screen is in response to Brian Sands' and my communication
about going that next extra step of having training. This was
to try to implement that training protocol that I suggested and
Brian concurred in and authorized.
Q. And was all of that an effort to comply with Judge Snow's
December 23, 2011 order?
A. Yes, it was.
Q. So within 19 days -- and you might even have an earlier
date in mind that I don't know about, and feel free to share
it -- but within 18 days, MCSO is attempting to set up some
training to comply with Judge Snow's order.
A. From December 23rd to January 11, this is the start of
that, yes.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1764
Q. I think I said 18 -- I think I said 19. 18. Let's go back
to 19. I think that's what the math says, but anyway...
And I think you just told me that you and Chief Sands
agreed that it would be a prudent thing to do at this point to
get some training going for the troops at MCSO.
A. Yes.
Q. And I think you also just told me that Judge Snow did not
order any additional training or any changes to training.
A. He did not in that preliminary injunction.
Q. I think you characterized it as a prophylactic effort.
A. I'm sorry.
THE COURT: I'm just going to repeat what I believe
has been said, which is cell phones need to be turned off. I
don't know if that was a cell phone or what it was.
MR. McDONALD: Your Honor, I apologize. I was turning
it off and I hit the wrong button. I apologize.
THE COURT: All right.
THE WITNESS: I'm sorry. Could you repeat your
question?
BY MR. MASTERSON:
Q. Probably not, but I'll give it a shot.
I think what I was saying was: Did you view this as a
prophylactic effort to start the ball rolling with efforts to
comply with Judge Snow's order by working with MCSO on
training?
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1765
A. I did.
Q. And you were helping with this process, correct?
A. I'm not sure what you mean by "helping," but I made the
recommendation. I remember that they wanted me to review it.
I did review it, as I discussed yesterday, made corrections
directly with Brett Palmer, so helping in that way, yes.
Q. Chief Sands, he was the primary person you were working
with with respect to this issue, correct?
A. He was that and the sheriff, yes.
Q. And everybody's completely supportive at this time.
A. At this time, absolutely.
Q. All right. Everyone at MCSO at the time you're starting
this -- and again, refer to 2536 here -- at the time you're
starting this training preparation process, everyone at MCSO is
on board and supportive.
MS. COE: Objection, lack of foundation.
MS. WANG: Objection, leading, foun --
THE COURT: Sustained.
(Off-the-record discussion between the Court and the
court reporter.)
THE COURT: Yes. We need to have you repeat your
objections individually so we can get them on the record,
please.
MS. COE: Yes. Mine was foundation.
MS. WANG: Foundation and leading.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1766
THE COURT: Sustained.
MR. MASTERSON: Which one?
THE COURT: Foundation.
BY MR. MASTERSON:
Q. To your knowledge, did Sheriff Arpaio oppose what you and
Chief Sands were doing on January 11, 2012, to start the
training process in order to help MCSO comply with Judge Snow's
order?
A. I have no information that -- one way or the other on that.
I assume that there was absolutely no opposition, because we
were going forward with it.
Q. I'm not going to go through all of them because, frankly, I
probably would forget half the names, but did any of the deputy
chiefs resist your efforts to develop training with Chief Sands
in order to comply with Judge Snow's order?
MS. WANG: Objection, foundation.
THE COURT: I assume you're asking about his personal
knowledge.
MR. MASTERSON: I am.
THE COURT: You may answer.
THE WITNESS: To my personal knowledge, no other chief
was involved other than Brian Sands.
BY MR. MASTERSON:
Q. Did you get word in any fashion that any of the other
chiefs opposed this idea?
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1767
A. No.
Q. Did you get word in any fashion that anyone in command
staff -- and when I say "command staff," I'm talking sergeants
up.
A. There was absolutely no resistance to the idea of training.
Q. Now, could you look further in Exhibit 2536 and do you see
where Lieutenant Sousa is writing to Sergeant Palmer saying:
"Per our phone conversation, write up a couple of scenarios,
right way and wrong way, based on Judge Snow's order to MCSO
and your conversation with Tim Casey."
You see that?
A. Yeah. It says plural, "conversations."
Q. Okay. You're right. So do my notes.
Tell me about those conversations.
A. My conversations with Joe Sousa and Brett Palmer?
Q. Yes, sir.
A. Well, I'm going off of my memory refreshed based on my time
sheets, but I know that I had time entries on several times in
between December 23rd and December 31st, '11, involving Joe
Sousa, including on December 30th an over one-hour meeting with
Chief Sands and Joe Sousa, where we went over -- in my
judgment, exhaustively -- what the judge's injunction was; and
specifically what MCSO could and could not do under the human
smuggling statute, because there's a nuance there on the arrest
or release and we talked about that.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1768
We also went over, I'm sure, about the training,
although I don't specifically remember. I think we went over
everything Brian and I had previously discussed. I eventually
ended up talking about -- and I do not have time records for
this; I looked for them. But eventually I did have
conversations, plural, with Brett Palmer to explain to him,
because he was a sergeant in HSU, what the order allowed and
did not allow; also, what it allowed under the human smuggling
statute. Because there -- one of the elements on the human
smuggling statute was unlawful presence, and there was a -- one
of the nuances I mentioned was you can't use that to justify a,
quote-unquote, Terry stop. Okay? That's not sufficient.
Unlawful presence is not a criminal issue, it's a
civil violation, and there were some issues in MCSO about
whether unlawful presence -- being an illegal alien,
undocumented migrant, whatever term you give to it -- whether
or not that was a crime or a civil violation. So we needed to
make sure it was clear that it was a civil. And you couldn't
just look at unlawful presence and use that as a springboard to
do a human smuggling investigation.
And then that led to, obviously, the scenarios
eventually being sent out.
Q. Now, you used the word "nuance" a minute ago.
A. Yeah.
Q. You said there was a nuance.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1769
Were you referring to the preliminary injunction?
A. Yeah. I mean, I tried to summarize it, as I said, as AOR,
arrest or release. I think it captured -- I mean, my view is I
think it captured it.
But there was an issue in the preliminary injunction
that basically said that if I come across John Masterson
unlawfully in the country, I know, you tell me you're in the
country unlawfully, that is not grounds for reasonable
suspicion, certainly not probable cause, to allow me, under a
Terry stop, to start investigating whether or not there's a
human smuggling law violation under Arizona law.
Because just being unlawfully present was civil, not
criminal. So you had to have some reasonable suspicion on
other elements, and that's what -- one of the things I drew
from the Court's order that MCSO needed to be briefed on as
well.
Q. And did you do that briefing?
A. Yeah. I mean, I was not asked to brief anyone, but when I
talked to Brett Palmer, and I also know that Brian Sands and I
talked about it, Joe Sousa and I talked about it, because that
was one of the things. But when I -- when I boiled everything
down it was arrest or release.
Q. Did it seem to you that folks you talked to at MCSO were
having some difficulties understanding the nuance, for example,
you just mentioned?
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1770
A. No.
Q. What about -- you said there was an issue between whether
there's a civil violation or a criminal violation. Were there
some issues -- and I think you said there were some issues
about that. Could you please describe that a little bit more
for me.
A. Under the INA, as I understand it, as being on this case
for seven years under the Immigration and Naturalization Act,
the term of art used is "illegal alien." And in the public
comment you have all sorts of different euphemisms for that
term, but the legal term is "illegal alien."
So when you think of illegal, you think crime; you
don't think of a civil violation. And I believe, my memory is
at the time there were some people that held the belief that if
you were here illegally, that was a crime. If you were an
illegal alien for whatever period of time, that was a crime, so
that was part of the arrest or release under the human
smuggling.
That in itself was not sufficient to launch into a
Terry stop investigation on whether the crime -- the state
crime of human smuggling existed. And that was part and
parcel, but it was pretty well understood, the law really, in
my judgment, didn't become clear until '12, when the Supreme
Court issued some things, but the Ninth Circuit had previously
come out, so we needed to make sure that was clear. And it
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1771
was clear.
Q. Now, were these issues that you encountered when you were
discussing the preliminary injunction with the MCSO folks back
during this, I guess I'm going to call it --
THE COURT REPORTER: Mr. Masterson, could you start
your question over?
MR. MASTERSON: Sure. I think I'm just going to have
to make up a new question here because I don't remember what I
was saying.
BY MR. MASTERSON:
Q. At the time you were starting this rollout of training
referenced in Exhibit 2536, were there issues in MCSO with the
criminal versus civil illegal alien unlawful presence crime
civil violation, did you have all those discussions, I guess,
with MCSO folks during this period of time?
A. Let me start off by saying the predicate was, when I
started rolling out this, this is MCSO rolling out, my job was
to assist. This was not an issue at the time, but it had
previously been a -- I don't want to say it's a dominant
thought, but it was a common thought that in my judgment as a
lawyer, to do my job I felt that I needed to make sure that
they understood that "illegal" did not mean "criminal," it was
civil, so there was no confusion. Because very often -- I
mean, it is a very common -- I think to lay people, it's a very
common misbelief that if you're unlawfully in the country
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1772
you've committed a crime, and that's not what the law is.
And sometimes that had permeated, from my genesis or
my start in the case from '07 until this preliminary injunction
came out, that's what I -- I would find sometimes some people
holding that view at MCSO. And part of the preliminary
injunction was to make clear that unlawful presence wasn't a
crime, so you can't use it as a springboard for investigating
state crimes.
Q. Were you still doing battle with that issue with the
troops, though, in --
A. Not with the troops, no.
Q. Okay. And in Exhibit 2536, this -- this references
training that is specific to compliance with Judge Snow's
order, correct?
A. Yes.
Q. This is not some general training that you're working on
with Brian Sands to give to MCSO; it's specific to comply with
Judge Snow's December 23, 2011, preliminary injunction.
A. That is correct.
Q. When you first -- this might not be accurate, so you may
have to correct me, because I don't know if it's when you first
talked to Sergeant Palmer or not, but at some point when you
were having discussions with Sergeant Palmer about drafting
scenarios, he asked you if the sheriff was on board with this.
Do you remember that?
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1773
A. I do remember that.
Q. And what was your response to Sergeant Palmer?
A. That absolutely he was on board. It was not a question.
That I personally talked to him after the order came out and it
was not a problem, and I repeated what the sheriff had shared
with me.
Q. And were you telling him that the sheriff was absolutely on
board with this proposed training?
A. I remember it coming up -- I don't remember anything about:
Are you sure the sheriff is on board with the training. I
remember talking to him about that you have to release them.
And that's when the question came up: Are you sure that he's
on board with this? And I said: Absolutely, I talked to him.
He said: We're not doing saturation patrols, we don't do this
any more, ICE, Obama won't take them, so it was in that
context. It wasn't: Are you sure he's on board with the
training. It wasn't about training and whether the sheriff was
in agreement or not.
Q. Now, did the sheriff express to you at some point, and
you're going to have to tell me when, about a concern he had
about compliance with the order and leaving people in the
middle of the desert.
A. Yeah. I mentioned that -- I don't know if this was at the
preliminary injunction stage or if this was after the permanent
injunction was entered, but Sheriff Arpaio indicated -- told
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1774
me: So you're telling me I've got to leave them in the desert
to die. And I responded to him on that, and I -- I think
somewhere in the file that's at your co-counsel's office
there's actually an opinion letter that I wrote on that in
follow-up.
Q. What did you tell the sheriff on that issue?
A. Well, I told the sheriff that I said it -- there is nothing
under Judge Snow's order that prevents you from providing
humanitarian assistance. If humanitarian assistance is giving
them food, water, shelter, and transportation, that's not an
issue. But if the idea is transportation, food, water, shelter
and transportation to ICE, that's gaming the system; that's not
going to work.
And my prediction was, and I -- maybe it's
presumptuous -- but I told him, I said: Neither Judge Snow or
any other federal judge is going to hold you in contempt for
providing humanitarian assistance. And I think I told him, I
said: I will put that in writing in an opinion letter to you
so you have that as advice of counsel.
And I believe there is a letter on that, but it's
purely humanitarian; it's not transportation to federal
authorities.
Q. And was the sheriff on board with that?
A. He had no -- yeah, he -- as soon as he heard that he could
provide humanitarian assistance, he was good with it.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1775
Q. Now, when you first spoke to Sergeant Palmer in January
2012 about the preliminary injunction, had he already been
briefed by Lieutenant Sousa?
A. That's what he told me.
Q. Did you have any discussions with him about the nature of
the briefing, the extent of the briefing, or any of the facts
about the briefing?
A. We may have, but I don't remember.
Q. Okay. So within -- well, let me ask you this first: Do
you know where Sergeant Palmer was assigned at the time?
A. He was at HSU.
Q. How about Lieutenant Sousa?
A. At this time I believe Lieutenant Sousa was still
lieutenant in charge of HSU. We had our trial in July and
August, and sometime between -- sometime, I think, in the first
quarter, and certainly before the trial, he transferred out of
HSU.
Q. So within a couple of weeks, two, three weeks of the
preliminary injunction coming out, has the word gotten down to
HSU?
A. What word?
MS. COE: Objection, lacking in foundation.
BY MR. MASTERSON:
Q. Has the word gotten down to HSU?
MS. COE: Same objection,
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1776
MS. WANG: I'll join.
THE COURT: And the objection is sustained.
Ms. Coe, I would just point out, if you can pull that
microphone over to you a little closer when you make an
objection it will be easier for the court reporter to hear it.
MS. COE: Thank you, Your Honor.
BY MR. MASTERSON:
Q. Well, you just told me when you first spoke to
Sergeant Palmer he had been briefed by Lieutenant Sousa,
correct?
A. That is correct.
Q. And your testimony is that both Sousa and Palmer are in HSU
at this time.
A. Yes.
Q. And maybe I'm making an assumption that's not justified,
but are we talking about the briefing being about the
preliminary injunction?
A. The briefing.
Q. That Sousa gave to Palmer.
A. Oh, yeah. That was about -- yes. My understanding is by
the time I talked to Brett Palmer, he had been briefed sometime
earlier by Joe Sousa. By the time I talked to Brett, Brett had
already told me he had briefed the troops.
Q. So word of the preliminary injunction had gotten to the
troops, including HSU, by the time of this e-mail we're looking
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1777
at here in Exhibit 2536.
A. Yes.
Q. And -- well, you just told us that Sousa briefed Palmer and
Palmer briefed his people. Are those the troops you're talking
about?
A. Yes, sir.
Q. And that's HSU.
A. That is HSU.
Q. Now, my understanding is that you had not given -- well,
let me ask you this: Did you provide to Sergeant Palmer the
information that he briefed the troops on?
A. Yes.
Q. How did you convey that information to him?
A. My under- -- well, I have to take the "yes" back because
it's been so long.
My understanding is at some point he told me that he
had already briefed the troops, and I don't remember if that
was the first conversation or if it was after we talked, but I
just don't remember the specifics now.
Q. I'm going to ask you about your deposition testimony, and
if you need to take a look at it, I'll grab it for you.
Oh, you've got it. Great.
A. Yeah, it's up here.
Q. Can you take a look at page 83, please.
A. Okay.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1778
Q. Somewhere around line 7 to 14, do you recall testifying
that you had not been consulted on the substance of the
briefing by Sergeant Palmer to the troops?
A. Yeah, I see that.
Q. And I know this is a long time ago, but can you explain
what you do remember about talking with Sergeant Palmer and
briefing him on issues concerning the preliminary --
preliminary injunction --
A. Yeah --
Q. -- before January 11, 2012, or at least before, in your
memory, he provided this briefing to the troops.
A. Yeah. I mean, my testimony was that the initial time that
we spoke, that he had already briefed the troops, and the
question was whether I had concerns whether that was accurate.
Q. Okay. And there was a time when you became concerned about
whether Sergeant Palmer understood the injunction and/or what
you told him.
A. Yes.
Q. Now -- well, let's do it this way. When did that concern
first hit your mind?
A. Well, my memory was refreshed when I looked at the
scenarios. When I got the scenarios and read them is when I
thought -- I became frustrated, because we had spent some time.
And then I remember what I described as 50 percent of the
scenarios being incorrect.
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1779
Really, it's 25 percent were incorrect, and then the
other 25 percent needed more -- more detail.
Q. Okay. But he is drafting scenarios in an attempt to
provide training to MCSO law enforcement officers to comply
with Judge Snow's order, correct?
A. The judge didn't order it, but he -- but in order to make
sure that the troops had training about it, yes, that's
correct.
Q. You're right. And I understand that Judge Snow did not
order the training, but at the time Sergeant Palmer gave you
the scenarios, even though there were -- there was information
in the scenarios that was wrong, this was all a part of trying
to comply with Judge Snow's order.
MS. WANG: Objection, foundation; leading.
MS. COE: Same objection, Your Honor.
THE COURT: Well, who are you talking about? Whose
attempts to comply with the order?
MR. MASTERSON: Well, certainly Sergeant Palmer, and
MCSO as a whole.
THE COURT: I'm going to sustain the objection, then.
BY MR. MASTERSON:
Q. Do you have any knowledge as to what was going to be done
with this training after it was completed?
And when I say "completed," I don't mean completed
with everybody in MCSO gets the training; I mean the scenarios,
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1780
a training syllabus, or whatever was in the works here, when
that was completed, do you have any idea what was to happen to
it? What were they going to do with it?
A. I do know.
Q. Tell us, please.
A. My memory, my understanding is what they were going to do
is put together the scenarios and have -- I forget what the
term was, but it's basically online training. I think it's
E Learning, they call it, at MCSO, and first it was going to
start off with the -- what I describe as the tip of the spear,
HSU undergoing that, and then it was going to go out
patrol-wise. Anyone that can make a traffic stop was going to
be required to do it.
Q. Okay. So it was going to go MCSO-wide at least to those
personnel who were engaged in law enforcement/traffic stops?
A. On the patrol side, not detention, yes.
Q. Okay. So they weren't doing this training just for
funsies; they were doing it to comply with Judge Snow's order.
A. Yes. Yes.
Q. So at this time when these training scenarios are being
prepared and passed on to you, in your opinion, was MCSO
ignoring Judge Snow's order?
MS. COE: Objection, Your Honor, irrelevant.
MS. WANG: I'll object on foundation grounds as well.
THE COURT: I'm going to sus- -- well, he's asked him
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1781
about his opinion, I assume he has foundation to know his
opinion, and I'm going to overrule the relevance objection.
THE WITNESS: I'm sorry. Could you repeat it? I
apologize.
MR. MASTERSON: Actually, Mr. Moll, can you read that
question back, please?
THE COURT: Yes.
(The record was read as follows: So at this time when
these training scenarios are being prepared and passed on to
you, in your opinion, was MCSO ignoring Judge Snow's order?)
THE WITNESS: They were not ignoring judge order --
the judge's order.
BY MR. MASTERSON:
Q. In fact, in your opinion, they were trying to comply with
the order.
MS. WANG: Objection, Your Honor. Calls for
speculation; irrelevant; 403; leading; foundation.
MS. COE: Join, Your Honor. Calls for expert
testimony.
THE COURT: Well, I'm going to overrule the objection
because it only asks for Mr. Casey's opinion. And I know
perfectly well how to evaluate somebody's opinion and the
limits of somebody's personal opinion, so the objection is
overruled for whatever value it has.
THE WITNESS: MCSO was trying to comply with the court
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1782
order.
BY MR. MASTERSON:
Q. Now, you've mentioned just a minute ago that you had some
concern about Sergeant Palmer's knowledge or understanding when
you got the draft scenarios, is that correct?
A. That's true.
Q. And when you saw the scenarios, you were concerned that
Sergeant Palmer did not understand the Court's order.
A. Yes, and he did not understand what I had shared with him.
Q. My next question. You had explained the court order to
Sergeant Palmer, correct?
A. Yes.
Q. And when you saw the scenarios, it became clear to you that
it didn't sink in.
A. Yes.
Q. Do you see in Exhibit 2536 the paragraph, or sentence, that
says: "I will have Tim review what you write up and have Chief
Sands sign off on that"?
A. I do see that.
Q. Tell me about that. What is that talking about? What's
that mean?
A. My understanding is that whatever Brett was to write up,
they wanted me to look at, make sure it was accurate, because
you don't want to have bad training; and that in order for it
to actually go into -- in order for it to go into E Learning,
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1783
it has to be approved by the command structure.
Q. And the intent was, I think -- and I think you just told us
a second ago, and possibly just now -- that once that was done,
it was going to go out on E Learning?
A. Yes, sir.
Q. You might not know this, but do you know what E Learning
is?
A. I did at one time, but I do not remember now.
Q. Okay. So was it your understanding that you were going to
provide input into the training scenarios; then it was going to
go to Chief Sands, he was going to sign off, and then to
E Learning? Was that how it was to work, or do you remember?
A. Generally, it had to be approved by the command. My
understanding is that Brian Sands had to sign off on it after I
reviewed it.
Q. At this point, to your knowledge, was anyone in MCSO
command staff interfering with this effort at training for
compliance with Judge Snow's order?
A. No.
Q. Could you please take a look at Exhibit 2538.
A. I have it.
Q. Do you recall this e-mail?
A. Excuse me. Yes.
Q. Is this the e-mail that that has Sergeant Palmer's draft
training scenarios?
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1784
A. The January -- at the end of this, it's not shown on the
screen, but the January 19th Brett Palmer scenarios, the
e-mail.
Q. Okay. Can you take a look at the scenarios themselves,
please.
A. Yes, I did during the depo.
Q. Okay. You've already told us that there was something
wrong with some of them. Can you tell us what's wrong --
A. Yes.
Q. -- with the scenarios.
A. I'm not going to re -- unless I'm told to, I don't think I
need to review these again, but I believe scenario 1 was fine;
scenario 2 was fine; scenario 3 was a problem. It was
basically: If ICE says "hold them and take them in," or
something like that, then you can do it, and that is not what
the order allowed. You cannot do that. There's no lawful
authority to do that. That was contrary to the order. It was
certainly contrary to what I conveyed. And that was the issue
on number 3.
As you can see, there's some discussions there about
getting overtime to drive people to Florence, but there's no
authority under the order, under the law, to detain someo