United States of America v. County of Maricopa and Paul Penzone

The United States brought this action to halt racially

discriminatory policing policies instituted by Joseph Arpaio,

the former Sheriff of Maricopa County, Arizona. Under

Arpaio’s leadership, the Maricopa County Sheriff’s Office

(MCSO) routinely targeted Latino drivers and passengers for

pretextual traffic stops aimed at detecting violations of

federal immigration law. Based on that and other unlawful

conduct, the United States sued Arpaio, MCSO, and the

County of Maricopa under two statutes: Title VI of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d, and 34 U.S.C.

§ 12601 (formerly codified at 42 U.S.C. § 14141).1 The

district court granted summary judgment in favor of the

United States on the claims relating to the unlawful traffic

stops; the parties settled the remaining claims. Maricopa

County is the lone appellant here. Its main contention is that

it cannot be held liable for the unlawful traffic-stop policies

implemented by Arpaio.

We begin with a summary of the lengthy legal

proceedings involving Arpaio’s unlawful policing policies.

In an earlier class action lawsuit, Melendres v. Arpaio, a

group of plaintiffs representing a class of Latino drivers and

passengers sued Arpaio, MCSO, and the County of Maricopa

1 Title VI prohibits discrimination on the basis of “race, color, or

national origin” in programs or activities that receive federal funding;

§ 12601 authorizes the United States to obtain declaratory and injunctive

relief against any governmental authority that engages in a “pattern or

practice of conduct by law enforcement officers” that deprives persons of

rights protected by federal law.

UNITED STATES V. COUNTY OF MARICOPA 5

under 42 U.S.C. § 1983 and Title VI. They alleged that

execution of Arpaio’s racially discriminatory traffic-stop

policies violated their rights under the Fourth and Fourteenth

Amendments. Following a bench trial, the district court ruled

in the plaintiffs’ favor and granted broad injunctive relief,

which we largely upheld on appeal. See Melendres v. Arpaio,

695 F.3d 990 (9th Cir. 2012); Melendres v. Arpaio, 784 F.3d

1254 (9th Cir. 2015) (Melendres II).

While the Melendres action was proceeding, the United

States filed this suit. Among other things, the United States

challenged the legality of the same traffic-stop policies at

issue in Melendres. The United States named as defendants

Arpaio, in his official capacity as Sheriff of Maricopa

County; MCSO; and Maricopa County. Early on, the district

court dismissed MCSO from the action in light of the Arizona

Court of Appeals’ decision in Braillard v. Maricopa County,

232 P.3d 1263 (Ariz. Ct. App. 2010), which held that MCSO

is a non-jural entity that cannot be sued in its own name. Id.

at 1269.

Throughout the proceedings below, the County argued

that it too should be dismissed as a defendant, on two

different grounds. First, the County argued that when a

sheriff in Arizona adopts policies relating to law-enforcement

matters, such as the traffic-stop policies at issue here, he does

not act as a policymaker for the county. He instead acts as a

policymaker for his own office, or perhaps for the State. The

County contended that, because Arpaio’s policies were not

policies of the County, it could not be held liable for the

constitutional violations caused by execution of them.

Second, the County argued that, even if Arpaio acted as a

policymaker for the County, neither Title VI nor 34 U.S.C.

UNITED STATES V. 6 COUNTY OF MARICOPA

§ 12601 permits a local government to be held liable for the

actions of its policymakers.

The district court rejected both of the County’s

arguments. The court then granted the United States’ motion

for summary judgment with respect to claims predicated on

the traffic-stop policies found unlawful in Melendres. The

court held that the County was barred by the doctrine of issue

preclusion from relitigating the issues decided in the

Melendres action, which by that point had reached final

judgment. The County does not contest that if the Melendres

findings are binding here, they establish violations of Title VI

and § 12601.

On appeal, Maricopa County advances three arguments:

(1) Arpaio did not act as a final policymaker for the County;

(2) neither Title VI nor § 12601 renders the County liable for

the actions of its policymakers; and (3) the County is not

bound by the Melendres findings. We address each of these

arguments in turn.

I

We have already rejected Maricopa County’s first

argument—that Arpaio was not a final policymaker for the

County. In Melendres v. Maricopa County, 815 F.3d 645

(9th Cir. 2016) (Melendres III), we noted that “Arizona state

law makes clear that Sheriff Arpaio’s law-enforcement acts

constitute Maricopa County policy since he ‘has final

policymaking authority.’” Id. at 650 (quoting Flanders v.

Maricopa County, 54 P.3d 837, 847 (Ariz. Ct. App. 2002)).

Because that determination was arguably dicta, we have

conducted our own analysis of the issue, and we reach the

same conclusion.

UNITED STATES V. COUNTY OF MARICOPA 7

To determine whether Arpaio acted as a final policymaker

for the County, we consult Arizona’s Constitution and

statutes, and the court decisions interpreting them. See

McMillian v. Monroe County, 520 U.S. 781, 786 (1997);

Weiner v. San Diego County, 210 F.3d 1025, 1029 (9th Cir.

2000). Those sources confirm that, with respect to lawenforcement

matters, sheriffs in Arizona act as final

policymakers for their respective counties.

Arizona’s Constitution and statutes designate sheriffs as

officers of the county. The Arizona Constitution states:

“There are hereby created in and for each organized county

of the state the following officers who shall be elected by the

qualified electors thereof: a sheriff, a county attorney, a

recorder, a treasurer, an assessor, a superintendent of schools

and at least three supervisors . . . .” Ariz. Const. Art. 12, § 3

(emphasis added). The relevant Arizona statute explicitly

states that sheriffs are “officers of the county.” Ariz. Rev.

Stat. § 11-401(A)(1).

Arizona statutes also empower counties to supervise and

fund their respective sheriffs. The county board of

supervisors may “[s]upervise the official conduct of all

county officers,” including the sheriff, to ensure that “the

officers faithfully perform their duties.” Ariz. Rev. Stat.

§ 11-251(1). The board may also “require any county officer

to make reports under oath on any matter connected with the

duties of his office,” and may remove an officer who neglects

or refuses to do so. Ariz. Rev. Stat. § 11-253(A). In addition,

the county must pay the sheriff’s expenses. Ariz. Rev. Stat.

§ 11-444(A); Braillard, 232 P.3d at 1269 n.2. As Maricopa

County conceded in Melendres, those expenses include the

costs of complying with any injunctive relief ordered against

Arpaio and MCSO. See Melendres III, 815 F.3d at 650. A

UNITED STATES V. 8 COUNTY OF MARICOPA

county’s financial responsibility for the sheriff’s unlawful

actions is strong evidence that the sheriff acts on behalf of the

county rather than the State. See McMillian, 520 U.S. at 789;

Goldstein v. City of Long Beach, 715 F.3d 750, 758 (9th Cir.

2013).

The limited guidance Arizona courts have provided on

this topic further confirms that sheriffs act as policymakers

for their respective counties. Most on point is Flanders v.

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

held that then-Sheriff Arpaio acted as a final policymaker for

Maricopa County with respect to jail administration. Id. at

847. Flanders relied in part on the fact that the statutory

provision that specifies a sheriff’s powers and duties lists

“tak[ing] charge of and keep[ing] the county jail” as one of

them. Id. (citing Ariz. Rev. Stat. § 11-441(A)(5)). That same

provision also lists a wide array of law-enforcement functions

that fall within the sheriff’s powers and duties. Ariz. Rev.

Stat. § 11-441(A)(1)–(3). Maricopa County does not explain

why the Sheriff would be a final policymaker for the County

with respect to jail administration but not with respect to the

law-enforcement functions assigned to him in the same

provision.

It is true that sheriffs in Arizona are independently elected

and that a county board of supervisors does not exercise

complete control over a sheriff’s actions. Nonetheless, “the

weight of the evidence” strongly supports the conclusion that

sheriffs in Arizona act as final policymakers for their

respective counties on law-enforcement matters. See

McMillian, 520 U.S. at 793. Because the traffic-stop policies

at issue fall within the scope of a sheriff’s law-enforcement

duties, we conclude that Arpaio acted as a final policymaker

for Maricopa County when he instituted those policies.

UNITED STATES V. COUNTY OF MARICOPA 9

II

Maricopa County next argues that, even if Arpaio acted

as the County’s final policymaker, neither Title VI nor

34 U.S.C. § 12601 permits the County to be held liable for his

acts. Whether either statute authorizes policymaker liability

is an issue of first impression. We conclude, informed by

precedent governing the liability of local governments under

42 U.S.C. § 1983, that both statutes authorize policymaker

liability.

The concept of policymaker liability under § 1983 is well

developed. Section 1983 imposes liability on any “person”

who, while acting under color of law, deprives someone of a

right protected by the Constitution or federal law. In Monell

v. New York City Department of Social Services, 436 U.S.

658 (1978), the Supreme Court held that the term “person”

includes municipalities, which had the effect of creating

liability for local governments under § 1983. See id. at 690.

But the Court also limited the scope of that liability. It

concluded that a local government may not be held

vicariously liable for the acts of its employees under the

doctrine of respondeat superior. Id. at 691. Instead, liability

arises only if a local government’s own official policy or

custom caused the deprivation of federal rights. Id. at 694.

As the Court later explained, this “official policy”

requirement is intended to ensure that a municipality’s

liability “is limited to acts that are, properly speaking, acts ‘of

the municipality’—that is, acts which the municipality has

officially sanctioned or ordered.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 480 (1986).

Under policymaker liability, only certain employees of a

local government have the power to establish official policy

UNITED STATES V. 10 COUNTY OF MARICOPA

on the government’s behalf. The government’s legislative

body has such power, of course, but so do officials “whose

edicts or acts may fairly be said to represent official policy.”

Monell, 436 U.S. at 694. Such officials are those who

exercise “final policymaking authority for the local

governmental actor concerning the action alleged to have

caused the particular constitutional or statutory violation at

issue.” McMillian, 520 U.S. at 784–85 (internal quotation

marks omitted). In essence, policymaker liability helps

determine when an act can properly be deemed a

government’s own act, such that the government may be held

liable for deprivations of federal rights stemming from it.

We think this same concept of policymaker liability

applies under both Title VI and § 12601. As to Title VI, the

Supreme Court has held that an entity’s liability is limited to

the entity’s own misconduct, as it is under § 1983. See Davis

ex rel. LaShonda D. v. Monroe County Board of Education,

526 U.S. 629, 640 (1999); Gebser v. Lago Vista Independent

School District, 524 U.S. 274, 285 (1998).2 Thus, while an

entity cannot be held vicariously liable on a respondeat

superior theory, it can be held liable under Title VI if an

official with power to take corrective measures is

“deliberately indifferent to known acts” of discrimination.

Davis, 526 U.S. at 641. An entity can also be held liable for

acts of discrimination that result from its own “official

policy.” Gebser, 524 U.S. at 290; see Mansourian v. Regents

of the University of California, 602 F.3d 957, 967 (9th Cir.

2010); Simpson v. University of Colorado Boulder, 500 F.3d

1170, 1177–78 (10th Cir. 2007). Because this form of

2 Davis and Gebser involved Title IX of the Education Amendments

of 1972, but “the Court has interpreted Title IX consistently with Title

VI.” Barnes v. Gorman, 536 U.S. 181, 185 (2002).

UNITED STATES V. COUNTY OF MARICOPA 11

“official policy” liability resembles § 1983 policymaker

liability, we think the proper standard for determining which

employees have the power to establish an entity’s “official

policy” under Title VI is the standard that governs under

§ 1983.

We reach the same conclusion with respect to § 12601.

As relevant here, the statute provides: “It shall be unlawful

for any governmental authority, or any agent thereof, or any

person acting on behalf of a governmental authority, to

engage in a pattern or practice of conduct by law enforcement

officers . . . that deprives persons of rights, privileges, or

immunities secured or protected by the Constitution or laws

of the United States.” 34 U.S.C. § 12601(a).

Section 12601 shares important similarities with § 1983.

Section 1983 was enacted to create “a broad remedy for

violations of federally protected civil rights.” Monell,

436 U.S. at 685. Section 12601 was also enacted as a remedy

for violations of federal civil rights, specifically for violations

that are systematically perpetrated by local police

departments. See Barbara E. Armacost, Organizational

Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453,

527–28 (2004). And, like § 1983, § 12601 imposes liability

on local governments. Indeed, the language of § 12601 goes

even further than § 1983, making it unlawful for “any

governmental authority, or any agent thereof, or any person

acting on behalf of a governmental authority” to engage in the

prohibited conduct. 34 U.S.C. § 12601(a).

We need not decide whether the language of § 12601

imposes liability on the basis of general agency principles, as

the United States urges here. It is enough for us to conclude,

as we do, that § 12601 at least imposes liability on a

UNITED STATES V. 12 COUNTY OF MARICOPA

governmental authority whose own official policy causes it to

engage in “a pattern or practice of conduct by law

enforcement officers” that deprives persons of federally

protected rights. Id. Because of the similarity between

§ 12601 and § 1983, we again see no reason to create a new

standard for determining which officials have the power to

establish a governmental authority’s official policy. The

same standard that governs under § 1983 applies here as well.

In short, Maricopa County is liable for violations of Title

VI and § 12601 stemming from its own official policies. As

discussed above, when Arpaio adopted the racially

discriminatory traffic-stop policies at issue, he acted as a final

policymaker for the County. Those policies were therefore

the County’s own, and the district court correctly held the

County liable for the violations of Title VI and § 12601

caused by those policies.

III

Lastly, Maricopa County challenges the district court’s

application of issue preclusion, which precluded the County

from relitigating the lawfulness of Arpaio’s traffic-stop

policies. Given the nature of the County’s involvement in the

Melendres action, we conclude that the County is bound by

the adverse findings rendered in that action.

The County was originally named as a defendant in the

Melendres action, along with then-Sheriff Arpaio and MCSO.

Early in the litigation, the parties stipulated to dismissal of the

County as a named defendant, without prejudice to the

County’s being rejoined as a defendant later in the litigation

if that became necessary to afford the plaintiffs full relief.

Melendres III, 815 F.3d at 648. In effect, the County agreed

UNITED STATES V. COUNTY OF MARICOPA 13

to delegate responsibility for defense of the action to Arpaio

and MCSO, knowing that it could be bound by the judgment

later despite its formal absence as a party.

The case proceeded to trial against Arpaio and MCSO and

resulted in judgment against them. On appeal, we concluded

that MCSO had been improperly named as a defendant

because it could not be sued in its own name following the

Arizona Court of Appeals’ intervening decision in Braillard.

Melendres II, 784 F.3d at 1260 (citing Braillard, 232 P.3d at

1269). Pursuant to the parties’ stipulation, we ordered that

the County be rejoined as a defendant in lieu of MCSO. Id.

We later explained that we did so “[t]o assure a meaningful

remedy for the plaintiffs despite MCSO’s dismissal.”

Melendres III, 815 F.3d at 648. The County challenged this

ruling in a petition for rehearing en banc and a petition for

writ of certiorari, both of which were denied. See id.

Given this history, the district court properly applied issue

preclusion to bar the County from relitigating the Melendres

findings. Each of the elements of offensive non-mutual issue

preclusion is satisfied: There was a full and fair opportunity

to litigate the identical issues in the prior action; the issues

were actually litigated in the prior action; the issues were

decided in a final judgment; and the County was a party to the

prior action. See Syverson v. International Business

Machines Corp., 472 F.3d 1072, 1078 (9th Cir. 2007).

Indeed, the County contests only the last element, arguing

that it was not in fact a party to Melendres. That is not

accurate as a factual matter, because the County was

originally named as a defendant in Melendres and is now one

of the parties bound by the judgment in that action.

Moreover, even though the County did not remain a party to

Melendres throughout the litigation, it effectively agreed to

UNITED STATES V. 14 COUNTY OF MARICOPA

be bound by the judgment in that action. Such an agreement

is one of the recognized exceptions to non-party preclusion.

See Taylor v. Sturgell, 553 U.S. 880, 893 (2008).

AFFIRMED.