good morning your honour's eileen gilbride for the defendants appellants in this case our briefs of pulley set forth our positions i plan to hit a few high points and hope to reserve a few it makes no practical difference because sheriff arpaio is suited his official capacity but m c s i shouldn't have a judgment against it i don't know i do have a question i know you'd like to skip to the other issues but it's a rather strange issue that really in every court of arizona didn't help us much with i didn't see any analysis to tell me what a nonzero organization is  or zona law the judge just counted the noses of district judges and went that way but what is your interpretation shirl is it is this something as personal privileges  sort of practice a practical matter but that's that's not what you're asking you're asking is dismiss the whole case just against the and saying it's just impractical you want to just  if if if there was something there was waived when you fail to bring it up for the first time we made it perfectly clear in our opinion that these issues that are intertwined are can can be handled her time and her proper isn't this a little like hills it looks like to me that you're playing both sides along the way and judge perry on or pointed out very carefully in his opinion for our court that that just isn't the way a lawyer should carry out whether  coming pretty close to being within the hills i'm not i'm not sure which case that is your honor at this point but we didn't really we did ways raise the issue we've moved to dismiss the motion was denied we can't appeal from the denial of a motion to dismiss it didn't have anything to do with the preliminary injunction issue and we and so we've preserved it and we haven't waived it and it's improper about counsel as as it reaches us now correct that's correct and hopefully what you're really saying is it's a wrong party accounting is the real party and the sheriff's office is just an office of the county right and while the sheriff in his official that's correct because after that's correct that the first amendment and the the community outreach issue because after the district judge had a look at our opening brief he modified or immigration patrols it tells for example supervisors when they must attend an arrest and what information they must discuss with their deputies not limited to discrimination issues it requires all personnel to report another for intentionally providing for false information even though that was not an issue and never proved or even alleged in this case all complaints and administrative investigations not just discrimination claims must be forwarded to the monitor and plaintiffs counsel defendants must collect all misconduct complaints or allegations all internal investigations of alleged or suspect in this conduct all criminal civil and administrative claims regarding patrol operations all disciplinary actions against all in starting patrol operations means walk patrol to patrol operations means the whole patrol division as far as i understand it control meaning not the jail operations and not something else but entire patrol function all disciplinary actions against all employees and all training history for all employees none of it limited to discrimination of related issues let alone narrowly right i think it is what is i thought a chunk of the case is about the fact that the sheriff's office has maintained that it may take in force against people who are illegally here and restaurant attain them without regard when they don't have that authority that is a part of the case and the it's linked to detaining latinos specifically well no it isn't linked to the legal limitations on state and local police and sheriff's offices to enforce the immigration laws with regard to illegal presence in this country correct correct and  have no know what was really going on you for example if you say you only have to have to provide certain disciplinary proceedings then there's the question of how do you know what you're actually giving all of the ones that you're supposed to give so if you thought it was a problem with what you were getting once you're supposed to give then you might have a broader rule that said you have to give all we're for here though your honor on an injunction against a state agency which is subject to especially rigorous control how he links whatever the provisions are to the violations he found but it can't risk with all due respect it can't be that all complaints and administrative investigations must be forward d to the monitor if he if he worked of the term and for example maybe not on the existing record but on a further record that the distinction between certain kinds of  disciplinary proceedings and others was one which either doesn't have the internal governance or isn't it possible to be overseen and then it would be ok i presume there's nothing in this record though though there's nothing on this record that would support this kind of the broad brush that basically turns the court not into an institution that remedies constitutional violations but which broadly shapes governmental agencies to be constitutionally compliant and lewis versus casey teaches us that that's not what courts are supposed to do we're supposed to limit and narrowly tailor injunctions to the prove in constitutional violation that you know we're not we agree with the saturation patrols and the injunction that that applies to immigration or discrimination issues they're entitled to the monitor is entitle to delve into all of the n c s those operations that have nothing to do with discrimination or immigration that's over should have that you know if there's any charges or complaints of racial or immigration problems or profiling issues those can and now we're it definitely needs to be narrower than all all disciplinary actions in all patrol functions and all criminal civil and administrative claims it has to be narrowed that that our or or it could be related you know it depends on how the complaint comes about as to how you would word the injunction but this gives the monitor basically completely carte blash to look at every policy every function every operation of the monitor and the plaintiffs are supposed to oversee all there it says the monitor is authorized to assess disciplinary outcomes for any violations of departmental policies and whether the deputies are subject to read repeated misconduct complaints civil suits or criminal charges including for off to to collect that information since it's not narrowly tailored just goes way beyond identifying with their individual deputies are violating the court's orders or constitutional requirements it's again basically carte wash for the other than the violations that took place on the patrols there is was joining evidence about people being off duty and going out and doing their own thing was there any evidence at all and that in the case of no there's no no off duty evidence evidence of all of what you're saying so what you're saying is the only evidence is of people having their constitutional rights violated b with respect to complaints trying to supplant with regard to patrol you eve and even relating to traffic stops for example you think it should be limited to particular kinds of complaints and discipline dealing with judge specifically what was the language that you would change in the injunction to make that differentiation it should be narrowly tailored to immigration or discrimination investigation investigations that relate to racial issues or immigration issues racial profiling discrimination issues and narrowly tailored that way not to all complain civil rights act i am saying that even with respect to use the actions of the problem then when you do that i'm sorry you get into the problem when you do that is that people in the sheriff's office are going to make the decision whether it applies to racial profiling but that's the issue they won't be they want the person who is of jackie's making that decision you can't have the sheriff's office saying oh this has nothing to  you just happen to be hispanic is that i mean are can you change that wording so that the that the sheriff is making the decision what is or what isn't racially profile racial profiling i think the sheriff has to have some leeway if if the injunction has to be narrowly tailored as it does and it's subject to specifically especially rigorous scrutiny the sheriff's office has to have some area of judgment in being late for fighting all of five minutes every day is not going to be relevant to this particular lawsuit there has to be a middle ground there and that if there's some if there's something problem with the narrowly tailored injunction as it should be then we address that down the road right your own part time my inclination is to give you a couple more minutes because this is all very important thank you material so the problem is that there seems to be a substantial amount of evidence in the record business that as much evidence as second of all the distinction is one that the sheriff's office has created i mean from the public's point of view they're driving around in cars and they're being stopped and whether the sheriff's office is calling it a saturation patrol or isn't calling a saturation patrol the impact is the same and the legal considerations are the same too i mean you can't be saying that it would be ok outside of saturation patrols to stop people for our civil immigration violation of course not your honor but what i'm saying is this record what the court ruled on what he what he based his entire findings on were the procedures and the operations plans and the impetus for the saturation of those the most to do this suggests that there was no limitation in the policy and no limitation in the practice that was a lot of points that i'd like to like to hit but ok that the forty that were arrested before the trial there was no evidence that those were arrest that those folks were arrested during regular patrols be all the forty did not black state charges the few that had that did not have state charges included children there's no evidence that there is any that the impetus the procedures the targeting was done outside of the immigration patrols  there's just not and if you're relying on the taylor statistics statistics alone don't show discriminant discriminatory intent you have to have basically a pervasive conspiratorial intent to stop latino's during regular street patrols based on their race and there isn't that evidence in the record there's not that evidence for the plaintiffs and there's not that evidence for  outside of the named plaintiffs you have statistics is all you have basically there you just and other than that the trial judge the district judge used the procedures the operations plan the targeting impetus for the saturation patrols the immigration investigations and assumed that that was going to apply across the board to regular street patrols without evidence of that appreciate that i will start with the data collection issue and the scope of the injunction was the subject of much of well it seems to me that there might be a difference between data collection and what you do want to get yes yes and let me turn to paragraph one thirty six of the court supplemental permanent injunction which is on five two and it states what the monitor will do with this data in conducting the outcome assessments the monitor should measure not only the m c o source progress in implementing the provisions of this order but the effectiveness of the reforms and there follows a list from a through k of the performance based metrics and trends monitor should can consider those include in the data relating to the race and ethnicity of the individual stopped in c or related to reasonable suspicion or probable cause then you go down to i and i think you have some of the items that opposing counsel are complaining of disciplinary outcomes for any violations of departmental policy whether deputies are the subject of repeated misconduct complaints manifestly not related to the issues in this case our and the example i gave was someone who just sleep since he laid clocks in five minutes late every day that doesn't show anything about the issues in this case whitewashing very hungry included in the material that stern over i understand the issue of putting the decision in the hands of the defendants as to what is or is not manifestly irrelevant and it seems that there may well be things that just have nothing to do with these issues well i have t basic responses one it's reasonable and two it's been admitted to be reasonable first it's reasonable because even the racist e mails for example that was sent within the department were the subject of inadequate disciplinary process and measures the district court explicitly found that that lack of discipline was a cause of the constitutional violations here you have the fall outside the items which include disciplinary complaints etc disciplinary actions all of those are part of the package that in fact the parties agreed would be necessary and appropriate to remedy the harms here if you parties i'm having trouble the parties agreed you really can't call this a consent and the judge didn't cause the consent order and i've tried to figure out the objections i've read the entire order i've gone to the record and you in your brief you take this is a consensual order almost but there were objections and i don't think that you can say that the that the opposition is now tied to that order when the when the judge specifically said they weren't going to be tied to the order isn't that true there were objections to particular things and i would point the court to d s c are seventy six and seventy seven which are the red read yes well i've done my best with it and i have looked at it yes well point to what was the proposed to jointly proposed order and i agree it was not a consent decree but where  the defendants objected they objected there was a blanket reservation at the end but our we believe that's not sufficient but look at paragraph eighty of eighty six  it says the e i a s shell include all misconduct and if you go to n o n p d e s e r seventy seven the shall collect all disciplinary action against employees all you're saying that this argument is way it has been waived but more importantly it shows that it's reasonable for a system like this which is designed to remedy the harms of injuries that occurred  research that's gone into the systems i do point to the concentric research or consent decrees which collect the sort of information there's a lot of collective wisdom which was agreed to below that says paragraph one thirty six eye of the courts supplemental injunction order and the reason for that is as i discussed earlier is that disciplinary outcomes can be relevant it's not necessarily that the monitor will do anything if the deputies five minutes late to work in fact the two paragraph one thirty six suggests that something that's unrelated to the  basic purpose of this injunctive order is not going to be the subject of the monikers activity but i think that the as the parties acknowledged in this people who designed these systems would tell you that breath of collection of data and consideration of data is necessary and to maybe necessary that it may not be constitutional let me ask you is there any evidence  didn't find it i've read the record i think carefully i found no evidence where the judge was relying upon anything the officers did other than and when they were on duty carrying out their responsibilities as they sa is that correct i don't know that that's true your honor for example the racist e mails that were passed around some of those were sent to personal home email addresses some of them may have been sent outside of work i think some of the testimony was that they were considered to be outside the scope of the work it issues but they show attitudes that are precisely relevant to well the violations that is true but the discipline and issues that would arise when someone sends a joke a joke email that derives people based on their ethnicity is related any violation of department policy i mean your shoes weren't shined that's has to go to the monitor there's absolutely nothing in the record as shows it to me that that should be connected other than you say you'd be a good idea as in this case where a prior order of the court has been violated the discretion of the district court is broad i think that this court should pay attention to the long years of experience with the district court has had in dealing with his at at page fifty three as being essentially the broadest provisions but i was told by your opposing counsel and i didn't ask you to show me exactly where that there is something in this data collection should take into account the basic performance based metrics and trends in coming to an overall conclusion about whether or not the reforms were effective but not to get involved on an individual disciplinary basis on any individual disciplinary decisions is there something that does that you know your honor not that i'm aware that's just not believe that it's inaccurate my understanding is based on paragraph one thirty six and the other provisions relating to the one but but i'm not sure i understand your point that you're saying that off duty and off duty conduct something to happen in my home at night if there is something that comes up the monitor a look at it but not necessarily act on it if someone does something off but that's not the point that's not the point the point is should this should this injunction even cover such things that are that injunctions can cover things that would not be constitutionally required that's true but they're also limits on that there are limits and not the district court here is not reach those moments so it's all of these measures that we've been discussing monitors work j for example relates to misconduct complaints civil suits or criminal charges including for off duty conduct it could be quite relevant to the monitor to know that someone just sued an officer for racial discrimination the key on the prior appeal was whether there was jurisdiction and i recognize there are the injunction will stay in place that i think through the court's own efficient effective operation this is an issue th should be of concern as judge walsh stated in hendricks versus bank of america where an issue is necessary to ensure a meaningful review of the order that was before the problem the point is that it wasn't raised and even in our our case in the prior case we pointed out all of these issues that can come up when should come up and if there's ever going to come up there they were warned when they what it what it means but whatever it is it seems to me it's waived by the by the failure to bring it up at that time i take it you would agree with their yes your honor i do agree with it it's just like the well the injunction in the earlier appeal was a pulmonary injunction against the m c s so if they were to raise that issue that they could not be sued and therefore could not be enjoined it should have been raised there and there was jurisdiction under reread the brief you continue to refer this order as a consent decree there was a lot of objections made the record is not clear but it seems to me just looking at the record they made a lot of objections to that decree judge snow was trying to get them to cooperate but he said i'm not going to hold you and do anything so i don't see how i don't see how in fairness we can say that they have agreed with this order and therefore they can of it just breaks me in reading the opinion of what judge snow was trying to do as he moved along was to get everybody to sit down but he wasn't going to take away any of their rights to object either in that court in before us so can you really refer to this is a consent decree well i don't refer to it as a consent decree that the provisions were ordered by the court after the contest what i am referring to and this goes to both waiver and reasonable is that the while they objected to certain provisions they agreed with others and i would point the courts as your fourteen sixteen right to others and they had already been generally enjoy in other ways that was they didn't didn't agree at all to the original more general and challenge well initially least initially at that time they did not agree to liability so to that extent that not have any liability at all right but once the why ability was found and they were given the chance to craft an injunction this is what happened in those verses cases and the supreme court in those verses case you actually are referring back to the non disciplinary correction action all words and commendations that's in black that was agreed to and that just shows that everyone in the district who are who is thinking about how to remedy these constitutional violations agreed that for or not you know i did not i did not intend to say that i don't if that's the way it was taken i apologize i didn't mean to to so you're focusing on basically this i that's what you're concerned  it's more than i and j your honor and we did object and we cite i'm citing you to my reply brief on page twenty six we objected to all plaintiff's proposed language referencing things like the appointment of a monitor and all training not directed constitutional issues training on this conduct investigations how often supervisors discuss deputies stops and what those camp conversations should include gathering overbroad data and i just lost my connection here but  during the discussion and we've cited here d s e are eleven fifty three eleven ninety eleven ninety four eleven ninety seven these are the areas he said that the transcript where are  of other things why do i have a hard time understand why those are not you know i'm sorry the argument is that we objected to all of those things and therefore did not wave we didn't agree to them as as counsel is suggesting i am and that that was what i had in my just one  at all no we objected to that at the beginning you know and we agree with since we have not appealed the saturation for trial issues then of course i guess the monitor would be appropriate appropriate discretionary thing that the trial judge could order with respect to the saturation patrols the immigration investigations and such we don't we think it's overbroad as it refers to the regular patrols where there's been no named plaintiffs who was racially profiled and stopped due to race during regular patrol and no other evidence of intentional discrimination during a regular patrol racial profiling council indicated that measuring m c s o's progress in complying with the order was a reason to allow allow the injunction to be overbroad and allow the collection of all kinds of data that have nothing to do with discrimination or immigration and we would dispute that it's just not reasonable and it doesn't have doesn't show anything about it's not narrowly tailored to redress discrimination or immigration complaining about i would definitely rely on the reply brief your honor which is more specific and more direct to our our objections thank you for him thank you very much of the day for helpful arguments and it's a case of the interest versus