PHOENIX

How MCSO could pay back victims of illegal detention

Megan Cassidy
The Republic | azcentral.com
Maricopa County Sheriff Joe Arpaio

Sometime after June 30, the Maricopa County Sheriff’s Office likely will join a roster currently populated by “Fen-Phen” diet drugs, Yasmin birth control and OxyContin.

They are clients of BrownGreer — a Richmond, Va.-based firm that specializes in handling payouts from class-action lawsuits.

Its services are expected to be used to manage one of the likely court-ordered remedies in Sheriff Joe Arpaio’s contempt-of-court case: Members of the plaintiffs’ class who were illegally detained by sheriff's deputies soon will be entitled to a slice of a $500,000 compensation fund.

To date, there are 157 known victims who may prequalify. But because there are most certainly others, once a final settlement is approved, BrownGreer will launch a series of radio, print and digital ad campaigns aimed at reaching potential victims.

It is perhaps the first time in U.S. history that a claims payout will function in such a way, according to experts in the field.

It’s not unusual for individual plaintiffs to receive cash settlements after police mistreatment. But class-action-style payouts are typically a hallmark of lawsuits against private companies, such as pharmaceutical or auto-parts manufacturers.

“I know of no times in which a fund has been created to compensate victims of illegal detention, police abuse, police brutality,” said Kenneth Feinberg, an attorney known for administering claims for the victims of the Sept. 11 terror attacks and the BP oil spill.

“I doubt there will be many cases like it — that requires government-sponsored largesse,” he said. “The taxpayers only very rarely put up money to compensate innocent victims.”

The initial lawsuit in the 8-year-old racial-profiling case, which successfully argued that deputies were targeting Latinos during traffic operations, did not ask financial damages. It instead sought court-ordered reforms aimed to prevent discriminatory policing.

Cecillia Wang, a plaintiffs’ attorney for the American Civil Liberties Union’s Immigrant’s Rights Project, said the compensation fund became necessary only after the court’s orders were violated.

“We’ve got an extraordinary situation where the head of a sheriff’s office has not only flouted the constitution but then flouted a court order,” Wang said. “To the extent that this is an unusual remedy, it’s needed because of the extraordinary situation created by the sheriff.”

Judge: Deputies violated a court order by enforcing federal immigration law

The creation of a victims compensation fund was one of the items agreed upon by both plaintiffs and defense attorneys as part of proposed civil-contempt remedies against Arpaio.

Last month, U.S. District Judge G. Murray Snow found Arpaio and three of his aides had violated three of his orders stemming from the long-running racial-profiling case. Snow has yet to announce whether he will refer the lawman for criminal charges but is on track to rule on the terms of the fund and other remedies.

In December 2011, Snow barred MCSO deputies from enforcing federal immigration law. Essentially, this meant they couldn’t detain individuals they suspected of being in the country illegally unless the individuals also were suspected of a state crime.

But Snow found that his order was violated for at least 17 months, until he issued his final ruling on a racial-profiling suit in May 2013.

Those who were unlawfully detained typically were picked up by the agency’s human-smuggling unit during traffic stops or “saturation patrols” in Latino neighborhoods. Individuals also qualify for a victim status if they were detained during a workplace raid and were not charged with a state crime.

A potential base award of $1,000 per victim

Defense and plaintiffs’ attorneys are still ironing out some details — and Snow has yet to officially order it — but the system would work something like this:

There are two tracks of victims: the 157 who “prequalify,” based on records from the human-smuggling unit, and the unidentified ones attorneys are hoping to reach through various media outlets.

The prequalified victims will receive notices and be asked to submit a claims form. Those who discover the fund through the ads will be asked to contact BrownGreer and provide proof of their detainment.

Snow has indicated he’ll allow a base award of $1,000 per victim for up to one hour of detainment, and $200 for each hour thereafter. Additional money may be awarded to those who can demonstrate physical injuries or property damage.

One of the remaining points of contention between plaintiffs' and defense attorneys is whether awards to individuals should be capped. Plaintiffs' attorneys say there should be none; defense attorneys argued for a limit of $7,500 for emotional distress and $5,000 for lost property.

Lauren Pedley, a plaintiffs’ attorney for Covington & Burling, said plaintiffs have begun reaching out to some of the known victims to help mold the claims process.

“We’re aware that some people did suffer from emotional distress, or lost property or other potential harms,” Pedley said.

She said at least some were deported as well, after the Sheriff's Office transported them to Immigration and Customs Enforcement or the U.S. Border Patrol.

Who foots the bill?

Expenses for the victim compensation program may stretch beyond the initial $500,000 pool.

There’s also $75,000 for startup fees, and between $100,000 and $200,000 for notice and outreach. (Plaintiffs are pulling for $200,000; defense attorneys are arguing for $100,000.)

The potential $775,000 is in addition to the $13.2 million the county has earmarked to pay for this lawsuit’s expenses in fiscal year 2017. To date, Maricopa County has paid more than $43 million in expenses for the lawsuit and complying with its reforms.

Costs include attorneys’ fees and court-ordered compliance measures such as training, equipment and a monitor to oversee the agency.

A county spokesman said additional funds would be taken from a contingency pool set aside for unexpected expenses.

If plaintiffs’ attorneys have their way, though, a large portion of the cost of the victims fund would be shouldered by Arpaio. They’ve asked that the sheriff be compelled to pay $300,000 personally, and that the rest be paid out by his other aides found in contempt.

Defense attorneys have largely agreed to the county expenses and have not commented on whether Arpaio should be forced to dip into his own wallet. They declined to be interviewed for this article, however, and referred logistical questions to Rebecca Wilder, spokeswoman for the Maricopa County Attorney's Office.

Wilder said additional costs could be added depending on Snow’s final order.

The game plan for finding other victims

A proposal filed by the plaintiffs' attorneys this week outlined how BrownGreer intended to reach unknown victims.

The firm first researched the target audience and how they consume media. The typical victim is male, earns a lower income, is between 18 and 55 in age, lives in Arizona and speaks Spanish either predominantly or exclusively.

The proposed outreach was tailored accordingly. Market research showed that this audience was most likely to be reached via radio, and proposed costs are heavily weighted toward a radio campaign. Accompanying ads may run in print and online, and in neighboring states as well as in Mexico, Guatemala and Honduras.

A BrownGreer spokeswoman declined to be interviewed for this article.

Lydia Guzman, a local civil-rights advocate, said she would take on a grass-roots effort in the fund’s allocation.

Guzman said she planned to post about the program on Facebook and Twitter and would reach out to Spanish-language media.

Guzman would serve in the “intake” process only and would refer potential claimants to BrownGreer once that’s complete. Her role was important, she said, for those who are distrustful of authority figures.

“I’ve been the face for the folks who want to talk to me about anything and everything. … I’m sure that people will come out of the woodwork,” she said.