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Judge accepts Arpaio pardon, vacates conviction

Judge Susan Bolton accepted President Donald Trump's pardon of ex-Maricopa Sheriff Joe Arpaio, and dismissed his conviction for criminal contempt on Wednesday.

Bolton rules in favor of requests by Arpaio's defense attorneys and Trump's Justice Department to toss out the conviction after the president pardoned Arpaio in August.

The former Maricopa County sheriff was convicted in July on criminal contempt charges for violating a court order in a racial profiling case. He was not sentenced before he was pardoned.

The U.S. Supreme Court has ruled (in Burdick v. United States) that a pardon "carries an imputation of guilt and acceptance of a confession of it."

Bolton tossed out the conviction with prejudice, meaning Arpaio cannot again be tried for his actions in the case.

Arpaio's attorney's also asked that all rulings and orders in the case be dismissed; the judge did not rule on that issue but took the request under advisement.

Arpaio, who did not attend Wednesday's hearing, faced up to six month in prison after being convicted in July by Bolton, a U.S. District Court judge. He lost a bid for a seventh term last November to Paul Penzone, a Democrat.

Bolton found that Arpaio "willfully violated an order of the court," by disregarding another federal judge's order. In the 14-page decision, Bolton found that Arpaio and his staff showed a "flagrant disregard" for a court order to stop arresting people on the suspicion that they were unlawfully present in the United States.

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Another federal court judge had ordered Arpaio to stop the practice of arresting motorists solely on suspicion they might be in the country illegally, but Arpaio "announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise," Bolton ruled.

The 85-year-old Arpaio was scheduled to be sentenced on Oct. 5 and faced a $1,000 fine and up to six months in jail. The tab for settlements and compliance efforts in civil suits over discrimination and racial profiling by the Maricopa County Sheriff's Office under Arpaio is still mounting for taxpayers, but has already hit nearly $70 million.

The ACLU, which had pressed for Arpaio's criminal trial and welcomed his July conviction, declined to comment on Bolton's decision Wednesday.

'America's Toughest sheriff' no longer a convicted criminal

In late August, Trump exercised his constitutional power to pardon Arpaio, although he bypassed the regular process that requires a five-year waiting period and lengthy federal review.

"Throughout his time as sheriff, Arpaio continued his life's work protecting the public from the scourges of crime and illegal immigration," Trump said.

Arpaio in fact only seized on immigration as a political issue in 2005, during the controversial heyday of the Minutemen when a man held a group of immigrants at gunpoint in the desert.

"Sheriff Joe Arpaio is now 85 years old," Trump's pardon said, "and after more than 50 years of admirable service to our nation, he is a worthy candidate for a presidential pardon."

Arpaio promoted himself as "America's Toughest Sheriff" and built his reputation by tilting at the federal government, and engaging hard-nosed practices that made him a conservative darling. 

While his agency was being accused of civil rights violations, Arpaio also launched an attack against President Barack Obama, arguing that the president's birth certificate was fake. 

In December 2011, U.S. District Judge Murray Snow ruled that the Maricopa County Sheriff's Office violated the constitutional rights of people by detaining them without state charges, solely for violating civil immigration law. 

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However, despite this ruling, Arpaio allowed his deputies to continue holding people for another 17 months despite Snow's "clear and definite" order forbidding it, said Bolton.

Arpaio argued during trial that he had the authority to detain people under Arizona's controversial immigration bill, SB 1070 and under a federal agreement, known as 287(g), that allowed local police agencies to enforce immigration law. 

In 2009, the federal government rescinded MCSO's 287(g) agreement. 

However, Bolton ruled that Snow's order was clear: Arpaio and his agency could not continue this practice.

"Judge Snow’s preliminary injunction spelled out that detaining those persons past the time sufficient to conduct a criminal investigation was a violation of their Fourth Amendment rights and that Defendant had to cease the practice immediately," she wrote. 

Attorneys for Arpaio argued that the violations were the result of miscommunication, and that he had delegated enforcement of the order to his staff.

However, Bolton rejected this claim, saying that it was clear that Arpaio knew about the order, and that Arpaio said on "numerous occasions that he would continue to keep doing what he has been doing." 

Arpaio "willfully violated the order by failing to do anything to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed," Bolton wrote.

Before the pardon, his attorneys had said they would appeal.

Arpaio’s office had good reason to pull over motorists, defense attorney Dennis Wilenchik said.

“What the sheriff’s office interpreted that (court order) to mean, what everyone at the trial interpreted that to mean, is that you don’t stop someone just for being an illegal alien,” Wilenchik said.

“The confusion here is that’s not what the Maricopa County Sheriff’s Office was doing. Police generally stop someone for criminal violations. That’s exactly what the Maricopa County Sheriff’s Office was doing,” Wilenchik said.

Arpaio's trouble began in 2007, when the American Civil Liberties Union led a lawsuit against Arpaio, arguing that his agency racially profiled and illegally detained Latinos, violating their constitutional rights. 

Snow ruled against the agency in 2011, and then again in 2013. 

In May 2016, Snow once against ruled against Arpaio, finding that he and his top deputies repeatedly violated court orders, and charged Arpaio with civil contempt of court. 

"The Court finds that the Defendants have engaged in multiple acts of misconduct, dishonesty, and bad faith with respect to the Plaintiff class and the protection of its rights. They have demonstrated a persistent disregard for the orders of the Court, as well as an intention to violate and manipulate the laws and policies regulating their conduct," wrote Snow.

The ACLU celebrated Bolton's ruling in July. 

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"This verdict is a vindication for the many victims of Joe Arpaio’s immigration policies, which were unconstitutional to begin with, and were doubly illegal when Arpaio flouted the court’s orders," said Cecellia Wang, the deputy legal director for the ACLU. "Joe Arpaio learned his lesson the hard way—no one, not even America’s so-called toughest sheriff, is above the law."

While Arpaio's pugnacious style kept him in office for six terms, in 2016, Maricopa County voters refused to give him a seventh, instead voting for Democrat Paul Penzone. 

In a statement on the conviction, Sheriff Penzone called Bolton's ruling a "conclusion to the disservice and distractions caused by former Sheriff Joe Arpaio."

Arpaio’s defense attorneys said during Arpaio’s trial before Bolton in June that he did not intentionally violate a 2011 order from Judge Snow “from detaining persons for further investigation without reasonable suspicion that a crime has been or is being committed,” the verdict document says.

But Bolton disagreed, outlining specific examples in news releases and media interviews of Arpaio vowing to continue the practice of detaining persons suspected of being illegal and turning them over to federal immigration authorities.

In fact, the sheriff’s office took detainees that Immigration and Customs Enforcement didn’t accept to the nearest Border Patrol station in Casa Grande, even though they were “not suspected of any crime,” the document says.

Cronkite News reporter Chris Benincaso contributed background to this story.


TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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have your say   

3 comments on this story

3
3 comments
Oct 4, 2017, 1:44 pm
-0 +0

Disgusting.

2
1 comments
Oct 4, 2017, 1:19 pm
-0 +0

While the finding that this President had the authority to pardon this convict may be clear to some, the judicial and moral grounds for vacating the conviction ar far from clear—and this article presented nothing to help with that issue.

1
2 comments
Oct 4, 2017, 1:05 pm
-1 +1

Clearly, the judge’s decision is correct, and overdue.

See SET SHERIFF JOE FREE FOREVER!

If there were any doubts about a president’s plenary pardon powers, the disgraceful pardon of Marc Rich by Bill Clinton, and others by Barack Obama, would not have seen the light of day.

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Maria Polletta/Cronkite News

Arpaio in 2011.