United States v. County of Maricopa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-17558
Plaintiff-Appellee,
D.C. No.
v. 2:12-cv-00981-ROS

COUNTY OF MARICOPA, Arizona,
Defendant-Appellant, OPINION

and

PAUL PENZONE,* in his official
capacity as Sheriff of Maricopa
County, Arizona,
Defendant.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding

Argued and Submitted September 15, 2017
San Francisco, California

Filed May 7, 2018

*
Paul Penzone is the current Sheriff of Maricopa County and has,
therefore, been automatically substituted for his predecessor, Joseph M.
Arpaio. See Fed. R. Civ. P. 25(d).
2 UNITED STATES V. COUNTY OF MARICOPA

Before: Ronald M. Gould, Richard C. Tallman,
and Paul J. Watford, Circuit Judges.

Opinion by Judge Watford

SUMMARY**

Civil Rights

The panel affirmed the district court’s summary judgment
in favor of the United States, which brought this action to halt
racially discriminatory policing policies concerning traffic
stops instituted by Joseph Arpaio, the former Sheriff of
Maricopa County, Arizona.

The panel held that Sheriff Arpaio acted as a final
policymaker for the County. The panel further held that
because the traffic-stop policies at issue fell with the scope of
a sheriff’s law-enforcement duties, Arpaio acted as a final
policymaker for Maricopa County when he instituted those
policies.

The panel held that Title VI of the Civil Rights Act of
1964 and 34 U.S.C. § 12601 authorized policymaker liability.
The panel further held that the proper standard for
determining which employees have the power to establish an
entity’s “official policy” under Title VI and 34 U.S.C.
§ 12601 is the standard that governs under 42 U.S.C. § 1983.
The panel concluded that Maricopa County was liable for

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. COUNTY OF MARICOPA 3

violations of Title VI and § 12601 stemming from its own
official policies. Finally the panel held that when Arpaio
adopted the racially discriminatory traffic-stop policies at
issue, he acted as a final policymaker for the County, and the
district court correctly held the County liable for the
violations of Title VI and § 12601 caused by those policies.

The panel held that the district court properly applied
issue preclusion to bar the County from relitigating the
lawfulness of Arpaio’s traffic-stop policies because the
County was bound by prior adverse findings. See Melendres
v. Arpaio, 695 F.3d 990 (9th Cir. 2012).

COUNSEL

Richard K. Walker (argued), Walker & Peskind PLLC,
Scottsdale, Arizona, for Defendant-Appellant.

Elizabeth Parr Hecker (argued) and Thomas E. Chandler,
Attorneys; Gregory B. Friel, Deputy Assistant Attorney
General; Civil Rights Division, United States Department of
Justice, Washington, D.C.; for Plaintiff-Appellee.
4 UNITED STATES V. COUNTY OF MARICOPA

OPINION

WATFORD, Circuit Judge:

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.
6 UNITED STATES V. 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 law-
enforcement 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
8 UNITED STATES V. 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
10 UNITED STATES V. 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
12 UNITED STATES V. 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
14 UNITED STATES V. 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.