Left to right: Joe Arpaio and Donald Trump. Photo: Mary Altaffer/AP

Former Maricopa County Sheriff Joe Arpaio may no longer face jail time after being pardoned by the president, but a Covington & Burling partner is still fighting to keep his conviction intact. 

Covington’s Stanley Young in Silicon Valley, along with a team of lawyers from the American Civil Liberties Union, represented a class of Latino citizens who sued the sheriff several years ago for racial discrimination. Now, Young and his team are back in court as a federal judge mulls whether to vacate Arpaio’s criminal contempt conviction in light of President Donald Trump’s pardon. U.S. District Judge Susan Bolton of the District of Arizona ordered the government Thursday to file additional briefings by Sept. 21, writing that both Justice Department lawyers and Arpaio’s attorneys failed to cite cases supporting their request that Bolton vacate Arpaio’s conviction.

Young and lawyers from the ACLU Foundation, ACLU Foundation of Arizona and the Mexican American Legal Defense and Educational Fund filed an amicus brief this week on behalf of the plaintiffs in their original case against the sheriff. The National Law Journal caught up with Young about how this all got started, the legal issues involved and why the conviction still matters, despite the pardon.

 Responses have been edited for length and clarity.

Q: You worked extensively on the underlying class action against Joe Arpaio. So to start, explain a bit about what happened in that case.  

Young: The underlying civil case was about violations of the Fourth and 14th amendments. Sheriff Arpaio was detaining Latinos without probable cause and based on their race. We had a trial in 2012 in the civil case and won permanent injunctive relief to reform the sheriff’s office’s policies, implement training on constitutional policing, put in place systems to prevent future abuses, and appoint a monitor to oversee compliance with the court’s orders. All those measures were affirmed on appeal and remain in place.

The Arizona district court in December 2011 also issued a preliminary injunction prohibiting the sheriff from detaining people solely based on suspicion they were in the country without authorization. The December 2011 order was affirmed on appeal.   

Arpaio violated that preliminary injunction. We moved to have the court hold him in contempt for that violation, and in 2015 we had a 21-day evidentiary hearing. The evidence showed Arpaio intentionally violated the December 2011 order to raise money and win votes to help his 2012 re-election campaign. The district court in the civil case found Arpaio in contempt and ordered further reforms in the sheriff’s internal affairs investigation process, which failed to discipline anyone for disobeying the court’s order. The court in the civil case also referred the contempt matter to the U.S. Department of Justice for prosecution, since intentionally violating a federal court order is a federal crime.

The Justice Department’s Public Integrity Section won a conviction earlier this year in a separate criminal case, before a different judge, over the contempt. That conviction is what the pardon is about. The pardon does not affect the injunctive relief that we won in the civil case, which continues to protect the people of Maricopa County.

Q: So now, you and the ACLU filed an amicus brief in the contempt case on behalf of the plaintiffs from the underlying case. Why get involved again? Why does it matter to the plaintiffs?  

Young: Even though Arpaio is no longer sheriff, and the civil case findings and remedies are still in place, we oppose vacating the court’s findings in the criminal case. Those findings will serve as a deterrent against anyone who might again violate the court’s orders and harm the plaintiffs.

And it’s important for the rule of law that a public official who intentionally violates a court order at least be recognized as a criminal for that act. The pardon should not change what has already been found on that issue.

Q: Explain the legal theories here. Why doesn’t the pardon end this case altogether?

Young: The Supreme Court’s U.S. Bancorp decision explained that, even if a case has become moot, a prior court decision does not need to be vacated if it would serve the public interest to keep the prior decision in place and available to be cited by others in the future.

The courts have also said that a losing party cannot get prior rulings vacated by relying on the mootness of a case when the party itself voluntarily caused that mootness. If a losing party could do that, then it would always have a way of erasing prior court decisions that it does not like.

Allowing a vacatur in such a case would be a waste of the judicial resources that go into any court decision. And it would deprive the public of useful lessons and precedent. Arpaio did not need to accept the pardon. He could have refused to accept the pardon and appealed his conviction instead.

By accepting the pardon, he voluntarily caused the mootness he’s citing now. So, under established case law, he is not entitled to have the prior finding of his guilt vacated.  

Q: What is the desired outcome for these plaintiffs, and what would it mean for them?

Young: We want the record of Arpaio’s guilt, as shown by a detailed decision by the judge in the criminal case, to remain in place as a deterrent against any further defiance of court orders. While he was in office, Arpaio trampled on the constitutional rights of the plaintiffs and caused enormous suffering. His personal guilt and responsibility, as established in the criminal case, should remain on the record for everyone to see and learn from in the future.