President Andrew Jackson is reported (likely inaccurately) to have flaunted a Supreme Court decision by retorting, “John Marshall has made his decision; now let him enforce it!” Any litigant who has been on the receiving end of an unwanted court order may find this sentiment a familiar one. As a federal judge in Arizona recently reminded Maricopa County Sheriff Joe Arpaio, however, refusal to comply with a court order in a civil lawsuit can be criminal. Neither Presidents nor Sheriffs are above the law when it comes to complying with a civil order, and other civil litigants would do well to remember the consequences of such disobedience.
Arpaio, sheriff of Arizona’s most populous county, was sued in 2007 for alleged violations of the U.S. Constitution in connection with the Maricopa County Sheriff’s Office’s alleged policy of racial profiling and unlawful stops of suspected undocumented immigrants. In 2011, U.S. District Court Judge G. Murray Snow issued an order partially granting summary judgment for the plaintiffs and entering a preliminary injunction prohibiting the Sheriff and his office “from detaining any person based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States.” Melendres v. Arpaio.
According to findings made by Judge Snow in May of this year, Sheriff Arpaio refused to comply with the 2011 order (along with other court orders and discovery obligations). Among other findings, Judge Snow concluded that Sheriff Arpaio directed the Sheriff’s Office to continue to detain persons not guilty of any state offense and deliver them to U.S. Immigration and Customs Enforcement. Judge Snow found the Sheriff liable for civil contempt and, in late August, initiated a criminal action against Arpaio (along with certain other Sheriff’s Office employees and one of its attorneys) on charges of criminal contempt and perjury. U.S. v. Arpaio, No. 2:16-cr-01012 (D. Az. filed Aug. 19, 2016). Judge Snow referred the matter to a different judge and asked the Arizona U.S. Attorney’s Office to prosecute the action (although, on August 26, the U.S. Attorney’s Office reported that the Attorney General’s office recused the Arizona attorneys and that the Department of Justice would handle the criminal action).
Although the Supreme Court has observed that criminal contempt charges should be a remedy of last resort (Young v. U.S.), Federal Rule of Criminal Procedure 42 permits a court to request a government attorney to prosecute a criminal contempt charge in those instances when civil remedies prove inadequate and conduct a jury trial for the offense. Under Rule 42 and the federal contempt statute, a recalcitrant party faces a jury trial for the offense of refusal to adhere to a court order and can be punished with fines and imprisonment. So the Sheriff and the other alleged contemnors could be facing a prison sentence if the allegations prove true.
The famous quote attributed to President Jackson might be fiction, but criminal contempt is a reality. And it is not a procedure reserved only for public-interest cases like that brought against Sheriff Arpaio. Parties in more typical business litigation can find themselves charged with criminal contempt if they refuse to comply with the Court’s orders. See, e.g., A.V. by Versace, Inc. v. Gianni Versace S.p.A. (alleged trademark infringer referred for criminal contempt proceedings for failing to comply with court order to monitor websites for use of infringing trademarks). Judge Snow’s decision is thus a strong reminder to all litigants that an order in a civil action, if violated, can carry criminal ramifications.