by Sharon Rondeau

Has the ACLU violated the constitutional rights of Dennis Montgomery and by extension, Sheriff Arpaio and his deputies?

(Jul. 8, 2015) — For nearly two weeks, no documents have been posted in the case of Melendres et al v. Arpaio, et al, which accused Maricopa County Sheriff Joseph Arpaio and several of his deputies of racial profiling.

Filed in December 2007, the Latino plaintiffs claimed that they were targeted unfairly by patrols carried out by the Maricopa County Sheriff’s Office (MCSO) during traffic stops and detentions.  Five attorneys from the American Civil Liberties Union (ACLU) have represented many of the plaintiffs.

Arpaio has been an outspoken advocate of strengthening border security and apprehending illegal aliens.  Last summer, when tens of thousands of illegal aliens breached the border and received housing, transportation and other emergency services from the federal government, Arpaio was vocal about what he described as an intentional “dumping” of “border cheats” in Maricopa County.

The ACLU of Arizona states on its website that it “has been one of the nation’s leading advocates for the rights of immigrants, refugees and non-citizens, challenging unconstitutional laws and practices, countering the myths upon which many of these laws are based. The ACLU supports rights for all people within the United States and is committed to expanding and enforcing the civil liberties and civil rights of non-citizens and to combating public and private discrimination against immigrants.”

In June 2008, the organization MALDEF (Mexican American Legal Defense and Educational Fund) began representing some of the plaintiffs in Melendres.

In December 2013, U.S. District Judge G. Murray Snow ruled that Arpaio’s office had, in fact, singled out Latinos while attempting to enforce state and federal immigration laws. As part of his proposed remedy, Snow ordered the MCSO to work with a court-selected monitor to ensure compliance and enforcement of citizens’ constitutional rights.

Attorneys for the ACLU representing the plaintiffs requested Warshaw & Associates, headed by former Rochester, NY police chief Robert Warshaw, to serve as monitor.  In January 2014, Snow assigned Warshaw to the post.  He has since stated that he and Warshaw often converse and that he has a “high degree of familiarity” with Warshaw’s work.

Earlier this year, Arpaio and several of his deputies were cited for civil contempt of some of Snow’s orders.  In response, Arpaio admitted that he had not adhered to all of the orders and offered to pay restitution equivalent to one year’s salary to settle the case out of court.  Snow declined Arpaio’s offer.

During testimony in the contempt trial in late April, Snow began a line of questioning of Arpaio and his chief deputy, Jerry Sheridan, involving Snow’s wife and an investigation conducted by the MCSO by a confidential informant, Dennis Montgomery. The mainstream media widely characterized Arpaio and Sheridan’s responses to Snow’s questions as an admission that Snow’s wife had been under investigation by the sheriff’s office when in reality, the inquiry conducted by a private investigator hired by one of Arpaio’s attorneys had centered on the Maricopa County citizen who reported that Snow’s wife made public comments which would have indicated that Snow held a strong personal animus against Arpaio.

In early May, Arpaio’s attorneys asked Snow to recuse himself from the case for conflict of interest to whicht Snow has provided no response.

The second probe conducted by Montgomery was reported to have involved a “bogus conspiracy theory” as reported by The Phoenix New Times (PNT) on June 4, 2014, a publication politically opposed to Arpaio and his policies which has claimed that Arpaio “intimidated a federal judge.”

Contrary to the PNT’s claim, during testimony on April 24, Sheridan stated that there was some suspicion that the CIA had been wiretapping certain phone lines of the MCSO, the evidence for which apparently was provided by Montgomery.

Shortly after the 9/11 attacks, Montgomery was hired to work as a contractor for the CIA and NSA. Klayman has stated that Montgomery possesses high-value information that needs to be imparted to a federal judge in the case Klayman ruled in December 2013 in Klayman’s favor with the finding that the NSA’s warrantless collection of US citizens’ emails and telephone calls was “likely unconstitutional.”  Judge Richard Leon suspended his ruling in anticipation of an appeal from the defendants, Barack Obama and the agencies involved in surveillance activities.

On Wednesday, two additional briefs filed by Klayman appeared on the pacer.gov website date-stamped July 8, 2015, one of which is a “Fourth Supplement to Motion for Reconsideration of Dennis Montgomery’s Motion for Intervention and Motion for Admittance pro hac vice of Jonathon A. Moseley.”

Melendres Fourth Supplemental Motion Montgomery 07-08-15

In his brief on behalf of Montgomery, Klayman recounted that Snow ordered Montgomery’s work product to be collected and turned over not only to Snow, but also to Warshaw, whose role the Ninth Circuit Court of Appeals had defined narrowly as focusing on correcting constitutional violations.

Klayman stated that Montgomery had information potentially more valuable and revelatory than that which was made public by Edward Snowden two years ago pertaining to government surveillance of Americans.

On June 30, Klayman filed a lawsuit naming the ACLU as the defendant, alleging defamation of Montgomery and subsequent severe financial consequences.


In announcing the lawsuit, Klayman reported (emphasis Klayman’s):

The complaint alleges that Montgomery sought legal assistance from the ACLU with regard to his whistleblowing of the unconstitutional and illegal acts by the NSA and CIA, much like the disclosures of Edward Snowden. Montgomery possesses information potentially more egregious than Snowden revealed. Unlike Snowden, Montgomery sought to come forward legally and before government authorities and this was the primary reason for him entering into an attorney client relationship with the ACLU and its attorneys.

Ultimately, as the complaint alleges the ACLU failed to carry through with its representation and instead in an unrelated federal lawsuit in Arizona (Case No. CV-07-2513-GMS) against Sheriff Joe Arpaio, attacked and defamed Montgomery – who had been hired by Arpaio to ferret out illegal surveillance of Arizona citizens – to further the interests of other clients seeking to punish the sheriff for his law enforcement against illegal aliens in Maricopa Country. The ACLU went so far as to falsely publicly accuse Montgomery in court and in the media of being found to be a con man and committing crimes, in conjunction with Sheriff Arpaio and his deputies. Thus, the complaint alleges that in their zeal to destroy Arpaio, the ACLU intentionally harmed its client Montgomery.

This professional misconduct and illegality cannot be permitted by members of the bar, and it is despicable,” stated Klayman. “The ACLU will be held to account under the rule of law for the huge damage it has caused Mr. Montgomery. This self-styled protector of the civil liberties, is itself a fraud, as it puts its own liberal agenda ahead of its professional responsibilities,” added Klayman.

Recently, it was also reported in the media that despite its efforts to restrain the NSA from illegal spying, the ACLU itself has been implanting “cookies” in its perceived adversaries’ computers to illegally spy on them. See http://dailycaller.com/2015/06/15/exclusive-aclu-uses-tracking-software-to-monitor-capitol-hill-staffers/.

As revealed by Klayman on June 24 in documents filed in Melendres, Montgomery had originally approached the ACLU with the sensitive information he reportedly later shared with the MCSO, presumably to blow the whistle on civil and constitutional rights violations. In his brief, Klayman not only included a letter written to four ACLU attorneys and ACLU president Susan Berman, but also demanded that all of the organization’s attorneys representing Melendres plaintiffs remove themselves from the case, self-report to local, state and federal authorities, and retract what Klayman said were defamatory statements made about Montgomery in The New York Times.

Klayman also cited as an ethical violation the ACLU’s failure to reveal to the court that Montgomery had once been their client.

No response to Klayman’s June 24 filing has been posted by the court, although the case typically has new weekly or even daily activity.

Referring to the three previous Supplemental Motions filed on Montgomery’s behalf, Klayman wrote today:

By not granting the motions, but instead continuing to sit on them for the Courts apparent strategic reasons, Mr. Montgomery’s rights are being severely harmed, on an ongoing basis. Mr. Montgomery must respectfully be allowed to intervene in this lawsuit in order to protect his property and other interests, which was previously ordered by this Court to be handed over to third parties.

The delay in this lawsuit is creating much more than the appearance that this Court is working in concert with the American Civil Liberties Union (“ACLU”) in order to harm the Defendant Sheriff Joseph Arpaio and Intervenor Dennis Montgomery…

The ACLU attorneys named in Klayman’s letter and lawsuit have not thus far responded, and nothing has been heard from Snow.


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