December 24th, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.
This is Part 6.
As that part of the transcript posted yesterday was ending, McHenry County Sheriff’s Department Attorney James Sotos was asking if he could respond and Federal Magistrate P. Michael Mahoney was agreeing. For context reasons, I repeat those two lines, which the next part of the transcript follows.
MR. SOTOS: Judge, can I respond to this –
THE COURT: Yeah, you sure can.
MR. SOTOS: — aspect of it? Because this is going to require a little bit of background. I’ll be as brief as I can.
You know, we conducted discovery because we took the court at its word back a year and a half ago when we were told we were supposed to do discovery by June of 2010. So, we did all of our depositions by June of 2010 with the exception of one that counsel kept canceling that was taken yesterday.
Then discovery started getting extended, and every time we came here on the eve of a discovery close, we were first told, well, now we have to do all this discovery into all of these different other deputies at the Sheriff’s Department and turn over all their personnel files, which we did, thousands and thousands of documents, which have not been mentioned ever since then.
The next time discovery was supposed to close we were told — counsel came in here and said, “They gave us false information in a spreadsheet. We found out that it was false. They’ve withheld information,” which we subsequently — at the time I didn’t know what to say because it was sprung on me. I said, “I don’t know if there’s anything inaccurate in there or not.” It turns out, and it’s in our response in the motion, there was nothing inaccurate with anything in the spreadsheet.
We provided exactly what was asked for, which were the racial profiling statistics, and I’m sure we’ll get to that at some point.
And then now when we’re on the close of discovery again, we have a whole new criminal enterprise theory involving Sheriff Nygren that he’s requesting to do discovery into. Now, that’s Jose Rivera, who he doesn’t allege is Sheriff Nygren’s business partner. He alleges that he is his partner in this coyote scheme and this kickback scheme and in these murder plots and all of this other stuff, which doesn’t have anything to do with this case.
And the fact that he says he has a Monell claim, I would direct the court to paragraph 72, I think it is, of his complaint where his Monell claim has about nine or ten different subparts, and they all say the same thing, that the sheriff’s department did not adequately monitor, discipline, investigate allegations of racial profiling and that they retaliated against Mr. Seipler when he did in a number of different ways. By taking him off the SWAT team, doing all the things they did that ultimately led to his termination. That’s it. That’s what his
Monell claim says.
So, for him to just say, well, I have a Monell claim, and that means that he — because we’re talking about a lot of discovery. If we are really going to be required to defend Sheriff Nygren on the allegations of Deputy Milliman that he was involved in some criminal conspiracy involving illegal trafficking of Hispanics over the last several years, that’s going to take a lot of work, and it doesn’t have anything to do with the lawsuit, Judge, and it doesn’t have anything to do with his Monell claim, either.
THE COURT: Well, I’ll let — it’s closer to the Monell claim than the lawsuit. Whether or not it really fits, I don’t know. But, counsel, you have to give me this. This has turned out not to be the garden variety lawsuit as far as 1983 is concerned. Every time I pick up this file, there’s something different that happens that I haven’t seen before in any file.
That’s why it’s drawn out.
MR. SOTOS: That’s because it comes up on the close of discovery. There’s this frenetic activity weeks before discovery closes, and then we’re in here defending entirely new allegations, and this –
THE COURT: What am I supposed to with somebody that misidentifies 140 individuals as Caucasian?
MR. SOTOS: Judge, I got –
THE COURT: Am I supposed to be happy with that?
MR. SOTOS: Well, Judge, you know what? I’m not happy with that, but that’s not — in the first place, we’re not even arguing about that, about him doing discovery on that. As far as that goes, he never — by the way, Judge, he never complained about that ever. That was something that we first had notice of during this case when we were doing the responses to discovery.
THE COURT: But he –
MR. HORWITZ: That’s a false statement.
THE COURT: Wait for me. Wait for me. But he has always said to me that this particular officer engaged in racial profiling, hasn’t he?
MR. SOTOS: No, Judge. The first time — the first time that he ever mentioned Bruketta was on July 22nd, 2008, which was after all of the alleged retaliation that he’s complaining about with the –
THE COURT: You’re talking about Seipler now?
MR. SOTOS: Seipler. The first time he mentioned Bruketta was when he was ordered to disclose the names of people who he thought were involved in racial profiling. He submitted a memo on July 22nd, 2008. That was the day after he had been placed on administrative leave as a result of the citizen complaint that he told people to switch seats and gave the ticket to a passenger.
THE COURT: Was Bruketta on the memo?
MR. SOTOS: He was on the memo, but, again, that was issued the day after the leave. And, by the way, Judge, as far as that goes, they looked into it. They didn’t have any reason to think that he was writing down the wrong race. That first came up within the last 45 days or so and they’re doing an investigation into that broader than just him. But that’s the first time that came up. So, that’s not even connected to his allegations in this case. But it certainly doesn’t have anything to do with this criminal conspiracy nonsense involving –
THE COURT: Okay. I got it.
But, counsel, look. I’m not going to let you go off on a year’s worth of discovery on Sheriff Nygren and whether or not he hired somebody to kill somebody in some location because that might show that he was trying to cover things up to fire your client. All right?
MR. HORWITZ: All right.
THE COURT: Now, I want to get the case done. Your client’s position is he made a legitimate complaint. He made it through legitimate authorities. What he said was true, and because of that in retaliation he got fired.
MR. HORWITZ: That is the core section 1983 First Amendment retaliation. That is the core concept of the case, yes, your Honor.
THE COURT: That’s it. It’s straightforward. It’s right there.
MR. HORWITZ: Well, that’s correct. That is a core aspect of the case.
THE COURT: Well, what else is there?