Metropolitan News-Enterprise


Thursday, August 30, 2012


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Ninth Circuit Says Publishers Jailed Over Story Can Sue Arpaio

Sheriff, Prosecutor Denied Immunity From Suit for Ordering Arrests Over Publication of Grand Jury Subpoenas




The publishers of a weekly newspaper, arrested late at night after publishing the contents of purported grand jury subpoenas, can sue the prosecutor who allegedly ordered their arrests, and the sheriff who allegedly instigated them, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In an en banc decision, the court said Michael Lacey, Jim Larkin, and Phoenix New Times, LLC can sue former special prosecutor Dennis Wilenchik and Sheriff Joe Arpaio for retaliation in violation of the First Amendment, false arrest in violation of the Fourth Amendment, and selective prosecution in violation of the Equal Protection Clause, as well as conspiracy.

The court also ruled that the plaintiffs can amend their complaint to include conspiracy allegations against former County Attorney Andrew Thomas, as long as those allegations involve conduct other than Thomas’ appointment of Wilenchik, as to which the court said Thomas has absolute immunity.

‘America’s Toughest Sheriff’

The New Times has long been critical of Arpaio, who has been the county’s top law enforcement official since 1993 and bills himself as “America’s Toughest Sheriff.” In 2004, the newspaper accused the sheriff of improprieties in connection with commercial land transactions, and questioned why certain personal information had been removed from public records regarding those deals.

Arpaio responded that he had received death threats and therefore wanted to shield his personal address and keep related information private. The newspaper followed up with a story claiming the sheriff’s explanation was implausible because the information was already publicly available.

The newspaper then published the information, claiming it had obtained all of it from governmental and political websites.

Months later, Arpaio asked Thomas—a political ally who had been elected county attorney, the chief prosecutor’s job, after the stories appeared—to investigate the New Times. He cited an Arizona statute that makes it a felony to publish personal information on the Internet if the subject is a peace officer, judicial officer, prosecutor or public defender and it is “reasonably apparent” that the subject’s safety will be threatened as a result.

Conflict of Interest

Thomas claimed a conflict of interest and bounced the investigation to the county attorney in neighboring Pinal County, who found no cause to prosecute and sent the case back to Thomas. In June 2007, Thomas named Wilenchik, a Phoenix lawyer and Thomas’ former partner, as special prosecutor.

Wilenchik then initiated a grand jury probe, issuing two subpoenas for information and documents about the newspaper’s operations, particularly with respect to stories critical of the sheriff. The New Times moved to quash, noting that Wilenchik failed to comply with a statute requiring that subpoenas either be approved by the grand jury prior to issuance, or that the issuance of a subpoena be reported to the grand jury and the superior court within 10 days.

The newspaper also ran a critical story on the probe. The next day, Wilenchik served a third subpoena, seeking information about the story.

Weeks later, following disclosure of what a judge described as an “absolutely inappropriate” attempt to discuss the motions to quash ex parte, the newspaper published the subpoenas, in apparent disregard of a statute barring publication of the nature or substance of grand jury proceedings.

Contempt Motion

Wilenchik promptly moved to have the publishers held in contempt and fined $90 million for publishing the contents of the subpoenas. That night, without obtaining any ruling on that motion, he had the publishers arrested.

The publishers were released the next day. The arrests led to an outcry, causing Thomas—within 24 hours—to withdraw the special prosecutor’s appointment and end the probe.

Arpaio, Wilenchik, and Thomas have all denied involvement in the arrests.

In response to defense motions, District Judge Susan Bolton ruled that Thomas, but not Wilenchik, had absolute prosecutorial immunity; that Wilenchik and Arpaio had qualified immunity from the federal claims, that the state claims should be remanded to Arizona courts, and that Maricopa County could not be sued in the absence of a constitutional violation for which any individual defendant could be held liable.

A three-judge panel ruled last year reinstated some of the dismissed claims against Wilenchik, but upheld the dismissal of Arpaio.

But Judge Jay Bybee, writing yesterday for the en banc court, said Arpaio could be held liable if it can be proven that he instigated Wilenchik’s violations of the plaintiffs’ constitutional rights.

The special prosecutor lacks absolute immunity, the judge said, because the issuance of the subpoenas, and his alleged—albeit disputed—role in the arrests constitute investigatory, rather than prosecutorial, activity.

The plaintiffs, he said, alo alleged sufficient facts for a jury to find that Wilenchik deliberately violated established constitutional rights and thus is not protected by immunity. Immunity might have applied, he said, if Wilenchik had followed state law in issuing the subpoenas.

As for the sheriff, Bybee wrote, the plaintiffs have “spun a long and sometimes repetitive narration of Arpaio’s determination to silence the  New Times by any means necessary” and inferred that the sheriff was “well aware of the flaws in Wilenchik’s prosecution, but welcomed the excuse to have Lacey and Larkin arrested immediately, even if he lacked probable cause.” This was sufficient to survive a motion to dismiss, he said.

Bybee also pointed out that Wilenchik has implicated Arpaio as being behind the arrests.

Judges Mary M. Schroeder, Harry Pregerson, Stephen Reinhardt, William A. Fletcher, Raymond C. Fisher, and Johnnie B. Rawlinson joined the opinion in full.

Chief Judge Alex Kozinski dissented in part, arguing that Wilenchik’s appointment was not part of the prosecutorial function and that the plaintiffs should be allowed to sue Thomas for making it, instead of granting him “every governmental wrongdoer’s favorite unguent, absolute immunity.”

Judge Richard C. Tallman, joined by Judges Carlos T. Bea and Sandra S. Ikuta, argued in partial dissent that Wilenchik and Arpaio cannot be held liable for violating the Equal Protection Clause because there was no showing that similarly situated persons faced the same risk as Arpaio from the publication of their property record information.

The case is Lacey v. Maricopa County, 99-15703.


Copyright 2012, Metropolitan News Company