(CN) – Publishers of Phoenix’s alternative weekly newspaper can sue the special prosecutor who they claim ordered their late-night arrests at the behest of Sheriff Joe Arpaio, the 9th Circuit ruled Thursday, adding that the journalists have no case against “America’s Toughest Sheriff” himself.
In a partial dissent, Judge Jay Bybee of the San Francisco-based appeals panel called the case a “sordid tale of abuse of public office.” It began in 2004 when the Phoenix New Times, which had long been critical of Arpaio and his policies, published the sheriff’s home address in the wake of an investigation of his real estate holdings. Reporters discovered that Arpaio had removed his personal information from public records about his land holdings, and the sheriff claimed that he did so because he had received death threats. The newspaper countered by publishing the sheriff’s home address, which was available on websites for Maricopa County and the local Republican Party.
Taking its lead from the original complaint, the ruling says Arpaio waited 10 months until his “political ally” Andrew Thomas was elected Maricopa County attorney before striking back at the newspaper. He asked Thomas to investigate the weekly for violating a state privacy statute, but the prosecutor initially refused. Meantime, the New Times went on criticizing the sheriff, and also began publishing articles critical of Thomas. For two years Arpaio tried to get nearby Pinal County to go after the paper, but prosecutors there ultimately passed as well.
Thomas then asked his former law partner, Dennis Wilenchik, to take over the case as a special prosecutor. In August 2007, Wilenchick issued two subpoenas ordering New Times executives Michael Lacey and Jim Larkin to hand over documents related to his investigation, but he did so before swearing in a grand jury, the ruling states.
Lacey and Larkin moved to quash the subpoenas and, true to form, published an article blasting the investigation. The New Times eventually ran a story detailing the subpoenas’ demands, which, as far as the publishers knew, was against the law. Wilenchik filed a show-cause order in state court, calling on the court to issue arrest warrants against the publishers and fine them $90 million for revealing the contents of the subpoenas. Late that night, before the state court had ruled, Wilenchick sent a police squad to arrest Lacey and Larkin at their homes. Later, “Thomas withdrew Wilenchik’s appointment and disavowed involvement in the subpoenas, court proceedings, or arrests,” the ruling states, and “both Wilenchik and Arpaio have also denied ordering the arrests.”
Lacey and Larkin sued Arpaio, Maricopa County, Thomas, Wilenchik and others in Arizona District Court for civil rights violations, claiming that the officials had conspired to deny them their rights under the First, Fourth and 14th Amendments.
U.S. District Judge Susan Bolton dismissed most of the claims, granting Arpaio and Wilenchick qualified immunity and Thomas absolute immunity, and as a result finding that the publishers had no case against Maricopa County.
On appeal, the 9th Circuit ruled 2-1 Thursday to uphold the lower court’s ruling as to Arpaio and Thomas, but reversed its granting of qualified immunity to Wilenchik on the publishers’ First Amendment, Fourth Amendment and malicious prosecution claims. The three-judge appeals panel also directed the District Court to reconsider the plaintiffs’ claims against Maricopa County.
“Plaintiffs have alleged sufficient facts at this stage of the litigation to suggest Wilenchik acted with malice and lacked probable cause, and that the arrests violated plaintiffs’ clearly established First and Fourth Amendment rights,” wrote Judge Timothy Tymkovich, sitting by designation from the 10th Circuit. “Wilenchik is thus not entitled to qualified immunity regarding plaintiffs’ malicious prosecution cause of action.”
Tymkovich agreed with the District Court that the publishers had failed to show that Arpaio was directly involved in their arrests, however – a conclusion that Judge Jay Bybee attacked in a partial dissent.
“Accepting the Plaintiffs’ version of the facts – which at this stage of the litigation we must – this is a sordid tale of abuse of public office,” Bybee wrote.
“Arpaio used his considerable political clout in an attempt to pressure various prosecutors into charging the Phoenix New Times,” Bybee added. “After years of investigation, two different County Attorneys found no grounds for prosecution and refused to cave into Arpaio’s demands. Undeterred, Arpaio eventually managed to persuade Maricopa County Attorney Andrew Thomas to appoint Dennis Wilenchik as special prosecutor to investigate the Phoenix New Times. When Wilenchik issued subpoenas to the Phoenix New Times, the paper responded by publicizing the content of the subpoenas. Arpaio obliged by ordering the arrest, without a warrant, of Phoenix New Times publishers Michael Lacey and Jim Larkin for violating Arizona’s grand jury secrecy laws. The only problem was that no grand jury had ever been empaneled. Thus, the subpoenas were invalid ab initio.”