(CN) - Maricopa County Sheriff Joe Arpaio must face claims that he ordered the late-night arrests of two newspaper publishers who revealed the details of a subpoena, the full 9th Circuit ruled Wednesday.
The decision hands a significant victory to The Phoenix New Times, a weekly alternative newspaper that has been critical of the outspoken sheriff since he took office in the 1990s. After defending himself in court just last month against racial-profiling charges, Arpaio now potentially faces another trial.
"It is hard to conceive of a more direct assault on the First Amendment than public officials ordering the immediate arrests of their critics," Judge Jay Bybee wrote for the 11-judge panel. "And, in this case, there was nothing subtle about their efforts to stifle the New Times."
The New Times and publishers Michael Lacey and Jim Larkin sued Arpaio, special prosecutor Dennis Wilenchik, County Attorney Andrew Thomas and Maricopa County in 2008, alleging a host of federal and state violations related to the arrests.
Lacey and Larkin claimed that Arpaio, Thomas and Wilenchik had conspired to silence their frequent criticism of the sheriff. The complaint alleges that Arpaio determined to punish the newspaper in 2005 after it published his home address in an article about his real estate investments.
Arpaio allegedly waited nearly a year to pursue charges under a state privacy statute - until fellow Republican Andrew Thomas took office. After first refusing to pursue the charges, and also becoming a target of the New Times himself, Thomas appointed Wilenchick, his former law partner, to look into the sheriff's complaint.
Wilenchik eventually issued two subpoenas ordering Lacey and Larkin to hand over documents, notes and sources related to several articles.
Lacey and Larkin moved to quash the subpoenas and ran articles blasting the investigation and detailing the subpoenas' demands. Then, late one night a few days later, Wilenchick sent a special police squad to arrest Lacey and Larkin at their homes for revealing the contents of the subpoenas.
Initially, U.S. District Judge Susan Bolton in Phoenix dismissed the entire case, granting the officials immunity.
A divided three-judge panel of the 9th Circuit later granted Arpaio and Thomas immunity but allowed several claims against Wilenchik to move forward.
The federal appeals court in San Francisco agreed to rehear the issue before an 11-judge panel, which revived the newspaper's claims against Arpaio and Wilenchik for violations of the First, Fourth and 14th Amendments.
Bybee, who authored a stinging dissent for the three-judge panel in June 2011, authored the court's lead 65-page opinion Wednesday.
"There are other circumstances surrounding the arrests that may suggest that Arpaio either knew or should have known that something was amiss," Bybee wrote. "Although the grand jury disclosure violation was just a misdemeanor, he dispatched his special unit to arrest Lacey and Larkin at their homes in the middle of the night. Sheriff Arpaio should have known that arresting someone at his home requires a warrant, unless there are exigent circumstances."
While agreeing with the majority's findings on Arpaio and Wilenchik, Chief Judge Alex Kozinski said the court should have also revived claims against Thomas.
"Dennis Wilenchik wasn't just any prosecutor: He was a special prosecutor," Kozinski wrote. "He got the job because his crony, County Attorney Andrew Thomas, gave it to him. Plaintiffs allege Wilenchik used that power to harass Thomas's and Sheriff Joe Arpaio's enemies. For this, the majority anoints Thomas with every governmental wrongdoer's favorite unguent, absolute immunity."
Kozinski argued that the ruling could "encourage malicious or corrupt prosecutors to do exactly what plaintiffs allege Thomas did here: intimidate and harass political rivals by delegating prosecutorial authority to a straw man."
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