Bad Arizona Arrests Get Full Circuit Rehearing

(CN) - The full 9th Circuit will take another look at an Arizona lawsuit that claims Maricopa County Sheriff Joe Arpaio ordered the arrests of two newspaper publishers who revealed the details of a subpoena.

A three-judge panel had ruled in June that Phoenix New Times executives Michael Lacey and Jim Larkin could not sue the sheriff for allegedly ordering their late-night arrests in 2007. But the San Francisco-based federal appeals court did green-light claims against the special prosecutor who sought out the arrest warrants.

Lacey and Larkin sued Arpaio, Maricopa County, Maricopa County Prosecutor Andrew Thomas, special prosecutor Dennis 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.

They claimed that Arpaio retaliated against the newspaper for publishing his home address in 2004. Arpaio allegedly asked Thomas to investigate the weekly for violating a state privacy statute, and the Thomas in turn asked Wilenchik, his former employer, to take over the case as a special prosecutor. In August 2007, Wilenchik issued two subpoenas ordering the New Times to hand over documents related to his investigation, but he did so before swearing in a grand jury, according to the 9th Circuit's ruling in June.

Lacey and Larkin moved to quash the subpoenas and published an article blasting the investigation. The New Times eventually ran a story detailing the subpoenas' demands, which, as far as the publishers knew, were 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, Wilenchik allegedly 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."

U.S. District Judge Susan Bolton dismissed most of the claims, granting Arpaio and Wilenchik 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 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.

In a brief order published late Thursday, the court announced that a majority of nonrecused judges had agreed to rehear the case en banc.

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