Arizona’s Arpaio Not Immune from Journalists’ Lawsuit

Maricopa County Sheriff Joe Arpaio

Joe Arpaio, the controversial law-and-order sheriff of Maricopa County, Arizona, must now face his own trial for alleged civil rights abuses that include the late-night arrest and jailing of two journalists because they had angered Arpaio.

The 11-judge decision by the 9th U.S. Circuit Court of Appeals Wednesday came on the eve of Arpaio’s address to delegates attending the national Republican Convention in Florida.

The bizarre litany of alleged abuses of power by Arpaio includes claims the sheriff, with the help of a hand-picked  special prosecutor, used invalid grand jury subpoenas in an attempt to force the alternative weekly, Phoenix New Times, to disclose sources, produce reporters’ and editors’ notebooks and other documents, as well as information about visitors to the New Times’ story on the paper’s website back to 2004, as well as names of advertisers.

The reason for all this upset?  New Times and owners Michael Lacey and Jim Larkin, published Arpaio’s home address in 2004 in the course of writing a story about his commercial real estate transactions.  The paper questioned his ability to invest $690,000 on his modest salary and questioned his use of a state law to redact information about his commercial real estate holdings from public records.  Arpiao had claimed information was withheld in response to death threats, but the paper pointed out his home address was already available on other websites, and published it themselves.

What Arpaio Faces

The 9th Circuit, by an 8-3 vote, found that Arpaio andDennis Wilenchik, the private attorney appointed as a special prosecutor, must face Lacey’s claims of retaliation, false arrest and selective prosecution in violation of the First and Fourteenth Amendments and the Equal Protection clause of the Constitution.  The majority found Arpaio and Wilenchik did not have immunity, as public officials, from the claims.  The majority dismissed federal racketeering allegations.

In addition the majority sent back to the trial court to reconsider whether Maricopa County could dragged into this as potentially liable for constitutional violations by its alleged failure to train officials and allegedly unconstitutional policies.

Don’t think, because of the 9th Circuit’s reputation as a liberal court that this came from some wild-eyed liberal judge.  The writer of this 70-page decision was Judge Jay Bybee, one of the most conservative members of the court and an appointee of President George W. Bush.  Even Chief Judge Alex Kozinski, appointed by Republican President Ronald Reagan, said he would have gone farther than Bybee.  Kozinski said former County Attorney Andrew Thomas, who appointed Wilenchik as his “cat’s paw,” should not have been held immune from prosecution.

Wilenchik “got the job because his crony, County Attorney Andrew Thomas, gave it to him,” Kozinski wrote.  Wilenchik then allegedly “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.”

The Saga Unfolds

Bybee, in reinstating the retaliation claim, found Lacey adequately alleged that Wilenchik’s “primary intent was to silence the New Times’s protected speech, which came in the form of newspaper articles criticizing public officials.”

Bybee made clear the appeals court had to consider the allegations by Lacey and Larkin true in deciding whether they had sufficient claims to proceed.  To be sure, the newspaper will still need to prove their assertions in court.

What the court did lay out is a very ugly picture.

In the aftermath of New Times’s publication of Arpaio’s home address, Arpaio waited seven months, until Thomas took office as the new county attorney.  He then pressed Thomas to investigate the newspaper.

Thomas’s office investigated, but an internal evaluation showed it to be a weak case.  By that time, New Times was also running articles critical of Thomas, so he withdrew from the Arpaio investigation due to what he said was a conflict of interest and turned it over to Pinal County, the court said.

Although Arpaio and his legal affairs director, Ron Lebowitz, pressed the Pinal County prosecutor for months, no case was brought.

In 2006, Arpaio and Thomas decided to appoint a “special prosecutor,” Wilenchik, to conduce the investigation.

Wilenchik, at the time, had been hired to perform millions of dollars of legal work for Thomas and Arpaio, representing them in their official and private capacities, according to Bybee.  Thomas had also worked in Wilenchik’s law office.

In 2007, Wilenchik issued two grand jury subpoenas, without actually notifying or getting consent from the grand jury, a violation of state law, according to the court.  These were the subpoenas demanding the paper turn over sources, notebooks and website visitor information. The subpoenas were later declared illegal by Judge Anna Baca, who presided over the Maricopa grand jury.

New Ties later published the terms of Wilenchik’s subpoenas and Wilenchik asked the judge to hold the paper in contempt and issue arrest warrants for Lacey and Larkin, as well as three of their lawyers and fine the newspaper $90 million, the opinion states.

Before Judge Baca ruled, Arpaio’s “Selective Enforcement Unit” went to the homes of Lacey and Larkin and arrested them.  This brought a wave of public criticism and Thomas fired Wilenchik a day later, according to the court.

A month later, Baca declared the subpoenas invalid.

Lacey, Larkin and New Times sued in April 2008.  The case has met with dismissal in district court and by a three-judge panel of the 9th Circuit.  Now the 11-judge review revives the lawsuit and Arpaio will have to go to court.

Aftermath

In April, 2012, a three-member panel appointed by the Arizona supreme Court voted unanimously to disbar Thomas.  They found he “exploited power, flagrantly fostered fear” and “misused the law,” while serving as Maricopa County Attorney.  Thomas denied wrongdoing and called it a “witch hunt,” according to published accounts.

The 9th Circuit’s opinion was little noticed in the torrent of political coverage of the Republican convention.  The day after the opinion’s release, Arpaio addressed an invitation-only reception for western GOP delegates.  Earlier this month, Arpaio faced trial in a class action lawsuit by five Hispanic Arizona residents who allege his office engages in racial profiling during traffic stops.  There has been no decision yet in that case.

Case: Lacey v. Maricopa County, No. 0-15806

 

 

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