Phoenix alternative newspaper can proceed with suit against Arpaio, court rules

Two executives of an alternative Arizona newspaper can continue their civil rights and conspiracy lawsuit against Maricopa County Sheriff Joe Arpaio and a special prosecutor hired to investigate the publication.

The U.S. Court of Appeals in San Francisco (9th Cir.) reversed a trial court’s dismissal of a lawsuit brought by Michael Lacey and Jim Larkin, publishers of Phoenix New Times, against Arpaio and Dennis Wilenchik, a former Maricopa County special prosecutor.

The lawsuit stems from a dispute between the New Times and Arpaio dating back nearly a decade that culminated in deputies in unmarked cars arresting Lacey and Larkin in the middle of the night.

The court concluded in a lengthy, 72-page opinion Wednesday that neither Arpaio nor Wilenchik were entitled to immunity from several constitutional claims in the suit.

The ruling by the entire appellate court in a rehearing en banc comes more than a year after a three-judge panel of the Ninth Circuit court concluded that Arpaio was immune from suit – a decision nullified by Wednesday’s opinion.

The court seemed satisfied there were enough facts in the publishers’ complaint showing that Arpaio violated their constitutional rights by pressuring county attorneys to prosecute the newspaper even after Arpaio was told there was no case, Arpaio was involved in the decision to appoint a special prosecutor to investigate the newspaper, and Arpaio himself ordered the arrests.

“Lacey has spun a long and sometimes repetitive narration of Arpaio’s determination to silence the New Times by any means necessary,” Circuit Judge Jay S. Bybee wrote in the opinion. “It is a short step to infer that Arpaio 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.”

Lacey and Larkin's suit claims that the two county law enforcement officials falsely arrested them in violation of the Fourth Amendment, selectively prosecuted them in violation of the Equal Protection Clause of the Fourteenth Amendment, and did so in retaliation for articles published in the newspaper critical of Arpaio in violation of the First Amendment.

The appellate court upheld the dismissal of the constitutional claims brought against former Maricopa County Attorney Andrew Thomas, concluding that he was immune from suit. But Lacey and Larkin were allowed to amend their complaint allegations that Thomas conspired with Arpaio and Wilenchik to deprive the newspaper executives of their constitutional rights.

The allegations in Lacey and Larkin's lawsuit stems from a newspaper investigation into a series of commercial land deals Arpaio made in 2004. The article questioned why the sheriff removed his home address from the public records describing the deals.

When Arpaio said he removed his address out of fear of being targeted by threats, the paper followed up with an article demonstrating how the sheriff’s address could easily be obtained from a number of government and political party websites. The newspaper then published Arpaio’s address in the story.

According to the lawsuit, Arpaio then began a three-year investigation into whether the paper violated a state law that prohibits the publication of personal information of peace officers, judges and others if the publication would pose a threat to the individual.

Thomas’ office initially reviewed the matter, but recommended that Thomas decline to prosecute the paper. Thomas referred the investigation to a nearby county which also declined to prosecute despite being pressured by Arpaio, according to the suit.

In 2007, Thomas hired Wilenchik to investigate the matter. Wilenchik issued subpoenas for access to information about the paper’s readers, editors and reporters. The subpoenas were issued without Wilenchik convening a grand jury, according to the lawsuit.

While fighting the subpoenas in court, the newspaper published the contents of the subpoenas. Wilenchik advised deputies to arrest the publishers for violating a law that prohibits publishing information about grand jury proceedings, according to the suit.

The publishers were released the next day and the charges against them were dropped.

Related Reporters Committee resources:

· News: Ariz. publishers’ suit against special prosecutor can proceed