New Times Will Appeal Ninth Circuit Court Decision on Its Lawsuit Against Joe Arpaio, Andrew Thomas, and Others

Recent events necessitate a review of the bleak, chilling years not long past, when Maricopa County Sheriff Joe Arpaio and his political ally, ex-County Attorney Andrew Thomas, attempted to rule the Valley like a Third World junta.

As my colleague Ray Stern first reported online, the Ninth U.S. Circuit Court of Appeals finally ruled in Lacey v. Arpaio, the lawsuit brought by Village Voice Media Executive Editor Michael Lacey and VVM CEO Jim Larkin against Maricopa County, Arpaio, Thomas, Thomas' former special prosecutor, Dennis Wilenchik, and others for the false arrests of New Times' co-founders in 2007.

The 2-1 decision by a three-judge panel was a mixed bag, upholding parts of the lower court's ruling dismissing the case and reversing other parts. The details are complex, but Lacey and Larkin have announced that they will appeal the Ninth Circuit's ruling, seeking redress from a larger panel of the federal appellate court's pool of judges.

"It's not necessarily common," Lacey said of the request for what's referred to as an en banc review. "But it does happen when there's a split [decision], and when there are important issues involved. And we think freedom of the press and the intimidation of the press are important issues."

Lacey and his longtime partner were collared shortly after their October 18, 2007, cover story, "Breathtaking Abuse of the Constitution." The article revealed secret subpoenas from Wilenchik seeking confidential information on visitors to New Times' website, as well as all material related to certain articles critical of the Arpaio-Thomas-Wilenchik axis.

These subpoenas were illegal. No grand jury had been impaneled, and Wilenchik had no authority to issue subpoenas without one.

The story of two newspapermen rounded up in the middle of the night by plainclothes thugs in unmarked cars bearing Mexican plates hit the local and national press like an A-bomb. The resulting conflagration of criticism forced Thomas to drop the entire matter less than 24 hours after Lacey and Larkin had been taken in and booked.

But that was just the beginning of the legal battle.

In 2008, New Times filed a notice of claim with Maricopa County, announcing its intent to sue, asking for $15 million in damages for the unprecedented harassment and malicious prosecution of two members of America's Fourth Estate.

Lawsuits later were filed in state and federal courts that ultimately were heard by District Court Judge Susan R. Bolton, who's now famous for enjoining most of Arizona's breathing-while-brown law, Senate Bill 1070.

Despite the complaint's damning facts, which show that Arpaio, Wilenchik, and Thomas violated the plaintiffs' rights under the U.S. Constitution's First, Fourth, and 14th amendments, Bolton tossed the suit from federal court.

The plaintiffs appealed to the Ninth Circuit, and a panel of three judges responded with the aforementioned ruling.

The 2-1 decision upheld part of Bolton's ruling, finding that Thomas, in his role as prosecutor, enjoyed absolute immunity. This is not surprising, because prosecutorial immunity has been well established by the courts as means of ensuring that prosecutors can freely pursue their duties without worry of civil liability.

Not that Thomas is blameless. Far from it. He appointed his former employer, Wilenchik, a private attorney whose expertise is in mold litigation, to go after New Times for supposedly violating an obscure, never-before-enforced state law preventing Internet publication of the home addresses of law enforcement officers and judges.

The home address at issue was Arpaio's, which appeared in a 2004 column by a former New Times writer. Columnist John Dougherty had been investigating commercial land acquisitions by Arpaio and questioned the propriety of having information about the parcels redacted from public view. Arpaio claimed the redactions were there to preserve the confidentiality of his home address.

Problem was, Arpaio's home address was available online through various sources, including the Maricopa County Recorder's Office and the website for the local Republican Party. Oddly, the law does not prevent a peace officer's address from being published in print, only online.

Following Thomas' election in 2004, Arpaio pressed him to seek charges against New Times' reporters, editors, and publishers.

Thomas had a conflict of interest because New Times had been highly critical of him from jump, so he sent the case to the Pinal County Attorney's Office. But the PCAO declined to press charges and returned the case to Thomas.

Ever obedient to Arpaio's demand for retaliation, Thomas tapped Wilenchik as his special prosecutor in the New Times matter. Thomas proceeded even after his own staff had advised him not to seek criminal charges in the matter.

Wilenchik already was working for Thomas and Arpaio on a number of cases and had earned a reputation as a pugnacious attorney with little countenance for legal niceties.

Without ever appearing before an actual grand jury or notifying presiding Superior Court Judge Anna Baca, Wilenchik issued broad, intrusive subpoenas to New Times. The newspaper sought to have Baca quash the subpoenas. Then while the motion to quash was pending, Wilenchik — through a well-placed intermediary — sought ex parte (private) communication with Baca in an attempt to influence her. Baca called the parties into court and blasted Wilenchik's move as "absolutely inappropriate."

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37 comments
OmarTentmaker
OmarTentmaker

I love it when establishment bigwigs such as Lacey and Larkin, Sheriff Joe, et al. get into a peeing match with the courts as referee and expensive attorneys as ring card girls. It is a lot better than reading some newspaper's comics page. Sentences such as, "The story of two newspapermen rounded up in the middle of the night by plainclothes thugs in unmarked cars bearing Mexican plates hit the local and national press like an A-bomb” make my day. Joe-hater Stephen Lemons’ “A-bomb” simile is priceless!

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Quickly snapping up right

Tommy Collins
Tommy Collins

["Indeed, all switchbacks lead to one man — the one with the stars on his collar."]

A truer and more accurate statement could not be written.

Reciprocity will occur. The MCSO sheriff will eventually have to pay the piper. Which is a bitter touch of irony. The piper will have to be brought in from another state or country when the MCSO shurf is laid to rest. The MCSO shurf has alienated the local piper who at one time would have been proud to play at his funeral.

Coz
Coz

The problem is here is that none of these assholes should be immune. They walk in, screw with and destroy lives, cost people time in jail, money to defend themselves and destroy reputations.

Then when its found they're wrong, they get to walk away free and clear with no responsibility for their unconstitutional acts and corruption.

This is total abuse of the justice system plain and clear.

They should he held accountable personally, civilly and criminally, just like they put others through.

Things will never change in the justice system until those responsible for injustices like this in an corrupt system that protects it's own are found responsible and have to pay for the damages they do while hiding behind immunity.

FormerRepublican
FormerRepublican

We thank the New Times owners moving forward with their legal action against Thomas and Arpaio. The state of Arizona will pay for decades for the damage done during their reign of abuse on ALL people not just their political enemies. The women who enabled Thomas are a disgrace to the women of Arizona. They should have known better and put a stop to the abuse by narcissists like thomas, arpaio and their enablers.

Tommy Collins
Tommy Collins

Let's not forget one woman, Sheila Polk, who refused to acquiesce to the demands of Thomas, the mcso sheriff, and the Blimpmeister.

Following her lead, Daisy Flores, Pima County Attorney, took legal umbrage with the malice being practiced by the Maricopa County Attorney and the MCSO bullies.

Rickw93
Rickw93

The New Times the fourth estate you must be kidding! The NT is a free rag that sells advertising to mostly b, c and d businesses that cater to folks that pick up free rags. If you can't win in the 9th circuit you are done. Fourth estate, NT is so out of balance,the fourth estate would hold all sides accountable you do not do that, never have probably never will

Coz
Coz

Bobby, when did you change your name ?

Clancy
Clancy

yea, "free rag" but here YOU are READING and POSTING on this FREE rags website you are pitiful

Rickw93
Rickw93

Clancy get on back tothe personals section where you can get a life.

Susan Rastella
Susan Rastella

Lacey "reminded fellow journalists that the story was about Wilenchik's illegal subpoenas, which sought the "the identity, the browsing habits, the buying habits" of New Times' readers." That is the truth that the New Times was trying to reveal. It was a fishing expedition for Arpaio to learn more about those critical of his regime.

The night time arrests indicate how juvenile Arpaio and Thomas had become. They knew where and when these men worked. I'm sure they anticipated a more physical reaction at the time of arrest which would have allowed them to have more charges on them. Fortunately, Lacey and Larkin are smarter than that.

I compliment Judge Bybee as 'he dissented from the majority and blasted Arpaio's involvement in the Lacey-Larkin arrests, which he labeled a "sordid tale of public abuse of office."' Like many others; Arpaio's ability to slither away with no responsibility is unfair. I cannot believe the man can claim to be the in charge of over 40,000 deputies can also not be responsible for the directives the deputies follow.

I hope when the Phoenix New Times files suit against Wilechik it includes pain and suffering for all of us who have had to follow the unlawful arrest and legal dances from the county's actions. As another election period begins it should remind us all that any critical comment, thought, blog, etc., that includes Arpaio will possibly put you in the same place as Larkin and Lacey --in jail.

truthseeker
truthseeker

Good news and great reporting. This isn't over until it's over -- when the power abusers are sent to Federal prison.

shadeaux14
shadeaux14

Name one power abuser in this armpit who has gone to prison. More than likely they ran for elected office and the morons elected them. Why else would abuse of power be so widespread in this state?

truthseeker
truthseeker

You're right. These officials have absolute immunity which explains why they conduct themselves like dictators. They abused the awesome power they were given. So who is going to change the laws to add accountability -- their friends in the legislature? The lawyers who profit from bad laws and bad officials? Who is going to stop the gravy train?

Bobunf
Bobunf

Most lawyers have great respect for the law, for our great legal traditions. Every barrel has some rotten apples and Maricopa County seems to have amassed far more than its share.

But the real malefactors are the voters who elect people like Arpaio and Thomas even after they have more than sufficient information to know what bad actors these cretins were and are.

It's only right that those voters should pay for decades, and pay heavily. That process - the slow tsunami of lawsuits engulfing Maricopa County - will cost the County something approaching a billion dollars in awards, settlements, legal fees and other costs before the decade is out.

It couldn't happen to more deserving people. Shame on the voters of Maricopa.

Kcarson
Kcarson

Nice writing. You handle well a tough legal issue.

I adore this quote:

>"Hendershott has fallen on his sword so many times for Arpaio that you have to feel sorry for >the sword," said Lacey while discussing the Ninth Circuit's decision.

Tommy Collins
Tommy Collins

Just the visual involved with the quote is enough to bring tears... even the toughest of swords may not be up to such a formidable task..

Marcy
Marcy

Senile Joe long ago perfected the Sgt Schultz defense, claiming he knows nothing when the poo hits the fan. He's done a great job of playing the chumps that vote for him by claiming he's responsible for everything that goes on at the MCSO when things are good and denying he knows anything when things turn sour.

I also expect him to play the Fred Sanford card when he is finally taken down and hauled off to jail, claiming his ticker is bad and his health won't permit him to do time.

Tommy Collins
Tommy Collins

Fred Sanford? You're showing your age with that one... (how would I know?)

shadeaux14
shadeaux14

Rpiehole is more of a Teflon Sheriff than a tough sheriff.

Not surprised
Not surprised

You go guys! NO WAY Arpaio, Thomas, Aubuchon should get a free pass.

At a minimum, they committed serious offenses of abuse of power. They operated outside of and with total disregard for the law, and completely beyond the scope of their jobs/positions.

IMHO, by doing so, they waived the immunity protection of their job/position and should be personally liable for their deplorable actions.

truthseeker
truthseeker

.. you forgot thomas internet blogging queen, deputy county attorney, rachel alexander. Who was a subject of one of their "special reports" and internet "mug shot" series?

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wherewasi
wherewasi

Do not give up the Good Fight, New Times! This was the story that first truly drew my attention to Arpaio and Thomas et al and I thank you for standing up for MY rights, Mr. Larkin and Mr. Lacey.

Do not back down. Do not let theses goons pass Go. Do not let them collect $200. Do not let them get a "Get Out Of Jail Free" card.

Anon
Anon

Well said.

WhoKnows
WhoKnows

And this on the same day that it's know that there are more than enough validated signatures to have a recall election for Pearce.

To be a trifecta, Aubuchon could be caught in bed with a male sheep.

Tommy Collins
Tommy Collins

There ARE some things that sheep simply refuse to do.

anon
anon

Lisa has got to be into strap-ons!!!

Rob
Rob

Got something against sheep, Who?

Jason
Jason

It is a trifecta. Pearce will be booted, the MCSO shurf and Corrupt Candy will be indicted after Candy and Aubuchon lose their Bar licenses, and Aubuchon's husband could be mistaken for a male sheep.

Jason
Jason

Good luck NT. The MCSO shurf and his gang of miscreants are up to their old tricks.

I know this because on 6/4, there was a marked MCSO shurf car parked in front of my house with its headlights on. The same thing occurred 4 days later.

I have a dreading feeling I know why these corrupt officials are targeting me. It's because of what I know about the county's "corruption" cases. Still, I'm in a good position to speak to the U.S. Attorney's Office about what I know and hope and pray that I'm not intimidated.

I will continue to do the best job I can at my work. I will continue to be the best citizen I can be. I will continue to uphold the values and ethics instilled in me during my time in the Army.

Mistalee
Mistalee

"Still, I'm in a good position to speak to the U.S. Attorney's Office about what I know and hope and pray that I'm not intimidated."

Call on a higher power as you will, but know that speaking truth without bending to intimidation is absolutely within your power. You can do this.

As a former whistleblower myself, I know that it is hard, and there can be repercussions. But you will look at your face in the mirror every time you shave, for many years. You will be happier if the guy looking back at you is the one who did the right thing.

guest
guest

Film, baby film! Put those cameras to work filming things Arpaio would rather not be documented.

Nothing speaks clearer than pictures and video. Social media, YouTube, post them everywhere!

Anon
Anon

good advice.

 
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