Actor Nick Tarr after his citation in 2002.
PHX actor Nick Tarr won a major victory this week in his ongoing quest to make Sheriff Joe Arpaio and his dastardly, power-crazed underlings pay for their violation of the thespian's Constitutional rights. On November 20, the Ninth Circuit Court of Appeals handed down a ruling allowing Tarr to sue the officers involved in an infamous incident dating back to 2002, and to seek punitive damages should he win.
For those who weren't here five years ago, Tarr was at that time a spokesperson in the guise of "Joe Arizona" for Prop 201, a gambling initiative that ol' Uncle Joe opposed. On Halloween of '02, Tarr was handing out leaflets for the initiative at Tom's Tavern in downtown Phoenix when he was harassed by Joe's two-ton toady Chief Deputy David Hendershott and a crew of deputies doing the Fat Man's bidding. In an episode that would've been comic if it hadn't involved such a blatant abuse of power, Hendershott and his goons cited Tarr for allegedly impersonating a highway patrolman.
DPS officers called to the scene refused to arrest or cite Tarr because they saw no criminal intent in his Joe Arizona getup, which was meant to parody Arpaio. As you can see from the pics here, Tarr was done up in a pair of Joe's pink boxers, an old, unbuttoned DPS shirt, a Smokey the Bear hat, and a couple of fake cop badges. Thing is, Sheriff Joke can't take a joke, especially when it's from a rival, of sorts. (Joe supported a competing gambling initiative.) So when Joe's personal Dick Cheney -- the ever-obese David Hendershott -- spied Tarr as Joe Arizona handing out pro-Prop 201 literature (Hendershott just happened to be at the restaurant), he had his deputy dawgs corral the actor. Eventually, Tarr was cited and released, his DPS shirt confiscated by Joe's bully-boys.
Nick Tarr in the complete "Joe Arizona" costume...
Anyway, Tarr's lawsuit against Joe, in which he's repped by PHX attorney and perennial Joe foe Joel Robbins, got a boost from the Ninth Circuit Court of Appeals, which reversed a lower court's finding that the MCSO officers were entitled to qualified immunity on Tarr's claim that they violated his First, Fourth and Fourteenth Amendment rights. Significantly, this will allow Tarr to seek punitive damages and legal fees, assuming he wins his case.
You can read the entire Ninth Circuit decision, here.
The federal appeals court concluded there was no probable cause for detaining Tarr, considering how he was dressed.
The decision states that, "A prudent person would not have concluded that Tarr had committed the crime with which he was charged."
In regards to Tarr's First Amendment rights, the court writes:
"It is also clearly established that the police may not punish someone in retaliation for exercising their First Amendment rights...Tarr was actively campaigning in favor of a ballot proposition. Speech on behalf of a ballot proposition is protected by the First Amendment...Tarr’s lampooning of public officials such as the sheriff or other public figure is also speech protected by the First Amendment. Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Tarr alleges, and the record indicates, that the officers were offended by Tarr’s lampooning their boss, and that this may have been the but-for cause of their decision to arrest him...In the totality of circumstances known to the arresting officer, no prudent officer could have concluded that Tarr could be arrested for such speech, and it would have been clear to any reasonable officer that he could not be."
To be fair, no one's ever accused Joe or his flunkies of being "prudent" or "reasonable."
Tarr says his career as an actor has suffered as a result of the incident. And he's been forced to start a candy machine business to make up for lost revenue. When I spoke to him yesterday, he observed that what's been done to him has likely been done to many others.
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"Whenever I see someone on TV and I hear news reports that they were arrested for robbery, I wonder how many other times they robbed but never got caught," said Tarr. "The same thing goes for this. How many times have Joe and his posse done mean, cruel, unlawful things to the citizens here in Arizona that they're supposed to serve and protect? If he did this to me as someone in the public eye, how many times has he done this to people out of the public eye."
Interestingly, Tarr told me the citation was actually dropped the day before he was set to go to court for the misdemeanor. This is a classic MCSO harassment tactic. They arrest and/or cite you, then drop the whole thing or never file it after the fact. Remember, Hendershott wanted Tarr booked. But the MCSO backed off once DPS officers told the MCSO they wanted nothing to do with it.
Former New Times scribe Robert Nelson wrote a couple of good columns covering the Tarr saga back in the day: "Trick or Threat," (November 7, 2002); and "Diary of a Madman, Part 2," November 14, 2002. Check 'em out for background.