See also: Breathtaking Abuse of the Constitution
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Nighttime arrests of journalists. One-man grand juries. Secret, illegal subpoenas seeking confidential info on all online readers of a muckraking newspaper. Retaliation for criticism of those in high places.
If that sounds like some sub-tropical authoritarian regime, it's not. Rather, it was Arizona in 2007, when Village Voice Media Executive Editor Michael Lacey and VVM CEO Jim Larkin were hustled, handcuffed, into unmarked cars with Mexican plates, all for the "crime" of exposing the extra-constitutional misdeeds of a special prosecutor working on behalf of the Maricopa County Attorney's Office.
In June of last year, a three-judge panel of the Ninth U.S. Circuit Court of Appeals found that Phoenix attorney Dennis Wilenchik, the special prosecutor in question, could be sued for those false arrests of Phoenix New Times co-founders Lacey and Larkin and for violations of their First, Fourth and 14th Amendment rights under the U.S. Constitution.
Wilenchik's bosses, the men who empowered him to go after New Times, now-disbarred, disgraced ex-County Attorney Andrew Thomas and his political ally, Sheriff Joe Arpaio, were granted immunity. The former, total immunity. The latter, partial.
New Times appealed and won an en banc review by a larger panel of judges. That panel's decision, issued today, handed New Times a huge, if not total, win: Arpaio does not have qualified immunity in this case and can be sued for his actions against Lacey, Larkin, and this newspaper.
Lacey hailed that part of the Ninth Circuit's 72-page ruling.
"Only in Sheriff Joe Arpaio's jurisdiction do journalists get arrested in the middle of the night for what they write," he told me. "Only in Sheriff Joe's jurisdiction do poor Mexicans get swept up like cattle. But Joe Arpaio can not deport Larkin and Lacey. The Ninth Circuit said so."
(Read the opinion for yourself, here.)
It's going on five years since I, along with a number of other Phoenix journalists, watched Lacey emerge from the Arpaio's notorious Fourth Avenue Jail. There, we listened to him compare his and his business partner's experience in custody to "Mr. Toad's Wild Ride."
And with each year, New Times seems to inch toward something that might approximate recompense for that ride.
In a column following last year's decision, I recounted the sequence of events that led to Lacey and Larkin's arrests, which up to that point in time, were unprecedented.
Since then, Arpaio's beige-shirts have arrested, harassed, and brought false charges against powerful county supervisors, Superior Court judges, countless civil servants, and at least one Attorney General.
But when Lacey and Larkin were collared after revealing the facts behind bogus grand jury subpoenas issued by Wilenchik, they were breaking new ground, becoming two in a long line of those retaliated against because they dared to criticize, or just not go along with, the machinations of the Arpaio-Thomas-Wilenchik axis.
As the Ninth Circuit recounts in its ruling, the pugnacious Wilenchik demanded in 2007 that New Times "reveal its confidential sources as well as produce reporters' and editors' notebooks, memoranda, and documents."
His "subpoenas" ordered this paper to "reveal information about visitors to any story, review, listing, or advertisement on its website since 2004."
And yet, "Wilenchik had not appeared before any grand jury or otherwise obtained approval to issue them, as required by Arizona law."
In other words, the subpoenas were illegal. So Lacey and Larkin went public with the details of this one-man prosecutorial band. Nighttime knocks on their doors were not far behind.
The guy who set all this in motion was Sheriff Joe. He was obsessed with prosecuting New Times on a little-known state law that made it illegal to reveal a cop's home address on the Internet, if such information posed "an imminent and serious threat."
New Times had published Arpaio's address as part of a series of articles about his land holdings. The sheriff was hiding the addresses of his real estate investments from scrutiny. The only one that he repeatedly had revealed in public documents (online and otherwise) was his home address.
The Ninth Circuit noted today that, "There was never any evidence suggesting that the publication of Arpaio's address by any website ever posed an imminent and serious threat to Arpaio."
Ultimately, the Ninth Circuit denied Arpaio qualified immunity for First Amendment violations, false arrest, and selective enforcement in regard to the Lacey-Larkin abductions.
But according to the majority of the judges ruling, Thomas retains "absolute prosecutorial immunity," a particularly frightening phrase to be used in conjunction with a lawyer stripped of his license to practice, whose name has become a byword for abuse of power.
The Ninth's majority opinion, written by Judge Jay S. Bybee, the lone dissenter in last year's 2-to-1 Ninth Circuit ruling, declares that Thomas gets a pass from civil action. The rationale is that Thomas appointed Wilenchik a special prosecutor and, thus, washed his hands of the matter.
Though when the arrests blew up in his face and caused national outrage, Thomas quashed the whole witch hunt against New Times.
The paper's attorney, Steve Suskin, told me that an appeal of the Thomas part of the decision is "under consideration."
Interestingly, Chief Justice Alex Kozinski's dissent disagrees with giving Thomas immunity, because of Wilenchik's appointment by Thomas.
"Adjectives matter," Kozinski writes in his dissent. "They're not as action-packed as verbs, nor as self-sufficient as nouns. But adjectives do make a dif-ference. Here, the majority overlooks a crucial one: `special.'
"Dennis Wilenchik wasn't just any prosecutor: He was a special prosecutor. He got the job because his crony, County Attorney Andrew Thomas, gave it to him."
Kozinski recognizes that when Thomas appointed Wilenchik to be his "cat's paw," as Kozinski calls it, the county attorney knew exactly what he was doing.
"There is absolutely no justification for giving Thomas absolute immunity for the non-prosecutorial and self-serving act of appointing Wilenchik to do his dirty work," concludes the Chief Justice.
Which could be one reason that part of today's ruling, ultimately, gets appealed all the way to the U.S. Supreme Court.