The Maricopa County Board of Supervisors this afternoon voted unanimously to approve a $3.75 million settlement for New Times' co-founders, whose false arrests in 2007 were orchestrated by Sheriff Joe Arpaio.
Michael Lacey and Jim Larkin were taken from their homes in the middle of the night and jailed on misdemeanor charges alleging that they violated the secrecy of a grand jury -- which turned out never to have been convened.
-Breathtaking Abuse of the Constitution
-Who's Sorry Now?
Lacey was pleased with the settlement but expressed disbelief that the arrests ever occurred six years ago: "It was outrageous! Where in America do you arrest journalists for what they write?"
The saga began in 2004, when then-New Times reporter John Dougherty dug into Arpaio's commercial real estate transactions, questioning how a county sheriff could amass so much cash to invest in property and why records of the transactions were hidden from public view.
As part of Dougherty's articles, Arpaio's home address was published, as it was easily available online, including on government websites. The point was that Arpaio had hidden records of his commercial property but hadn't done so for his actual home.
After Andrew Thomas took office as Maricopa County Attorney, Arpaio requested charges against New Times for revealing his home address, based on an arcane state statute that bars publishing such information on the Internet if there's a "timely threat" to an officer of the law.
Because Arpaio waited 10 months to call for an investigation, a County Attorney's Office panel declined to prosecute, since no threat had presented itself. The Pinal County Attorney's Office later also declined to prosecute, citing lack of evidence and First Amendment implications.
So 2 1/2 years after New Times published the sheriff's address, Arpaio and Thomas collaborated to appoint Phoenix attorney Dennis Wilenchik as a "special prosecutor" to go after the paper.
He issued grand jury subpoenas for the notes, records, and sources of the paper's reporters and editors for all Arpaio-related stories over a broad period of time, as well as for the IP addresses of New Times' readers of such stories.
Later, Superior Court Judge Anna Baca, who presided over county grand juries at the time, chided Wilenchik for trying to arrange a secret meeting with her about the case.
Faced with all of this, Lacey and Larkin wrote a cover story detailing what they called a "breathtaking abuse of the constitution."
Arpaio's deputies arrested them the night the story was published on charges of violating grand jury secrecy - alleged misdemeanor violations that normally don't spark nighttime arrests at suspects' homes.
The next day, after widespread public outrage, Thomas announced that Wilenchik was dismissed as special prosecutor and that the investigation was over. Judge Baca later declared that Wilenchik's grand jury subpoenas were invalid, since he'd issued them without notice or approval from a grand jury or from the court.
Arpaio and Wilenchik eventually sought immunity from Lacey and Larkin's lawsuit, but that didn't happen, leading to today's settlement. Thomas escaped potential liability because of protection his county attorney post afforded him when the episode occurred.
"Unlike most of Arpaio's victims, we had the financial wherewithal to defend ourselves in court, and we were able to speak through the newspaper," Lacey and Larkin say in a statement. "But the vulnerable and impoverished victims of Arpaio's ongoing abusive practices have neither the money nor the voice to fight back."
The co-founders announced that they will use the settlement proceeds to "help those who fight the good fight against government actors who attack the most vulnerable among us." Included in this list of recipient organizations are the Arizona ACLU, the Florence Project, and Puente. A contribution also will be made to the Electronic Frontier Foundation to help protect Internet free speech.
Read Lacey and Larkin's press release on the next page:
Statement of Jim Larkin and Michael Lacey, former owners of New Times, Regarding Settlement of Federal Civil Rights Lawsuit Against Sheriff Joe Arpaio and Dennis Wilenchik
Sheriff Joe Arpaio arrested us on October 18, 2007, for writing "Grand Jury Targets New Times and Its Readers."
Earlier today, the Maricopa County Board of Supervisors ratified a $3.75 million settlement of our lawsuit filed in 2008 against Sheriff Arpaio and special Maricopa County prosecutor Dennis Wilenchik. This follows a June 9, 2011, finding in our favor by the Ninth Circuit Court of Appeals with respect to efforts by Arpaio and Wilenchik to escape liability for their actions.
Unlike most of Arpaio's victims, we had the financial wherewithal to defend ourselves in court, and we were able to speak through the newspaper. But the vulnerable and impoverished victims of Arpaio's ongoing abusive practices have neither the money nor the voice to fight back. We intend to use proceeds from today's settlement to help those who fight the good fight against government actors who attack the most vulnerable among us. We further intend to help an organization that seeks to preserve and protect free speech on the Internet.
Our decision to settle this case rather than demand our day in court is largely motivated by the knowledge that nothing that can come from a trial will speak as clearly and with as much binding legal force as the Ninth Circuit's landmark decision in Lacey v. Arpaio.
In a scathing opinion, the appeals court scolded Arpaio and Wilenchik for retaliating against a free press, for grand jury abuse, for false arrest, and for a variety of other conduct. The Court served notice that thuggish behavior by police and prosecutors against journalists strikes at the heart of the Constitution. The Court's landmark opinion has already been cited in a dozen published federal appellate cases and over a dozen federal district court opinions in the short time since it was handed down.
The events giving rise to this settlement began in 2004 when Phoenix New Times published a story "Sheriff Joe's Real Estate Game," July 1, 2004) questioning the source of funds for $690,000 in cash invested by Sheriff Arpaio in two pieces of commercial real estate.
The Sheriff also owned another half-dozen commercial properties. The records of those six parcels were also hidden from public view.
Using an Arizona statute intended to protect a peace officer's home address, Arpaio redacted from public records all of the financial details of his commercial transactions.
Reporter John Dougherty detailed these problems and asked: Where does a public servant get this kind of cash? Why is the Sheriff hiding his real estate speculation?
Arpaio responded with a heavy-handed, two-and-a-half-year campaign to have the newspaper and its reporters and editors prosecuted for disclosing his home address. While the paper did publish, as part of its investigation, the Sheriff's address, that very same address was widely available elsewhere on the web, including on official government sites. Furthermore, the obscure statute that Arpaio relied upon to pursue New Times states that the publication of the address must present a knowing and timely threat. Given that the subpoenas were served two-and-a-half years after Dougherty's original story, the "timely threat" appears not to have existed.
After the Case Review Board of the Maricopa County Attorney's office found no basis for a prosecution, and the Pinal County Attorney's Office reviewed the case and likewise refused to prosecute, Dennis Wilenchik was appointed as a special prosecutor to pursue Arpaio's retaliatory objectives against us.
Wilenchik had earlier represented Arpaio in seeking to silence other press criticism. His law firm had done millions of dollars in legal work for Arpaio. And he had been the focus of New Times stories questioning his highly profitable relationship with Arpaio and former Wilenchik employee Andrew Thomas, the now-disbarred former Maricopa County Attorney.
Wilenchik embraced his role as Arpaio's special prosecutor with Orwellian vigor. He issued grand jury subpoenas demanding all notes, records and sources on each New Times story mentioning the Sheriff over nearly a four-year span.
More alarming, the prosecutor demanded to know the identity of thousands of the paper's online readers -- anyone and everyone who had read anything on the New Times website in the preceding 44 months. And he demanded to know what other websites these New Times readers had visited.
As the paper's journalists sat in the closed courtroom of presiding Maricopa County Criminal Judge Anna Baca in the fall of 2007, the grand jury proceedings took an unexpected, and disturbing, turn: Judge Baca lashed out at special prosecutor Wilenchik. According to Judge Baca, Wilenchik had attempted to arrange a secret meeting with the judge using an intermediary who was acquainted with the judge and who had sat on the commission overseeing judicial appointments. Judge Baca termed the approach "absolutely inappropriate."
Prosecutor Wilenchik's outrageous behavior is not a matter of opinion.
An attorney's obligations under the Arizona Rules of Professional Conduct are clear: "A lawyer shall not communicate ex-parte [one side only] with a judge during the proceeding . . ."
There is an old legal cliché: You can get a grand jury to indict a ham sandwich.
Apparently, prosecutor Wilenchik was not content with the stacked deck provided by the grand jury; on October 10, 2007, he attempted to get to the judge.
Faced with an out-of-control prosecutor, we decided to inform our readers.
On October 18, 2007, we published "Grand Jury Targets New Times and Its Readers" in Phoenix New Times. That very night, Sheriff Arpaio's deputies arrived at our homes, cuffed us in front of our families and loved ones, and dragged us off to jail for violating the secrecy of the grand jury. The alleged transgression is a misdemeanor, normally an offense handled with a ticket or summons, but Arpaio wanted to deliver a message we would hear loud and clear.
Then all hell broke loose.
Media outlets from The Arizona Republic to The New York Times, lawyers, academics, and private citizens reacted with shock and anger to our arrests. The following morning a chagrined Andrew Thomas held a news conference at which he fired Wilenchik as special prosecutor and announced that the investigation was at an end.
It would later be determined by Judge Baca that there had been no grand jury -- that Wilenchik had simply issued the subpoenas himself in clear violation of Arizona law, without the grand jury or judicial oversight required by law.
Arpaio and Wilenchik later went before the Ninth Circuit to shield themselves from liability by hiding behind the police and prosecutor immunity doctrine. But the Court wasn't buying it, and for good reason.
As nearly as we can tell, the last American journalist arrested for something he'd written was John Peter Zenger, and that was prior to the American Revolution.
Before his reign of terror subsided, the Sheriff would become notorious nationally for rounding up immigrants as well as for attacks upon the judiciary.
"County officials could have curtailed the abuses of the Sheriff years ago," says Lacey. "Instead, they looked the other way until Arpaio's excesses moved from Mexicans to magistrates. With these cash grants, we choose to stand with those who resist."
Toward this end, we will make grants from settlement funds to the following organizations: the American Civil Liberties Union of Arizona, which has successfully litigated against the racial profiling abuses of Sheriff Arpaio's roundup of Hispanic immigrants; the Florence Project, which defends immigrants detained in confinement; and the grassroots, migrant rights group Puente. We will also be contributing to the Electronic Frontier Foundation, which has taken the lead nationally in fighting in the courts against government intrusion on Internet speech and privacy rights.