On Thursday, New Times filed a challenge to a recent 2-1 decision by the Ninth U.S. Circuit Court of Appeals in Lacey v. Arpaio, the lawsuit seeking damages for the wrongful 2007 arrests of Village Voice Media Executive Editor Michael Lacey and VVM CEO Jim Larkin by Maricopa County sheriff's deputies.
The appeal takes the form of a motion seeking a review of the June 8 decision, either by the original three-judge panel, or by a larger, so-called en banc panel of the court.
(You can read New Times' motion, here.)
As I explained in a recent column noting New Times' intent to appeal, the Ninth's ruling was a mixed legal bag, overturning parts of District Court Judge Susan R. Bolton's decision to throw out the case, and sustaining other parts of it.
New Times had named Sheriff Joe Arpaio, former Maricopa County Attorney Andrew Thomas, and Thomas' one-time special prosecutor Dennis Wilenchik as defendants. But a two judge majority on the appeals panel found that of these three, only Wilenchik did not qualify for immunity.
As a prosecutor, Thomas enjoyed full immunity from any liability, and Arpaio deserved qualified immunity in the claim, according to the majority opinion.
In a strenuous dissent, Ninth Circuit Judge Jay Bybee disagreed that Arpaio should have qualified immunity, even though he concurred with the majority's view of Thomas in his role as prosecutor.
Indeed, Bybee found that Arpaio was central to the case. The sheriff was the driving force behind the investigation of New Times for publishing his home address online in a 2004 article exposing Arpaio's lucrative land deals and his so-far successful move to have the addresses of those properties redacted.
Bybee summed up the facts, in part, by writing that,
"This case concerns an investigation initiated by `America's toughest sheriff,' Joseph Arpaio, against his political enemies in the local news media. In the words of Arpaio's own director of legal affairs, Arpaio had targeted the Phoenix New Times because the paper had been `historically anti-Arpaio.'
"Arpaio's excuse for demanding prosecution of the Phoenix New Times was that its decision to post Arpaio's home address on its website allegedly violated an obscure Arizona statute that prohibits dissemination of a law enforcement officer's `personal information,' if doing so would pose an `imminent and serious threat' to the officer or his family, and such threat is `reasonably apparent' to the publisher.
"Never mind that Arpaio's address was already publicly available through numerous other websites, including the websites of Maricopa County and the local Republican Party."
Arpaio's own actions belied any claim there was an imminent threat, as Arpaio didn't even seek an investigation of the matter until 10 months after the article had been published.
See, Arpaio's deadly enemy Rick Romley was County Attorney in 2004, and Arpaio knew Romley would not cooperate in this vendetta. So Arpaio waited until his political ally Andrew Thomas had been elected and sworn in as Romley's replacement before taking the matter to the MCAO.
Despite Arpaio's demands, the MCAO's own incident review board declined prosecution in the matter. Thomas conflicted the case out to the Pinal County Attorney's Office, which also, eventually, declined to prosecute, sending the matter back to Thomas. This, even though Arpaio's attorney was hounding the PCAO to act.
Thomas appointed his ex-employer Wilenchik to be special prosecutor in the case, setting off a legal Rube Goldberg-like series of shenanigans on Wilenchik's part.
These included subpoenas seeking the IP addresses of thousands of New Times' readers and an attempt by Wilenchik through an intermediary to set up a secret ex parte meeting with the judge in the case.
The judge, however, rebuked Wilenchik's attempt to meet with her as inappropriate in a hearing attended by Lacey and his lawyers.
Knowing the fix was in, Lacey and Larkin decided to expose Wilenchik's devious machinations in print with the cover story "Breathtaking Abuse of the Constitution."
Though a grand jury had not yet been impaneled, Wilenchik illegally ordered warrants for the pair's arrests on misdemeanor charges of violating grand jury secrecy. He also sought to bankrupt New Times with crushing, multi-million dollar fines.
All this was done with the collusion of Arpaio and his underlings.
After Lacey and Larkin's late-night arrests by plainclothes MCSO deputies in unmarked cars, they were booked, jailed, and eventually released the next morning. Later that day, after a deluge of criticism, Thomas held a press conference, announcing that he was dropping the entire matter.
The appeal filed Thursday argues that neither Arpaio nor Thomas should be off the hook for their actions in this debacle. Thomas' immunity begins, the motion states, only after probable cause is determined. And as two prosecutors' offices had found no probable cause, Thomas should not have immunity.
As for Arpaio, Bybee's dissent observed, that there would have been no investigation or arrests were it not for Arpaio's obsession with punishing New Times. Arpaio's own in-house counsel Ron Lebowitz acknowledged at one point in a memo to then-Pinal County Attorney Carter Olson that other entities had published Arpaio's address online.
But Arpaio wanted New Times prosecuted because the paper had long been critical of him. Lebowitz basically admits this in his memorandum, making it the smoking gun proving that Arpaio was dedicated to selective prosecution of New Times' editors, executives and writers.
Lebowitz wrote: "None of the other web cites [sic], historically, have resorted to writing articles against the Sheriff, using language that is inflammatory, insulting, vituperative, and the like--all of which having the effect of attracting those of the 'lunatic fringe' who, for reasons of their own, view themselves as the Sheriff's sworn enemies..."
Thus, Arpaio was intent on violating the First and Fourteenth Amendment rights of journalists and others working for New Times, specifically because he deemed the paper's attitude toward him as being "inflammatory, insulting, [and] vituperative."
By allowing Arpaio to skate in the matter, the majority in the Ninth Circuit's decision sided with the perpetrators, and opened the door to the chilling of free speech and the right of all publications and people to be critical of public officials.
New Times' appeal calls the majority's opinion, "impermissible content-based discrimination, excusing retaliation for the exercise of First Amendment rights, rather than holding the retaliator liable for his retaliation."
This is something all of us non-lawyers can understand: If Arpaio, the main culprit in this insidious attempt to quash any criticism of his rule, cannot be held accountable, then it means that he and other law enforcement officials will have carte blanche to participate in similar acts.
As the appeal itself states, Arpaio has a long history of abusing his authority and retaliating against his enemies and those who do not kowtow to his regime. Should the Ninth Circuit ignore such gross violations of sacred, constitutional protections, none of us are safe from nefarious players such as the sheriff.
Which is why New Times' appeal must and will prevail.