New Times' lawsuit over the 2007 arrest of its founders on bogus charges can proceed -- but only against a local lawyer who served as a special prosecutor, the Ninth U.S. Circuit Court of Appeals ruled today.
In a 2-1 opinion, the Ninth Circuit backed up a lower court's decision that New Times can't legally sue Maricopa County Sheriff Joe Arpaio or former County Attorney Andrew Thomas because the officials have legal immunity. But Thomas' former attack-dog special prosecutor, Dennis Wilenchik, still is on the hook for possible damages. The appellate decision re-activates the case following a previous ruling by a U.S. District Court judge.
Wilenchik, a Phoenix trial lawyer appointed by Thomas to the special-prosecutor post, helped engineer what would become one of the most well-publicized abuses of power by Arpaio and Thomas -- the arrest of two newspaper executives for publishing an article about a grand jury that never existed.
In his dissenting opinion, Judge Jay Bybee blasts Arpaio -- and he thinks his two Ninth Circuit colleagues "remarkably" failed to understand why Arpaio shouldn't be immune from litigation.
Bybee asserts that the case should have proceeded against Arpaio, as well as Wilenchik, because "it is more reasonable to infer that Arpaio had acted with intent to violate [Michael Lacey and Jim Larkin's] constitutional rights."
A 1983 court case allows for two situations in which a law officer loses immunity: If the officer is personally involved in the violation, and if a "sufficient causal connection" exists between the officer's actions and the resulting constitutional violation.
Arpaio loses in both tests, Bybee maintains.
The case began after New Times published Arpaio's home address on the Internet in 2004 as part of a story about the sheriff's suspicious real estate purchases.
Arpaio wanted New Times prosecuted, but the then-new county attorney, Thomas, declined. The Sheriff's Office then pushed the Pinal County Attorney to take the case, but Pinal also refused. After months of wrangling, Arpaio finally managed to get Thomas to move forward with a prosecution. Thomas, who knew he had a conflict of interest in the case because New Times had published articles critical of him, appointed Wilenchik as a supposedly independent prosecutor.
Wilenchik and Thomas had something special in store for New Times. Under the auspices of a grand jury that the public later learned never existed, Wilenchik drew up grand jury subpoenas that were monstrous in scope. One subpoena, for example, sought to learn the identities of every person who'd clicked on New Times Web site over a period of years. Lacey and Larkin published details of the over-reaching subpoenas in an October 18, 2007 article.
Arpaio and Thomas blew a fuse upon seeing the article and began plans for an arrest. That night, Lacey and Larkin were arrested at their homes by sheriff's deputies. From a 2008 article about New Times' claim:
Larkin got the worst of it. With his children in the house, he was hauled away in handcuffs in an unmarked car bearing Sonoran plates. The Selective Enforcement Unit even threatened to arrest Larkin's wife when she demanded that they show proper identification. Lacey was collared in front of his girlfriend and taken to the Fourth Avenue Jail. He was released at 4 the next morning.
Though no grand jury had been convened, the offices of Arpaio and Thomas sought a charge of illegally publishing grand jury secrets. Wilenchik also wanted New Times slapped with $90 million in fines.
But in a stunning reversal, Thomas announced in a news conference the next day that whole thing had been screw-up. Naturally, he denied any direct involvement with the arrests.
Arpaio's now-fired chief deputy, Dave Hendershott, signed a written affidavit that he'd ordered the arrests. But evidence presented by New Times alleges that Wilenchik decided to arrest the pair, with Arpaio's blessing, according to the new Ninth Circuit ruling.
"Plaintiffs have adequately alleged the elements of a malicious prosecution," the opinion states.
Apparently Wilenchik not only gave the order, but "acted with malice and lacked probable cause" for the arrests, and that's why he doesn't enjoy immunity in this case, the federal appeals court ruled.
Yet the two affirming justices acknowledge that the facts of the case still are in doubt and that Wilenchik may be able to show that he didn't order the arrests.
Bybee doesn't express the same doubts. In fact, he briefly spells out how New Times' lawyers not only seem to have proved that Wilenchik made the order but that Arpaio was "personally involved." At the least, Bybee writes, Arpaio should have known his actions would lead to the arrests.
"Although Arpaio denied ordering the arrests, Wilenchik 'has publicly claimed the arrests were conducted, authorized, approved, and/or directed by Arpaio and/or his aides," Bybee writes, quoting from statements given in the case. "Further, 'Wilenchik's staff admits that they advised the Sheriff with respect to the arrests.' Finally, 'Wilenchik's former partner, William French...confirmed that Wilenchik did indeed authorize and advise Arpaio to conduct the arrests.'"
In a written statement to New Times, Scott Zwillinger, Wilenchik's lawyer, sticks to the idea that Hendershott ordered the arrests:
While the Ninth Circuit's ruling superficially seems like a rejection of the District Court's order dismissing the claims against Mr. Wilenchik, a more careful review reveals that the Ninth Circuit's Opinion is based almost entirely on the false allegation that Mr. Wilenchik ordered the arrests of Messrs. Lacey and Larkin.
That theory will be tested, anyway, now that the Ninth Circuit has allowed the New Times case to proceed.
"The feds may not be able to figure out what's wrong in Maricopa County, but its obvious that it stinks at the top," Lacey says. "Jim Larkin and I are gratified that the Ninth Circuit recognized that you don't silence journalists by locking them up."
Arpaio and Thomas, meanwhile, can't exactly breathe easy. Arpaio's still under federal investigation for abuse of power and civil rights violations, and Andrew Thomas may lose his law license after a disciplinary hearing before the State Bar this fall.