In June, a three-member panel of the court upheld a lower court's ruling that the lawsuit could proceed. However, it couldn't target Arpaio and his former political comrade, disgraced former County Attorney Andrew Thomas, because their gigs as public officials granted them immunity from this sort of litigation.
See our story on the previous ruling here.
New Times appealed the ruling, requesting that the full court hear the case -- and we won.
The Ninth Circuit ruled today that the full court -- not just a three-member panel -- can hear the case. The court also ruled that "the three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."
The lawsuit stems from the 2007 arrests of New Times founders Jim Larkin and Michael Lacey after they wrote an article about abusive grand jury subpoenaes seeking information about New Times editors, writers, and readers.
The whole matter started when Arpaio became angry over our earlier publishing his home address online in an article (which can be seen here) about the sheriff's shady real estate purchases. Publishing home addresses of law enforcement officials on the Internet violates an arcane Arizona law while publishing them in print, on billboards, or saying them on TV is not.
In response, Arpaio attempted to get Thomas to prosecute New Times -- a request he initially declined.
After attempting to get the Pinal County Attorney's Office to prosecute the case -- again to no avail -- Arpaio persuaded Thomas to move forward with it, although Thomas removed himself from the matter, citing a conflict of interest because of articles New Times had published painting him as an unsavory character.
So Thomas appointed supposedly "independent" prosecutor Dennis Wilenchick (whom Thomas had worked for before becoming county attorney) to drum up charges, which he did.
Wilenchick concocted absurdly broad grand jury subpoenas. For example, they called for New Times to turn over to prosecutors the identities of every person who'd clicked on stories about Arpaio on the New Times Web site over a period of years. The grand jury for which these subpoenas were intended never actually existed, as the public learned after New Times revealed its faux-demands in an article that can be seen here.
After revealing the secret demands of a non-existent grand jury, Arpaio had Lacey and Larkin dragged out of their homes and thrown in jail. Larkin was released hours later, and Lacey was let go the next morning.
He was met by a throng of reporters as he left the Fourth Avenue Jail, and the story of two newspapermen arrested for writing and publishing a story about the abusive behavior of public officials went natonal.
From a 2008 New Times article about the arrests:
The two were to be charged with illegally publishing grand jury secrets. Wilenchik also wanted New Times slapped with $90 million in fines.
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.
But feeling the pressure of a national outcry over the arrests, Thomas -- who now faces disbarment for other prosecutorial misdeeds (attempting to prosecute county officials and judges who opposed him and his pal Arpaio) -- held a press conference to announce that the arrests of Lacey and Larkin had been a mistake and that the case against New Times would be dropped.
Thomas and Arpaio then attempted to distance themselves from their attempt to silence the Fourth Estate by pinning the decision to have Lacey and Larkin arrested on Wilienchik and Arpaio's now-shamed former chief deputy, Dave Hendershott.
Although the previous ruling found that Arpaio and Thomas enjoyed immunity from litigation, the dissenting judge in the opinion disagreed.
"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," Judge Jay Bybee writes in the opinion, 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."
See the entire June ruling here.
The case is scheduled to be heard by the entire Ninth Circuit next month.