The publishers of a Phoenix weekly paper are going to get another chance to argue they have a right to sue the sheriff and county attorney for what they say was their wrongful arrest in 2007.
In a brief order late last week, the full 9th U.S. Circuit Court of Appeals agreed to hear the arguments of Michael Lacey and Jim Larkin that Maricopa County Sheriff Joe Arpaio and Andrew Thomas, who had been county attorney, infringed on their constitutional rights.
The order, by itself, does not mean either official ever will have to answer the allegations in court.
But it is unusual for the full court to agree to consider a case once one of its own three-judge panels issues a ruling. And that decision, on a 2-1 basis, was in favor of Arpaio and Thomas.
In that earlier majority order, the judges said both were entitled to immunity. And they concluded that the sheriff's personal involvement in the arrests was "too insubstantial'' to sustain a claim that he had violated the publishers' civil rights.
But attorney Michael Meehan said that ruling was flawed because it focused only on the actual arrests, ignoring everything else the sheriff had done in retaliation against New Times for events that had begun three years earlier, when the paper published his home address. Meehan said the court needs to consider Arpaio's "years-long crusade'' against his clients.
"Without the unconstitutional retaliatory conduct of Sheriff Arpaio, there would have been no bogus grand jury subpoenas, no night-time arrests of journalists on a misdemeanor charge,'' Meehan wrote, and no decision by Thomas to appoint a special prosecutor to investigate the paper.
The case traces its roots to a 2004 New Times story about commercial land transactions involving the sheriff, noting that Arpaio had removed his personal information from various public records that detailed his land holdings. Arpaio said he did that because he had received death threats.
In a follow-up article, though, the paper pointed out that various government and political websites had the sheriff's personal information. And to prove the point, the paper published his home address in both online and print editions, information they said they obtained from those websites.
According to court records, Arpaio considered bringing criminal charges based on a state law which makes it a crime to put the personal information of a police officer online. But the appellate court, in its order earlier this year, noted that the sheriff waited until after Thomas, a political ally, had been elected as county attorney.
Thomas initially refused to prosecute. Recognizing his own potential conflict of interest, he decided to appoint a Phoenix lawyer, Dennis Wilenchik, as special prosecutor. Wilenchik worked with Thomas. He agreed to the appointment, the County approved it, and on June 26, 2007, Wilenchik took over the Phoenix New Times investigation.
As part of his investigation of New Times, Wilenchik prepared grand jury subpoenas of the paper's records, subpoenas that the court later said were not properly issued. Eventually the paper published a story detailing what Wilenchik was asking despite a law which prohibits the publication of the nature or substance of grand jury proceedings. Wilenchik responded by asking a court to hold the paper in contempt, issue warrants for the arrest of the publishers and fine the paper $90 million.
That night, however, without waiting for the court's decision, the publishers alleged that Wilenchik advised sheriff's deputies to send unmarked vehicles to the homes of the two publishers. They were held overnight.
Thomas eventually withdrew Wilenchik's appointment and disavowed involvement in the subpoenas, court proceedings or arrests. The publishers eventually sued but the case was thrown out by a trial judge.
While concluding Thomas had absolute immunity, that was not the case for Wilenchik.
In its earliler ruling, the three-judge panel noted that the lawsuit says because Wilenchik did not follow the proper procedures in issuing a grand jury subpoena, he knew it was not protected material and therefore had no reason to believe the publishers or the paper violated the grand jury statute.
They said that allows Lacey and Larkin to try to prove their charges of false arrest. And the judge said they also can try to make their case that Wilenchik ordered the arrests not because he had probable cause but because he intended to interfere with their First Amendment rights.