A divided federal court reinstated a lawsuit Wednesday against Maricopa County Sheriff Joe Arpaio by two Phoenix New Times editors, who say they were targeted for late-night arrests because of stories critical of the sheriff.
New Times owners Michael Lacey and Jim Larkin said the 2007 arrests by the sheriff’s “Selective Enforcement Unit” violated their constitutional rights to free speech and against false arrest.
A previous court had said Arpaio could not be sued. But the full 9th U.S. Circuit Court of Appeals reversed that ruling Wednesday, saying Arpaio and Phoenix attorney Dennis Wilenchik, a special prosecutor appointed to investigate the editors, did not enjoy immunity from being sued for their actions.
The court also said Maricopa County could be sued in the incident.
But it said that former Maricopa County Attorney Andrew Thomas could not be targeted in this suit because he enjoyed absolute immunity in his role as a county official.
Attorneys on both sides of the case could either not be reached for comment Wednesday or they declined comment, saying they needed more time to go over the 72-page ruling.
“We’re trying to determine what would be the legal ramifications,” said Cari Gerchick, a Maricopa County spokeswoman, adding in a later email that the office would not “have a substantive response for at least a few days.”
The long-running feud between the sheriff and the paper was sparked by the paper’s decision in 2004 to publish Arpaio’s address after he removed it from public documents regarding his real estate holdings. According to court documents, Arpaio said it was to protect his family, but the newspaper showed that the information was readily available on other public documents.
That began a multiyear effort by Arpaio to go after the paper under a state law prohibiting the publication of a law enforcement official’s personal information if it poses a threat to him or his family.
Despite pressing the issue with prosecutors in Maricopa and Pinal counties, Arpaio could not get them to bring charges. Finally, in June 2007 Arpaio and Thomas brought in Wilenchik, a former associate of Thomas’, to act as special prosecutor in the case.
Wilenchik submitted two subpoenas demanding documents and confidential sources from the New Times, even though he never presented the subpoenas to a grand jury.
In October 2007, the paper published parts of the subpoenas. That led to the the dark-of-night arrests of Lacey and Larkin at their homes on charges of violating grand jury secrecy.
Thomas fired Wilenchik shortly after, saying the arrests were the “wrong way” to bring a prosecution, according to the court opinion.
Lacey and Larkin filed suit in April 2008, claiming retaliation, false arrest, selective prosecution and conspiracy.
In June 2011, a three-judge panel of the appeals court said Arpaio, Wilenchik and Thomas had immunity on most charges, but the full court reversed much of that decision Wednesday.
It did uphold the panel’s decision to toss out malicious prosecution claims against all the defendants, noting that Lacey and Larkin had not been prosecuted.
The court said immunity was called for in Thomas’ case, since prosecutors would be unable to do their jobs if they had to worry about being sued over their actions later.
In a sharply worded dissent, Chief Judge Alex Kozinski said that Thomas should not enjoy immunity for appointing a special prosecutor who Kozinski called a “cat’s paw” for the prosecutor’s office.
“There is absolutely no justification for giving Thomas absolute immunity for the non-prosecutorial and self-serving act of appointing Wilenchik to do his dirty work,” Kozinski wrote.
In a separate dissent, Judge Richard C. Tallman said qualified immunity should have been granted to all the parties, noting that public officials must have “breathing room to make reasonable but mistaken judgments about open legal questions” in the course of their business. He was joined by two other judges in his dissent.