The publishers of a Phoenix weekly paper can sue a special county prosecutor who arranged to have them arrested, a federal appellate court ruled Thursday.
In a unanimous decision, the 9th U.S. Circuit Court of Appeals rejected claims by Dennis Wilenchik that he was entitled to immunity. The judges said there was sufficient evidence to allow Michael Lacey and Jim Larkin pursue their claims that he infringed on their constitutional rights.
The court, however, refused to let the pair pursue Sheriff Joe Arpaio and former County Attorney Andrew Thomas personally for their role in the arrest. But they did say that Lacey and Larkin can sue Maricopa County as their employer.
Michael Manning, attorney for the two publishers, said the decision of the appellate judges to immunize Thomas is no surprise, given how the law protects certain public officials for their acts. Manning also conceded that the evidence directly linking Arpaio to the order to arrest the pair was weak.
"Arpaio's office is awfully good about keeping his fingerprints off of anything that he mishandles,'' he said.
But Scott Zwillinger, Wilenchik's attorney, said while the ruling allows the case to continue, he still believes his client will be exonerated.
Zwillinger said the lawsuit is "based almost entirely on the false allegation'' that Wilenchik ordered the arrests. He said that David Henderschott, Arpaio's chief deputy, said in an affidavit that he alone made that decision.
But Judge Jay Bybee, in a separate opinion saying he thought Arpaio also should be subject to suit, said that Wilenchik's former law partner confirmed that Wilenchik authorized and advised Arpaio to make the arrests.
The case traces its roots to a story the New Times did in 2004 about commercial land transactions involving the sheriff. It noted that Arpaio had removed his personal information from various public records that detailed his land holdings.
Arpaio subsequently said he excised that information because he had received death threats.
In a follow-up article, though, the paper pointed out that various government and political web sites 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 web sites.
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 Judge Timothy Tymkovich, writing for the appellate court, noted that the sheriff waited until after Thomas, a political ally had been elected as county attorney.
Thomas initially refused to prosecute.
After New Times began to investigate Thomas, he farmed the case out to Pinal County which also declined prosecution. Thomas then named Wilenchik, a former law partner, as a special prosecutor to independently look at the issue.
In 2007, 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.
Tymkovich, said that occurred 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, 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.
Tymkovich noted that the lawsuit says because Wilenchik did not follow the proper procedures in issuing a grand jury subpoena, he knew it was not protect material and therefore had no reason to believe the publishers or the paper violated the grand jury statute.
He 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.
But Tymkovich said Wilenchik still might be able to prove that he never advised police or order the arrests.