Lacey v. Maricopa Cnty.

Decision Date29 August 2012
Docket NumberNo. 09-15806,09-15806
Citation693 F.3d 896
PartiesMichael LACEY; Jim Larkin; Phoenix New Times, LLC, Plaintiffs-Appellants, v. MARICOPA COUNTY, a public entity, Joseph Arpaio, Sheriff, and Ava Arpaio, husband and wife; Dennis Wilenchik and Becky Bartness, husband and wife; John Does I-X; Jane Does I-X; Black Corporations, I-V; and White Partnerships, I-V, Defendants-Appellees. Michael Lacey; Jim Larkin; Phoenix New Times, LLC, Plaintiffs-Appellees, v. Joseph M. Arpaio, Sheriff and husband; Ava Arpaio, wife; John Does I-X; Jane Does I-X; Black Corporations, I-V; White Partnerships, I-V; Maricopa County Attorney's Office, a public entity, Defendants, and Dennis Wilenchik; Becky Bartness, wife, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder, Harry Pregerson, Stephen Reinhardt, William A. Fletcher, Raymond C. Fisher, Richard C. Tallman, Johnnie B. Rawlinson, Jay S. Bybee, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Bybee; Dissent by Chief Judge Kozinski; Dissent by Judge Tallman


John T. White, Stinson Morrison Hecker LLP, Phoenix, Ari- zona; Michael J. Meehan (argued), Law Office of Michael Meehan, Tucson, Arizona, for the appellants.

Eileen Dennis Gilbride (argued), Jones, Skelton & Hochuli, P.L.C., Phoenix, Arizona, for appellees Joseph Arpaio and Ava Arpaio.

Timothy J. Casey (argued), Schmitt, Schneck, Smyth & Her- rod, P.C., Phoenix, Arizona, for appellees Andrew Thomas, the Maricopa County Attorney's Office, and Maricopa County.

Laura A. Freeman, Zwillinger Greek Zwillinger & Knecht PC, Phoenix, Arizona; Timothy J. Casey, Schmitt, Schneck, Smyth & Herrod, P.C., Phoenix, Arizona, for appellees-cross-appellants Dennis Wilenchik and Becky Bartness.


BYBEE, Circuit Judge:

This § 1983 case concerns allegations of unlawful conduct by officials in the Maricopa County Sheriff's Office ("MCSO") and the Maricopa County Attorney's Office ("MCAO"), conduct which culminated in the late-night arrests of Michael Lacey and Jim Larkin, owners of the Phoenix New Times, LLC. Lacey, Larkin, and the New Times (collectively, "Lacey") sued Sheriff Joseph Arpaio, head of the MCSO; County Attorney Andrew Thomas, head of the MCAO; former Independent Special Deputy Maricopa County Attorney Dennis Wilenchik; and Maricopa County (collectively, "defendants") under numerous federal and state causes of action. The district court dismissed all federal claims, and remanded all state law claims back to the Arizona courts. We affirm in part and reverse in part, finding that Lacey adequately alleged several causes of action for which the defendants are not entitled to immunity. We remand for further proceedings.


For purposes of this appeal, we must accept the factual allegations in the Lacey complaint1 as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Some of the parties to this litigation are well known to the public, and the acts alleged here have been splayed across newspapers in Arizona. As we discuss the "facts" of this case, we remind the parties and other interested persons that, because we remand this case to the district court, both sides will have an opportunity to prove or contest the "facts" alleged in the complaint and set forth in this opinion.

A. Background Facts

The Phoenix New Times ("New Times") is a small, free weekly newspaper in Arizona. According to its website, the New Times was formed in 1970 to "ke[ep] the Valley of the Sun's feet to the fire." About Us, Phoenix New Times, (last visited Feb. 22, 2012). It brags that its "[h]ard-hitting investigative reports on everything from the misadventures of Sheriff Joe Arpaio to the state's troubled juvenile justice system have earned the paper a well-deserved reputation for journalistic fearlessness." Id. The New Times is a part of the Village Voice Media network. FAC ¶ 24.

The New Times has been publishing articles critical of Sheriff Arpaio — known as "America's toughest sheriff," see Joe Arpaio with Len Sherman, America's Toughest Sheriff: How We Can Win the War Against Crime (1996) — since the 1990s. Id. ¶ 33. On July 1, 2004, the New Times published "Sheriff Joe's Real Estate Game," authored by New Times reporter John Dougherty, which questioned Arpaio's commercial real estate transactions, including how he could have invested more than $690,000 in cash in commercial real estate on a modest state salary and federal pension. Id. ¶ 34 & n. 1. The New Times explained that Arpaio had used a little-known Arizona statute to redact much of the information about his commercial real estate holdings from the County Recorder's public records, allegedly in response to death threats. Id. ¶¶ 35-36. A week later, in a July 8, 2004 New Times article by Dougherty entitled "Stick it to 'Em," the paper again questioned Arpaio's redaction of personal information from public records, pointing out that Arpaio's home address was available from other websites; at the end of the article, the paper published Arpaio's home address. Id. ¶¶ 34 n. 1, 37.

Arpaio contemplated prosecuting his critics at the New Times under an Arizona statute prohibiting the dissemination of personal information on the Internet if disseminating it "pose[s] an imminent and serious threat" to a public law enforcement official or his family and that threat is reasonably apparent to the person publishing it online.2 Id. ¶ 39. Arpaio did notraise the issue with then-Maricopa County Attorney Rick Romley at the time of publication, believing that Romley would not prosecute. Id. ¶ 43 & n. 2. Instead, Arpaio waited another seven months, until February 2005, when he met with the new County Attorney, Andrew Thomas, and discussed his desire to prosecute those at the New Times. Id. ¶¶ 43 & n. 2, 51. Thomas's staff investigated the matter but had concerns and did not immediately pursue prosecution. Id. ¶ 51.

Finally, in April 2005, ten months after the articles first appeared, Arpaio requested an investigation. Id. ¶ 52. The MCAO conducted a formal evaluation in May 2005 and prepared an "Incident Review Memo"; it summarized the weaknesses of the case, including that Arpaio significantly delayed in reporting the incident, there was no solid evidence that Arpaio feared for his safety, and Arpaio's personal information was already publicly available. Id. ¶ 53. The memorandum also noted that Arpaio was demanding that charges be filed and that if no charges were filed, there would be "problems" between the MCSO and the MCAO. Id. ¶ 54. On June 20, 2005, an investigator for the MCAO submitted a supplemental report, finding that numerous public documents contained Arpaio's personal information and noting that Arpaio had waited ten months to request a prosecution and chose not to report it to any prosecuting agency other than the MCAO under Thomas. Id. ¶ 50. In August 2005, the MCAO Incident Review Board voted not to prosecute the New Times. Id. ¶ 55.

By this time, the New Times was also running articles critical of Thomas, and Thomas determined that he could no longer pursue the case against the New Times due to a conflict of interest. Id. ¶¶ 56-57. He referred the case to Robert Carter Olson of the Pinal County Attorney's Office ("PCAO"). Id. ¶ 57; id. Ex. 1, at 1. Arpaio and the MCSO immediately pressured that office to prosecute, sending letters to the PCAO and requesting meetings by phone and in person. Id. ¶¶ 58-59. Olson, however, was unwilling to comply because he was concerned that there were First Amendment implications and insufficient evidence of an imminent threat to Arpaio. Id. ¶ 58.

In response to a November 15, 2005 meeting in which Olson shared these concerns, the Sheriff's Director of Legal Affairs, Ron Lebowitz, sent a strongly worded memorandum ("Lebowitz Memorandum") to the PCAO, dated November 28, to leave no issue "unresolved." Id. Ex. 1, at 1.3 In it, Lebowitz explained why the New Times was being singled out for prosecution, even though other organizations had also published Arpaio's address through their websites:

Unlike the New Times web cite [sic], the three (3) other web cites raised by others as examples are neutral. In other words, none of these other web cites are or have ever been historically anti-Arpaio, especially in the consistent and invariable way that New Times has been since 1993. None of the other web cites have openly revealed the intent or purpose to destroy the Sheriff's career as an elected official, using all the vigor it could muster.[ ]None of the other web cites, historically, have resorted to writing articles against the Sheriff, using language that is inflammatory, insulting, vituperative, and the like — all of which having the effect of attracting those of the lunatic fringe who, for reasons of their own, view themselves as the Sheriff's sworn enemies and make it a practice to replicate New Times anti-Arpaio articles on web cites of their own or otherwise generally keep in touch with New Times as anti-Arpaio true believers.

Id. Ex. 1, at 8-9.

When Olson did not respond with action, Lebowitz and Arpaio increased the pressure. Olson proposed that the newspaper simply remove Arpaio's address from the website as a compromise, but Arpaio found this proposal "intolerable." Id. ¶ 61. Lebowitz wrote several more memoranda to the PCAO and ultimately gave it a 10-day deadline of May 23, 2006 by which to take action on the case. Id. ¶ 63. When that deadline passed, he wrote to the PCAO again and stated: "The Sheriff demands action and action right now." Id. Despite these demands, the PCAO never initiated a prosecution. Id. ¶ 60. Olson left in 2007, and the new Pinal County Attorney returned the case to the MCAO. Id. ¶ 65.

Because Thomas had already announced his own conflict of interest in prosecuting the case, he and Arpaio decided that Thomas should...

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