Lacey v. Maricopa County
| Citation | 11 Cal. Daily Op. Serv. 7046,649 F.3d 1118,2011 Daily Journal D.A.R. 8479,39 Media L. Rep. 1881 |
| Decision Date | 09 June 2011 |
| Docket Number | Nos. 09–15703,09–15806.,s. 09–15703 |
| Parties | Michael 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,andDennis Wilenchik; Becky Bartness, wife, Defendants–Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
OPINION TEXT STARTS HERE
Michael J. Meehan, Munger Chadwick, P.L.C., Tucson, AZ, (Michael C. Manning, Leslie E. O'Hara, and John T. White, Stinson Morrison Hecker LLP, Phoenix, AZ, on the opening brief) for the plaintiffs/appellants/cross-appellees.Eileen Dennis GilBride (William R. Jones, Jr., with her on the brief), Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, for defendants/appellees/cross-appellants Joseph and Ava Arpaio.Scott H. Zwillinger (Laura A. Freeman with him on the briefs), Zwillinger Greek Zwillinger & Knecht PC, Phoenix, AZ, for defendants/appellees/cross-appellants Dennis Wilenchik and Becky Bartness.Timothy J. Casey (Drew Metcalf with him on the brief), Schmitt, Schneck, Smyth & Herrod, P.C., Phoenix, AZ, for defendants/appellees/cross-appellants Andrew Thomas, The Maricopa County Attorney's Office, and Maricopa County.Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:08–cv–00997–SRB.Before: JAY S. BYBEE, TIMOTHY M. TYMKOVICH,* and N. RANDY SMITH, Circuit Judges.Opinion by Judge TYMKOVICH; Partial Concurrence and Partial Dissent by Judge BYBEE.
This case arose from the controversial late-night arrests and subsequent release of two Phoenix newspaper executives. As a result, Michael Lacey, Jim Larkin, and Phoenix New Times, LLC (Plaintiffs) sued various officials connected with the Maricopa County Attorney's Office and the Sheriff's Office, including the county attorney, the sheriff, and a special prosecutor. They alleged the special prosecutor and possibly others ordered the arrests of Lacey and Larkin at their homes in the middle of the night after The Phoenix New Times newspaper published various articles critical of the officials. They claim the arrests violated their federal and state rights.
The district court dismissed many of the claims on qualified and absolute immunity grounds, and Plaintiffs appeal, contending the district court erred in dismissing their federal claims and in remanding their remaining state claims to state court.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM in part and REVERSE in part. While many of the actions alleged here are protected by either absolute or qualified immunity, the actions of the special prosecutor in arranging Plaintiffs' arrests raise colorable claims of First and Fourth Amendment violations.
For purposes of our discussion we accept the following facts from the complaint as true and in the light most favorable to the Plaintiffs. See Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). Plaintiffs operate an alternative weekly newspaper, The Phoenix New Times, which has for many years published articles and editorials highly critical of Arpaio and his policies.
The particular article that set in motion the events relevant to this litigation was published in 2004 and criticized a series of commercial land transactions involving Arpaio. In particular, the article challenged Arpaio's motives for removing his personal information from a number of public records that detailed his commercial land holdings. After the article, Arpaio justified the removal by claiming he had received death threats and therefore did not want his personal address available to the public. Plaintiffs printed a follow-up article contending Arpaio's explanation was implausible since a number of government and political party websites already contained Arpaio's personal information. To show this, the paper published in both its print and online versions Arpaio's home address, which Plaintiffs claimed they obtained from the government and political websites.
After publication of the second article, Arpaio considered criminal charges against the Plaintiffs because he believed they had violated an Arizona statute that prohibited the dissemination of personal information of law enforcement officers on the world wide web.1 Rather than filing a contemporaneous complaint with the county attorney, however, Arpaio waited until an upcoming election, when Andrew Thomas, a political ally, was elected the new county attorney.
Arpaio met with Thomas immediately after the election to discuss his concerns regarding Plaintiffs, but not until April 2005, ten months after the publication of his personal information and two months after Thomas took office, did he request Thomas to investigate The Phoenix New Times. Thomas's staff reviewed the charges but concluded the case was weak, and in an internal report in August 2005 recommended Thomas decline to prosecute.
By this time, The Phoenix New Times had begun to publish articles critical of Thomas's own “ethical irregularities.” [R., Doc. 4 at ¶ 56.] Recognizing a conflict of interest were he to prosecute the paper, Thomas referred the investigation to a neighboring jurisdiction, the Pinal County Attorney's Office. Arpaio began pressuring Pinal County to prosecute Plaintiffs. Although the sheriff sent several letters strongly urging a prosecution, the Pinal County Attorney's Office took no action for nearly two years. Then, in 2007, it declined to prosecute and returned the matter back to Thomas.
With the case back in Maricopa County, Thomas, still recognizing his own potential conflict of interest, decided to appoint a Phoenix lawyer, Dennis Wilenchik, as special prosecutor. Wilenchik was Thomas's former law partner. He agreed to the appointment, the County approved it, and on June 26, 2007, Wilenchik took over The Phoenix New Times investigation.
In late August 2007, before a grand jury was sworn for the case and as part of his investigation into prosecuting The Phoenix New Times for violating the privacy statute, Wilenchik issued two subpoenas to Plaintiffs to produce information and documents about its operations. Arizona law requires prosecutors either (1) to present subpoenas to a grand jury for approval before issuing them, or (2) if a prosecutor issues a subpoena without receiving prior approval from a grand jury, to report the issuance to a grand jury and to the court within ten days. Ariz. Rev. Stat. § 13–4071(C). Wilenchik did neither.
The subpoenas requested information about a broad variety of subjects—including data about readers, editors, and reporters—related to any story critical of Arpaio. Plaintiffs filed a motion to quash the subpoenas, but in late September, before they had responded to the subpoenas and while their motion was pending, Plaintiffs also published a story critical of Wilenchik's investigation. In response, the very next day, Wilenchik issued a third subpoena seeking documents and information relating to that story. He issued this third subpoena again without adhering to the requirements of Arizona law. Around the time of the third subpoena, Wilenchik also attempted to arrange an ex parte meeting with the state court judge presiding over motions to quash. The judge held a closed hearing on October 11, 2007 and called Wilenchik's attempt “absolutely inappropriate.” [R., Doc. 4 at ¶ 91.]
After this hearing, and weeks after they received the subpoenas, Plaintiffs decided to publish a story that included the subpoenas' demands. Doing so was seemingly in violation of Ariz. Rev. Stat. § 13–2812(A), which prohibits the publication of the nature or substance of grand jury proceedings.2 Plaintiffs do not allege they knew the subpoenas lacked any connection with a grand jury when they published the story exposing them.
The same day, after seeing the publication of the subpoenas, Wilenchik filed a motion in state court for an Order to Show Cause demanding Plaintiffs explain their actions. The motion requested the state court hold The Phoenix New Times in contempt, issue arrest warrants for Plaintiffs and their lawyers, and fine Plaintiffs $90 million for publishing the contents of the subpoenas.
That night, however, without waiting for the court's decision, Wilenchik advised the police to send members of the County's Selective Enforcement Unit in unmarked, black vehicles to the homes of Michael Lacey and Jim Larkin, the publishers of The Phoenix New Times. The police did so and arrested the publishers, who were booked and held in county jail overnight. After a public outcry in response to the arrests, Thomas withdrew Wilenchik's appointment and disavowed involvement in the subpoenas, court proceedings, or arrests. Both Wilenchik and Arpaio have also denied ordering the arrests.
Plaintiffs brought a number of federal and state civil rights claims against Defendants, alleging a conspiracy to violate their rights because of Plaintiffs' stories. The district court initially dismissed the claims against Thomas because he was entitled to absolute immunity, as well as the claims against the Maricopa County Attorney's Office and the Maricopa County Sheriff's Office because it found that, as subdivisions of Maricopa County, they could not be sued; rather, Plaintiffs needed to sue the county itself. The district court dismissed the federal and state claims against...
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