Joe Arpaio, the sheriff of Arizona’s Maricopa County, must face claims he violated the constitutional rights of the owners of Phoenix New Times, a newspaper that has been critical of him, when they were arrested by his office in 2007.
The owners, Michael Lacey and Jim Larkin, sued in 2008 claiming, based on free speech arguments, that their due process rights were violated. They also argued they were falsely arrested and targeted for selective prosecution.
The U.S. Court of Appeals in San Francisco today rejected a lower court’s decision granting Arpaio qualified immunity on those claims, sending it back for reconsideration. The appeals court agreed with the dismissal of malicious-prosecution and racketeering claims.
“No warrant for Lacey’s or Larkin’s arrest had been issued, and we cannot fathom what exigent circumstances compelled either arrest,” the appeals court wrote.
Lisa Allen, a spokeswoman for Arpaio’s office, said in an e-mail today that the sheriff “is in Tampa at the Republican Convention and is unavailable for comment on this at this time. Upon his return, I’m certain he will review the court’s decision.”
A trial that concluded this month against Arpaio focused on claims by Latinos that their civil rights were violated when they were stopped, detained, questioned or searched by sheriff’s office agents in Maricopa County, which includes Phoenix. No verdict has been issued yet.
The five named plaintiffs in that case claim Arpaio’s deputies discriminated against Latino residents, particularly in traffic stops. The case is backed by the American Civil Liberties Union and the Mexican Legal Defense and Education Fund.
The closing arguments in that case were made Aug. 9 following a seven-day trial in federal court in Phoenix that was heard without a jury. Arpaio’s attorneys said there was “no evidence of discriminatory intent” in any of the traffic stops highlighted in trial testimony.
The case brought by Lacy and Larkin stems from a July 2004 Phoenix New Times article questioning how Arpaio could have invested more than $690,000 in cash in commercial real estate on a state salary and federal pension, according to today’s ruling by an 11-judge panel.
The article examined Arpaio’s redaction of personal information from public records, prompting the sheriff to consider prosecuting the newspaper on grounds that the inquiries and possible disclosures amounted to a threat to a public law enforcement official, according to the ruling.
Dennis Wilenchik, who was appointed independent special deputy Maricopa County attorney, in 2007 issued grand jury subpoenas demanding that Phoenix New Times turn over confidential sources, reporters’ and editors’ notebooks, memos and other documents. Wilenchik issued the subpoenas without ever convening the grand jury, according to the ruling.
New Times published the terms of the subpoenas, questioning Arpaio’s and Wilenchik’s motives in pursuing the investigation, which prompted Wilenchik to ask a judge to hold the New Times in contempt of court and to issue arrest warrants for Lacey and Larkin. That night, before the court ruled, Arpaio’s “Selective Enforcement Unit” arrested Lacey and Larkin at their homes, according to today’s ruling.
“Lacey has adequately alleged that Wilenchik’s primary intent was to silence the New Times’s protected speech, which came in the form of newspaper articles criticizing public officials,” the appeals court wrote today.
The appeals case is Lacey v. Arpaio, 09-15703, U.S. Court of Appeals for the Ninth Circuit (San Francisco). The civil rights case is Melendres v. Arpaio, 07-02513, U.S. District Court, District of Arizona (Phoenix).