WASHINGTON - A federal appeals court Thursday said a Maricopa County special prosecutor can be sued by two Phoenix New Times editors who said they were arrested after running stories criticizing Sheriff Joe Arpaio and other county officials.
A three-judge panel of the 9th U.S. Circuit Court of Appeals said Dennis Wilenchik did not enjoy immunity for his actions, which the editors said violated their free-speech rights and protection against unreasonable search and seizure.
The appeals court also restored Maricopa County as a party to the suit. But the judges upheld a lower-court ruling that Arpaio and then-County Attorney Andrew Thomas are immune from prosecution.
“I find it incredible that Arpaio and Thomas can be removed from this, since they orchestrated it,” said New Times Editor Rick Barrs. “No one could be more deserving of this punishment.”
In a sharply worded dissent, Judge Jay S. Bybee said the majority did not go far enough. He said Arpaio should have to answer the charges of a “sordid tale of abuse of public office” with “detailed allegations of reprehensible conduct.”
Wilenchik’s attorney, Scott Zwillinger, noted that the ruling only allows the case to proceed. He said in an email that the case is based “entirely on the false allegation” that his client was responsible for the arrests and it will ultimately fail.
Calls to Arpaio, county officials and other attorneys were not returned by press time Thursday.
The case began in 2004, when the New Times printed Arpaio’s home address to show that it was readily available to the public. The story was a response to Arpaio’s claim that he had to take his name off public records to protect his personal safety.
Almost a year later, Arpaio asked the then-newly elected Thomas to investigate Michael Lacey and Jim Larkin under a state law that prohibits Web dissemination of a law enforcement official’s personal information.
Thomas’ staff decided the case was weak — about the same time that the New Times began to publish articles critical of Thomas himself. Recognizing a conflict of interest, the court said Thomas referred the case to Pinal County attorneys for investigation. They declined to pursue it and two years later handed the case back to Maricopa County.
Thomas then tapped Wilenchik, his former law partner, as a special prosecutor in June 2007.
A month later, Wilenchik issued two subpoenas in the case, but never presented the subpoenas to a grand jury, court documents say. When the New Times published an article criticizing the investigation, Wilenchik issued a third subpoena — also not presented to a grand jury, the court said.
When the paper later published parts of the subpoenas, Wilenchik sought the arrest of Lacey and Larkin for publicizing grand jury proceedings, even though the court said no grand jury had been empaneled.
That night, officers of the County’s Selective Enforcement Unit arrived at the men’s homes in unmarked, black vehicles and arrested the men.
Both Wilenchik and Arpaio denied ordering the arrests. Zwillinger said a former chief deputy has swore in an affidavit that he ordered the arrests.
Larkin and Lacey sued but a federal district court judge said Arpaio, Thomas and Wilenchik were immune from prosecution because they were acting in their official capacities.
The appeals court agreed that Arpaio and Thomas are immune, but said Wilenchik’s actions “raise colorable claims of First and Fourth Amendment violations” and the case against him should proceed. The court also said Wilenchik should face the suit’s claims of malicious prosecution.
The court also said the lower court was wrong to dismiss state law claims against Maricopa County. It remanded the case to the lower court with directions to reconsider the claims against the county.