Thursday, June 16, 2011

Lacey v. Maricopa County (9th Cir. - June 9, 2011)

Here's a pretty darn good opening salvo in the partial dissent by Judge Bybee:

"This case concerns an investigation initiated by 'America’s toughest sheriff,' Joseph Arpaio, against his political enemies in the local news media. In the words of Arpaio’s own director of legal affairs, Arpaio had targeted the Phoenix New Times because the paper had been 'historically anti-Arpaio.' Arpaio’s excuse for demanding prosecution of the Phoenix New Times was that its decision to post Arpaio’s home address on its website allegedly violated an obscure Arizona statute that prohibits dissemination of a law enforcement officer’s 'personal information,' if doing so would pose an 'imminent and serious threat' to the officer or his family, and such threat is 'reasonably apparent' to the publisher. Ariz. Rev. Stat. § 13-2401(A). Never mind that Arpaio’s address was already publicly available through numerous other websites, including the websites of Maricopa County and the local Republican Party. Despite this and the fact that no one had ever been prosecuted under the statute, Arpaio used his considerable political clout in an attempt to pressure various prosecutors into charging the Phoenix New Times. After years of investigation, two different County Attorneys found no grounds for prosecution and refused to cave into Arpaio’s demands. Undeterred, Arpaio eventually managed to persuade Maricopa County Attorney Andrew Thomas to appoint Dennis Wilenchik as special prosecutor to investigate the Phoenix New Times. When Wilenchik issued subpoenas to the Phoenix New Times, the paper responded by publicizing the content of the subpoenas. Arpaio obliged by ordering the arrest, without a warrant, of Phoenix New Times publishers Michael Lacey and Jim Larkin for violating Arizona’s grand jury secrecy laws. The only problem was that no grand jury had ever been empaneled. Thus, the subpoenas were invalid ab initio.

Accepting the Plaintiffs’ version of the facts—which at this stage of the litigation we must—this is a sordid tale of abuse of public office. Nevertheless, despite the complaint’s detailed allegations of reprehensible conduct, the majority concludes that Arpaio is entitled to qualified immunity on the grounds that Plaintiffs failed to adequately plead that Arpaio was personally involved in the arrests. Since the complaint details Arpaio’s extensive involvement in the alleged violations of Plaintiffs’ clearly established constitutional rights, I respectfully dissent from the majority’s conclusion that Arpaio is entitled to qualified immunity."

Even the majority opinion doesn't like what it sees here, and the dispute is really not about whether Apraio is a good guy or not; everyone seems to agree that he seems utterly uninterested in anyone's rights but his own.  It's instead whether his conduct satisfies the tough test to overcome qualified immunity.  But Judge Bybee has a pretty decent argument that it does.

The majority opinion has some additional details about what Apraio allegedly did.  Really shameful stuff.  Worth a read.  Especially if you're ever thinking about going to Phoenix or being in his jurisdiction.