Arizona Prosecutor Dennis Wilenchik can be sued for bad arrests.
On appeal, the 9th Circuit ruled 2-1 Thursday to uphold the lower court's ruling as to Arpaio and Thomas, but reversed its granting of qualified immunity to Wilenchik on the publishers' First Amendment, Fourth Amendment and malicious prosecution claims. The three-judge appeals panel also directed the District Court to reconsider the plaintiffs' claims against Maricopa County.
"Plaintiffs have alleged sufficient facts at this stage of the litigation to suggest Wilenchik acted with malice and lacked probable cause, and that the arrests violated plaintiffs' clearly established First and Fourth Amendment rights," wrote Judge Timothy Tymkovich, sitting by designation from the 10th Circuit. "Wilenchik is thus not entitled to qualified immunity regarding plaintiffs' malicious prosecution cause of action."
Tymkovich agreed with the District Court that the publishers had failed to show that Arpaio was directly involved in their arrests, however - a conclusion that Judge Jay Bybee attacked in a partial dissent.
"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," Bybee wrote.
"Arpaio used his considerable political clout in an attempt to pressure various prosecutors into charging the Phoenix New Times," Bybee added. "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."
Court Filing:
http://www.ca9.uscourts.gov/datastore/opinions/2011/06/09/09-15703.pdf
Link: http://www.courthousenews.com/2011/06/09/37255.htm