An 11-member panel of judges from the U.S. Court of Appeals for the Ninth Circuit had some tough questions today for Maricopa County Sheriff Joe Arpaio's lawyer about why "America's Toughest Sheriff" should be exempt from a lawsuit claiming he violated an Arizona newspaper's First Amendment rights.
The hearing in San Francisco focused on the claims of Village Voice Media executives Michael Lacey and Jim Larkin -- as well as VVM publication the Phoenix New Times -- that Arpaio, former Maricopa County Attorney Andrew Thomas, and special prosecutor Dennis Wilenchik tried to harass and silence New Times journalists because of their negative coverage of the Sheriff's Office. (Disclosure: VVM owns SF Weekly.)
That pattern of alleged harassment culminated with the nighttime arrests of Lacey and Larkin by sheriff's deputies in unmarked cars in 2007, on charges that were dropped within 24 hours. Arpaio's lawyers have claimed that he was not directly involved in the arrests -- which they say were overseen by Wilenchik -- and that the sheriff should thus enjoy immunity from prosecution as a government official.
Today, however, lawyer Eileen GilBride, appearing on behalf of Arpaio, was pummeled with questions about the logic behind that defense, since the New Times asserts in its complaint that Arpaio was intimately involved for years with efforts to retaliate against the newspaper for its journalism.
"'I'm a sheriff. I've got guns, I've got deputies, I've got great political power ... I'm going to make you really, really sorry if you don't do what I want,'" said Chief Judge Alex Kozinski, outlining the scenario laid out in the lawsuit -- namely, that Arpaio pressured Thomas and Wilenchik to investigate and arrest Lacey and Larkin. "Why isn't that enough?"
Kozinski also delivered a tongue-lashing to GilBride for her lack of preparation for the hearing, as the lawyer let slip at one point that she had not brought briefs in the case to court with her and was apparently unaware that one of the current issues in the case is whether Arpaio was engaged in a conspiracy against Lacey, Larkin, and the New Times.
"Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," the chief judge said.
According to the lawsuit, Arpaio was angered after the New Times published his home address -- which was publicly available online -- in a 2004 story about his real-estate investments. He then sought to have journalists at the newspaper prosecuted under a never-before-used Arizona law that makes it a crime to publish personal information about police online.
Two elected county attorneys declined to do so, but Arpaio eventually convinced Maricopa County Attorney Andrew Thomas, a political ally, to go after the newspaper. Thomas appointed former law partner Dennis Wilenchik as a special prosecutor to investigate the case.
When Wilenchik issued grand-jury subpoenas -- later deemed to be illegal -- to the New Times in 2007, Lacey and Larkin published the contents of the subpoenas. Sheriff's deputies then arrested them for an alleged violation of grand-jury secrecy.
"Plaintiffs are hiding behind the First Amendment in order to get by knowingly, purposefully violating the law," GilBride said today.
Not all the judges seemed inclined to agree. At one point, Judge Harry Pregerson even suggested that the facts of the case, as alleged in the lawsuit, could merit criminal prosecution.
Asked Pregerson, referring to a Civil War-era federal law against conspiring to violate U.S. citizens' constitutional rights, "Does Section 241 of the Civil Rights Act apply?"
"Indeed, we do have... a conspiracy," said Michael Meehan, the lawyer for Lacey, Larkin, and the New Times. "The three defendants did act together, and their goal was to violate the First Amendment rights of New Times."
"Maybe we need a special prosecutor," Kozinski joked, prompting laughter in the courtroom.
"I don't think it's funny," Pregerson said.
In addition to the claims against Arpaio, the appellate court also looked at the question of whether Thomas should enjoy immunity from litigation because of his role as a county prosecutor. (A three-judge panel of the appeals court already ruled 2-1 that claims against Wilenchik could proceed, but granted immunity to Thomas and Arpaio. New Times appealed, and the circuit court, in a rare move, agreed to rehear the case en banc.)
On this point, some of the judges seemed skeptical of claims that Thomas should be vulnerable to litigation, since he had designated Wilenchik as a special prosecutor to handle the investigation of the newspaper.
"Why is that decision not subject to protection under the doctrine of absolute immunity [for prosecutors]?" asked Judge Richard Tallman.
Meehan responded that Thomas had chosen a professional associate he knew would act at his direction and that of Arpaio.
"Had he recused [himself] and appointed an entirely impartial and independent prosecutor, this case would have taken a completely different course," Meehan said.
If the appeals court rules in favor of the New Times, the case against Arpaio, Thomas, and Wilenchik could proceed to trial in federal court in Arizona, where U.S. District Court Judge Susan Bolton initially rejected the lawsuit.
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