New Times Wins Appeal; Lawsuit Against Joe Arpaio Et Al to Be Heard by Full Ninth U.S. Circuit Court of Appeals

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www.northersun.com

The Ninth U.S. Circuit Court of Appeals ruled today that it will re-hear New Times' lawsuit against Maricopa County Sheriff Joe Arpaio and others over the 2007 arrest of its founders after our newspaper published an article about a grand jury that -- the public would later learn -- didn't actually exist. 

In June, a three-member panel of the court upheld a lower court's ruling that the lawsuit could proceed. However, it couldn't target Arpaio and his former political comrade, disgraced former County Attorney Andrew Thomas, because their gigs as public officials granted them immunity from this sort of litigation.

See our story on the previous ruling here.

New Times appealed the ruling, requesting that the full court hear the case -- and we won. 

The Ninth Circuit ruled today that the full court -- not just a three-member panel -- can hear the case. The court also ruled that "the three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."

The lawsuit stems from the 2007 arrests of New Times founders Jim Larkin and Michael Lacey after they wrote an article about abusive grand jury subpoenaes seeking information about New Times editors, writers, and readers. 

The whole matter started when Arpaio became angry over our earlier publishing his home address online in an article (which can be seen here) about the sheriff's shady real estate purchases. Publishing home addresses of law enforcement officials on the Internet violates an arcane Arizona law while publishing them in print, on billboards, or saying them on TV is not. 

In response, Arpaio attempted to get Thomas to prosecute New Times -- a request he initially declined.

After attempting to get the Pinal County Attorney's Office to prosecute the case -- again to no avail -- Arpaio persuaded Thomas to move forward with it, although Thomas removed himself from the matter, citing a conflict of interest because of articles New Times had published painting him as an unsavory character.

So Thomas appointed supposedly "independent" prosecutor Dennis Wilenchick (whom Thomas had worked for before becoming county attorney) to drum up charges, which he did.

Wilenchick concocted absurdly broad grand jury subpoenas. For example, they called for New Times to turn over to prosecutors the identities of every person who'd clicked on stories about Arpaio on the New Times Web site over a period of years. The grand jury for which these subpoenas were intended never actually existed, as the public learned after New Times revealed its faux-demands in an article that can be seen here.

After revealing the secret demands of a non-existent grand jury, Arpaio had Lacey and Larkin dragged out of their homes and thrown in jail. Larkin was released hours later, and Lacey was let go the next morning.

He was met by a throng of reporters as he left the Fourth Avenue Jail, and the story of two newspapermen arrested for writing and publishing a story about the abusive behavior of public officials went natonal. 


From a 2008 New Times article about the arrests:

Larkin got the worst of it. With his children in the house, he was hauled away in handcuffs in an unmarked car bearing Sonoran plates. The Selective Enforcement Unit even threatened to arrest Larkin's wife when she demanded that they show proper identification. Lacey was collared in front of his girlfriend and taken to the Fourth Avenue Jail. He was released at 4 the next morning.

The two were to be charged with illegally publishing grand jury secrets. Wilenchik also wanted New Times slapped with $90 million in fines.

But feeling the pressure of a national outcry over the arrests, Thomas -- who now faces disbarment for other prosecutorial misdeeds (attempting to prosecute county officials and judges who opposed him and his pal Arpaio) -- held a press conference to announce that the arrests of Lacey and Larkin had been a mistake and that the case against New Times would be dropped.

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New Times founders Jim Larkin (left) and Michael Lacey.
Thomas and Arpaio then attempted to distance themselves from their attempt to silence the Fourth Estate by pinning the decision to have Lacey and Larkin arrested on Wilienchik and Arpaio's now-shamed former chief deputy, Dave Hendershott.

Although the previous ruling found that Arpaio and Thomas enjoyed immunity from litigation, the dissenting judge in the opinion disagreed.

"Although Arpaio denied ordering the arrests, Wilenchik has publicly claimed the arrests were conducted, authorized, approved, and/or directed by Arpaio and/or his aides," Judge Jay Bybee writes in the opinion, quoting from statements given in the case. "Further, Wilenchik's staff admits that they advised the Sheriff with respect to the arrests. Finally, Wilenchik's former partner, William French...confirmed that Wilenchik did indeed authorize and advise Arpaio to conduct the arrests."

See the entire June ruling here.

The case is scheduled to be heard by the entire Ninth Circuit next month.



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31 comments
Sandy
Sandy

"New Times Wins Appeal; Lawsuit Against Joe Arpaio Et Al to Be Heard by Full Ninth U.S. Circuit Court of Appeals". How does that equate to winning an appeal. It just means it will be heard, not that you win. Dunce.

Former Republican
Former Republican

Let us know when it will be heard at the 9th Circuit, will plan to attend.

Mistalee
Mistalee

This Arpayo miscreant deserves a fair trial followed by a first-class hanging! Somebody fetch a rope.

Carmen
Carmen

Wait, what?

"The two were to be charged with illegally publishing grand jury secrets."What grand jury secrets? The secret was, there was no grand jury! I am kind of amused by this. Well done, NewTimes! It's about time that weirdo sheriff got reined in!

Susan Rastella
Susan Rastella

This is a case that will be taught in both Law Schools and Schools of Communication for years to come.  Keep at it "New Times", Gestapo methods should not be used here in America and those that try should be penalized.  It's just unfortunate that Joe can't be held accountable.

WhoKnows
WhoKnows

Hopefully the fact that Thomas got debarred will be presented in this case.  They just have to wait for the disbarment to be official in Feb!

Coz
Coz

Well done....Go after these pricks with everything you have !

F9F Panther
F9F Panther

If the 9th circuit finds the arrest of New Times personnel was based on and approved using a non-exisitant grand jury, does that mean the MCSO Sheriff can be held liable in the pending lawsuit on a personal basis. I would love to see the Sheriff's mis-gotten gains liquidated to pay the judgement instead of the taxpayers.

Jason
Jason

This is the best news I've heard since Pearce was tossed out on his ass on Tuesday.

The Flaccid Fool and Candy Andy were, and continue to be, useless, corrupt, bumbling idiots who attempted to muzzle the 1st Amendment rights of this newspaper for their own self-serving agenda.

Keep the heat on these two mentally sick miscreants, NT, and don't let up until you win!!

repthugslayer
repthugslayer

I remember the morning after Lacey and Larkin were arrested....chilling

Congratulations to Lacey and Larkin! Keep exposing the pigs!

Tina
Tina

The wheels of justice turn slowly, but New Times'  tenacity deserves credit, really admirable.  A review of what Larkin & family experienced (him handcuffed, the threat to wife, & unmarked car with Sonoran plates) is positively chilling. 

QuietlySnickering
QuietlySnickering

James,

Is Phoenix New Times still asking for $15,000,000.00 from the county?  That was the number listed in the notice of claims against the county.

If so, I do find that slightly amusing as much as Wilcox, Donahoe, and Stapley have been criticized for their lawsuits by both the paper and readers here.

Not Surprised
Not Surprised

WAY TO GO!  I'm glad you're getting your day in court!

Jason
Jason

A 3 judge panel from the 9th Circuit U.S. Court of Appeals originally heard this issue and ruled that the MCSO shurf and Candy Andy were immune from this prosecution.

NT appealed the 3 judge panel's decision, with the help of their highly skilled lawyer, Mike Manning.

The 9th Circuit U.S. Court of Appeals ruled IN FAVOR of Manning and NT, awarding them a chance to have the full 9th Circuit U.S. Court of Appeals hear the case and decide if Candy Andy and the MCSO shurf deserve immunity from this lawsuit.

Dunce.

Coz
Coz

I'll be happy to bring one.

Coz
Coz

One can only hope.

Eleanor
Eleanor

Jason, there is so much of this type of censorship that happens in Arizona.  Why do you think the Arizona Republic isn't the best place to get your news....Randy Lovely is under the thumb of so many upper LE and many elected officials.

shadeaux14
shadeaux14

If you don't like these lawsuits, quit electing miscreants who think that they are either above the law, or are the law.

Sandy
Sandy

Fuck you faggot smartass

Jason
Jason

Wouldn't making the MCSO shurf do the perp-walk on live TV be much more fun?

Jason
Jason

I think Judge Wake already ruled on this issue. The MCSO shurf and Candy Andy are not to be awarded any immunity from this lawsuit.

Jason
Jason

You make a good point.

The Arizona Republic, while it has many fine reporters, is usually too general and broad in their articles. NT is usually alot more thorough and detailed.

Coz
Coz

They can't help electing corrupt miscreants, stupid is what stupid does.

Morton
Morton

Sandy, There is always one prissy little fag in the liberal bunch, and it's usually Jason.

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