Joe Arpaio's Lawyer Grilled by Ninth Circuit About Why Sheriff Should Remain Exempt from New Times' False-Arrest Lawsuit

Categories: News

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Sheriff Joe Arpaio
Editor's note: This post was written by Peter Jamison, who covered the hearing for us and our sister paper, the SF Weekly:

An 11-member panel of judges from the U.S. Court of Appeals for the Ninth Circuit had 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 New Times' 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 those of 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.

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 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 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 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 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 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.

Arpaio eventually persuaded 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 subpoenas -- later discovered to be from a grand jury that never existed -- to 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, lawyer for Lacey, Larkin, and 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 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 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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14 comments
Hotrod
Hotrod

When cops get caught breaking the law, they ALWAYS retire.......Well Joe?

shadeaux14
shadeaux14

Arpaio is too arrogant to step down and he is that most dangerous of politicians,

One who believes his own BS.

The only hope we have to get rid of him is if the Feds take action HAW HAW HAW or if even more malfeasance becomes known and leads to criminal charges.I'll bet he's got his techies working overtime trying to find, and erase, as much evidence of his crimes as possible.

Wayne Cain
Wayne Cain

Unbelievable stuff! Go New Times! Hope you drag Joe back into the lawsuit, along with Thomas. Thank God, the courts at least kept that scumbag Wilenchik in the suit.

Reggie VV
Reggie VV

Just think, three top officials in Arizona, Brewer, Pearce and Arpaio.  Gosh, what does this make Arizona?  Not Sand Land, but the Land of the Buffooons.  Add Junior Potatoe, the sanctimonious Franks, and the befuddled McCain, geez!  And just remember, these are best we can do?!?!

Philozopher
Philozopher

Ya know if you're going to appear before the U.S. Court of Appeals for the Ninth Circuit you may not want to have a lawyer who is the equivalent of Ted from Scrubs.  Just sayin'

teknik1200
teknik1200

go go go, this insanity must be exposed.

way to go New Times.  Thank you for exposing this hair brained bass awkwards police state mentality that those in power have around here.

Ross
Ross

You can't have a "current issue" in the appeals court that wasn't an issue in the original case.  So what GilBride admitted is that she doesn't know what has been involved, since Day 1.

OnlyinArizona
OnlyinArizona

These "lawyers" representing Arpaio, obviously paid for with COUNTY TAX DOLLARS are about as ignorant as their client Arpaio, it seems.What a deal for the old senile fool....make a mess, leave the cleanup AND the bill for the taxpayers to deal with.

ARPAIO...YOU NEED TO STEP AWAY FROM THE JOB NOW...before you are thrown out on your ass.

OnlyinArizona
OnlyinArizona

Concur.  This calls for a public records request of the billings for this very unprepared, very stupid looking attorney..

Lets get the records and see how much she billed the county for her "legal" services.  And maybe the prep time to attend this hearing in San Fran will give some clues as to why this clueless attorney showed up without her legal files. 

shadeaux14
shadeaux14

Arpaio is too arrogant to step down and he is that most dangerous of politicians,

One who believes his own BS.

The only hope we have to get rid of him is if the Feds take action HAW HAW HAW or if even more malfeasance becomes known and leads to criminal charges.I'll bet he's got his techies working overtime trying to find, and erase, as much evidence of his crimes as possible.

Ross
Ross

They should have hired Anthony Tsontakis.  He did all that work for Olivia Cortes and billed her only $515.  Says so right in her campaign finance report.

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