Appeals Court Says Journos Can Pursue Civil Rights Suit Against Prosecutor

Image by Getty Images via @daylifeIn Michael Lacey, Jim Larkin & Phoenix New Times LLC v. Maricopa County, Joseph Arpaio et al. (Case No. 09-15703), the U.S. Circuit Court of Appeals for the Ninth Circuit last week said qualified immunity does not shield special prosecutor Dennis Wilenchik from civil rights and malicious prosecution claims by publishers of an alternative Arizona newspaper.

The Ninth Circuit upheld the immunity claims of Sheriff Joseph Arpaio and then-Maricopa County Attorney Andrew Thomas, but reversed the trial court's dismissal of  the plaintiffs' First Amendment and Fourth Amendment violation claims against Wilenchik, who pursued subpoenas against the plaintiffs without convening a grand jury. As alleged in the plaintiffs' complaint, when The Phoenix New Times published the contents of the subpoenas they were contesting in court, Wilenchik ordered the publishers' arrest under a law that prohibits publishing information concerning grand jury proceedings.

Lacey and Larkin were released the day after their arrest and the charges were dropped, prompting the plaintiffs to allege that the special prosecutor was trying to chill free speech and knew no crime had been committed. Underlying the lawsuit was a probe by the plaintiffs in 2004 of commercial land deals allegedly involving Sheriff Arpaio.