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Wednesday's Ninth Circuit Court of Appeals en banc hearing did not go well for America's Toughest Sheriff, Joe Arpaio.
Though a three-judge panel dismissed a First Amendment retaliation lawsuit against the Maricopa County sheriff and his cohorts in June based on qualified immunity, the full court seemed to question Arpaio's defense that he should be entitled to immunity because he wasn't directly involved in the arrests at issue in the case.
Sheriff Arpaio and the Phoenix New Times (PNT), the weekly newspaper at the center of this controversy, have a strained relationship. In 2004, the PNT published an article questioning why Arpaio had removed his personal information from a number of public records that detailed his commercial land holdings. Arpaio responded that he didn’t want his address to be available to the public out of concern for safety. The PNT countered that government and political websites included Arpaio’s address, and proved this by publishing his address, which it obtained from such websites.
Arpaio later asked Andrew Thomas, the newly-elected county attorney and Arpaio’s political ally, to look into charges against the PNT for violating an Arizona statute that prohibited Internet disseminations of law enforcement officers’ personal information. After three years of legal and political maneuvering, a grand jury and a special prosecutor, Dennis Wilenchik, started investigating the PNT at Arpaio and Thomas’ behest.
Wilenchik’s investigation led to illegal subpoenas, a request for a $90 million fine against the newspaper, and Hollywood-style, unmarked-car, nighttime arrests of two PNT executives, Michael Lacey and Jim Larkin.
Though the charges against the pair were dropped within 24 hours, Lacey and Larkin sued various public officials associated with the case, including Arpaio. The district court and a three-judge panel of the Ninth Circuit Court of Appeals blocked most of the claims from proceeding to trial, including claims against Arpaio for his role in the fiasco.
On Wednesday, Ninth Circuit Chief Judge Alex Kozinski suggested that the case should be allowed to proceed.
Judge Kozinski questioned why Arpaio should receive qualified immunity after asking Thomas and Wilenchik to prosecute the PNT. Kozinski addressed Arpaio’s attorney, saying, “‘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,’ Why isn’t that enough?” reports SF Weekly.
Other comments during the hearing similarly favored the newspaper’s argument that Arpaio was involved in efforts to prosecute the PNT executives.
Our guess after oral arguments? The Ninth Circuit Court of Appeals will reverse the panel decision and allow the Phoenix New Times to proceed with its First Amendment retaliation lawsuit against Sheriff Joe Arpaio.