Michael Lacey v. Joseph Arpaio

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL LACEY; JIM LARKIN; 

PHOENIX NEW TIMES, LLC,

Plaintiffs-Appellants, v. MARICOPA COUNTY, a public entity, No. 09-15703 JOSEPH ARPAIO, Sheriff, and AVA ARPAIO, husband and wife; DENNIS  D.C. No. 2:08-cv-00997- WILENCHIK and BECKY BARTNESS, SRB husband and wife; JOHN DOES I-X;

JANE DOES I-X; BLACK

CORPORATIONS, I-V; and WHITE

PARTNERSHIPS, I-V,

Defendants-Appellees. 

10007 10008 LACEY v. MARICOPA COUNTY

MICHAEL LACEY; JIM LARKIN; 

PHOENIX NEW TIMES, LLC,

Plaintiffs-Appellees, v. JOSEPH M. ARPAIO, Sheriff and husband; AVA ARPAIO, wife; JOHN No. 09-15806

DOES I-X; JANE DOES I-X; BLACK

D.C. No.

CORPORATIONS, I-V; WHITE

PARTNERSHIPS, I-V; MARICOPA  2:08-cv-00997-

SRB

COUNTY ATTORNEY’S OFFICE, a public entity, OPINION Defendants, and

DENNIS WILENCHIK; BECKY BARTNESS,

wife, Defendants-Appellants.  Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Argued and Submitted December 14, 2011—San…

Opinion by Judge BYBEE; Dissent by Chief Judge KOZINSKI; Dissent by Judge TALLMAN.

OPINION

This § 1983 case concerns allegations of unlawful conduct by officials in the Maricopa County Sheriffs Office (“MCSO”) and the Maricopa County Attorney’s Office (“MCAO”), conduct which culminated in the late-night arrests of Michael Lacey and Jim Larkin, owners of the Phoenix New Times, LLC. Lacey, Larkin, and the New Times (collectively, “Lacey”) sued Sheriff Joseph Arpaio, head of the MCSO; County Attorney Andrew Thomas, head of the MCAO; former Independent Special Deputy Maricopa County Attorney Dennis Wilenchik; and Maricopa County (collectively, “defendants”) under numerous federal and state causes of action. The district court dismissed all federal claims, and remanded all state law claims back to the Arizona courts. We affirm in part and reverse in part, finding that Lacey adequately alleged several causes of action for which the defendants are not entitled to immunity. We remand for further proceedings.

*907 I. THE FACTS AND PROCEEDINGS

For purposes of this appeal, we must accept the factual allegations in the Lacey complaint 1 as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 ,…

dissenting in part:

1. Adjectives matter. They’re not as action-packed as verbs, nor as self-sufficient as nouns. But adjectives do make a *941 difference. Here, the majority overlooks a crucial one: “special.”

Dennis Wilenchik wasn’t just any prosecutor: He was a special prosecutor. He got the job because his crony, County Attorney Andrew Thomas, gave it to him. Plaintiffs allege Wilenchik used that power to harass Thomas’s and Sheriff Joe Arpaio’s enemies. For this, the majority anoints Thomas with every governmental wrongdoer’s favorite unguent, absolute immunity.

The Supreme Court has told us that “absolute prosecutorial immunity [is justified] only for actions that are connected with the prosecutor’s role in judicial proceedings.” Bur ns v. Reed, 500 U.S. 478, 494 , 111 S.Ct. 1934 , 114 L.Ed.2d 547 (1991). By appointing Wilenchik as special prosecutor, Thomas took no action remotely connected with any judicial proceeding. Instead, he gave up the power to take any such action and transferred it to his special buddy, Wilenchik.

Van de Kamp v. Goldstein, 555 U.S. 335 , 129 S.Ct. 855 , 172 L.Ed.2d 706 (2009), holds that prosecutors have absolute immunity for “the types of…

with whom

I join the majority opinion, but dissent as to parts III.A.2.d and III.B.4 because Dennis Wilenchik and Sheriff Joseph Arpaio are entitled to qualified immunity on Plaintiffs’ Fourteenth Amendment Equal Protection claims.

In order for Plaintiffs to make out a claim that Wilenchik and Arpaio selectively enforced the Arizona privacy ■ statute against The New Times in violation of Plaintiffs’ rights to equal protection, Plaintiffs must at a minimum allege that “similarly situated” parties “could have been prosecuted, but were not.” United States v. Armstrong, 517 U.S. 456, 469 , 116 S.Ct. 1480 , 134 L.Ed.2d 687 (1996). In other words, they must allege that publishers of Arpaio’s personal information other than The New Times were similarly culpable under all three prongs of the Arizona privacy statute: (1) knowingly making available a public official’s personal information on the internet, where (2) dissemination of the information posed an “imminent and serious threat” to the safety of the public official or his immediate family, and where (3) the threat was “reasonably apparent” to the person making the information available. See Ariz. Rev. Stats. § 13-2401(A).…