Michael Lacey v. Joseph Arpaio

Absolute prosecutorial immunity protects functions intimately associated with the judicial phase of the criminal process, not a prosecutor’s title alone. It applies when the prosecutor acts as an advocate before or in connection with judicial proceedings, but not when the prosecutor performs investigative, police-like, or other functions outside that process.

The complaint alleged that Wilenchik issued grand-jury subpoenas without obtaining grand-jury authorization and without notifying the grand-jury foreperson and presiding judge as Arizona law required. By allegedly bypassing the very judicial and grand-jury review that would normally justify immunity, Wilenchik acted outside the protected judicial process.

Likewise, giving police legal advice about whether probable cause exists for an arrest is not protected by absolute immunity. Ordering or procuring immediate warrantless arrests similarly resembles police conduct: it directly deprives a person of liberty without the intervening review of a neutral judicial officer.

To state a retaliation claim, Lacey had to allege that official conduct would chill a person of ordinary firmness from future protected speech and that retaliatory animus was a substantial or but-for cause of that conduct. The New Times’s criticism of public officials was protected expression for purposes of the appeal.

The alleged subpoenas demanded confidential sources, editorial materials, reporters’ notes, and website-visitor information. Wilenchik then sought contempt sanctions, arrest warrants, and a $90 million fine, followed by the late-night arrests of the newspaper’s owners. Those measures were plainly capable of chilling protected press activity.

The timing supported a strong inference of retaliatory motive: the arrests followed on the same day that the New Times published an article criticizing Wilenchik’s investigation. If proved, public officials’ use of investigative and arrest powers to punish their critics would violate clearly established First Amendment law.

A Fourth Amendment false-arrest claim requires an arrest without probable cause. The complaint alleged that Wilenchik authorized or advised the arrests, which was enough to plead his personal participation even though sheriff’s deputies carried them out.

Arizona’s grand-jury secrecy law applied to disclosure of a matter attending a grand-jury proceeding. The complaint alleged that Wilenchik knew he had not secured grand-jury approval or complied with required notice procedures, so he knew that the subpoenas were not valid grand-jury process. On those allegations, publishing their contents did not establish probable cause to arrest Lacey and Larkin for revealing grand-jury material.

Because an arrest knowingly ordered without probable cause is an obvious Fourth Amendment violation, Wilenchik could not obtain qualified immunity at the pleading stage.

A federal malicious-prosecution claim requires, among other things, the institution of criminal proceedings and a favorable termination of those proceedings. An unlawful arrest alone does not suffice when no further criminal process is initiated.

The complaint alleged arrests but did not allege that Lacey or Larkin were brought before a magistrate, formally prosecuted, or received a favorable termination of criminal proceedings. Their alleged injury was therefore properly addressed, if at all, through the false-arrest claim rather than a repackaged malicious-prosecution claim.

Selective enforcement requires discriminatory effect and discriminatory purpose. At the pleading stage, Lacey needed to allege facts showing that similarly situated persons could have been prosecuted but were not, and that enforcement rested on an impermissible ground such as the exercise of constitutional rights.

The complaint alleged that Arpaio’s address appeared on other websites, including sites associated with the county election apparatus and the Republican Party, but those publishers were not investigated. It also alleged that no publication of the address posed an imminent and serious threat, meaning the other publishers were similarly situated in the relevant sense: they had published the same information without being targeted.

The Lebowitz memorandum expressly justified singling out the New Times because it was historically anti-Arpaio and had published insulting and critical articles about him. That document, combined with the alleged campaign to force a prosecution, plausibly showed enforcement based on the newspaper’s protected speech rather than neutral law-enforcement criteria.

The court rejected the separate selective-enforcement theory based on the arrests for disclosure of grand-jury material. The complaint’s generalized assertion that nonviolent misdemeanors are usually handled by citation did not identify a sufficiently comparable class of persons accused of violating the grand-jury secrecy statute.

The complaint alleged that Arpaio pressed multiple prosecutorial offices to pursue the New Times despite their concerns about insufficient evidence and First Amendment implications. It further alleged that he participated in selecting Wilenchik, supported Wilenchik’s investigation, and personally or through senior aides ordered the arrests.

Those allegations plausibly connected Arpaio to a campaign intended to punish and silence the New Times for criticism of him. They therefore supported the retaliation and selective-enforcement claims for the same basic reasons the claims could proceed against Wilenchik.

The false-arrest claim was closer because Arpaio could potentially have relied reasonably on information received from Wilenchik. But the alleged late-night, warrantless home arrests for a misdemeanor, without apparent exigent circumstances, made dismissal premature. The detailed allegations allowed an inference that Arpaio knew of, or deliberately ignored, the lack of probable cause.

Earlier Ninth Circuit precedent generally treated an amended complaint as waiving claims from an earlier complaint that were not repleaded. The court concluded that this rule imposed an unfair choice: a plaintiff either had to reassert dismissed claims and risk sanctions or omit them and lose appellate review.

The court joined other circuits in holding that a plaintiff need not replead claims dismissed with prejudice and without leave to amend in order to preserve them for appeal. Claims voluntarily omitted, however, remain waived if not repleaded.

Thomas had notice that Lacey appealed the earlier dismissal order and fully litigated the immunity issue on appeal. Applying the new rule therefore caused no prejudice.

Employment decisions such as general hiring, firing, promotion, or discipline are ordinarily administrative and do not receive absolute prosecutorial immunity. But assigning an attorney to handle a particular prosecution is different: it is tied to the prosecutor’s role in determining who will advocate for the state in a specific matter.

Thomas did not merely hire a line prosecutor. He appointed Wilenchik solely to investigate and, if appropriate, prosecute the New Times matter. Selecting the state’s advocate for that particular case required legal judgment and was preliminary to the initiation and conduct of a prosecution.

Thomas had publicly recognized a conflict of interest arising from the New Times’s criticism of him. Arizona law and professional obligations required his office to withdraw from a matter affected by such a conflict and to secure a replacement prosecutor if the case was to continue. Granting immunity protected that legally required exercise of prosecutorial judgment.

The court acknowledged that absolute immunity leaves alleged misconduct unremedied through a § 1983 damages action, but noted that criminal law, bar discipline, recall, impeachment, and elections remained possible means of accountability.

Conspiracy is not an independent constitutional tort. It can, however, establish the causal connection among participants who share a common objective to commit an underlying constitutional violation.

The complaint plausibly alleged that Arpaio and Wilenchik shared an objective to target the New Times because of its criticism. Their past relationships, the timing and substance of the subpoenas and arrests, and the Lebowitz memorandum supported an inference of a coordinated retaliatory effort.

Thomas’s alleged role was different. Absolute immunity cannot be defeated simply by alleging that an otherwise immune prosecutorial act was conspiratorial or malicious. Thus, Thomas was immune even if he conspired to appoint Wilenchik so that Wilenchik would pursue the New Times.

The existing complaint did not contain sufficiently specific facts showing that Thomas joined a separate, post-appointment conspiracy involving non-prosecutorial misconduct. Because Lacey might be able to allege such facts consistently with the complaint, dismissal of that narrow conspiracy theory had to be without prejudice and with leave to amend.

Civil RICO requires allegations of predicate racketeering acts, such as specified acts of extortion, bribery, robbery, or other enumerated crimes. A claim cannot rest merely on a generalized assertion that defendants engaged in racketeering.

Lacey offered only conclusory accusations without factual allegations establishing a qualifying predicate crime. Those unadorned assertions did not satisfy the plausibility standard.

The district court treated the dismissal of all federal claims as automatically ending its power over the state-law claims. That was incorrect because supplemental jurisdiction is discretionary, not automatically extinguished, when federal claims are dismissed.

Because the Ninth Circuit revived several federal claims, it directed the district court to reconsider whether to retain the related state-law claims under its supplemental-jurisdiction authority.

Lacey alleged that Arpaio and Thomas were county policymakers and that county policies, practices, or training caused the constitutional violations. The district court dismissed those claims only because it had found no underlying constitutional violation.

Once the court held that the complaint plausibly alleged constitutional violations by Arpaio and Wilenchik, the basis for the county’s dismissal no longer held. The court expressed no view on the merits of municipal liability, leaving that question for the district court in the first instance.