Friday, June 10, 2011

A civil rights opinion so stingy that Jay Bybee sides with the plaintiffs

Jay Bybee, apologist for torture, on the side of editors and angels? Yes, it's possible.

See Lacey v. Maricopa County
, issued yesterday by the Ninth Circuit. The case reinstates part of a lawsuit brought by Phoenix New Times editors Michael Lacey and Jim Larkin, who were reportedly arrested, without a warrant, in the middle of the night, basically as a political punishment, in 2007. The New Times first published criticisms of Maricopa County's famous totalitarian Sheriff, Joe Arpaio (oh, sure, their big offense was revealing his address), and then published some irregularly issued subpoenas sent to them by a special prosecutor of iffy independence, and that became the pretext for the arrests.

The New Times itself has much of the story here.

The Ninth Circuit is allowing the editors' lawsuit to proceed against Dennis Wilenchik, a lawyer who was appointed special prosecutor on the case in what sound like ethically iffy circumstances. However, the court is blocking action, against Arpaio himself and against the former County Attorney, Andrew Thomas, who appointed Wilenchik. It's also barring a selective prosecution claim against Wilenchik.

The rationale protecting Thomas is "absolute immunity" and there Bybee doesn't argue. But the majority protects Arpaio on "qualified immunity" grounds, and Bybee has a problem with that, and also with blocking the selective prosecution claim.

The majority says:
"We agree with the district court that the allegations against Arpaio fail to state a claim. First, Arpaio’s efforts to persuade the county attorneys to pursue charges against Plaintiffs for violating the privacy statute do not violate the Constitution. The district court was therefore correct to grant Arpaio qualified immunity for all acts before the arrests.

Second, Plaintiffs’ allegations regarding Arpaio’s involvement in the arrests are too insubstantial to sustain a [42 U.S. Code] § 1983 [civil rights] claim."
Oh, come on, says Bybee (more or less):
"...In the words of Arpaio’s own director of legal affairs, Arpaio had targeted the Phoenix New Times because the paper had been “historically anti-Arpaio.”...

...Accepting the Plaintiffs’ version of the facts—which at this stage of the litigation we must—this is a sordid tale of abuse of public office. Nevertheless, despite the complaint’s detailed allegations of reprehensible conduct, the majority concludes that Arpaio is entitled to qualified immunity on the grounds that Plaintiffs failed to adequately plead that Arpaio was personally involved in the arrests. Since the complaint details Arpaio’s extensive involvement in the alleged violations of Plaintiffs’ clearly established constitutional rights, I respectfully dissent from the majority’s conclusion that Arpaio is entitled to qualified immunity. I also respectfully dissent from the majority’s conclusion that Special Prosecutor Wilenchik is not liable for selective prosecution, because the complaint shows that Wilenchik targeted the Phoenix New Times for publicizing Arpaio’s home address while deliberately disregarding the fact that numerous other websites had done the same. I concur in the remainder of the majority’s opinion."
It's almost cheering to read. Eh, everyone's got a good side.

Meanwhile, Arpaio himself remains at large, and just this morning was again rounding up more immigrants for no good reason.

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