SAN FRANCISCO (CN) - The 9th Circuit dressed down Maricopa County Sheriff Joe Arpaio's attorney at an en banc hearing this week for coming to court unprepared, in the process devastating her argument that Arpaio could not be held liable under the First Amendment for alleged attempts to muzzle a Phoenix newspaper.
Eileen GilBride had argued that Arpaio was immune because he did not dictate the "scope and manner" of the investigation that led to the late-night arrests of two executives with The Phoenix New Times.
But Judge Stephen Reinhardt blindsided GilBride by citing the newspaper's conspiracy allegation from its initial brief when the case appeared before a three-judge panel of the court in June.
GilBride said she thought the court had struck that count, but Reinhardt pressed her because the November order
for an 11-judge rehearing vacated the 9th Circuit's earlier opinion.
Chief Judge Alex Kozinski and Judge Johnnie Rawlinson both cited the newspaper's brief as they took up Reinhardt's argument.
Kozinski asked GilBride to look at her copy of the brief, but GilBride did not have one.
"Coming to court without the briefs in the case is really poor lawyering itself, but not knowing what's in those briefs is even worse," Kozinski said.
As GilBride struggled to regroup, Kozinski pressed his line of questioning. "If it's a conspiracy, then why doesn't that bring in everything that all the other defendants did?" he said.
Believing the conspiracy count was not viable, GilBride had been trying to distance Arpaio from the specific decisions that led to the arrests. With the conspiracy count back in play, GilBride's attempts to create that distance would be in vain.
"That's how conspiracies work," Kozinski said. Arpaio "doesn't have to be personally involved, the conspiracy does the work for him. So, do you have an answer to that?"
"I don't have an answer for that. I don't have an answer for that," GilBride answered.
New Times executives Michael Lacey and Jim Larkin say the conspiracy started in 2004 when their newspaper published a story that questioned Arpaio's real estate dealings.
Arpaio's personal information had been removed from land records. Not satisfied with the sheriff's explanations, the weekly newspaper decided to publish his home address.
Arpaio then asked the Maricopa County attorney, Andrew Thomas, to investigate Lacey and Larkin for violating Arpaio's privacy, according to the newspaper's 2008 complaint. Thomas appointed a special prosecutor, Dennis Wilenchik, to take on the case, and Wilenchik subpoenaed Lacey and Larkin in 2007 to hand over documents related to the investigation.
When the New Times published details about the subpoenas, Wilenchik had police arrest the two executives in their homes late at night. The subpoenas were later shown to be invalid.
Thomas and Arpaio denied involvement in the arrests, and Thomas withdrew Wilenchik's appointment as special prosecutor.
Even without the conspiracy count, the judges dwelled on the appearance that the allegations in the newspaper's complaint were specific enough to attach liability to Arpaio for the arrests.
"The claim is that he leaned on Thomas and then Thomas hand-picks Wilenchik and that it was all done to please your client," Kozinski told GilBride, who replied that the newspaper did not claim that Arpaio's influence overpowered Wilenchik's independent judgment on the scope and manner of the investigation.
Kozinski disagreed and quoted a passage from the complaint that specifically alleged how Arpaio applied unfair pressure and demands, and had abused the power of his office to have the newspaper's publishers investigated, arrested and jailed.
Lacey and Larkin's civil rights suit named Arpaio, Maricopa County, Thomas, Wilenchik and others.
U.S. District Judge Susan Bolton in Phoenix dismissed most of the claims, saying the publishers had no case against Maricopa County since Arpaio and Wilenchick had qualified immunity and Thomas had absolute immunity.
In June, the 9th Circuit upheld that decision
, 2-1, as to Arpaio and Thomas. The judges found, however, that Wilenchik did not have qualified immunity from the publishers' First Amendment, Fourth Amendment and malicious-prosecution claims. The three-judge panel also directed Bolton to reconsider the plaintiffs' claims against Maricopa County.
The 9th Circuit vacated that June opinion last month in favor of an en banc rehearing held Wednesday.
Tuscon, Ariz.-based attorney Michael Meehan argued for appellants Phoenix New Times, Michael Lacey and Jim Larkin.
Eileen Dennis GilBride with Jones Skelton & Hochuli in Phoenix represented the sheriff and his wife.
Timothy Casey of Schmitt, Schneck, Smyth & Herrod represented the Maricopa County District Attorney's Office and the remaining defendants.