Michael Lacey v. Joseph Arpaio ( 2012 )

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 Francisco, California
Filed August 29, 2012
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Harry Pregerson, Stephen Reinhardt, William A. Fletcher,
Raymond C. Fisher, Richard C. Tallman,
Johnnie B. Rawlinson, Jay S. Bybee, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Bybee;
Dissent by Chief Judge Kozinski;
Dissent by Judge Tallman
10014 LACEY v. MARICOPA COUNTY
COUNSEL
John T. White, Stinson Morrison Hecker LLP, Phoenix, Ari-
zona; Michael J. Meehan (argued), Law Office of Michael
Meehan, Tucson, Arizona, for the appellants.
Eileen Dennis Gilbride (argued), Jones, Skelton & Hochuli,
P.L.C., Phoenix, Arizona, for appellees Joseph Arpaio and
Ava Arpaio.
LACEY v. MARICOPA COUNTY 10015
Timothy J. Casey (argued), Schmitt, Schneck, Smyth & Her-
rod, P.C., Phoenix, Arizona, for appellees Andrew Thomas,
the Maricopa County Attorney’s Office, and Maricopa
County.
Laura A. Freeman, Zwillinger Greek Zwillinger & Knecht
PC, Phoenix, Arizona; Timothy J. Casey, Schmitt, Schneck,
Smyth & Herrod, P.C., Phoenix, Arizona, for appellees-cross-
appellants Dennis Wilenchik and Becky Bartness.
OPINION
BYBEE, Circuit Judge:
This § 1983 case concerns allegations of unlawful conduct
by officials in the Maricopa County Sheriff’s 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 Phoe-
nix New Times, LLC. Lacey, Larkin, and the New Times (col-
lectively, “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.
I. THE FACTS AND PROCEEDINGS
For purposes of this appeal, we must accept the factual alle-
gations in the Lacey complaint1 as true. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Some of the parties to this litiga-
1
Lacey filed a First Amended Complaint (“FAC”), and because it super-
sedes the original, we refer to it as the complaint unless otherwise noted.
We will denote the original complaint as “First Compl.”
10016 LACEY v. MARICOPA COUNTY
tion are well known to the public, and the acts alleged here
have been splayed across newspapers in Arizona. As we dis-
cuss the “facts” of this case, we remind the parties and other
interested persons that, because we remand this case to the
district court, both sides will have an opportunity to prove or
contest the “facts” alleged in the complaint and set forth in
this opinion.
A. Background Facts
The Phoenix New Times (“New Times”) is a small, free
weekly newspaper in Arizona. According to its website, the
New Times was formed in 1970 to “ke[ep] the Valley of the
Sun’s feet to the fire.” About Us, Phoenix New Times,
http://www.phoenixnewtimes.com/about/ (last visited Feb. 22,
2012). It brags that its “[h]ard-hitting investigative reports on
everything from the misadventures of Sheriff Joe Arpaio to
the state’s troubled juvenile justice system have earned the
paper a well-deserved reputation for journalistic fearlessness.”
Id. The New Times is a part of the Village Voice Media net-
work. FAC ¶ 24.
The New Times has been publishing articles critical of
Sheriff Arpaio—known as “America’s toughest sheriff,” see
Joe Arpaio with Len Sherman, America’s Toughest Sheriff:
How We Can Win the War Against Crime (1996)—since the
1990s. Id. ¶ 33. On July 1, 2004, the New Times published
“Sheriff Joe’s Real Estate Game,” authored by New Times
reporter John Dougherty, which questioned Arpaio’s commer-
cial real estate transactions, including how he could have
invested more than $690,000 in cash in commercial real estate
on a modest state salary and federal pension. Id. ¶ 34 & n.1.
The New Times explained that Arpaio had used a little-known
Arizona statute to redact much of the information about his
commercial real estate holdings from the County Recorder’s
public records, allegedly in response to death threats. Id.
¶¶ 35-36. A week later, in a July 8, 2004 New Times article
by Dougherty entitled “Stick it to ‘Em,” the paper again ques-
LACEY v. MARICOPA COUNTY 10017
tioned Arpaio’s redaction of personal information from public
records, pointing out that Arpaio’s home address was avail-
able from other websites; at the end of the article, the paper
published Arpaio’s home address. Id. ¶¶ 34 n.1, 37.
Arpaio contemplated prosecuting his critics at the New
Times under an Arizona statute prohibiting the dissemination
of personal information on the Internet if disseminating it
“pose[s] an imminent and serious threat” to a public law
enforcement official or his family and that threat is reasonably
apparent to the person publishing it online.2 Id. ¶ 39. Arpaio
did not raise the issue with then–Maricopa County Attorney
Rick Romley at the time of publication, believing that Romley
would not prosecute. Id. ¶ 43 & n.2. Instead, Arpaio waited
another seven months, until February 2005, when he met with
the new County Attorney, Andrew Thomas, and discussed his
desire to prosecute those at the New Times. Id. ¶¶ 43 & n.2,
51. Thomas’s staff investigated the matter but had concerns
and did not immediately pursue prosecution. Id. ¶ 51.
Finally, in April 2005, ten months after the articles first
appeared, Arpaio requested an investigation. Id. ¶ 52. The
MCAO conducted a formal evaluation in May 2005 and pre-
pared an “Incident Review Memo”; it summarized the weak-
nesses of the case, including that Arpaio significantly delayed
in reporting the incident, there was no solid evidence that
2
Arizona Revised Statutes § 13-2401(A) provides:
It is unlawful for a person to knowingly make available on the
world wide web the personal information of a peace officer, jus-
tice, judge, commissioner, public defender or prosecutor if the
dissemination of the personal information poses an imminent and
serious threat to the peace officer’s, justice’s, judge’s, commis-
sioner’s, public defender’s or prosecutor’s safety or the safety of
that person’s immediate family and the threat is reasonably
apparent to the person making the information available on the
world wide web to be serious and imminent.
Violation of the statute is a felony. Id. § 13-2401(C).
10018 LACEY v. MARICOPA COUNTY
Arpaio feared for his safety, and Arpaio’s personal informa-
tion was already publicly available. Id. ¶ 53. The memoran-
dum also noted that Arpaio was demanding that charges be
filed and that if no charges were filed, there would be “prob-
lems” between the MCSO and the MCAO. Id. ¶ 54. On June
20, 2005, an investigator for the MCAO submitted a supple-
mental report, finding that numerous public documents con-
tained Arpaio’s personal information and noting that Arpaio
had waited ten months to request a prosecution and chose not
to report it to any prosecuting agency other than the MCAO
under Thomas. Id. ¶ 50. In August 2005, the MCAO Incident
Review Board voted not to prosecute the New Times. Id. ¶ 55.
By this time, the New Times was also running articles criti-
cal of Thomas, and Thomas determined that he could no lon-
ger pursue the case against the New Times due to a conflict
of interest. Id. ¶¶ 56-57. He referred the case to Robert Carter
Olson of the Pinal County Attorney’s Office (“PCAO”). Id.
¶ 57; id. Ex. 1, at 1. Arpaio and the MCSO immediately pres-
sured that office to prosecute, sending letters to the PCAO
and requesting meetings by phone and in person. Id. ¶¶ 58-59.
Olson, however, was unwilling to comply because he was
concerned that there were First Amendment implications and
insufficient evidence of an imminent threat to Arpaio. Id.
¶ 58.
In response to a November 15, 2005 meeting in which
Olson shared these concerns, the Sheriff’s Director of Legal
Affairs, Ron Lebowitz, sent a strongly worded memorandum
(“Lebowitz Memorandum”) to the PCAO, dated November
28, to leave no issue “unresolved.” Id. Ex. 1, at 1.3 In it,
Lebowitz explained why the New Times was being singled out
for prosecution, even though other organizations had also
published Arpaio’s address through their websites:
3
Lacey attached the Lebowitz Memorandum to his complaint and incor-
porated it by reference. Id. ¶ 20.
LACEY v. MARICOPA COUNTY 10019
Unlike the New Times web cite [sic], the three (3)
other web cites raised by others as examples are neu-
tral. In other words, none of these other web cites are
or have ever been historically anti-Arpaio, especially
in the consistent and invariable way that New Times
has been since 1993. None of the other web cites
have openly revealed the intent or purpose to destroy
the Sheriff’s career as an elected official, using all
the vigor it could muster.
[ ]None of the other web cites, historically, have
resorted to writing articles against the Sheriff, using
language that is inflammatory, insulting, vitupera-
tive, and the like — all of which having the effect of
attracting those of the “lunatic fringe” who, for rea-
sons of their own, view themselves as the Sheriff’s
sworn enemies and make it a practice to replicate
New Times anti-Arpaio articles on web cites of their
own or otherwise generally keep in touch with New
Times as anti-Arpaio “true believers.”
Id. Ex. 1, at 8-9.
When Olson did not respond with action, Lebowitz and
Arpaio increased the pressure. Olson proposed that the news-
paper simply remove Arpaio’s address from the website as a
compromise, but Arpaio found this proposal “intolerable.” Id.
¶ 61. Lebowitz wrote several more memoranda to the PCAO
and ultimately gave it a 10-day deadline of May 23, 2006 by
which to take action on the case. Id. ¶ 63. When that deadline
passed, he wrote to the PCAO again and stated: “The Sheriff
demands action and action right now.” Id. Despite these
demands, the PCAO never initiated a prosecution. Id. ¶ 60.
Olson left in 2007, and the new Pinal County Attorney
returned the case to the MCAO. Id. ¶ 65.
Because Thomas had already announced his own conflict
of interest in prosecuting the case, he and Arpaio decided that
10020 LACEY v. MARICOPA COUNTY
Thomas should appoint Phoenix attorney Dennis Wilenchik
as an Independent Special Deputy Maricopa County Attorney.
Id. ¶ 66-67. Wilenchik was appointed in June 2007 and
assumed prosecutorial responsibility for the New Times case.
Id. ¶¶ 67-68. Wilenchik already had numerous connections to
Arpaio and Thomas: he had hired Thomas as an associate at
his law firm—even though Thomas was a candidate for
County Attorney at the time and the arrangement appeared to
be a disguised campaign contribution to Thomas; Thomas and
Arpaio had hired Wilenchik to perform millions of dollars of
legal work, representing them in both their official and per-
sonal capacities; and Wilenchik was representing Thomas and
Arpaio only months before his appointment when he
demanded that the New Times retract an unflattering piece
about Thomas and threatened other newspapers with defama-
tion suits on behalf of Arpaio. Id. ¶¶ 71-74. The New Times
had previously criticized Wilenchik for his close relationship
to Thomas and Arpaio before he was appointed an indepen-
dent prosecutor; Wilenchik referred to the New Times’s criti-
cism as “[b]irdcrap.” Id. ¶¶ 76-77.
In August 2007, two months after his appointment,
Wilenchik authored two grand jury subpoenas with numerous
demands for the New Times. Id. ¶ 82. For any story critical of
Arpaio, the subpoenas demanded that the paper reveal its con-
fidential sources as well as produce reporters’ and editors’
notebooks, memoranda, and documents. Id. The subpoenas
also required the New Times to reveal information about visi-
tors to any story, review, listing, or advertisement on its web-
site since 2004. Id. ¶ 83. Although the documents served on
the New Times purported to be grand jury subpoenas,
Wilenchik had not appeared before any grand jury or other-
wise obtained approval to issue them, as required by Arizona
law. Id. ¶¶ 81, 86.
In September 2007, Wilenchik issued another subpoena. Id.
¶¶ 87-88. This time the subpoena followed a New Times arti-
cle criticizing Wilenchik for defending Arpaio against a defa-
LACEY v. MARICOPA COUNTY 10021
mation suit brought by the chief of police for Buckeye,
Arizona. Id. The subpoena demanded that the article’s author
produce “all documents, records, and files” related to the writ-
ing and editing of the story, and also “conversations and
meetings relating to its publication.” Id. ¶ 88.
Three weeks later, on October 10, 2007, Wilenchik decided
to contact Judge Anna Baca, who was presiding over the sit-
ting Maricopa County grand jury. Id. ¶ 90. At the time,
Wilenchik had motions related to the New Times matter and
a judicial disqualification matter for another judge pending
before her. Id. ¶¶ 90-91. Wilenchik asked Carol Turoff, wife
of a member of Thomas’s senior management team and a for-
mer lay member of the committee charged with appointing
appellate judges, to call Judge Baca at home to arrange a pri-
vate meeting between Judge Baca and Wilenchik. Id. ¶ 90.
After receiving Turoff’s call on the night of October 10,
Judge Baca called an emergency closed hearing the following
day to review the matter; she noted the various ethical infrac-
tions that had been committed and called Wilenchik’s attempt
at an ex parte communication “absolutely improper.” Id. ¶ 91.
The back-and-forth between the New Times and Wilenchik
and Arpaio came to a head the following week. Concerned
about what it believed to be a gross abuse of power by
Wilenchik in issuing the subpoenas and attempting contact
with Judge Baca, the New Times published the terms of
Wilenchik’s subpoenas on October 18.4 Id. ¶¶ 92-93. It also
questioned the motives and actions of Arpaio, Thomas, and
Wilenchik in pursuing the investigation. Id. ¶ 98. The same
day the article appeared, Wilenchik filed a motion before
Judge Baca asking her to hold the New Times in contempt;
issue arrest warrants for Michael Lacey and Jim Larkin, co-
owners of the New Times, as well as three of their lawyers;
4
Publishing the terms of a valid grand jury subpoena in Arizona is a
misdemeanor, punishable by up to six months in jail. Ariz. Rev. Stat.
§§ 13-707(A), -2812; FAC ¶ 97.
10022 LACEY v. MARICOPA COUNTY
and fine the newspaper $90 million. Id. ¶¶ 99-100. That night,
before the court could rule on Wilenchik’s motion, Arpaio’s
“Selective Enforcement Unit” arrested Lacey and Larkin at
their homes. Id. ¶¶ 24, 103.
Wilenchik’s actions and the arrests were met with public
and official criticism. FAC ¶ 107. Thomas promptly fired
Wilenchik and, in a news conference on October 20, stated
that Wilenchik’s actions were “the wrong way” to bring a
prosecution. Id. ¶ 109. A month later, on November 28, Judge
Baca declared Wilenchik’s grand jury subpoenas invalid. Id.
¶ 96. The court held that Wilenchik had acted ultra vires
because prosecutors may not issue grand jury subpoenas with-
out grand jury or court approval or notice. Id.B. Proceedings Below
In April 2008, Lacey, Larkin, and the New Times filed a
complaint in the Maricopa County Superior Court, asserting
various state and federal claims—including claims under 42
U.S.C. § 1983—against Thomas, Wilenchik, and Arpaio;
those defendants’ spouses; and the MCSO and MCAO. The
case was removed to the U.S. District Court for the District
of Arizona. In an October 6, 2008 order, the district court dis-
missed the MCSO and MCAO as nonjural entities, and dis-
missed Thomas from the suit after concluding that he was
entitled to absolute prosecutorial immunity. The court dis-
missed the rest of the federal claims and some of the state
claims but granted Lacey leave to amend the complaint.
Lacey filed his First Amended Complaint on October 31,
2008, which added Maricopa County as a defendant but omit-
ted Thomas, the MCSO, and the MCAO as defendants. After
briefing and oral argument, the district court, in a March 13,
2009 order, dismissed all of the federal claims and remanded
the remaining state law claims to the Maricopa County Supe-
rior Court. Lacey appealed.
A divided panel of this court affirmed in part, reversed in
part, and remanded the case to the district court. Lacey v.
LACEY v. MARICOPA COUNTY 10023
Maricopa Cnty., 649 F.3d 1118, 1138 (9th Cir. 2011). We
granted en banc review. Lacey v. Maricopa Cnty., 663 F.3d
1032 (9th Cir. 2011).
II. STANDARD OF REVIEW
We review de novo a district court’s dismissal for failure
to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). Oscar v. Univ. Students Co-op. Ass’n, 965 F.2d 783,
785 (9th Cir. 1992) (en banc), abrogated on other grounds by
Diaz v. Gates, 420 F.3d 897 (9th Cir. 2005) (en banc). “To
survive a motion to dismiss, a complaint must contain suffi-
cient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’ ” Iqbal, 556 U.S. at 677 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abro-
gating Conley v. Gibson, 355 U.S. 41 (1957))). A complaint
states sufficient facts
when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possi-
bility that a defendant has acted unlawfully. Where
a complaint pleads facts that are “merely consistent
with” a defendant’s liability, it “stops short of the
line between possibility and plausibility of ‘entitle-
ment to relief.’ ”
Id. at 678 (citations omitted) (quoting Twombly, 550 U.S. at
556-57). Although the complaint in this case was drafted prior
to Iqbal, that standard nonetheless governs this case. See id.
at 684 (“Twombly expounded the pleading standard for ‘all
civil actions.’ ” (quoting Fed. R. Civ. P. 1)).
We review de novo the decision of a district court to grant
absolute or qualified immunity to a public official. Botello v.
Gammick, 413 F.3d 971, 975 (9th Cir. 2005).
10024 LACEY v. MARICOPA COUNTY
III. SECTION 1983 CLAIMS
Section 1983 provides a tort remedy against “[e]very per-
son who, under color of [state law] subjects, or causes to be
subjected, any citizen of the United States . . . to the depriva-
tion of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983. Lacey has asserted
various claims under the First and Fourth Amendments, made
applicable to the states through the Fourteenth Amendment,
and the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. Wilenchik and Arpaio claimed that
they were immune from suit. The district court rejected
Wilenchik’s claim of absolute immunity but dismissed the
claims against both Wilenchik and Arpaio under its qualified
immunity analysis for failure to state a constitutional viola-
tion. Lacey has appealed that determination with regard to
four of his § 1983 claims. Wilenchik has cross-appealed the
district court’s determination that he is not entitled to absolute
immunity. Lacey also challenges the 2008 dismissal of
Thomas on absolute immunity grounds.
We deal with each of the defendants individually. We first
address Wilenchik’s claims to absolute immunity and, alterna-
tively, qualified immunity. We then address Arpaio’s claims
to qualified immunity. Finally, we address Thomas’s status as
a defendant in this suit and whether he receives absolute
immunity.
A. Dennis Wilenchik
Lacey appeals the district court’s determination that he
stated no constitutional violation by former special prosecutor
Dennis Wilenchik. Wilenchik cross-appeals the district
court’s determination that he is not entitled to absolute immu-
nity for approving subpoenas and ordering or advising
Lacey’s and Larkin’s arrests. We agree with the district court
that Wilenchik is not entitled to absolute immunity, and we
disagree with the court that Wilenchik did not violate Lacey’s
LACEY v. MARICOPA COUNTY 10025
constitutional rights. We address each in turn and hold that
Wilenchik is not entitled to qualified immunity.
1. Absolute Immunity
[1] Prosecutors performing their official prosecutorial
functions are entitled to absolute immunity against constitu-
tional torts. The Supreme Court has held that this rule follows
for the same reason that prosecutors were given immunity at
common law—without it, resentful defendants would bring
retaliatory lawsuits against their prosecutors, and because a
prosecutor “inevitably makes many decisions that could
engender colorable claims of constitutional deprivation[,
d]efending these decisions, often years after they were made,
could impose unique and intolerable burdens upon a prosecu-
tor.” Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009)
(quoting Imbler v. Pachtman, 424 U.S. 409, 425-26 (1976))
(internal quotation marks omitted). Without the promise of
immunity from suit, a prosecutor would be distracted from his
duties and timid in pursuing prosecutions rather than exercis-
ing the independent judgment and discretion that his office
requires. See id. Moreover, “the judicial process is available
as a check on prosecutorial actions,” and it reduces the need
for private suits for damages to keep prosecutors in line.
Burns v. Reed, 500 U.S. 478, 492 (1991); see Mitchell v. For-
syth, 472 U.S. 511, 522-23 (1985) (“[T]he judicial process is
largely self-correcting: procedural rules, appeals, and the pos-
sibility of collateral challenges obviate the need for damages
actions to prevent unjust results.”).
[2] At the same time, absolute immunity is an extreme
remedy, and it is justified only where “any lesser degree of
immunity could impair the judicial process itself.” Kalina v.
Fletcher, 522 U.S. 118, 127 (1997) (quoting Malley v. Briggs,
475 U.S. 335, 342 (1986)). Immunity attaches to “the nature
of the function performed, not the identity of the actor who
performed it.” Id. (quoting Forrester v. White, 484 U.S. 219,
229 (1988)) (internal quotation marks omitted). The prosecu-
10026 LACEY v. MARICOPA COUNTY
tor thus “bears the burden of showing that . . . immunity is
justified for the function in question.” Burns, 500 U.S. at 486.
If Wilenchik is entitled to absolute immunity, it is because he
was acting in a prosecutorial role, not because he carried the
title of Independent Special Deputy Maricopa County Attor-
ney.
[3] Determining what functions are prosecutorial is an
inexact science. The functions are those “intimately associ-
ated with the judicial phase of the criminal process,” in which
the prosecutor is acting as “an officer of the court.” Van de
Kamp, 555 U.S. at 342 (quoting Imbler, 424 U.S. at 430-31
& n.33). Absolute immunity also protects those functions in
which the prosecutor acts as an “advocate for the State,” even
if they “involve actions preliminary to the initiation of a pros-
ecution and actions apart from the courtroom.” Burns, 500
U.S. at 486 (quoting Imbler, 424 U.S. at 431 n.33). These
actions need not relate to a particular trial and may even be
administrative in nature, yet are connected to the trial process
and “necessarily require legal knowledge and the exercise of
related discretion.” Van de Kamp, 555 U.S. at 344 (holding
that “determining what information should be included in the
training or the supervision or the information-system manage-
ment” regarding prosecutors’ duties to defendants was an
administrative function to which absolute immunity attaches).
Functions for which absolute prosecutorial immunity have
been granted include the lawyerly functions of organizing and
analyzing evidence and law, and then presenting evidence and
analysis to the courts and grand juries on behalf of the gov-
ernment; they also include internal decisions and processes
that determine how those functions will be carried out. See
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Prosecu-
tors are absolutely immune from liability for the conse-
quences of their advocacy, however inept or malicious,
because it is filtered through a neutral and detached judicial
body; they are not necessarily immune for actions taken out-
side this process, including actions logically—though not nec-
essarily temporally—prior to advocacy, such as those
LACEY v. MARICOPA COUNTY 10027
“normally performed by a detective or police officer,” like
gathering evidence, id., and those separate from the process,
like providing legal advice to the police, see Burns, 500 U.S.
at 495-96.
[4] Wilenchik argues that he is entitled to absolute immu-
nity for claims arising out of the issuance of the purported
grand jury subpoenas and those arising out of the arrests.
With regard to the subpoenas, Wilenchik cannot claim abso-
lute immunity, although we think the issue is a close one.
Prosecutors generally enjoy absolute immunity for their con-
duct before grand juries, see id. at 490 n.6; Yaselli v. Goff,
275 U.S. 503, 503 (1927) (per curiam) (summarily affirming
lower court decision, 12 F.2d 396 (2d Cir. 1926), that immu-
nity extended to prosecutor’s conduct before a grand jury);
Rehberg v. Paulk, 611 F.3d 828, 838 (11th Cir. 2010), aff’d
on other grounds, 132 S. Ct. 1497 (2012), because that con-
duct is integral to “the judicial phase of the criminal process,”
Imbler, 424 U.S. at 430. But we can find no justification for
extending absolute immunity to the acts of a prosecutor
designed to avoid the “judicial phase.” Here, Wilenchik is
alleged to have acted ultra vires when he issued the subpoenas
without ever obtaining grand jury or court approval. The com-
plaint states that Judge Baca, in a November 28, 2007 order,
found
grand jury abuse at the hands of Wilenchik. No
grand jury had approved the Wilenchik subpoenas—
Wilenchik had acted as a one-man grand jury.
County prosecutors, the Judge ruled, have no com-
mon law powers to subpoena witnesses or docu-
ments in Arizona (citing Gershon v. Broomfield, 131
Ariz. 507, 642 P.2d 852 (1982)). A prosecutor seek-
ing grand jury evidence by subpoena must either
secure the prior permission of the grand jury or must
notify the grand jury foreperson and the presiding
criminal judge within 10 days of issuing a subpoena
unilaterally. Wilenchik did neither.
10028 LACEY v. MARICOPA COUNTY
FAC ¶ 96. As the complaint states, under Arizona statutes, a
county attorney may issue a grand jury subpoena to the target
of an investigation under two circumstances. See Ariz. Rev.
Stat. § 13-4071(B)(2). First, the prosecutor may do so with
the prior consent of the grand jury. See id.; Gershon, 642 P.2d
at 853-54. Second, a prosecutor may issue a subpoena during
an investigation without a grand jury’s prior consent, but only
if the county attorney notifies both the grand jury’s foreman
and the presiding judge of the superior court within ten days
of issuing the subpoena. Ariz. Rev. Stat. § 13-4071(C). The
complaint recites that Wilenchik did neither.
[5] Had Wilenchik followed Arizona law, his drafting of
the grand jury subpoenas would likely have come within the
shield of absolute immunity. See Burns, 500 U.S. at 490 n.6.
But the facts alleged in the complaint suggest that Wilenchik
avoided taking the steps that would have protected him from
suit, perhaps precisely to avoid the scrutiny of the grand jury
or the court. See FAC ¶¶ 81, 86. The prosecutor’s immunity
is rooted in “the same considerations that underlie the
common-law immunities of judges and gran[d] jurors acting
within the scope of their duties,” Imbler, 424 U.S. at 422-23,
which is to “protect[ ] the judicial process,” Burns, 500 U.S.
at 492. But the judicial process also serves as “a check on pro-
secutorial actions.” Id. Those checks failed here because the
prosecutor acted on his own authority, rather than securing the
approvals required by Arizona law. Even if Wilenchik’s
authoring of a grand jury subpoena might in another context
be considered “a vital part of the administration of criminal
justice,” by avoiding judicial scrutiny, his actions were one
step “further removed from the judicial phase of criminal pro-
ceedings.” Malley, 475 U.S. at 342. Where the prosecutor has
side-stepped the judicial process, he has forfeited the protec-
tions the law offers to those who work within the process.5
5
In Rehberg v. Paulk, the Eleventh Circuit held that a district attorney
was not entitled to absolute immunity for issuing subpoenas before a
grand jury was empaneled. 611 F.3d at 835, 842. It reached this conclu-
sion, with little analysis, on the grounds that the subpoenas were part of
the investigation, and investigatory functions do not justify absolute
immunity. Id. at 842. We reach our conclusion on narrower grounds.
LACEY v. MARICOPA COUNTY 10029
[6] Wilenchik is also not entitled to absolute immunity in
connection with ordering or advising those making the arrests.
Neither are prosecutorial functions. In Burns, the Supreme
Court held that giving legal advice to police, including advice
as to whether there is probable cause to arrest a suspect, is not
a function protected by absolute immunity. 500 U.S. at
493-96; accord Ewing v. City of Stockton, 588 F.3d 1218,
1233-34 (9th Cir. 2009). The mere rendering of legal advice
is not so closely connected to the judicial process that litiga-
tion concerning that advice would interfere with it. Burns, 500
U.S. at 493-94. Further, “it is incongruous to allow prosecu-
tors to be absolutely immune from liability for giving advice
to the police, but to allow police officers only qualified immu-
nity for following the advice.” Id. at 495. Thus, to the extent
that Wilenchik counseled police about the propriety of the
arrests, he is not entitled to absolute immunity for the conse-
quences.
[7] The same logic also precludes Wilenchik from claim-
ing immunity for playing other roles in the arrests, including
ordering them. Such decisions entail the same determination.
When a prosecutor orders or counsels warrantless arrests, he
acts directly to deprive someone of liberty; he steps outside of
his role as an advocate of the state before a neutral and
detached judicial body and takes upon himself the responsibil-
ity of determining whether probable cause exists, much as
police routinely do. Nothing in the procuring of immediate,
warrantless arrests is so essential to the judicial process that
a prosecutor must be granted absolute immunity. Indeed, the
aberrant nature of Wilenchik’s behavior is evinced by the fact
that he ordered the arrests while he had a request for arrest
warrants pending before a judge. His decisions to proceed
outside the judicial process cannot be the basis for affording
him absolute immunity from suit.
2. Qualified Immunity
Qualified immunity “represents the norm” for government
officials exercising discretionary authority, Harlow v. Fitzger-
10030 LACEY v. MARICOPA COUNTY
ald, 457 U.S. 800, 807 (1982), including prosecutors who are
not acting as an advocate for the state and may not be entitled
to absolute immunity, Buckley, 509 U.S. at 273. Like absolute
immunity, qualified immunity is an immunity from suit and
not merely damages. Mitchell, 472 U.S. at 526. Under quali-
fied immunity, an officer is protected from suit when he
makes a reasonable mistake of law or fact. See Pearson v.
Callahan, 555 U.S. 223, 231 (2009).
Determining whether a defendant is entitled to qualified
immunity involves a two-pronged analysis. First, we ask,
“[t]aken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated
a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201
(2001), overruled in part by Pearson, 555 U.S. at 235-236.
Second, we must ask “whether the right was clearly estab-
lished.” Id. A right is clearly established if “it would be clear
to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. at 202. We have the discretion to
decide “which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
in the particular case at hand.” Pearson, 555 U.S. at 236; see
also Mueller v. Auker, 576 F.3d 979, 993-94 (9th Cir. 2009).
If we answer the first of the two inquiries in the negative, then
the officer’s conduct was constitutional, and there can be no
violation of § 1983. The officer has no need for immunity; he
is innocent of the alleged infractions. If the answer to the first
question is “yes” and the second question “no,” then the offi-
cer’s conduct is protected by qualified immunity. Only when
an officer’s conduct violates a clearly established constitu-
tional right—when the officer should have known he was vio-
lating the Constitution—does he forfeit qualified immunity.
Lacey asserted that the defendants are each liable under 42
U.S.C. § 1983 based on their own actions; he has also alleged
that Arpaio is liable under a theory of supervisory liability,
and that Arpaio, Wilenchik, and Thomas are liable under a
theory of civil conspiracy. Section 1983 has a causation
LACEY v. MARICOPA COUNTY 10031
requirement, with liability extending to those state officials
who “subject[ ], or cause[ ] to be subjected,” an individual to
a deprivation of his federal rights. As we explained in John-
son v. Duffy:
A person “subjects” another to the deprivation of a
constitutional right, within the meaning of section
1983, if he does an affirmative act, participates in
another’s affirmative acts, or omits to perform an act
which he is legally required to do that causes the
deprivation of which complaint is made. Moreover,
personal participation is not the only predicate for
section 1983 liability. Anyone who “causes” any cit-
izen to be subjected to a constitutional deprivation is
also liable. The requisite causal connection can be
established not only by some kind of direct personal
participation in the deprivation, but also by setting in
motion a series of acts by others which the actor
knows or reasonably should know would cause oth-
ers to inflict the constitutional injury.
588 F.2d 740, 743-44 (9th Cir. 1978) (citation omitted); see
also Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011) (hold-
ing that an official “need not be ‘directly and personally
involved in the same way as are the individual officers who
are on the scene inflicting constitutional injury’ ” to be held
liable as long as “culpable action . . . is directly attributed to
[him]” (quoting Larez v. City of L.A., 946 F.2d 630, 645 (9th
Cir. 1991))).
Culpability, however, is limited not only by the causal con-
nection of the official to the complained-of violation, but also
by his intent (depending on the underlying constitutional vio-
lation at issue) to deprive another of that person’s rights; both
limitations on the nature of culpable conduct are critical, for
“each Government official . . . is only liable for his or her own
misconduct.” Iqbal, 556 U.S. at 677. For an official to be lia-
ble for another actor’s depriving a third party of his constitu-
10032 LACEY v. MARICOPA COUNTY
tional rights, that official must have at least the same level of
intent as would be required if the official were directly to
deprive the third party of his constitutional rights. See id.6
With this proviso, a supervisor can be held liable for the con-
stitutional torts of his subordinates if “a sufficient causal con-
nection between the supervisor’s wrongful conduct and the
constitutional violation” exists, Starr, 652 F.3d at 1207 (quot-
ing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)); see
Iqbal, 556 U.S. at 677. But an official with no official author-
ity over another actor can also be liable for that actor’s con-
duct if he induces that actor to violate a third party’s
constitutional rights, provided that the official possesses the
requisite intent, such as retaliatory animus. See Hartman v.
Moore, 547 U.S. 250, 262 (2006); see also Harris v. Roder-
ick, 126 F.3d 1189, 1196-97, 1204 (9th Cir. 1997) (finding
liability for both supervisory and nonsupervisory officials).
The district court granted judgment to Wilenchik on the
grounds that Lacey’s complaint failed to state a claim for
deprivation of a constitutional right. For the most part, we dis-
agree with the district court that the allegations fail to state a
constitutional tort, and we hold that Wilenchik is not entitled
to qualified immunity for them.
a. First Amendment Retaliation
[8] Lacey claims that Wilenchik violated his First Amend-
ment rights by investigating and arresting him in retaliation
for articles published in the New Times and with the purpose
of suppressing the exercise of those rights. “Official reprisal
for protected speech ‘offends the Constitution [because] it
threatens to inhibit exercise of the protected right[’;] . . . the
First Amendment prohibits government officials from subject-
6
In claims under the Eighth Amendment, we have recognized that a
supervisor also may be accountable under § 1983 if he was deliberately
indifferent to unconstitutional conditions in the prison. See Starr, 652 F.3d
at 1205.
LACEY v. MARICOPA COUNTY 10033
ing an individual to retaliatory actions, including criminal
prosecutions, for speaking out.” Hartman, 547 U.S. at 256(first alteration in original) (citation omitted) (quoting Craw-
ford-El v. Britton, 523 U.S. 574, 588 n.10 (1998)). We have
held that “to demonstrate a First Amendment violation, a
plaintiff must provide evidence showing that ‘by his actions
[the defendant] deterred or chilled [the plaintiff’s] political
speech and such deterrence was a substantial or motivating
factor in [the defendant’s] conduct.’ ” Mendocino Envtl. Ctr.
v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999)
(quoting Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir.
1994)). Lacey need not show his “speech was actually inhib-
ited or suppressed.” Id. Rather, we consider “whether an offi-
cial’s acts would chill or silence a person of ordinary firmness
from future First Amendment activities.” Id. (quoting
Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996),
vacated on other grounds, 520 U.S. 1273). Lacey must allege
facts ultimately enabling him to “prove the elements of retal-
iatory animus as the cause of injury,” with causation being
“understood to be but-for causation.” Hartman, 547 U.S. at
260; see id. (“It may be dishonorable to act with an unconsti-
tutional motive and perhaps in some instances be unlawful,
but action colored by some degree of bad motive does not
amount to a constitutional tort if that action would have been
taken anyway.”); Dietrich v. John Ascuaga’s Nugget, 548
F.3d 892, 901 (9th Cir. 2008).
[9] Lacey has adequately alleged that Wilenchik’s primary
intent was to silence the New Times’s protected speech, which
came in the form of newspaper articles criticizing public offi-
cials. First, Wilenchik’s actions were sufficient to chill
Lacey’s protected speech.7 Wilenchik issued broad, invalid
subpoenas demanding that the paper reveal its sources, dis-
close its reporters’ notes, and reveal information about anyone
who visited the New Times’s website; Wilenchik’s motions
7
For purposes of this opinion, we assume that the New Times articles
preceding the publication of Arpaio’s address were protected speech.
10034 LACEY v. MARICOPA COUNTY
for arrest warrants, contempt findings, and fines show that he
meant the New Times to fear them as valid. He did not wait
for the warrants or other official approval before authorizing
Arpaio’s “Selective Enforcement Unit” to arrest Lacey and
Larkin at their homes. In the circumstances of this case, to
state that “[a]rresting someone in retaliation for their exercise
of free speech rights” is sufficient to chill speech is an under-
statement. Beck v. City of Upland, 527 F.3d 853, 871 (9th Cir.
2008); see White v. Lee, 227 F.3d 1214, 1237-38 (9th Cir.
2000) (holding that intrusive investigation that did not culmi-
nate in an arrest could chill the exercise of First Amendment
rights).8
[10] Second, Wilenchik’s actions against Lacey, Larkin,
and the New Times were plainly intended to punish them for
their First Amendment activities and deter them from future
activities. Although Wilenchik’s entire alleged course of con-
duct evinces this, the proof is clearly found in Wilenchik’s
efforts to have Lacey and Larkin arrested the same day the
New Times published an article critical of his investigation.
See Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003)
(proximity in time supports an inference that the motive was
unconstitutional retaliation). This, along with Wilenchik’s
lacking probable cause to have Lacey and Larkin arrested,
raises the strong inference that Wilenchik was motivated by
retaliatory animus and that it was a but-for cause of his
actions. It is hard to conceive of a more direct assault on the
First Amendment than public officials ordering the immediate
arrests of their critics. And, in this case, there was nothing
subtle about their efforts to stifle the New Times.
8
The Supreme Court recently addressed whether a lack of probable
cause was a necessary element of a cause of action for retaliatory arrest
in violation of the First Amendment in Reichle v. Howards, 132 S. Ct.
2088 (2012). It only held that, in light of Hartman, “it was not clearly
established [in 2006] that an arrest supported by probable cause could vio-
late the First Amendment.” Id. at 2093-95. We need not consider Reichle’s
effect on our precedent because, for reasons we will explain, Lacey suffi-
ciently alleged lack of probable cause.
LACEY v. MARICOPA COUNTY 10035
[11] We have no difficulty concluding that, if the allega-
tions are proven, Wilenchik violated Lacey’s clearly estab-
lished First Amendment rights. Wilenchik is therefore not
entitled to qualified immunity.
b. False Arrest
[12] Lacey claims that Wilenchik is liable for ordering or
counseling the MCSO to arrest him without probable cause.9
“A claim for unlawful arrest is cognizable under § 1983 as a
violation of the Fourth Amendment, provided the arrest was
without probable cause or other justification.” Dubner v. City
& Cnty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001). “Probable
cause exists when there is a fair probability or substantial
chance of criminal activity.” United States v. Patayan Sori-
ano, 361 F.3d 494, 505 (9th Cir. 2004) (quoting United States
v. Bishop, 264 F.3d 919, 924 (9th Cir. 2001)) (internal quota-
tion marks omitted). “It is well-settled that ‘the determination
of probable cause is based upon the totality of the circum-
stances known to the officers at the time of the search.’ ” Id.(quoting Bishop, 264 F.3d at 924).
[13] To maintain an action for false arrest against
Wilenchik, Lacey must plead facts that would show
Wilenchik ordered or otherwise procured the arrests and the
arrests were without probable cause. As to the first point,
Lacey has adequately alleged that Wilenchik was personally
9
Although the complaint alleges that “Plaintiffs” were subjected to false
arrest, the facts only support that Plaintiffs Lacey and Larkin were ever
arrested, not the New Times as a corporate entity. Thus, only Lacey and
Larkin have a viable Fourth Amendment claim.
Because a corporation is a “person” within the meaning of the Four-
teenth Amendment, Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 881 n.9
(1985), and is entitled to the protections of the First Amendment, Citizens
United v. FEC, 130 S. Ct. 876, 899-900 (2010), the New Times as a corpo-
ration may continue with its First Amendment retaliation and Fourteenth
Amendment selective enforcement claims to the extent those claims are
not premised on arrest.
10036 LACEY v. MARICOPA COUNTY
involved in the decision to arrest Lacey and Larkin even
though he did not personally arrest them.10 The complaint
recites that Wilenchik’s former partner, William French, and
staff from Wilenchik’s office claimed that “Wilenchik did
indeed authorize and advise Arpaio to conduct the arrests by
the ‘Selective Enforcement Unit.’ ” FAC ¶ 111.
[14] Whether Wilenchik knew that there was no probable
cause for the arrests is a closer question. In general, we must
ask whether “a prudent person would believe [that Lacey] had
committed a crime.” Dubner, 266 F.3d at 966. Arizona’s
grand jury disclosure statute makes it a misdemeanor “if the
person knowingly discloses to another the nature or substance
of any grand jury testimony or any decision, result or other
matter attending a grand jury proceeding.” Ariz. Rev. Stat.
§ 13-2812(A).11 Lacey has alleged that Wilenchik knew that
10
We note that the complaint pleads alternative facts about who ordered
the arrests and how they were ordered. See, e.g., FAC ¶ 25 (stating that
“Arpaio’s top-aide, Chief Hendershott, claims to have personally ordered
the arrests. Other witnesses, including lawyers from Wilenchik’s office,
claim that the arrests were made after consultation with Wilenchik and
lawyers from his office.”). This is permissible. FED. R. CIV. P. 8(d)(2)-(3).
“If a party makes alternative statements, the pleading is sufficient if any
one of them is sufficient.” Id. at 8(d)(2). We therefore assume, where rele-
vant, that both Arpaio and Wilenchik ordered or counseled the arrests, and
ignore the allegations concerning other actors that would render the plead-
ings insufficient.
We also note that Lacey has pled conspiracy between Wilenchik and
Arpaio. Although we believe the allegations are sufficient to state a cause
of action against Wilenchik by themselves, pleading conspiracy may fur-
ther draw Wilenchik into the claims based on his complicity in the actions
of others. See Section IV.D, infra.
11
Ariz. Rev. Stat. § 13-2812 provides in full:
A. A person commits unlawful grand jury disclosure if the per-
son knowingly discloses to another the nature or substance of any
grand jury testimony or any decision, result or other matter
attending a grand jury proceeding, except in the proper discharge
of official duties, at the discretion of the prosecutor to inform a
victim of the status of the case or when permitted by the court in
furtherance of justice.
B. Unlawful grand jury disclosure is a class 1 misdemeanor.
LACEY v. MARICOPA COUNTY 10037
he had issued the subpoenas on his own authority and that
they were not, in fact, part of any grand jury proceeding. See
FAC ¶ 86 (“The [August 24, 2007] subpoenas were issued . . .
without any formal charges or indictments pending, and with-
out notice to or the approval of a Court or grand jury.”). If so,
then Wilenchik knew that, by publishing the content of
invalid subpoenas, Lacey and Larkin had not committed the
crime of disclosing any “matter attending a grand jury pro-
ceeding,” Ariz. Rev. Stat. § 13-2812(A). There was no rele-
vant grand jury proceeding, and Wilenchik’s failure to receive
authorization or notify the court and grand jury foreman can-
not be attributed to mistake or some other reasonable error in
judgment. Lacey and Larkin have thus alleged that Wilenchik
violated their Fourth Amendment right to be free from false
arrest by ordering their arrests without probable cause to do
so.
[15] As alleged, the Fourth Amendment violation is obvi-
ous. Wilenchik is not entitled to qualified immunity with
regard to Lacey’s and Larkin’s false arrest claims, and those
claims may proceed.
c. Malicious Prosecution
[16] Lacey also brings a § 1983 claim for malicious prose-
cution. The district court dismissed this claim because it
found that Lacey failed to show that there was no probable
cause for the arrests. To claim malicious prosecution, a peti-
tioner must allege “that the defendants prosecuted her with
malice and without probable cause, and that they did so for
the purpose of denying her equal protection or another spe-
cific constitutional right.” Freeman v. City of Santa Ana, 68
F.3d 1180, 1189 (9th Cir. 1995); see also Blaxland v. Com-
monwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1204
(9th Cir. 2003) (stating that malicious prosecution “concern[s]
the wrongful use of legal process”). It requires “the institution
of criminal proceedings against another who is not guilty of
the offense charged” and that “the proceedings have termi-
10038 LACEY v. MARICOPA COUNTY
nated in favor of the accused.” Restatement (Second) of Torts
§ 653 (1977).12 In general, a claim of malicious prosecution is
not cognizable under § 1983 “if process is available within the
state judicial systems” to provide a remedy, although “we
have also held that an exception exists . . . when a malicious
prosecution is conducted with the intent to . . . subject a per-
son to a denial of constitutional rights.” Bretz v. Kelman, 773
F.2d 1026, 1031 (9th Cir. 1985) (en banc).
Lacey has not alleged that there was any “prosecution,” nor
has he alleged that any criminal proceeding was terminated in
his favor. Although being “lawfully arrested on a criminal
charge” may be considered the institution of a criminal pro-
ceeding, Restatement (Second) of Torts § 654(2)(c), where
“the arrest is not a valid one, an action for malicious prosecu-
tion will not lie unless some further step is taken, such as
bringing the accused before a magistrate for determination
whether he is to be held,” id. § 654 cmt. e. “If there is nothing
more than the false arrest and the accused is released without
any further proceeding,” the remedy is limited to damages for
the false arrest. Id.; see also Blaxland, 323 F.3d at 1204-05.
[17] Although Lacey and Larkin were arrested, they have
not alleged that any process resulting in the initiation of crimi-
nal proceedings followed this arrest. Accordingly, Lacey has
not identified any action taken by Wilenchik that can properly
be characterized as a prosecution. He has simply recast the
false arrest claim as a claim for malicious prosecution, which
12
The Supreme Court has noted two significant differences between
malicious prosecution and false arrest: (1) the former “permits damages
for confinement imposed pursuant to legal process,” whereas the latter
only allows damages for the time one is detained until arraignment; and
(2) an additional “element that must be alleged and proved in a malicious
prosecution action is termination of the prior criminal proceeding in favor
of the accused.” Heck v. Humphrey, 512 U.S. 477, 484 (1994) (citing W.
Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law
of Torts 874, 888 (5th ed. 1984)).
LACEY v. MARICOPA COUNTY 10039
he may not do. The district court properly dismissed the mali-
cious prosecution claims.
d. Selective Enforcement
[18] Lacey argues that Wilenchik violated the Equal Pro-
tection Clause by singling out Lacey and Larkin for investiga-
tion and arrest. Although the district court primarily
characterized their claim as one for “selective prosecution,”
on appeal Lacey calls it a claim for “selective enforcement.”
Lacey’s complaint adequately supports this characterization,
although the label is probably not relevant. To prevail on an
equal protection claim under the “Fourteenth Amendment, a
plaintiff must demonstrate that enforcement had a discrimina-
tory effect and the police were motivated by a discriminatory
purpose.” Rosenbaum v. City & Cnty. of S.F., 484 F.3d 1142,
1152 (9th Cir. 2007) (citing Wayte v. United States, 470 U.S.
598, 608 (1985)). Enforcement may be shown through a vari-
ety of actual or threatened arrests, searches and temporary sei-
zures, citations, and other coercive conduct by the police. See
id. at 1152-54; see also United States v. Frazier, 408 F.3d
1102, 1108 (8th Cir. 2005); Flowers v. Fiore, 359 F.3d 24, 34
(1st Cir. 2004); Chavez v. Ill. State Police, 251 F.3d 612, 635
(7th Cir. 2001); United States v. Avery, 137 F.3d 343, 358
(6th Cir. 1997). In order to prove a discriminatory effect, “the
claimant must show that similarly situated individuals . . .
were not prosecuted.” United States v. Armstrong, 517 U.S.
456, 465 (1996).
[19-20] The standard for proving discriminatory effect “is
a demanding one.” Id. at 463. Yet, to state a claim, Lacey
need only allege some facts, either anecdotal or statistical,
demonstrating “that similarly situated defendants . . . could
have been prosecuted, but were not.” Id. at 469; see also
Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir.
1995) (“[I]t is necessary to identify a ‘similarly situated’ class
against which the plaintiff’s class can be compared.”) Lacey
has met this burden with regard to the investigatory activities
10040 LACEY v. MARICOPA COUNTY
related to the publication of Arpaio’s home address, but not
with respect to the publication of the grand jury subpoenas.13
Lacey alleged that, at the time of the New Times’s publication
of Arpaio’s address, Arpaio’s address was also publicly avail-
able on at least three other websites—the websites of the
Maricopa County Recorder, the Maricopa County Election
Commission, and the Republican Party.14 Although the Ari-
zona privacy statute shields an “employee of a county
recorder . . . [who] publishes personal information, in good
faith, on the web site of the county recorder,” Ariz. Rev. Stat.
§ 13-2401(B), it provides no such protection for an employee
of the Election Commission, and it says nothing about
employees of political parties. Further, the complaint alleges
that the MCAO’s own investigators also reached the conclu-
sion that Arpaio’s address was widely available on the Inter-
net, suggesting it may have been available on other websites
as well. In any case, the allegations and Lebowitz Memoran-
dum are sufficient to show that there were other websites pub-
lishing the same information as Lacey that were not
investigated. Those responsible for the other websites were
similarly situated if we accept the facts in the complaint as
true. They and those responsible for the New Times website
all satisfied the first element of the Arizona privacy statute in
that they “knowingly ma[d]e [Arpaio’s address] available” on
the Internet. Id. § 13-2401(A). But Lacey emphasizes that the
other two elements—“the dissemination of the personal infor-
mation poses an imminent and serious threat” and the “threat
is reasonably apparent to the person making the information
13
With respect to the arrests for violating the grand jury secrecy statute,
the complaint provided only a vague assertion that those who commit non-
violent misdemeanors are usually not arrested. These allegations are insuf-
ficient because they fail to specify a similar class, such as those alleged
to have violated the grand jury secrecy statute, with which comparisons
can be made to Lacey’s case, so Lacey has failed to state a claim for selec-
tive enforcement with regard to the arrests. See Armstrong, 517 U.S. at
465; Rosembaum, 484 F.3d at 1153-54.
14
This information is contained in the attached Lebowitz Memorandum.
FAC Ex. 1, at 7.
LACEY v. MARICOPA COUNTY 10041
available on the world wide web,” id.—were not satisfied by
any of the website operators’ actions because there was never
any evidence suggesting that the publication of Arpaio’s
address by any website ever posed an imminent and serious
threat to Arpaio. See FAC ¶ 41 (“There was no evidence that
Arpaio was then, or ever, under any credible threat of ‘immi-
nent harm’ as a result of the publication of his home address
on The New Times web site.”); id. ¶ 46 (“[E]ven a cursory
investigation would have revealed that the only ‘death threats’
to Arpaio were ‘made-for-TV’ contrivances by the Sheriff’s
public relations officers.”); id. at ¶¶ 47-48 (“Arpaio, himself,
obviously did not feel any ‘imminent’ threat from the . . . arti-
cle, because he was content to wait for many months before
requesting any investigation. . . . In fact, Arpaio has contin-
ued, to this day, to publicize and publish his home address to
citizens and the public at large.”). Accordingly, Lacey need
not allege that publication by the other websites posed an “im-
minent and serious threat” in order to show that the other
websites were similarly situated. They were similarly situated
by virtue of the fact that they too had published Arpaio’s
address but were never investigated or prosecuted. Admit-
tedly, this case is a bit unusual in that we are assuming there
was no violation of the law for Wilenchik to investigate,
whereas selective prosecution has developed mostly in the
context of otherwise legitimate prosecutions where it is clear
that the law was violated. But we find no requirement that, to
state a § 1983 claim for selective prosecution, one must essen-
tially concede liability.15
15
It also will not do for Wilenchik to claim that he made a reasonable
mistake of law or fact in applying the little-used Arizona privacy statute
to the actions of the New Times. See Tallman Dissent, 10081-82. Although
we use a reasonable official standard in determining whether reasonable
mistakes were made, we also look to the knowledge possessed by the
defendant. See Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir.
2011). Based on the allegations in the complaint, it is reasonable to
assume that Wilenchik had access to both the MCAO’s extensive investi-
gation into the New Times’s publications and Arpaio’s personal knowl-
edge of the threats against him. We cannot find at this stage that
Wilenchik reasonably thought that the New Times, and the New Times
10042 LACEY v. MARICOPA COUNTY
To establish that Wilenchik was motivated by an improper
purpose, Lacey must show that Wilenchik decided to enforce
the law against him “on the basis of an impermissible ground
such as race, religion or exercise of . . . constitutional rights.”
United States v. Kidder, 869 F.2d 1328, 1336 (9th Cir. 1989)
(quoting United States v. Moody, 778 F.2d 1380, 1386 (9th
Cir.1985), amended on other grounds, 791 F.2d 707 (9th Cir.
1986)). The discussion above makes clear that Lacey has
properly pled this element. The complaint plainly alleges that
the New Times was singled out for enforcement. Lebowitz, in
his Memorandum, argued against the PCAO’s assertion that
the New Times “should not be singled out for prosecution.”
FAC Ex. 1, at 7. He justified targeting the New Times by
explaining at length how “[n]one of the other web cites[sic],
historically, have resorted to writing articles against the Sher-
iff.” Id. at 7-8. The complaint alleges that Wilenchik shared
this vision and
did the bidding of . . . the Sheriff in their attempt to
punish and financially ruin a newspaper that was too
often critical of him too. . . . [Wilenchik] attempted
to put the newspaper out of business through selec-
tive, malicious, and improper means and methods of
investigation and prosecution.
FAC ¶ 115.
Wilenchik argues that he cannot be liable for selective
enforcement because, as a special prosecutor, he was charged
with investigating only one potential violation of the law. It
is a curious argument, and we discuss the special consider-
alone, posed a serious and imminent threat to Arpaio’s safety by publish-
ing Arpaio’s address. Any finding of reasonableness on Wilenchik’s part
would rely on facts to be determined by a jury. See Santos v. Gates, 287
F.3d 846, 855 n.12 (9th Cir. 2002) (denying qualified immunity because
any reasonable mistake might “depend on the jury’s resolution of disputed
facts and the inferences it draws therefrom”).
LACEY v. MARICOPA COUNTY 10043
ations attendant to special prosecutors in Section III.C.2,
infra, but we are not persuaded that it is a meritorious argu-
ment. Even as a “special prosecutor,” Wilenchik bears some
responsibility for knowing what can reasonably be charged
under Arizona law. It is no defense to the claim that he
decided to prosecute the New Times in retaliation for its First
Amendment-protected activities to say that Wilenchik did not
have the authority to prosecute anyone else if he shared
Arpaio’s purpose in singling out the New Times; the limitation
on his power does not relieve Wilenchik of the duty to exer-
cise judgment consistent with the Constitution.
[21] Wilenchik is thus not entitled to qualified immunity,
and Lacey may proceed with his selective enforcement claim.
B. Joseph Arpaio
The district court held that Lacey failed to state a claim
against Arpaio under each § 1983 cause of action pled, which
are the same as those against Wilenchik. Lacey appeals this
determination.
1. First Amendment Retaliation
[22] Many of the same facts that support Lacey’s claims
against Wilenchik for First Amendment retaliation—an intru-
sive investigation and arrests designed to chill his speech and
press rights—also sustain the claim against Arpaio. But
Arpaio is alleged to have been at it for much longer: his
efforts to muffle the New Times preceded Wilenchik’s
appointment by more than two years. He pressured county
attorneys in Maricopa and Pinal counties to prosecute, even
after attorneys in both counties concluded there was no case.
FAC ¶¶ 53-55 (Maricopa County declined to prosecute); id. at
¶¶ 58-65 (Pinal County declined to prosecute). Allegedly,
Arpaio was involved in the decision to appoint Wilenchik;
was complicit in Wilenchik’s efforts to investigate and prose-
cute the New Times, Lacey, and Larkin; and ordered the
10044 LACEY v. MARICOPA COUNTY
arrests. See id. at ¶ 67 (“Wilenchik was hired by Thomas and
Arpaio.”); id. at ¶ 80 (Wilenchik acted with “the approval and
support of Arpaio.”); id. at ¶ 25 (Arpaio’s top aide claims to
have “personally ordered the arrests.”); id. at ¶ 103
(“Defendants dispatched Arpaio’s aptly named ‘Selective
Enforcement Unit’ . . to arrest Plaintiffs.”); id. at ¶ 110
(“Wilenchik has publicly claimed the arrests were conducted,
authorized, approved, and/or directed by Arpaio and/or his
aides.”); id. at ¶ 114 (Arpaio “applied unfair pressure and
demands upon prosecutorial bodies, abusing the power of his
office and influence, to investigate, prosecute, arrest, and jail
Plaintiffs for improper and unconstitutional motives . . . based
on the content of their speech.”).
[23] We have little difficulty concluding that Arpaio is not
entitled to qualified immunity on Lacey’s First Amendment
retaliation claims. Lacey may proceed on those claims.
2. False Arrest
[24] Lacey has pled sufficient facts to permit a trier of fact
to find that Arpaio was personally involved in the arrests.
Although Arpaio has denied ordering the arrests, Wilenchik
“has publicly claimed the arrests were conducted, authorized,
approved, and/or directed by Arpaio and/or his aides.” FAC
¶ 110; see also FAC ¶ 114 (“[Arpaio] and/or his Office and
top officials and ‘Selective Enforcement Unit’ ordered and/or
made the late-night arrests and jailings.”). As we have previ-
ously mentioned, both Wilenchik’s former partner, William
French, and Wilenchik’s staff stated that Wilenchik and his
lawyers “authorize[d] and advise[d] Arpaio to conduct the
arrests.” FAC ¶ 111.
Lacey’s claim against Arpaio for false arrest for violating
the grand jury secrecy statute is more difficult for him to
establish because it requires proof that Arpaio knew there was
no probable cause, which in turn requires that Lacey show
that Arpaio knew the subpoenas were invalid. The time frame
LACEY v. MARICOPA COUNTY 10045
for Arpaio to learn this is narrow, because the arrests were
effected the same evening as the publication of the subpoe-
nas’ contents. Given the close relationship between Wilenchik
and Arpaio, Wilenchik may well have communicated some-
thing about the subpoenas to Arpaio, and Arpaio may have
known, as Wilenchik knew, that the subpoenas were invalid
and there was no violation of the grand jury secrecy statute.
On the other hand, if Wilenchik merely communicated that
the statute had been violated, or represented that the subpoe-
nas were valid, Arpaio’s reliance on this assertion could be
reasonable. See Torres v. City of L.A., 548 F.3d 1197, 1212
(9th Cir. 2008) (“[W]here an officer has an objectively rea-
sonable, good-faith belief that he is acting pursuant to proper
authority, he cannot be held liable if the information supplied
by other officers turns out to be erroneous. The lynchpin is
whether the officer’s reliance on the information was objec-
tively reasonable.” (citation omitted) (quoting Motley v.
Parks, 432 F.3d 1072, 1082 (9th Cir. 2005) (en banc)) (inter-
nal quotation marks omitted)). Similarly, if Arpaio were dis-
engaged from Wilenchik’s investigation and heard only about
the publication of grand jury material, it might be a reason-
able mistake to believe that a crime had been committed.
There are other circumstances surrounding the arrests that
may suggest that Arpaio either knew or should have known
that something was amiss. Although the grand jury disclosure
violation was just a misdemeanor, he dispatched his special
unit to arrest Lacey and Larkin at their homes in the middle
of the night. Sheriff Arpaio should have known that arresting
someone at his home requires a warrant, unless there are exi-
gent circumstances. See Fisher v. City of San Jose, 558 F.3d
1069, 1074-75 (9th Cir. 2009) (en banc). No warrant for
Lacey’s or Larkin’s arrest had been issued, and we cannot
fathom what exigent circumstances compelled either arrest.
See Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Offi-
cers “have an ongoing duty to make appropriate inquiries
regarding the facts received or to further investigate if insuffi-
cient details are relayed.” Motley, 432 F.3d at 1081 (9th Cir.
10046 LACEY v. MARICOPA COUNTY
2005). The strange circumstances made it objectively unrea-
sonable for Arpaio to rely on the bare claim that a misdemea-
nor had been committed earlier in the day, without any
information about exigent circumstances, to justify the arrests
of Lacey and Larkin at their homes.
[25] Given the detail in the complaint and the seriousness
of the allegations, we are reluctant to dismiss the false arrest
claim against Arpaio on the basis of the pleadings. Iqbal
demands more of plaintiffs than bare notice pleading, see
Iqbal, 556 U.S. at 677-78; Twombly, 550 U.S. at 562-63, but
it does not require us to flyspeck complaints looking for any
gap in the facts. Lacey has spun a long and sometimes repeti-
tive narration of Arpaio’s determination to silence the New
Times by any means necessary. It is a short step to infer that
Arpaio was well aware of the flaws in Wilenchik’s prosecu-
tion, but welcomed the excuse to have Lacey and Larkin
arrested immediately, even if he lacked probable cause. We
think this is all Iqbal requires at this stage.16
[26] Arpaio is therefore not entitled to qualified immunity
on the false arrest claim, and Lacey may proceed with it.
3. Malicious Prosecution
[27] For the same reasons discussed above, the district
court properly dismissed Lacey’s malicious prosecution cause
of action against Arpaio.
4. Selective Enforcement
[28] As with the First Amendment claim, and for largely
the same reasons we allowed this claim to go forward against
Wilenchik, the complaint adequately alleges that Arpaio acted
16
Additionally, as we discuss in Section IV.D, Lacey has pled conspir-
acy between Wilenchik and Arpaio. From the conspiratorial acts, a trier
of fact may also infer false arrest.
LACEY v. MARICOPA COUNTY 10047
with the requisite intent and had a sufficient causal connection
to the selective enforcement against the New Times. Arpaio
was part and parcel of the effort to prosecute the New Times,
even if he was not the prosecutor. See Hartman, 547 U.S. at
262 (“[A] plaintiff . . . must show that the nonprosecuting
official acted in retaliation, and must also show that he
induced the prosecutor to bring charges that would not have
been initiated without his urging.”). The Lebowitz Memoran-
dum admits that Arpaio wanted the New Times prosecuted
because it was “historically anti-Arpaio” and had written arti-
cles critical of Arpaio using “inflammatory, insulting, [and]
vituperative” language. FAC, Ex. 1, at 8. This, along with the
other evidence discussed above, is sufficient to show Arpaio’s
discriminatory intent and the discriminatory effect of singling
out the New Times. Further, as with the First Amendment
claim, Arpaio’s insistence on prosecution, his role in the
selection of Wilenchik, and his relationship with Wilenchik
during the investigation provide a sufficient causal connection
to the foreseeable result that Wilenchik would indeed investi-
gate the New Times, resulting in its being singled out for
enforcement. See Hartman, 547 U.S. at 264 (“[E]vidence that
a prosecutor was nothing but a rubber stamp for his investiga-
tive staff or the police” would be “of great significance.”).
[29] Arpaio is not entitled to qualified immunity on
Lacey’s selective enforcement claim and he may proceed on
that cause of action.
C. Andrew Thomas
1. Status as a Defendant
Before we consider his claim to immunity, we must address
whether the claims against Maricopa County Attorney
Andrew Thomas are properly before us, as our circuit law
appears to require that we consider the claims against Thomas
to be waived.17 Thomas was named as a defendant in the orig-
17
Although neither party briefed the issue and instead argued the merits
of whether Thomas should receive absolute immunity, we address the
10048 LACEY v. MARICOPA COUNTY
inal complaint, but the district court dismissed him from the
case in its October 2008 order after finding that he was enti-
tled to absolute prosecutorial immunity. Although the court
granted leave to amend claims against other parties, it did not
grant Lacey leave to amend the claims against Thomas. When
Lacey filed his First Amended Complaint, he mentioned
Thomas throughout the facts, but he removed all reference to
Thomas as a defendant.
We have long proclaimed that “[i]t is the law of this circuit
that a plaintiff waives all claims alleged in a dismissed com-
plaint which are not realleged in an amended complaint.” For-
syth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997);
see N.Y. City Emps.’ Ret. Sys. v. Jobs, 593 F.3d 1018, 1025
(9th Cir. 2010); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987); London, 644 F.2d at 814; Sacramento Coca-Cola Bot-
tling Co. v. Chauffeurs, Etc., Local 150, 440 F.2d 1096 (9th
Cir. 1971); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967);
Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 1956).
(For convenience, we will refer to the rule as the “Forsyth
rule.”) The Forsyth rule is “premised on the notion that the
‘amended complaint supersedes the original, the latter being
treated thereafter as non-existent.’ If a plaintiff fails to include
dismissed claims in an amended complaint, the plaintiff is
deemed to have waived any error in the ruling dismissing the
prior complaint.” Forsyth, 114 F.3d at 1474 (citation omitted)
(quoting Loux, 375 F.2d at 57). We have indeed considered
this rule to be “hornbook law,” Bullen, 239 F.2d at 833, even
as we have recognized that it is “somewhat harsh,” Marx v.
Loral Corp., 87 F.3d 1049, 1056 (9th Cir. 1996). This rule
would appear to preclude Lacey from asserting claims against
Thomas in this appeal.
issue of waiver sua sponte because of the confusion this issue appears to
be working in this circuit. We have not hesitated to raise the issue when
necessary in the past. See London v. Coopers & Lybrand, 644 F.2d 811,
814 (9th Cir. 1981).
LACEY v. MARICOPA COUNTY 10049
Several of our recent decisions, however, have struggled to
dampen the harshness of the Forsyth rule and have left our
law somewhat unsettled. In USS-POSCO Industries v. Contra
Costa County Building & Construction Trades Council, we
held that the rule “only applies to amended complaints that
follow upon dismissal with leave to amend, and not to those
that follow summary judgment.” 31 F.3d 800, 812 (9th Cir.
1994). As we explained, “[c]ounsel were not required to risk
forfeiting their client’s right to appeal in order to avoid sanc-
tions.” Id.In Parrino v. FHP, Inc., we further narrowed the rule when
we declined to apply it “to claims dismissed without leave to
amend.” 146 F.3d 699, 704 (9th Cir. 1998), superseded by
statute on other grounds as stated in Abrego Abrego v. Dow
Chem. Co., 443 F.3d 676, 681-82 (9th Cir. 2006). Recently,
in Sechrest v. Ignacio, we held that the cases establishing the
Forsyth rule, including London and Loux, dealt only with
“voluntary waiver”; because the petitioner was barred from
reasserting certain claims in his habeas petition on pain of its
dismissal if he included them, the panel concluded that his
challenge to those claims he was unable to reassert was not
waived. 549 F.3d 789, 804 (9th Cir. 2008).
We are unconvinced that the distinctions we noted in Par-
rino and Sechrest are consistent with our prior cases. In Marx,
for example, we applied the rule where the district court dis-
missed a claim because it was preempted by ERISA. Follow-
ing dismissal,
[t]he court allowed the plaintiffs to file an amended
complaint only on the narrow ground of equitable
estoppel sounding in fraud. Thus, the plaintiffs did
not include their independent contract theory in the
amended complaint. Although it seems somewhat
harsh to preclude them from raising the argument
now, Ninth Circuit caselaw requires just such a
result.
10050 LACEY v. MARICOPA COUNTY
87 F.3d at 1056. We did not recognize any exception because
the claims were dismissed involuntarily, but see Sechrest, 549
F.3d at 804, or because the district court refused to grant leave
to amend the dismissed claim, but see Parrino, 146 F.3d at
704. Rather, we laid out a stark choice for the plaintiff: “ ‘If
appellant desired to rely upon the original complaint, it should
have refused to plead further.’ ” Marx, 87 F.3d at 1055 (quot-
ing Studio Carpenters Local Union No. 946 v. Loew’s, Inc.,
182 F.2d 168, 170 (9th Cir. 1950)). While harsh, the rule has
some logic behind it.
Furthermore, we acknowledged in Marx that other courts
and legal scholars have criticized the Forsyth rule precisely
because it is without exception. For instance, we noted that the
Tenth Circuit criticized our rule and characterized it as “for-
malistic.” Id. at 1056 (quoting Davis v. TXO Prod. Corp., 929
F.2d 1515, 1517-18 & n.1 (10th Cir. 1991)). We also cited a
well-known practice guide that stated:
The notion that an amended pleading supersedes
its predecessor poses a special problem for a party
whose initial pleading has been dismissed with leave
to amend. By amending, does the party waive the
right to object to the court’s dismissal of the original
statement at some later point? Some courts have held
that the amended pleading supersedes the original
pleading in all respects so that an appeal from a sub-
sequent judgment on the merits cannot involve an
attack on the dismissal of the original pleading.12
12
[citing Ninth Circuit case law including
Loux and Studio Carpenters]
A rule that a party waives all objections to the
court’s dismissal if the party elects to amend is too
mechanical and seems to be a rigid application of the
concept that a Rule 15(a) amendment completely
replaces the pleading it amends.
LACEY v. MARICOPA COUNTY 10051
6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure § 1476, at 560-61 (2d ed.
1990). It is difficult to escape the conclusion that we have
always meant what we had said.
Although criticized, our current rule makes some sense in
context. We have adopted a generous standard for granting
leave to amend from a dismissal for failure to state a claim,
such that “a district court should grant leave to amend even
if no request to amend the pleading was made, unless it deter-
mines that the pleading could not possibly be cured by the
allegation of other facts.” Doe v. United States, 58 F.3d 494,
497 (9th Cir. 1995) (quoting Cook, Perkiss & Liehe v. N. Cal.
Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990)). Further-
more, because we had held that under the old version of Fed-
eral Rule of Civil Procedure 15 “a motion to dismiss is not a
‘responsive pleading,’ ” and thus a party had leave to amend
as of right upon dismissal absent the filing of an responsive
pleading, id. at 497 (quoting Schreiber Distrib. v. Serv-Well
Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)) (internal
quotation mark omitted), in many cases any failure to replead
a claim in an amended complaint would have been voluntary.
(Under the current version of Rule 15 adopted in 2009, parties
have 21 days from both responsive pleadings and motions to
dismiss to amend as of right, see Fed. R. Civ. P. 15(a)(1)
(2009), so the situation has changed.) The Forsyth rule is also
consonant with our general practice of considering a dismissal
to be of the claims and not a final judgment on the complaint,
see WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir.
1997) (en banc), with the purpose of reducing the number of
appeals to this court.
Despite its provenance, on reflection, we do not believe
that the Forsyth rule is prudent or sufficiently justified, and
we agree that it is formalistic and harsh. We also recognize
that we are an outlier among the circuits. Although the gen-
eral rule is that an amended complaint supercedes the original
complaint and renders it without legal effect, most courts have
10052 LACEY v. MARICOPA COUNTY
concluded that “the plaintiff does not forfeit the right to chal-
lenge the dismissal on appeal simply by filing an amended
complaint that does not re-allege the dismissed claim.” Young
v. City of Mount Ranier, 238 F.3d 567, 572-73 (4th Cir. 2001)
(footnote omitted); see In re Atlas Van Lines, Inc., 209 F.3d
1064, 1067 (8th Cir. 2000); Badger Pharm., Inc. v. Colgate-
Palmolive Co., 1 F.3d 621, 625 (7th Cir. 1993); Davis, 929
F.2d at 1517 (10th Cir.); Varnes v. Local 91, Glass Bottle
Blowers Ass’n of U.S. & Canada, 674 F.2d 1365, 1370 (11th
Cir. 1982); Wilson v. First Houston Inv. Corp., 566 F.2d
1235, 1238 (5th Cir. 1978), vacated on other grounds, 444
U.S. 959 (1979); 3 Moore’s Federal Practice ¶ 15.08(7)
(1974). The Fourth Circuit has described this rule as “an
exception to the general rule of waiver.” Young, 238 F.3d at
573. We find the reasoning in some of those cases and in
some of our own criticizing our rule to be persuasive.
First, our current rule is unfair to litigants. For the plaintiff
whose complaint has been dismissed, the rule is not merely
overly “mechanical,” see 6 Wright & Miller, supra, § 1476;
it creates a “Hobson’s choice[,] . . . a patently coercive predic-
ament” between amending the complaint—thereby forgoing
the chance to appeal the dismissal of some claims—and
appealing the dismissal of the claims in the original complaint
—thereby forgoing the chance to add or replead claims that
the plaintiff would otherwise be allowed to add. In re Van
Atlas Lines, 209 F.3d at 1067; see Davis, 929 F.2d at 1518(“[A] rule requiring plaintiffs who file amended complaints to
replead claims previously dismissed on their merits in order
to preserve those claims merely sets a trap for unsuspecting
plaintiffs with no concomitant benefit to the opposing party.”)
(footnote omitted). In practice, however, the choice for coun-
sel is between failing to preserve issues for appeal and risking
sanctions by realleging dismissed claims. See Parrino, 146
F.3d at 704. The risk of sanctions is not merely hypothetical.
See, e.g., Destfino v. Reiswig, 630 F.3d 952, 959 (9th Cir.
2011) (affirming district court’s inherent power to control its
docket by dismissing entire complaint for failure to follow
LACEY v. MARICOPA COUNTY 10053
instructions given with leave to amend); Johnson ex rel. Wil-
son v. Dowd, 345 F. App’x 26, 30 (5th Cir. 2009) (approving
Rule 11 sanctions for counsel who realleged claims against
judicial defendants who had already been dismissed on the
grounds of absolute immunity). The rule is also unfair to the
defendants to whom dismissal was granted insofar as it
encourages the plaintiff to reallege claims against defendants
who have already been dismissed and may feel they must
return to court to answer the same claims again.
Second, the rule is unfair to district courts. We see no bene-
fit in requiring plaintiffs to reallege claims that the district
courts have already dealt with on the merits and dismissed
with prejudice. Even where the district court recognizes that
plaintiffs are just following the Forsyth rule and preserving
their options on appeal, the court will still be wasting
resources in parsing old claims and reiterating its prior rul-
ings, and “there is no reason to make the court dismiss them
a second time.” Young, 238 F.3d at 573. Our stewardship
requires better use of our limited judicial resources.
Third, we do not believe there is any countervailing reason
for keeping the current rule. While in theory it may limit the
number of complaints, and perhaps the number of orders, that
we must consider on appeal, in practical terms we think there
is little benefit to the orderly administration of justice. It
should make little difference whether the claims on appeal are
presented in one document or are sections in several com-
plaints; we already consider in a single appeal all interlocu-
tory rulings. See Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949) (“The purpose [of the final judgment
rule] is to combine in one review all stages of the proceeding
that effectively may be reviewed and corrected if and when
final judgment results.”). Conversely, the current rule may
actually multiply litigation. The Forsyth rule may well
encourage parties to challenge the district court’s discretion
with respect to granting leave to amend the complaint and
imposing sanctions for the plaintiff’s attempt to reallege his
10054 LACEY v. MARICOPA COUNTY
claims in order to preserve them for appeal. We think our
time, and the resources of the district courts, are better spent
addressing the merits of the claims than sidebar arguments
over whether a particular claim can or cannot be amended.
[30] We therefore join our sister circuits and overrule in
part the rule found in Forsyth and other cases “that a plaintiff
waives all claims alleged in a dismissed complaint which are
not realleged in an amended complaint.” Forsyth, 114 F.3d at
1474. For claims dismissed with prejudice and without leave
to amend, we will not require that they be repled in a subse-
quent amended complaint to preserve them for appeal. But for
any claims voluntarily dismissed, we will consider those
claims to be waived if not repled.
[31] Applying our new rule will not prejudice any party in
this case. Lacey’s Notice of Appeal informed the parties that
he was appealing the district court’s March 2009 order and
the court’s prior October 2008 order. See Fed. R. App. P.
3(c)(1)(B). Thomas has been well represented over the course
of this appeal and has fully briefed and argued the questions
presented. We thus conclude that the appeal of Thomas’s dis-
missal in the district court’s October 2008 order is properly
before us.
2. Absolute Immunity
Lacey appeals from the district court’s October 2008 order
on the issue of “whether Thomas is entitled to absolute pro-
secutorial immunity i[n his] hiring of Dennis Wilenchik to
serve as a Special Prosecutor against the New Times.” Pls.’
Opening Br. at 46. Lacey’s challenge to Thomas’s decision to
appoint a special prosecutor presents a question that we have
never addressed, a question that rests at the confluence of a
district attorney’s employment-related decisions, such as the
hiring and promoting of deputy prosecutors, and his litigation-
related decisions to designate deputy prosecutors to act as the
advocates of the state in particular matters.
LACEY v. MARICOPA COUNTY 10055
[32] In Imbler v. Pachtman, the Court addressed, for the
first time, the question of a state prosecuting officer’s immu-
nity for § 1983 liability. Holding that “in initiating a prosecu-
tion and in presenting the State’s case, the prosecution is
immune from a civil suit damages under § 1983,” the Court
noted that its decision left open whether “the duties of the
prosecutor in his role as advocate for the State involve actions
preliminary to the initiation of a prosecution and actions apart
from the courtroom.” 424 U.S. at 431 & n.33. The Court
pointed out that
[a] prosecuting attorney is required constantly, in the
course of his duty as such, to make decisions on a
wide variety of sensitive issues. These include ques-
tions of whether to present a case to the grand jury,
whether to file an information, whether and when to
prosecute, whether to dismiss an indictment against
particular defendants, which witnesses to call, and
what other evidence to present. Preparation, both for
the initiation of the criminal process and for a trial,
may require the obtaining, reviewing, and evaluating
of evidence. At some point, and with respect to some
decisions, the prosecutor no doubt functions as an
administrator rather than as an officer of the court.
Drawing a proper line between these functions may
present difficult questions, but this case does not
require us to anticipate them.
Id. at 431 n.33.
Since Imbler, the courts have had to “[d]raw[ ] a proper line
between these functions,” a task that indeed raises “difficult
questions.” Id. Several cases have held that the hiring deci-
sions of a prosecutor’s office are administrative in nature and
are not shielded by absolute immunity, and Lacey argues that
the decision to appoint Wilenchik should be understood in
that context. Thomas answers that his staffing decisions are
“ ‘closely’ associated with the judicial phase of the criminal
10056 LACEY v. MARICOPA COUNTY
process because [they] only can ‘occur in the course of [Mr.
Thomas’] role as an advocate for the State.’ ”
In Van de Kamp, the Supreme Court drew a line between
a district attorney’s hiring practices and the training and
supervising of his prosecutors. The former, the Court said, are
administrative responsibilities, while the latter are protected
by absolute immunity because they are
directly connected with the conduct of a trial. . . .
[A]n individual prosecutor’s error in the plaintiff’s
specific criminal trial constitutes an essential ele-
ment of the plaintiff’s claim. The administrative
obligations at issue here are thus unlike administra-
tive duties concerning, for example, workplace hir-
ing, payroll administration, the maintenance of
physical facilities, and the like. Moreover, the [tasks
at issue] necessarily require legal knowledge and the
exercise of related discretion . . . . And in that sense
also Goldstein’s claims are unlike claims of, say,
unlawful discrimination in hiring employees.
555 U.S. at 344 (emphases added); see also Genzler v. Lon-
ganbach, 410 F.3d 630, 644 (9th Cir. 2005); Brodnicki v. City
of Omaha, 75 F.3d 1261, 1267 (8th Cir. 1996) (upholding
absolute immunity for county attorney from whom the prose-
cutor would have to receive permission to dismiss a case). In
Botello v. Gammick, we concluded that when prosecutors
involved themselves in the “personnel decision” of another
office regarding whether to hire an investigator, “they were at
best performing an administrative function and, as such, could
only be entitled to qualified immunity.” 413 F.3d 971, 977
(9th Cir. 2005). We reached the general conclusion that “an
official is not entitled to absolute immunity for conduct
involving termination, demotion and treatment of employees.”
Id. at 976.
We drew the line more clearly in Ceballos v. Garcetti, 361
F.3d 1168 (9th Cir. 2004), rev’d on other grounds, 547 U.S.
LACEY v. MARICOPA COUNTY 10057
410 (2006). In that case, we determined that retaliatory
employment actions taken by the district attorney’s office
against a prosecutor—demotion from his position, denial of
promotion, preclusion from handling further murder cases,
and a forced choice between transferring to another office and
staying in his current location and handling only minor cases
—were administrative actions and not part of any prosecution,
so the defendants were not entitled to absolute immunity for
them. Id. at 1184. But, at the same time, we stated that “the
removal of [the prosecutor] from a particular murder case he
was handling fell within the District Attorney’s prosecutorial
function, because it . . . is ‘intimately associated with the judi-
cial phase of the criminal process.’ ” Id. (quoting Broam v.
Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)). If removing a
prosecutor from a particular case is within the district attor-
ney’s duties, it stands to reason that appointing a prosecutor
to a particular case would also fall within the prosecutorial
function.
The line between appointments in particular cases and
employment decisions follows naturally from similar deci-
sions concerning judicial immunity. In Forrester v. White, for
example, the Supreme Court held that a state judge “was act-
ing in an administrative capacity when he demoted and dis-
charged” a probation officer and therefore was not entitled to
absolute immunity. 484 U.S. 219, 229 (1988). The Court rein-
forced its holding by comparing the judge to a district attor-
ney: “a judge who hires or fires a probation officer cannot
meaningfully be distinguished from a district attorney who
hires and fires assistant district attorneys.” Id. Similarly, in
Meek v. County of Riverside, 183 F.3d 962, 966 (9th Cir.
1999), we held that a judge’s decision to fire a court commis-
sioner was not “inherently judicial” because the general
nature of an official’s duties does not render the decision judi-
cial rather than administrative. We again distinguished
between “administrative personnel decisions” that affect the
court generally and decisions that involve “the disposition of
particular cases.” Id. By contrast, we explained in New Alaska
10058 LACEY v. MARICOPA COUNTY
Development Corp. v. Guetschow, 869 F.2d 1298, 1302 (9th
Cir. 1989), that the act of appointing a receiver was covered
by absolute immunity because “the appointment at issue was
made in the context of a pending case,” Meek, 183 F.3d at
967. See Davis v. Bayless, 70 F.3d 367, 373 (5th Cir. 1995)
(“Court appointed receivers act as arms of the court and are
entitled to share the appointing judge’s absolute immunity
. . . . [A] receiver’s immunity is derivative of the appointing
judge’s judicial immunity . . . .”) (compiling cases from vari-
ous circuits). Other courts have recognized that decisions
regarding appointment of counsel in a particular case are
judicial in nature, although they have disagreed over whether
decisions to include attorneys on a general appointment regis-
ter are. See Davis v. Tarrant Cnty., Tex., 565 F.3d 214,
223-26 (5th Cir. 2009) (compiling cases holding that appoint-
ment of counsel in a particular case is a judicial act and hold-
ing that selecting attorneys for inclusion on a list for future
court appointments is a judicial function covered by absolute
immunity); Mitchell v. Fishbein, 377 F.3d 157, 172-74 (2d
Cir. 2004) (formulating a list of attorneys to represent indi-
gent defendants is administrative, not judicial, in nature).
[33] From these examples, we can draw a broad principle.
Decisions related to general conditions of employment—
including decisions to hire, promote, transfer, and terminate—
and which do not affect the prosecutor’s role in any particular
matter are generally not sufficiently related to the initiation
and conduct of a prosecution in a court of law or their role as
an advocate of the state to qualify for absolute immunity.
Decisions related to appointments and removals in a particular
matter will generally fall within the exercise of the judge’s or
prosecutor’s judicial and quasi-judicial roles and are shielded
from suit by absolute immunity.
Were this a dispute between Thomas and Wilenchik over
his hiring as a line prosecutor for the MCAO, Thomas would
not be entitled to absolute immunity. But it is not. Wilenchik
was not seeking employment at the MCAO, and this is not a
LACEY v. MARICOPA COUNTY 10059
suit by Wilenchik against Thomas. Rather, it is a suit by
Lacey blaming Thomas for having appointed Wilenchik as an
Independent Special Deputy Maricopa County Attorney in the
New Times matter. Wilenchik was appointed for no other pur-
pose than to investigate and, as appropriate, bring charges
against the New Times, Lacey, and Larkin. As Wilenchik
points out in his response brief, “a special prosecutor, by defi-
nition, is appointed to prosecute one incident against a partic-
ular individual or individuals.”
More trenchantly, former Attorney General Robert Jackson
described
the most dangerous power of the prosecutor: that he
will pick people that he thinks he should get, rather
than cases that need to be prosecuted. . . . In such a
case, it is not a question of discovering the commis-
sion of a crime and then looking for the man who
has committed it, it is a question of picking the man
and then searching the law books, or putting investi-
gators to work, to pin some offense on him.
Robert Jackson, Address at the Second Annual Conference of
United States Attorneys: The Federal Prosecutor, (Apr. 1,
1940), reprinted in 24 J. Am. Judicature Soc’y 18 (1940).
Special prosecutors, by the nature of their appointment, brook
this “most dangerous power.” And we are well aware of the
controversy that can attend the appointment of a special pros-
ecutor and any consequent investigations and prosecutions;
such matters often produce profound political consequences
for the party being investigated, the appointing authority, and
the special prosecutor. Accordingly, the appointment of a spe-
cial prosecutor, unlike a decision to hire a new assistant dis-
trict attorney, is intimately and publicly tied to the imminent
investigation of the target. But whatever the danger inherent
in the power to pick either the case or the man, the power is
one quintessentially belonging to the prosecutor. In that sense
a special appointment is fundamentally “unlike claims of, say,
10060 LACEY v. MARICOPA COUNTY
unlawful discrimination in hiring employees.” Van de Kamp,
555 U.S. at 344. Even if Wilenchik were in some sense hired
by Maricopa County, he was appointed by Thomas to do one
and only one thing: prosecute the New Times.
Perhaps the case most closely analogous is Yaselli v. Goff,
an early and important decision relied on by the Court in
Imbler. See Imbler, 424 U.S. at 422, 424, 428. In that case,
Yaselli alleged that Goff, a Special Assistant to the Attorney
General, had falsely and maliciously prosecuted him, culmi-
nating in a directed verdict for Yaselli. The court first held
that “a special assistant to the Attorney General of the United
States, in the performance of the duties imposed upon him by
law, is immune from a civil action . . . although it results in
a verdict of not guilty rendered by a jury.” Yaselli, 12 F.2d at
406. The Second Circuit then turned to a “novel question”:
whether Goff was also entitled to immunity from Yaselli’s
claim that Goff “had conspired to prosecute plaintiff mali-
ciously, and in a step in furtherance of the plan confederated
and agreed that Goff would obtain an appointment as an assis-
tant to the Attorney General for the purposes of the prosecu-
tion.” Id. at 407. The court held that Goff was entitled to
absolute immunity for his appointment, even if obtained by
conspiracy:
In our opinion, the reasons which compel us to hold
that one who obtains an appointment as a prosecut-
ing officer of the government is immune from civil
liability for acts done by him in the discharge of his
official duties apply in like manner to protect him
against such a charge as that he was governed by
improper motives in securing the appointment. The
important fact is that he was appointed to the office,
and, having been appointed, the public interests
require that he shall be free and fearless to act in the
discharge of his official duties. If he cannot be
charged with acting willfully and maliciously after
he gets appointed to the office, no more can he be
LACEY v. MARICOPA COUNTY 10061
charged with having conspired to get into the office
in order to act willfully and maliciously after he gets
his appointment. The one charge is as much to be
feared as the other, and is equally derogatory to his
public character and usefulness in the office. We are
unable to distinguish between the two cases in prin-
ciple.
Id. The Supreme Court affirmed the Second Circuit in a one-
sentence opinion. 275 U.S. at 503.
We think that these principles compel the conclusion that
Thomas is entitled to absolute immunity for his appointment
of Wilenchik. Several points inform our judgment. First,
Thomas, as the County Attorney, had the right to choose who
would be the advocate for the state for the New Times matter
and clothe him or her with the power to pursue prosecution.
Whether he designated an attorney from within the MCAO,
referred the matter to another county attorney, or appointed
outside counsel to represent the state, Thomas acted as an
advocate for the state by determining who would be its advo-
cate in court. Once he decided to appoint outside counsel,
Thomas conferred the full prosecutorial authority of the
MCAO on Wilenchik—authority which could only come
from him as County Attorney.18 The appointment was thus
also a prosecutorial function because a prosecutor was
uniquely required to perform it, and no other official not enti-
tled to prosecutorial immunity for prosecutorial functions (for
18
The First Complaint provides little detail on the exact process
whereby Wilenchik came to be appointed and assumed his authority. It
states that Thomas had “ultimate authority and responsibility for the
MCAO and the actions of its officers and agents.” First Compl. ¶ 9. It
later states that “Wilenchik was hired by Thomas and Arpaio.” Id. ¶ 50.
It does not explain that Arpaio had any formal role in the appointment pro-
cess. It appears from Arizona law that as County Attorney, Thomas alone
had the power to appoint Wilenchik as a “special deputy county attorney,”
and that he could do so only “[w]ith consent of the board of supervisors.”
Ariz. Rev. Stat. § 11-403(B)(1).
10062 LACEY v. MARICOPA COUNTY
example, a county sheriff) could do so. Thomas’s determina-
tion that Wilenchik would be a fit advocate for the state “nec-
essarily require[d] legal knowledge and the exercise of related
discretion,” Van de Kamp, 555 U.S. at 344, and is one of “the
duties of the prosecutor in his role as advocate for the State
[that] involve[s] actions preliminary to the initiation of a pros-
ecution,” Imbler, 424 U.S. at 431 n.33.
Second, although we have rejected Wilenchik’s own claim
to absolute immunity, it is clear that Wilenchik, as a special
prosecutor, would have been entitled to immunity for any pro-
secutorial functions he exercised. He would, for example,
have been entitled to absolute immunity in connection with
the preparation of an arrest warrant, see Kalina, 522 U.S. at
129, and for appearances before a grand jury, see Burns, 500
U.S. at 490 n.6, in a probable cause hearing, see id. at 490,
and in trial, see Imbler, 424 U.S. at 430-31. It is incongruous
to deny Thomas absolute immunity for the act of conferring
on Wilenchik the very authority that brings with it a claim to
absolute immunity.
[34] Furthermore, the policy justifications for absolute
immunity attach with full force to the appointment of a spe-
cial prosecutor by the county attorney. Just as general
employment decisions are the type of “litigation-inducing
conduct” that is not “connected with the prosecutor’s role in
judicial proceedings,” Burns, 500 U.S. at 494, the appoint-
ment of a special prosecutor for a particular matter is the type
of decision for which absolute prosecutorial immunity is
required. Within a large office such as the MCAO, designat-
ing who among the county’s regular attorneys will take the
lead in a particular matter is the necessary first step in the
“initiation and conduct of the prosecution.” Burns, 500 U.S.
at 492. If a district attorney were not entitled to absolute
immunity, defendants could bring retaliatory lawsuits against
him for appointing their prosecutor or special prosecutor.
“Such ‘harassment by unfounded litigation would cause a
deflection of the prosecutor’s energies from his public duties,’
LACEY v. MARICOPA COUNTY 10063
and would result in a severe interference with the administra-
tion of an important public office.” Rehberg, 132 S. Ct. at
1504 (quoting Imbler, 424 U.S. at 423). If defendants are per-
mitted to bring suit against the district attorney (because they
are barred from bringing claims against the special prosecutor
himself), the district attorney’s best anticipatory defense
would be to involve himself in everything, thus causing a fur-
ther “deflection of the prosecutor’s energies.” Here, for exam-
ple, had Thomas made the decision to file charges and then
instructed Wilenchik to complete the task, or had he even
filed a baseless information and then appointed Wilenchik to
try the case, Thomas would receive absolute immunity.
Declining to afford him absolute immunity for his supervisory
decision to assign the nascent matter will strike at the heart of
any supervising prosecutor’s ability to delegate matters to
other prosecutors. The Supreme Court in Van de Kamp
expressed concern for just such a scenario, where “a prosecu-
torial supervisor or colleague might himself be liable for dam-
ages instead of the trial prosecutor” and concluded that
“differences in the pattern of liability among a group of prose-
cutors in a single office” would disrupt the way prosecutors
carry out their functions. 555 U.S. at 345. “[I]t is the interest
in protecting the proper functioning of the office, rather than
the interest in protecting its occupant, that is of primary
importance.” Id. (quoting Kalina, 522 U.S. at 125).
The facts of this case make it even clearer that this particu-
lar appointment was a prosecutorial function for which immu-
nity is vital. Under Arizona law, a prosecutor has a legal
“duty to avoid a conflict of interest . . . because his paramount
duty is to the principle of ‘fairness.’ ” Villalpando v. Reagan,
121 P.3d 172, 176 (Ariz. Ct. App. 2005). If the County Attor-
ney has a conflict of interest in a case, the entire office may
“have to divorce itself from the prosecution in [that] case,
because even the appearance of unfairness cannot be permit-
ted.” State v. Latigue, 502 P.2d 1340, 1342 (Ariz. 1972). At
that point, it is “necessary that the County Attorney secure the
appointment of a special prosecutor if he wishes to continue
10064 LACEY v. MARICOPA COUNTY
the prosecution of [that] case.” Id. “Once [the] criminal case
had been transferred to a special prosecutor, the Maricopa
County Attorney’s Office should have ceased all of its partici-
pation therein except for such activities as were stipulated to
by counsel and approved by the court.” State v. Rupp, 586
P.2d 1302, 1307-08 (Ariz. Ct. App. 1978).
Here it is uncontested that Thomas had a conflict of inter-
est, First Compl. ¶¶ 42 & n.3, 49, precluding him and his
office from prosecuting the case and requiring the appoint-
ment of a special prosecutor. Thus, Thomas was acting
“within the scope of [his] duties,” Imbler, 424 U.S. at423—both legal and ethical—in recusing himself and
appointing a special prosecutor. Thomas had to decide
whether he had a conflict of interest such that he could no lon-
ger represent the state. Once he decided that he could not, he
was obligated to select a replacement who would both compe-
tently fulfill the obligations of the post and be free of the dis-
abling conflict. While Lacey argues that Thomas made these
decisions with malice, the fact remains that these determina-
tions “necessarily require legal knowledge and the exercise of
related discretion,” Van de Kamp, 555 U.S. at 344, even more
so than for any run-of-the-mine appointments not motivated
by a conflict of interest. It is inconceivable that Thomas could
be civilly liable for his decision to recuse himself and appoint
a special prosecutor, as he was legally and ethically required
to do, but not liable for proceeding himself in the face of such
a conflict (though this might have exposed him to profes-
sional discipline for ethical violations). The need for recusal
and appointment to cure a conflict of interest only further jus-
tifies granting Thomas absolute immunity.
[35] Lastly, we observe that Thomas’s appointment of a
special prosecutor—both his decision to appoint one and his
decision to appoint Wilenchik—although immune from judi-
cial scrutiny under § 1983, “does not leave the public power-
less to deter misconduct or to punish that which occurs.”
Imbler, 424 U.S. at 429. There are still legal, political, and
LACEY v. MARICOPA COUNTY 10065
administrative constraints in place. If Thomas violated any
criminal statutes in his appointment of Wilenchik, his actions
may be addressed through criminal punishment under the
laws of Arizona or the United States. Appointments to office
are frequently a political act, and the appointment of a special
prosecutor may carry the air of politics (or even the stench of
cronyism). Any missteps by Thomas in making the special
appointment may be redressed through political processes
such as impeachment, recall, and the next general election. If
he has violated a canon of ethics, his critics may look to the
state bar for appropriate sanctions. Thomas, however, may not
be sued under § 1983 and is entitled to absolute immunity for
his appointment of Dennis Wilenchik as Independent Special
Deputy Maricopa County Attorney.
D. Conspiracy
Finally, we deal with Lacey’s conspiracy claim.19 As we
explained in Gilbrook v. City of Westminster:
“A civil conspiracy is a combination of two or more
persons who, by some concerted action, intend to
accomplish some unlawful objective for the purpose
of harming another which results in damage.” To
prove a civil conspiracy, the plaintiff must show that
the conspiring parties “reached a unity of purpose or
a common design and understanding, or a meeting of
the minds in an unlawful arrangement.” “To be lia-
19
Defendants argue that the conspiracy claim is waived because Lacey
did not discuss it in his opening brief, and they filed a motion to strike that
portion of Lacey’s reply brief. Lacey’s assertion of the issue in his open-
ing brief was minimal. See Pls.’ Opening Br. at 22 n.6 (“For the same rea-
sons set forth herein, infra, the District Court also erred in dismissing the
§ 1983 conspiracy claims alleged in Count V of the Complaint.”). Inas-
much as conspiracy is not an independent claim for relief, but helps to
connect the actions of multiple defendants, and given the detail in Lacey’s
complaint, this was sufficient to preserve the issue in this case. We there-
fore deny the defendants’ motion to strike.
10066 LACEY v. MARICOPA COUNTY
ble, each participant in the conspiracy need not know
the exact details of the plan, but each participant
must at least share the common objective of the con-
spiracy.” A defendant’s knowledge of and participa-
tion in a conspiracy may be inferred from
circumstantial evidence and from evidence of the
defendant’s actions.
177 F.3d 839, 856-57 (9th Cir. 1999) (citations omitted). As
with Lacey’s other claims, his allegations of conspiracy must
satisfy Iqbal.
Conspiracy is not itself a constitutional tort under § 1983.
See Cassettari v. Nev. Cnty., 824 F.2d 735, 739 (9th Cir.
1987) (“The insufficiency of these allegations to support a
section 1983 violation precludes a conspiracy claim predi-
cated upon the same allegations.”); Landrigan v. City of War-
wick, 628 F.2d 736, 742 (1st Cir. 1980) (“[M]ere proof of a
conspiracy is insufficient to establish a section 1983 claim.”)
(quoting Hampton v. Hanrahan, 600 F.2d 600, 622 (7th Cir.
1979), rev’ d in part on other grounds, 446 U.S. 754 (1980)).
It does not enlarge the nature of the claims asserted by the
plaintiff, as there must always be an underlying constitutional
violation. Conspiracy may, however, enlarge the pool of
responsible defendants by demonstrating their causal connec-
tions to the violation; the fact of the conspiracy may make a
party liable for the unconstitutional actions of the party with
whom he has conspired. Conspiracy in § 1983 actions is usu-
ally alleged by plaintiffs to draw in private parties who would
otherwise not be susceptible to a § 1983 action because of the
state action doctrine, see Adickes v. S.H. Kress & Co., 398
U.S. 144, 152 (1970); Crowe v. Cnty. of San Diego, 608 F.3d
406, 440 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441
(9th Cir. 2002), or to aid in proving claims against otherwise
tenuously connected parties in a complex case, see Gilbrook,
177 F.3d at 856-58.
With regard to Wilenchik and Arpaio, it is not clear how
Lacey’s conspiracy claim benefits him here. The conspiracy
LACEY v. MARICOPA COUNTY 10067
alleged is a conspiracy by Wilenchik and Arpaio to violate the
same constitutional rights that we have already concluded
were sufficiently pled as individual claims against them. It
may be that the conspiracy claim helps to bridge any gap
between, for example, Wilenchik and Arpaio and the false
arrest claim, a claim that may raise more complicated issues
regarding the “causal connection . . . between the retaliatory
animus of one person and the action[s] of another.” Hartman,
547 U.S. at 262.
[36] Whether or not Lacey needs the conspiracy charge to
make his case against Wilenchik and Arpaio, the existence of
a conspiracy has been adequately alleged; the situation with
Thomas is more complex because he is otherwise immune
from suit for all of the § 1983 claims against him. Lacey has
alleged that Wilenchik’s, Arpaio’s, and Thomas’s wrongful
conduct was “undertaken pursuant to an agreement or meeting
of the minds among Defendants to act in concert to violate
Plaintiffs’ constitutional rights, silence Plaintiffs’ criticism of
them, chill free speech, . . . and interfere with . . . Plaintiffs’
business.” First Compl. ¶ 147; FAC ¶ 163. The complaint
states that Wilenchik, Arpaio, and Thomas formed a conspir-
acy to violate Lacey’s constitutional rights, and it details rea-
sons for why each had a motive to target the New Times. First
Compl. ¶¶ 96-98; FAC ¶¶ 114-16. The Lebowitz Memoran-
dum acknowledges that Arpaio had targeted the New Times,
but not the other websites publicizing Arpaio’s home address,
because the paper had been “historically anti-Arpaio,” had the
“purpose [of] destroy[ing] the Sheriff’s career,” and had pub-
lished “articles against the Sheriff, using language that is
inflammatory, insulting, vituperative, and the like.” FAC, Ex.
1, at 8. But the longstanding feud between the New Times and
Arpaio was just the beginning. The New Times had also criti-
cized Arpaio, Thomas, and Wilenchik, individually and col-
lectively, for corrupt activity; one sentence of a New Times
article republished in the complaint ties all three together in
a scheme of kickbacks.20 The coverage was critical enough to
20
The article stated that Thomas had “not only steered a lot of business
to his old firm, he has hired his old boss (Wilenchik) to harass Sheriff Joe
Arpaio’s chief political rival.” FAC ¶ 70 n.5.
10068 LACEY v. MARICOPA COUNTY
make Thomas believe that he had a personal conflict of inter-
est in his prosecuting the New Times. He recused himself and
appointed Wilenchik. But Wilenchik had his own issues with
the New Times. Indeed, in an email authored less than a week
before his appointment, he railed against the New Times for
coverage critical of his relationship with Thomas. FAC
¶¶ 76-77.
[37] Accepting the complaint as true, we find that it shows
that appointing Wilenchik was part of a plan to harass and
prosecute the New Times, largely for the benefit of Arpaio.
Wilenchik was “Thomas’ friend, former employer, financial
benefactor, [and] campaign finance manager.” Id. ¶ 66.
Thomas stated after the arrests that Wilenchik had been cho-
sen because “he had the confidence of the Sheriff,” id. ¶ 74
n.8, which is not surprising given that Wilenchik, immedi-
ately prior to his being appointed special prosecutor, had rep-
resented Arpaio and Thomas in their personal capacities and
had threatened to sue newspapers, including the New Times,
for allegedly defamatory stories critical of them. It requires no
leap to infer that if Arpaio was determined to pursue a base-
less prosecution of the New Times, Wilenchik was motivated
to join him because of his close prior relationship with
Thomas, his prior representation of Arpaio, and his personal
animus toward the New Times. Furthermore, this conspiracy
between Arpaio and Wilenchik plausibly both preceded and
continued after Wilenchik’s appointment.
With regard to Thomas, however, the picture of the con-
spiracy is not so clear. The above allegations at most raise a
plausible claim that Thomas was part of a conspiracy to
appoint Wilenchik as special prosecutor to prosecute Lacey
and harass the New Times. We have already held that absolute
immunity shields him from any liability for appointing
Wilenchik. Our first question, then, is whether Thomas for-
feits his absolute immunity if he conspired in the appointment
with Wilenchik and Arpaio, who are not immune from suit.
We largely answered this question in Ashelman v. Pope, 793
LACEY v. MARICOPA COUNTY 10069
F.2d 1072, 1074-75 (9th Cir. 1986) (en banc). In Beard v.
Udall, 648 F.2d 1264 (9th Cir. 1981), we had held that
“where a prosecutor faces an actual conflict of interest, and
files charges he or she knows to be baseless, the prosecutor
is acting outside the scope of his or her authority and thus
lacks immunity.” Id. at 1271. On the basis of Beard, the
Ashelman panel held that the judge and prosecutor were not
entitled to absolute immunity if they had conspired to deprive
a criminal defendant of his constitutional rights. Ashelman v.
Pope, 769 F.2d 1360, 1362 (9th Cir. 1985). Sitting en banc,
we overruled Beard and held that “[a]llegations of conspiracy
between judge and prosecutor to predetermine the outcome of
a judicial proceeding are insufficient to overcome those
immunities.” Ashelman, 793 F.2d at 1079. We concluded that
“our prior decisions construed the immunity doctrines too nar-
rowly by focusing on underlying actions instead of looking to
the ultimate acts.” Id. at 1078. We held that “[i]ntent should
play no role in the immunity analysis. Moreover, allegations
that a conspiracy produced a certain decision should no more
pierce the actor’s immunity than allegations of bad faith, per-
sonal interest or outright malevolence.” Id. (citation omitted).
Thus, irrespective of any claim of conspiracy, “[p]rosecutors
are absolutely immune for quasi-judicial activities taken
within the scope of their authority.” Id. The Supreme Court
has recently adopted a similar principle in the context of a
grand jury witness who was alleged to have conspired against
the accused:
[T]his rule [that a grand jury witness has absolute
immunity from § 1983 liability] may not be circum-
vented by claiming that a grand jury witness con-
spired to present false testimony or by using
evidence of the witness’ testimony to support any
other § 1983 claim concerning the initiation or main-
tenance of a prosecution. Were it otherwise, “a crim-
inal defendant turned civil plaintiff could simply
reframe a claim to attack the preparation instead of
the absolutely immune actions themselves.”
10070 LACEY v. MARICOPA COUNTY
Rehberg, 132 S. Ct. at 1506 (quoting Buckley, 509 U.S. at 283(Kennedy, J., concurring in part and dissenting in part)); see
also Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1282
(11th Cir. 2002); Mastorianni v. Bowers, 173 F.3d 1363, 1367
(11th Cir. 1999); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994);
Holloway v. Walker, 765 F.2d 517, 522 (5th Cir. 1985). Thus,
Thomas does not lose his absolute immunity even if he is
alleged to have conspired with Wilenchik and Arpaio to
appoint Wilenchik as special prosecutor so that Wilenchik
could prosecute the New Times. See Yaselli, 12 F.2d at 407.
We think there may be a caveat, however, if Thomas
actively conspired with Wilenchik and Arpaio in some way
unrelated to Wilenchik’s appointment. That is, Thomas may
forfeit his absolute immunity if, following his appointment of
Wilenchik and despite his public recusal, he continued to con-
spire with Wilenchik and Arpaio in their conduct that was not
prosecutorial in nature and for which (we have held) they can-
not claim immunity. We do not have to reach the question
here because we find that Lacey has not sufficiently pled facts
supporting any such agreement.
The conclusory conspiracy allegations in the original com-
plaint do not define the scope of any conspiracy involving
Thomas, what role he had, or when or how the conspiracy
operated. They are insufficient to implicate Thomas, for
whom the form and timing of his allegedly conspiratorial con-
duct matters. None demonstrate that Thomas continued to
participate after Wilenchik’s appointment, only that the con-
sequences of any pre-appointment conspiracy continued to
play out as intended; similarly, the allegations that Wilenchik
carried out Thomas’s intention to harass the New Times are
vague and do not demonstrate that any communication
occurred at all between the two, or between Thomas and
Arpaio, following Thomas’s appointment of Wilenchik.21 See
21
The closest Lacey comes to a post-appointment allegation against
Thomas is in paragraph twenty-five of the First Amended Complaint, a
LACEY v. MARICOPA COUNTY 10071
First Compl. ¶ 18 (“Defendants flexed their political muscle
in the form of a conspiracy. They abused their governmental
authority by attacking the press, punishing free speech,
demeaning the role and function of an impartial prosecutor
and an independent judiciary, perverting the grand jury pro-
cess, and serving [subpoenas on] citizens . . . .”); id. ¶ 62
(“Wilenchik took on his new role as a criminal prosecutor
with all the zeal and ruthlessness that Arpaio and Thomas
required, expected, and had paid for. Armed with daunting
prosecutorial power and the approval and support of Arpaio
and Thomas, Wilenchik engaged in a series of inappropriate,
unethical, and unlawful acts . . . .”); id. ¶ 97 (“Wilenchik . . .
eagerly did the bidding of Thomas and the Sheriff, in their
attempt to punish and financially ruin a newspaper that was
too often critical of him.”); id. ¶ 94 (“The investigation, pur-
suit, and arrests of The New Times was unjustified and unwar-
ranted. It was the product of a conspiracy among
Defendants.”); id. ¶ 147 (“The wrongful conduct of Defen-
dants as alleged herein were undertaken pursuant to an agree-
ment or meeting of the minds among Defendants to act in
concert to violate Plaintiffs’ constitutional rights, silence
Plaintiffs’ criticism of them, chill free speech, . . . and inter-
fere with . . . Plaintiffs’ business.” ); id. ¶ 148 (“Defendants’
acts and/or omissions as alleged herein to pursue and conduct
a criminal investigation and prosecution of The New Times,
including (without limitation) the arrests and jailings, were
complaint that did not allege conspiracy against Thomas and to which
Thomas has had no opportunity to respond. Referring to the arrests of
Lacey and Larkin, the complaint states: “Arpaio’s top-aide Chief Hender-
shott, claims to have personally ordered the arrests. Other witnesses,
including lawyers from Wilenchik’s office, claim that the arrests were
made after consultation with Wilenchik and lawyers from his office. Still,
other evidence suggests that the arrests came at the request of the prosecu-
tor or Thomas himself.” FAC ¶ 25. There is no antecedent for the myste-
rious “other evidence” and nothing else to link Thomas to any post-
appointment conspiracy. This is simply inadequate to prop up the claim
that Thomas took steps to conspire with Wilenchik and Arpaio after he
recused himself by appointing Wilenchik.
10072 LACEY v. MARICOPA COUNTY
undertaken pursuant to a conspiracy among Defendants to
violate Plaintiffs’ constitutional rights.”).
Moreover, the picture of Thomas that emerges from the
complaint suggests that he was concerned about the need to
recuse himself from any decisionmaking regarding the New
Times. There is no allegation that, during the early stages of
the investigation, he influenced the line investigators and
prosecutors at the MCAO charged with investigating the case
or that he pressured the PCAO. See id. ¶¶ 37, 39. Nor is there
any evidence that he talked with Wilenchik after his appoint-
ment. Instead, the complaint details that it was Arpaio who
threatened the MCAO and the PCAO, and Arpaio who con-
sulted with Wilenchik regarding the arrests. See id. ¶¶ 40,
44-45, 47, 97. Indeed, the complaint’s principal claim against
Thomas after he appointed Wilenchik is that he failed to
supervise him. See id. ¶ 98 (Thomas “failed to properly super-
vise Wilenchik, failed to ensure he was properly trained and
capable of handling a criminal investigation, and failed to pro-
vide him with training and supervision necessary to ensure
that the criminal investigation was conducted constitutional-
ly”); see also FAC ¶ 115 (“[Wilenchik] filed odious papers
in Court and issued unlawful subpoenas during the investiga-
tory stage of the case, when no charges had been filed, no
indictments issued, and without any involvement by a grand
jury or approval from a court and/or Thomas.”) (emphasis
added).22 From the complaint, it appears that Thomas washed
his hands of the whole matter after appointing Wilenchik until
the day he fired Wilenchik for “the wrong way” he brought
the prosecution. First Compl. ¶ 109. The allegations are
insufficient to implicate Thomas in any conspiracy other than
Wilenchik’s appointment. He is, therefore, also immune from
any liability through conspiracy. See Ashelman, 793 F.2d at
1078-79; see Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1148
(2d Cir. 1995) (“[W]hen the underlying activity at issue is
22
Even if the supervisory liability claim had been pressed on appeal, it
would be wholly foreclosed by Van de Kamp, 555 U.S. at 345.
LACEY v. MARICOPA COUNTY 10073
covered by absolute immunity, the ‘plaintiff derives no bene-
fit from alleging a conspiracy.’ ” (citation omitted)).
[38] Nevertheless, because the district court found that the
defendants had not violated Lacey’s constitutional rights, it
never reached the issue of whether Lacey sufficiently alleged
that Thomas was part of a conspiracy to deprive Lacey of
those rights. Because we reach the issue first on appeal, we
believe that Lacey should be granted an opportunity amend
his complaint. Leave to amend “shall be freely given where
‘justice so requires,’ ” Theme Promotions, Inc. v. News Am.
Mktg. FSI, 546 F.3d 991, 1010 (9th Cir. 2008) (quoting Fed.
R. Civ. P. 15), and it should be granted “unless . . . the plead-
ing could not possibly be cured by the allegation of other
facts,” Watison v. Carter, 668 F.3d 1108, 1117 (9th Cir. 2012)
(quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.
1995)). Lacey may have relied on the appointment of
Wilenchik to show Thomas’s participation in the conspiracy,
which would have been reasonable at the time. He may have
other facts to allege—though they must not be inconsistent
with those already alleged, see Reddy v. Litton Indus., Inc.,
912 F.2d 291, 296-97 (9th Cir. 1990), and must be sufficiently
specific to satisfy Iqbal—that will demonstrate Thomas’s par-
ticipation in some other conspiracy. While the dismissal was
proper, given our holdings above, a dismissal with prejudice
was not. We reverse the dismissal with prejudice and remand
the conspiracy claim against Thomas with instructions that
Lacey be granted leave to amend.
*****
In sum, Lacey may proceed with his causes of action under
the First, Fourth, and Fourteenth Amendments against Arpaio
and Wilenchik. Lacey may not proceed with his claim of
malicious prosecution. Thomas is entitled to absolute immu-
nity, but Lacey may amend his complaint with regard to the
conspiracy claim against Thomas.
10074 LACEY v. MARICOPA COUNTY
IV. FEDERAL RACKETEERING CLAIMS
[39] The district court dismissed Lacey’s federal racketeer-
ing claims because he failed to allege any of the predicate acts
necessary for liability. See 18 U.S.C. § § 1961-1968.
“[R]acketeering activity” is defined as acts or threats involv-
ing a variety of crimes, such as “murder, kidnapping, gam-
bling, arson, robbery, bribery, [or] extortion.” 18 U.S.C.
§ 1961(1). We agree with the district court that Lacey offers
only vague allegations with no factual support that the defen-
dants engaged in any of the requisite predicate crimes. This
“unadorned, the-defendant-unlawfully-harmed-me accusa-
tion” is insufficient to survive a motion to dismiss. Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555). We therefore
affirm the district court’s order on this claim.
V. STATE LAW CLAIMS
In its October 2008 order, the district court dismissed some
of Lacey’s state-law claims for failure to state a claim, but
allowed Lacey to amend his complaint. Lacey did so, and in
its March 2009 order, the district court did not revisit the state
law claims, explaining that once it dismissed all of the federal
claims, it no longer had supplemental jurisdiction over the
remaining state law claims. The district court then remanded
the state claims to the Maricopa County Superior Court.
[40] The Supreme Court recently held that dismissal of
federal claims does not automatically deprive district courts of
subject matter jurisdiction over any supplemental claims.
Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639
(2009). Rather, the district court retains discretion over
whether to exercise supplemental jurisdiction over state law
claims even after all federal claims are dismissed. Id.; see also
28 U.S.C. § 1367(c)(3) (“The district courts may decline to
exercise supplemental jurisdiction over a claim . . . if . . . the
district court has dismissed all claims over which it has origi-
nal jurisdiction.”) (emphasis added). Where a district court
LACEY v. MARICOPA COUNTY 10075
“dismiss[es] every claim over which it had original jurisdic-
tion,” it retains “pure[ ] discretion[ ]” in deciding whether to
exercise supplemental jurisdiction over the remaining claims.
Carlsbad Tech., 556 U.S. at 639. Thus, the district court
should have exercised its discretion and decided whether it
would have been appropriate to keep the state claims in fed-
eral court. In any event, because we reverse the district court’s
dismissal of some of Lacey’s federal claims, on remand the
district court should reconsider whether to exercise supple-
mental jurisdiction over the state law claims.
VI. MARICOPA COUNTY
[41] In his amended complaint, Lacey alleged that Mari-
copa County should be liable under § 1983 because Arpaio
and Thomas were policymakers whose decisions and acts rep-
resented Maricopa County policy; he claims that the constitu-
tional violations he suffered were the result of their and
Maricopa County’s unconstitutional policies, practices, and
training. Because the district court had previously concluded
that Lacey had suffered no constitutional harm, it dismissed
all of Lacey’s claims against Maricopa County. Because we
conclude that Lacey sufficiently alleged constitutional viola-
tions, we reverse the district court’s decision and direct it on
remand to reconsider the claims against Maricopa County in
the first instance. We express no view on the merits of these
claims.
VII. CONCLUSION
For the foregoing reasons, we affirm the district court’s
decision to grant qualified immunity to Wilenchik and Arpaio
on Lacey’s malicious prosecution claims. We reverse the dis-
trict court’s grant of qualified immunity to Wilenchik and
Arpaio as to Lacey’s Fourteenth Amendment claims based on
the First Amendment (retaliation), Fourth Amendment (false
arrest), and Equal Protection Clause (selective prosecution).
We reverse the dismissal with prejudice of the conspiracy
10076 LACEY v. MARICOPA COUNTY
claim against Thomas and remand with instructions to grant
leave to amend on that claim. We affirm the district court’s
dismissal of the federal racketeering claims. We remand to the
district court with instructions to reconsider the claims against
Maricopa County and whether to exercise supplemental juris-
diction over the state law claims. Finally, we deny the defen-
dants’ motion to strike the portion of Lacey’s reply brief that
addresses Lacey’s § 1983 conspiracy claim.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED. All parties to bear their own costs.
Chief Judge KOZINSKI, 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 difference. Here, the majority overlooks a crucial one: “spe-
cial.”
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, abso-
lute 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.” Burns v.
Reed, 500 U.S. 478, 494 (1991). By appointing Wilenchik as
special prosecutor, Thomas took no action remotely con-
nected with any judicial proceeding. Instead, he gave up the
power to take any such action and transferred it to his special
buddy, Wilenchik.
LACEY v. MARICOPA COUNTY 10077
Van de Kamp v. Goldstein, 555 U.S. 335 (2009), holds that
prosecutors have absolute immunity for “the types of activi-
ties . . . [that] necessarily require legal knowledge and the
exercise of related discretion.” Id. at 344. When Thomas
appointed Wilenchik as his cat’s paw, he was exercising dis-
cretion alright, but not discretion that required legal knowl-
edge. The whole point of handing a case over to a special
prosecutor is to give up discretion over any and all prosecu-
torial decisions. Appointing a special prosecutor is an act of
abandoning prosecutorial discretion, not exercising it.
Here, Thomas recognized (correctly) that he could not
decide whether to prosecute plaintiffs because of his obvious
conflict of interest as a target of their criticism. So, when
Thomas appointed a special prosecutor, he (1) relinquished
discretion and thus (2) cut himself off from any “role in judi-
cial proceedings,” Burns, 500 U.S. at 494, or any “direct[ ]
connect[ion] with the conduct of a trial,” Van de Kamp, 555
U.S. at 344. That’s the opposite of the activity for which Van
de Kamp provided absolute immunity. It’s also the opposite
of “the decision to prosecute,” which the Supreme Court
found protected by absolute immunity in Hartman v. Moore,
547 U.S. 250, 261-62 (2006). And it’s the opposite of “initiat-
ing a prosecution,” which the Court found protected by abso-
lute immunity in Imbler v. Pachtman, 424 U.S. 409, 431
(1976).
The Court extended absolute immunity to a prosecutor’s
“general methods of supervision and training” of those work-
ing in his office, because such activities “require legal knowl-
edge and the exercise of related discretion.” Van de Kamp,
555 U.S. at 346, 344. Van de Kamp explicitly distinguished
between the activity at issue there—“a kind that itself is
directly connected with the conduct of a trial”—and “adminis-
trative duties concerning, for example, workplace hiring.” Id.
at 344. It is thus perfectly clear that hiring and firing of prose-
cutors is an administrative action that is not protected by
absolute immunity. See also Forrester v. White, 484 U.S. 219,
10078 LACEY v. MARICOPA COUNTY
229 (1988) (“[A] judge who hires or fires a probation officer
cannot meaningfully be distinguished from a district attorney
who hires and fires assistant district attorneys, or indeed from
any other Executive Branch official who is responsible for
making such employment decisions. Such decisions . . . are
often crucial to the efficient operation of public institutions
. . . , yet no one suggests that they give rise to absolute immu-
nity from liability in damages under § 1983.”).
If hiring and firing line prosecutors is not protected by
absolute immunity, appointing a special prosecutor certainly
is not. Subordinate prosecutors, after all, require general
supervision and training, which remain the chief prosecutor’s
responsibility. Not so a special prosecutor. Once appointed,
he serves as an independent agent and makes all prosecutorial
decisions without any input or oversight of the chief prosecu-
tor. There is absolutely no justification for giving Thomas
absolute immunity for the non-prosecutorial and self-serving
act of appointing Wilenchik to do his dirty work.
The majority finds “most closely analogous” to our case an
eighty-six-year-old decision of the Second Circuit that was
summarily affirmed by the Supreme Court. Maj. op. at 10060
(citing Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff’d, 275
U.S. 503, 503 (1927) (per curiam)). Yaselli presented the
exact converse of the question before us: It asked whether a
special prosecutor was entitled to absolute immunity for con-
spiring to get appointed to that post. The Second Circuit, quite
understandably, found the act of getting appointed as special
prosecutor a mere prelude to serving as special prosecutor and
therefore entitled to the same immunity. Seeking appoint-
ment, like acting on one’s appointment, is precisely the type
of discretionary act by a prosecutor that receives absolute
immunity. But, as I’ve explained, the act of appointing is an
administrative act whose entire purpose is to give away dis-
cretion, not to exercise it. Yaselli is too fragile a precedent to
support the weight the majority places on it.
LACEY v. MARICOPA COUNTY 10079
By enveloping Thomas with absolute immunity, my col-
leagues encourage malicious or corrupt prosecutors to do
exactly what plaintiffs allege Thomas did here: intimidate and
harass political rivals by delegating prosecutorial authority to
a straw man. It’s a blueprint for prosecutorial excess and
abuse; we’ll rue the day we started down this road.
2. Nor can I assent to the majority’s dismissal of plain-
tiffs’ selective enforcement claim based on their middle-of-
the-night arrests for allegedly violating Arizona’s grand jury
secrecy statute. The majority faults plaintiffs for making
“only a vague assertion that those who commit nonviolent
misdemeanors are usually not arrested” and for “fail[ing] to
specify a similar class, such as those alleged to have violated
the grand jury secrecy statute, with which comparisons can be
made to Lacey’s case.” Maj. op. at 10040 n.13. But here’s
what plaintiffs say in their complaint: “Misdemeanor viola-
tions that do not threaten lives are usually handled by the issu-
ance of citations, not by commando raids, arrests, handcuffs,
and jail cells in the dead of night.”
This patently plausible allegation suffices to make out a
selective enforcement claim. Plaintiffs meet “[t]he similarly
situated requirement,” United States v. Armstrong, 517 U.S.
456, 466 (1996): They identify the class of those accused of
non-violent misdemeanors, and allege they were treated dif-
ferently from other members of that class. They thus “identify
a similarly situated class against which the plaintiff[s’] class
can be compared.” Rosenbaum v. City & Cnty. of S.F., 484
F.3d 1142, 1153 (9th Cir. 2007) (internal quotation marks
omitted). Why the majority demands a narrower class, like
those charged with violating the exact same statute, is a mys-
tery to me; the majority offers no explanation. And it makes
no sense: Being treated differently from a large class provides
a more compelling case for selective enforcement than being
treated worse than a small class. The majority has it entirely
backward.
10080 LACEY v. MARICOPA COUNTY
***
I therefore must dissent from Subsection III.C.2, maj. op.
at 10054-65, and footnote 13 in Subsection III.A.2.d, maj. op.
at 10040 n.13, of Judge Bybee’s otherwise splendid decision.
TALLMAN, Circuit Judge, with whom Circuit Judges BEA
and IKUTA join, dissenting in part:
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’ Four-
teenth 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
(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 pri-
vacy statute: (1) knowingly making available a public offi-
cial’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 imme-
diate family, and where (3) the threat was “reasonably appar-
ent” to the person making the information available. See Ariz.
Rev. Stats. § 13-2401(A).1
1
Ariz. Rev. Stats. § 13-2401(A) states:
It is unlawful for a person to knowingly make available on the
world wide web the personal information of a peace officer, jus-
tice, judge, commissioner, public defender or prosecutor if the
dissemination of the personal information poses an imminent and
LACEY v. MARICOPA COUNTY 10081
Further, even if Plaintiffs successfully alleged a violation of
their right to equal protection, Wilenchik and Arpaio are enti-
tled to qualified immunity unless the right was “clearly estab-
lished,” meaning that, at the time of the challenged conduct,
“every ‘reasonable official would have understood’ ” that
prosecuting The New Times and not prosecuting other pub-
lishers violated that right. Ashcroft v. Al-Kidd, 131 S. Ct.
2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). In determining whether enforcement of the
Arizona privacy statute only against The New Times violated
Plaintiffs’ clearly established rights, this court must keep in
mind that “[q]ualified immunity gives government officials
breathing room to make reasonable but mistaken judgments
about open legal questions.” Id. at 2085.
I agree with the original panel, see Lacey v. Maricopa
Cnty., 649 F.3d 1118, 1134-35 (9th Cir. 2011), that, although
Plaintiffs successfully pled that, like The New Times, other
publishers made Arpaio’s personal information publicly avail-
able on the internet, thereby satisfying the first element of
Arizona’s privacy statute, see Ariz. Rev. Stats. § 13-2401(A),
they failed to allege that the dissemination by any other pub-
lisher posed a similar threat to Arpaio and his immediate fam-
ily, see id. In the absence of any judicial construction of the
Arizona privacy statute, a reasonable government official
could believe that The New Times was more likely to have
“pose[d] an imminent and serious threat” to Arpaio’s safety
than the other publishers because The New Times drew atten-
tion to Arpaio’s home address in conjunction with strongly
worded criticism, while the other websites merely included
his address among hundreds of entries in an organizational
list.
serious threat to the peace officer’s, justice’s, judge’s, commis-
sioner’s, public defender’s or prosecutor’s safety or the safety of
that person’s immediate family and the threat is reasonably
apparent to the person making the information available on the
world wide web to be serious and imminent.
10082 LACEY v. MARICOPA COUNTY
Further, with respect to the third prong of the statute, Plain-
tiffs do not deny they were aware of the death threats Arpaio
had received when they published his address, instead insist-
ing the threats posed no imminent threat to the Sheriff.
Nowhere do Plaintiffs allege that the Maricopa County
Recorder’s website, the Maricopa County Election Commis-
sioner’s website, or the Republican Party’s website had simi-
lar knowledge of potential threats to Arpaio’s personal safety
at the time they published his home address. Accordingly,
Plaintiffs do not allege that these publishers were similarly
culpable under the third prong of the Arizona privacy statute,
which requires that the threat be “reasonably apparent” to the
person making the information available.
The majority concludes that Plaintiffs need not allege that
the other publishers were similarly culpable under the second
and third prongs of the statute because, according to Plain-
tiffs’ allegations, The New Times publishers themselves were
not guilty under these prongs. In essence, the majority holds
that all the publishers were “similarly situated” because none
of them violated the law. But the majority distorts the Arm-
strong test and our qualified immunity jurisprudence. As the
Supreme Court recently reaffirmed, the reasonableness of a
government official’s conduct must be judged from the offi-
cial’s perspective at the time of the allegedly unconstitutional
conduct, not “with the 20/20 vision of hindsight.” Ryburn v.
Huff, 132 S. Ct. 987, 992 (2012) (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)) (internal quotation marks omitted).
Prosecutors cannot know in advance of trial whether a sus-
pect is guilty; rather, they must make the decision whether to
investigate or bring charges based on the strength of the evi-
dence known to them. They may turn out to be wrong in any
given case, but so long as they are applying a neutral set of
criteria such as “the strength of the case, the prosecution’s
general deterrence value, the Government’s enforcement pri-
orities, and the case’s relationship to the Government’s over-
all enforcement plan,” their decisions are generally immune
LACEY v. MARICOPA COUNTY 10083
from review. Armstrong, 517 U.S. at 465 (quoting Wayte v.
United States, 470 U.S. 598, 607 (1985)) (internal quotation
marks omitted). A plaintiff cannot prevail on a selective pros-
ecution claim unless he or she can demonstrate that there were
other individuals who were “similarly situated” in terms of
these neutral factors who were not prosecuted. Only then is
there an inference that the decision to prosecute was based on
“an unjustifiable standard such as race, religion, or other arbi-
trary classification.” Id. at 464 (quoting Oyler v. Boles, 368
U.S. 448, 456 (1962)) (internal quotation marks omitted). It
is irrelevant whether the plaintiff was ultimately acquitted or,
as here, charges were never brought.
In light of the limited allegations in the complaint, and the
lack of any authoritative judicial construction of the Arizona
privacy statute, Wilenchik and Arpaio could reasonably con-
clude that there was a stronger case that The New Times’s
publishers knowingly posed a threat to Arpaio’s personal
safety, and therefore that it was reasonable to investigate only
The New Times, rather than the other publishers. Regardless
whether The New Times publishers turned out to be innocent
or guilty, they were not similarly situated to the other publish-
ers based on the facts known to the defendants, and Plaintiffs’
allegations cannot make it so. Under these circumstances, the
defendants are entitled to qualified immunity.
The district court afforded Plaintiffs the opportunity to
amend the complaint. Yet, Plaintiffs responded with few addi-
tional allegations and continued to opt for a writing style that
reads like a newspaper article drafted by an investigative jour-
nalist, who leapt to conclusions without verifying the facts.
Under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme
Court has explicitly demanded more from pleadings. We must
be careful not to tread on important jurisprudence simply
because the facts Plaintiffs do allege, but have yet to prove,
are viewed as sympathetic.