Michael Lacey v. Joseph Arpaio

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL LACEY; JIM LARKIN; 

PHOENIX NEW TIMES, LLC,

Plaintiffs-Appellants,

v.

MARICOPA COUNTY, a public entity, No. 09-15703

JOSEPH ARPAIO, Sheriff, and AVA

ARPAIO, husband and wife; DENNIS  D.C. No.

2:08-cv-00997-

WILENCHIK and BECKY BARTNESS, SRB

husband and wife; JOHN DOES I-X;

JANE DOES I-X; BLACK

CORPORATIONS, I-V; and WHITE

PARTNERSHIPS, I-V,

Defendants-Appellees. 

10007

10008 LACEY v. MARICOPA COUNTY

MICHAEL LACEY; JIM LARKIN; 

PHOENIX NEW TIMES, LLC,

Plaintiffs-Appellees,

v.

JOSEPH M. ARPAIO, Sheriff and

husband; AVA ARPAIO, wife; JOHN No. 09-15806

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

D.C. No.

CORPORATIONS, I-V; WHITE

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

SRB

COUNTY ATTORNEY’S OFFICE, a public

entity, OPINION

Defendants,

and

DENNIS WILENCHIK; BECKY BARTNESS,

wife,

Defendants-Appellants. 

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted

December 14, 2011—San 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. at

423—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 dif-

ference. Here, the majority overlooks a crucial one: “special.”

Dennis Wilenchik wasn’t just any prosecutor: He was a

special prosecutor. He got the job because his crony, County

Attorney Andrew Thomas, gave it to him. Plaintiffs allege

Wilenchik used that power to harass Thomas’s and Sheriff

Joe Arpaio’s enemies. For this, the majority anoints Thomas

with every governmental wrongdoer’s favorite unguent, 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.

Van de Kamp v. Goldstein, 555 U.S. 335 (2009), holds that

prosecutors have absolute immunity for “the types of activi-

LACEY v. MARICOPA COUNTY 10077

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,

229 (1988) (“[A] judge who hires or fires a probation officer

cannot meaningfully be distinguished from a district attorney

10078 LACEY v. MARICOPA COUNTY

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.

By enveloping Thomas with absolute immunity, my col-

leagues encourage malicious or corrupt prosecutors to do

LACEY v. MARICOPA COUNTY 10079

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 plaintiffs’

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

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.

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.

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

10082 LACEY v. 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

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

LACEY v. MARICOPA COUNTY 10083

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.