Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding D.C. No.2:08-cv-00997-SRB D.C. No.2:08-cv-00997-SRB
The opinion of the court was delivered by: Tymkovich, Circuit Judge:
Argued and Submitted June 18, 2010-San Francisco, California
Before: Jay S. Bybee, Timothy M. Tymkovich,*fn1 and N. Randy Smith, Circuit Judges.
Opinion by Judge Tymkovich; Partial Concurrence and Partial Dissent by Judge Bybee
This case arose from the controversial late-night arrests and subsequent release of two Phoenix newspaper executives. As a result, Michael Lacey, Jim Larkin, and Phoenix New Times, LLC (Plaintiffs) sued various officials connected with the Maricopa County Attorney's Office and the Sheriff's Office, including the county attorney, the sheriff, and a special prosecutor. They alleged the special prosecutor and possibly others ordered the arrests of Lacey and Larkin at their homes in the middle of the night after The Phoenix New Times newspaper published various articles critical of the officials. They claim the arrests violated their federal and state rights.
The district court dismissed many of the claims on qualified and absolute immunity grounds, and Plaintiffs appeal, contending the district court erred in dismissing their federal claims and in remanding their remaining state claims to state court.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM in part and REVERSE in part. While many of the actions alleged here are protected by either absolute or qualified immunity, the actions of the special prosecutor in arranging Plaintiffs' arrests raise colorable claims of First and Fourth Amendment violations.
I. Background Facts and Proceedings Below
For purposes of our discussion we accept the following facts from the complaint as true and in the light most favorable to the Plaintiffs. See Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). Plaintiffs operate an alternative weekly newspaper, The Phoenix New Times, which has for many years published articles and editorials highly critical of Arpaio and his policies.
The particular article that set in motion the events relevant to this litigation was published in 2004 and criticized a series of commercial land transactions involving Arpaio. In particular, the article challenged Arpaio's motives for removing his personal information from a number of public records that detailed his commercial land holdings. After the article, Arpaio justified the removal by claiming he had received death threats and therefore did not want his personal address available to the public. Plaintiffs printed a follow-up article contending Arpaio's explanation was implausible since a number of government and political party websites already contained Arpaio's personal information. To show this, the paper published in both its print and online versions Arpaio's home address, which Plaintiffs claimed they obtained from the government and political websites.
After publication of the second article, Arpaio considered criminal charges against the Plaintiffs because he believed they had violated an Arizona statute that prohibited the dissemination of personal information of law enforcement officers on the world wide web.*fn2 Rather than filing a contemporaneous complaint with the county attorney, however, Arpaio waited until an upcoming election, when Andrew Thomas, a political ally, was elected the new county attorney.
Arpaio met with Thomas immediately after the election to discuss his concerns regarding Plaintiffs, but not until April 2005, ten months after the publication of his personal information and two months after Thomas took office, did he request Thomas to investigate The Phoenix New Times. Thomas's staff reviewed the charges but concluded the case was weak, and in an internal report in August 2005 recommended Thomas decline to prosecute.
By this time, The Phoenix New Times had begun to publish articles critical of Thomas's own "ethical irregularities." [R., Doc. 4 at ¶ 56.] Recognizing a conflict of interest were he to prosecute the paper, Thomas referred the investigation to a neighboring jurisdiction, the Pinal County Attorney's Office. Arpaio began pressuring Pinal County to prosecute Plaintiffs. Although the sheriff sent several letters strongly urging a prosecution, the Pinal County Attorney's Office took no action for nearly two years. Then, in 2007, it declined to prosecute and returned the matter back to Thomas.
With the case back in Maricopa County, Thomas, still recognizing his own potential conflict of interest, decided to appoint a Phoenix lawyer, Dennis Wilenchik, as special prosecutor. Wilenchik was Thomas's former law partner. He agreed to the appointment, the County approved it, and on June 26, 2007, Wilenchik took over The Phoenix New Times investigation.
In late August 2007, before a grand jury was sworn for the case and as part of his investigation into prosecuting The Phoenix New Times for violating the privacy statute, Wilenchik issued two subpoenas to Plaintiffs to produce information and documents about its operations. Arizona law requires prosecutors either (1) to present subpoenas to a grand jury for approval before issuing them, or (2) if a prosecutor issues a subpoena without receiving prior approval from a grand jury, to report the issuance to a grand jury and to the court within ten days. ARIZ. REV. STAT. § 13-4071(C). Wilenchik did neither.
The subpoenas requested information about a broad variety of subjects-including data about readers, editors, and report-ers-related to any story critical of Arpaio. Plaintiffs filed a motion to quash the subpoenas, but in late September, before they had responded to the subpoenas and while their motion was pending, Plaintiffs also published a story critical of Wilenchik's investigation. In response, the very next day, Wilenchik issued a third subpoena seeking documents and information relating to that story. He issued this third subpoena again without adhering to the requirements of Arizona law. Around the time of the third subpoena, Wilenchik also attempted to arrange an ex parte meeting with the state court judge presiding over motions to quash. The judge held a closed hearing on October 11, 2007 and called Wilenchik's attempt "absolutely inappropriate." [R., Doc. 4 at ¶ 91.]
After this hearing, and weeks after they received the subpoenas, Plaintiffs decided to publish a story that included the subpoenas' demands. Doing so was seemingly in violation of ARIZ. REV. STAT. § 13-2812(A), which prohibits the publication of the nature or substance of grand jury proceedings.*fn3
Plaintiffs do not allege they knew the subpoenas lacked any connection with a grand jury when they published the story exposing them.
The same day, after seeing the publication of the subpoenas, Wilenchik filed a motion in state court for an Order to Show Cause demanding Plaintiffs explain their actions. The motion requested the state court hold The Phoenix New Times in contempt, issue arrest warrants for Plaintiffs and their lawyers, and fine Plaintiffs $90 million for publishing the contents of the subpoenas.
That night, however, without waiting for the court's decision, Wilenchik advised the police to send members of the County's Selective Enforcement Unit in unmarked, black vehicles to the homes of Michael Lacey and Jim Larkin, the publishers of The Phoenix New Times. The police did so and arrested the publishers, who were booked and held in county jail overnight. After a public outcry in response to the arrests, Thomas withdrew Wilenchik's appointment and disavowed involvement in the subpoenas, court proceedings, or arrests. Both Wilenchik and Arpaio have also denied ordering the arrests.
Plaintiffs brought a number of federal and state civil rights claims against Defendants, alleging a conspiracy to violate their rights because of Plaintiffs' stories. The district court initially dismissed the claims against Thomas because he was entitled to absolute immunity, as well as the claims against the Maricopa County Attorney's Office and the Maricopa County Sheriff's Office because it found that, as subdivisions of Maricopa County, they could not be sued; rather, Plaintiffs needed to sue the county itself. The district court dismissed the federal and state claims against Wilenchik and Arpaio as inadequately pleaded but gave Plaintiffs an opportunity to amend as to those claims.
Plaintiffs filed an amended complaint, raising claims directly against Maricopa County and restating their federal and state claims against Wilenchik and Arpaio. The district court then dismissed the claims for violations of 42 U.S.C. § 1983 and conspiracy to commit violations of 42 U.S.C. § 1983 because Arpaio and Wilenchik were entitled to qualified immunity with respect to those claims. Also as to Arpaio and Wilenchik, the district court dismissed the federal and state claims for racketeering and negligence for failure to state a claim. Having dismissed the federal claims, the district court determined it no longer had pendant jurisdiction over the state law claims, and instead of revisiting them in its second order, it remanded the state law claims to Arizona state court. It also dismissed the claims against Maricopa County because it found Plaintiffs did not suffer any constitutional injury.
We begin by analyzing Plaintiffs' § 1983 claims for violations of the First, Fourth, and Fourteenth Amendments.*fn4 With respect to those claims, the district court granted Thomas absolute immunity and Arpaio and Wilenchik qualified immunity.
"We review a decision by a district court to afford a public official or a municipality absolute or qualified immunity de novo." Botello v. Gammick, 413 F.3d 971, 975 (9th Cir. 2005). The burden to establish absolute immunity rests on the defendant who wishes to use it as a defense, and the "presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." Burns v. Reed, 500 U.S. 478, 486-87 (1991).
 Not all government officials are eligible for absolute immunity. But "the Supreme Court has determined that certain government officials require absolute immunity from liability in order to enable them to function independently and effectively, without fear of intimidation or harassment. Accordingly, the Court has granted absolute immunity to . . . judges, prosecutors, . . . and officials performing quasi-judicial functions." Fry v. Melaragno, 939 F.2d 832, 835-36 (9th Cir. 1991) (internal quotation marks, citations, and footnote omitted). "[T]he protections of absolute immunity accorded prosecutors reflect the [dual] concern[s] that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 923 (9th Cir. 2004) (internal quotation marks omitted).
In § 1983 litigation, "both sets of concerns are present and serious." Van de Kamp v. Goldstein, 129 S. Ct. 855, 860 (2009). The Supreme Court has explained the "public trust of the prosecutor's office would suffer" if prosecutors are more concerned about their "own potential liability" than about making proper prosecutorial decisions. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). And considering the frequency with which criminal defendants bring § 1983 claims, this is a very real concern. Van de Kamp, 129 S. Ct. at 860. Excessive lawsuits will force prosecutors to hesitate in their decisions for fear of liability and to spend valuable and limited time defending suits rather than performing their official functions. "[I]t has been thought in the end better . . . to leave unre-dressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation," primarily out of our desire to place prosecutors in a position to perform their public duty in the most effective way possible. Id. at 859 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)).
 Absolute immunity protects prosecutors when they engage in prosecutorial acts, which the Supreme Court has defined as those activities "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430. "A prosecutor is granted only qualified immunity, however, if he or she is performing investigatory or administrative functions, or is essentially functioning as a police officer or detective." Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). When determining whether a particular action qualifies as prosecutorial, the court looks at "the nature of the function performed, not the identity of the actor who performed it." Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quotations omitted). "[I]mmunity is justified . . . by the functions it protects and serves, not by the person to whom it attaches." Forrester v. White, 484 U.S. 219, 227 (1988).
While "the distinction between the roles of 'prosecutor' and 'investigator' [or administrator] is not always clear," our circuit and the Supreme Court have provided some guidance. Waggy v. Spokane Cnty. Wash., 594 F.3d 707, 711 (9th Cir. 2010). Regarding investigatory acts, they are "normally done by police." Genzler v. Longanbach, 410 F.3d 630, 638 (9th Cir. 2005). They involve "evidence gathering and witness interviewing functions normally performed by a detective or police officer." Cousins v. Lockyer, 568 F.3d 1063, 1068 (9th Cir. 2009) (internal quotation marks omitted).
 The most recent teaching on administrative acts comes from Van de Kamp, 129 S. Ct. at 861-62. In that case a unanimous Supreme Court rejected the claim that absolute immunity did not protect a county prosecutor's failure to properly train and supervise his lawyers in their obligations to disclose evidence to defense counsel. Id. The Court concluded there was no material difference between challenges to "general methods of supervision" and supervision of an individual trial. Id. at 862. Because the decisions at issue were linked to the ultimate prosecution of the plaintiff and they "necessarily require[d] legal knowledge and the exercise of related discretion," they were in fact ...