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Legally Speaking: Here are Paul Penzone’s options in defamation suit against Joe Arpaio

LISTEN: Monica Lindstrom - Mac and Gaydos Legal Expert

Another lawsuit for Sheriff Joe Arpaio. But will this one make a difference?

Sheriff Arpaio is running for his seventh term as Maricopa County Sheriff, but this time he is doing so with the possibility of not only criminal charges in his near future, but also a lawsuit by his primary rival, Paul Penzone.

Penzone claims Arpaio is behind in the polls and has run a false and defamatory commercial to stop Penzone’s lead from growing.

On Thursday, Penzone announced he’s filing a civil defamation lawsuit against Arpaio for a current commercial.

This commercial, which is significantly similar to one Arpaio ran against Penzone in 2012, alludes to Penzone being an abuser.

The commercial, and its predecessor, presumably came as a result of a dispute that Penzone had with his ex-wife Susan Hubbard during their divorce. Both Penzone and Hubbard have stated the content contained in the two commercials is inaccurate and false.

So, what can Penzone do to try to stop the ad from running?

Legally speaking, he has a couple options. First, contact the sheriff and inform him that the commercial is false, inaccurate and give him a chance to pull it.

Trying to avoid litigation is always the first step. As a mediator, I always encourage this. In this case, Penzone has already done that.

Earlier in this campaign he held a press conference to address the facts of the situation and made it clear that the previous commercial was inaccurate. Presumably, he told Arpaio the same thing back in 2012.

The first step clearly did not work, so the next step available to Penzone is to file a lawsuit for defamation.

In doing so, he would likely ask the court for a preliminary injunction followed by a permanent one. In other words, he would be asking the court to order Arpaio to pull the commercial.

Now, he’s continuing the suit, seeking damages. In my opinion, the primary goal would be to get the ad pulled.

What would Penzone have to prove to win a lawsuit against Sheriff Joe?

There are several elements, but let’s focus on the main ones.

First, he would have to prove the information provided in the commercial is false and defamatory.

If the information tends to harm Penzone’s reputation, lower it in the community or deter people from voting for him, then it is defamatory. The sheriff, however, could argue that the information is not false.

There was some type of altercation between Penzone and Hubbard, and dueling restraining orders were issued (although later dismissed).

Arpaio could also try to argue that this information is already in the public domain so it doesn’t lower Penzone’s reputation at this point, the harm was done years ago.

If this case involved your average American, then next, all Penzone would have to do is prove that Arpaio published false and defamatory information “negligently.”

However, since we are dealing with “America’s Toughest Sheriff” and his main adversary in the upcoming election, they are both considered public figures and Penzone has to prove something more to win.

He would have to prove that Arpaio published this “false and defamatory” information with “actual malice.”

In other words, he knew it was false and would hurt Penzone’s reputation and he put it out there in the public with ill intent, aka “actual malice,” or that he failed to do his due diligence to make sure it wasn’t false.

Lastly, of course, Penzone would have to prove those damages.

We do not know at this time if the commercial actually damaged Penzone’s reputation because the election is not over yet. However, it is highly likely that is it or will. Yet, Arpaio could argue it’s not the commercial that caused the damages, but Penzone’s own actions in regard to his ex-wife.

It can get a bit dicey and can lead to protracted litigation. Since the election is close, Penzone has no time to take a wait and see approach.

This story was originally posted on the morning of Thursday, Sept. 29. It was updated after Paul Penzone’s press conference that afternoon. 

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