First Amendment Coalition v. Charles Ryan ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIRST AMENDMENT COALITION OF No. 17-16330
ARIZONA, INC.; CHARLES MICHAEL
HEDLUND; GRAHAM S. HENRY; D.C. No.
DAVID GULBRANDSON; ROBERT 2:14-cv-01447-
ALLEN POYSON; TODD SMITH; NVW
ELDON M. SCHURZ; ROGER SCOTT,
Plaintiffs-Appellants,
OPINION
v.
CHARLES L. RYAN, Director of the
Arizona Department of Corrections;
UNKNOWN PARTIES, named as: John
Does - unknown ADC Personnel, in
their official capacities as
Employees, Contractors, and/or
Agents of the Arizona Department of
Corrections; GREG FIZER, Warden,
ASPC-Florence,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted September 12, 2018
San Francisco, California
Filed September 17, 2019
2 FIRST AMENDMENT COALITION V. RYAN
Before: Marsha S. Berzon, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford;
Partial Concurrence and Partial Dissent by Judge Berzon
SUMMARY *
First Amendment / Death Penalty / 42 U.S.C. § 1983The panel affirmed in part and reversed in part the
district court’s dismissal of plaintiffs’ second amended
complaint in an action brought by Arizona death-row
inmates and the First Amendment Coalition of Arizona,
challenging Arizona’s revised execution procedures under
the First Amendment.
Plaintiffs challenged three of Arizona’s practices. First,
the plaintiffs claimed that Arizona unconstitutionally
restricted the ability of execution witnesses to hear the
sounds of the entire execution process. Second, the plaintiffs
claimed that Arizona Department of Corrections (“ADC”)
officials violated their First Amendment rights by failing to
disclose certain information regarding the source and quality
of the lethal-injection drugs to be used in the inmates’
execution. Third, the plaintiffs claimed that ADC officials
were violating the First Amendment by failing to disclose
the qualifications of each execution team member who will
insert intravenous lines into the inmates.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FIRST AMENDMENT COALITION V. RYAN 3
Concerning plaintiffs’ claim that ADC officials violated
their First Amendment right of access to governmental
proceedings, the panel held that the right encompassed a
right to hear the sounds of executions in their entirety. The
panel further held that on the facts alleged, Arizona’s
restrictions on press and public access to the sounds of
executions impermissibly burdened that right. The panel
reversed the district court’s decision as to this restriction.
The panel also held that because the First Amendment right
of access to governmental proceedings did not entitle the
plaintiffs to information regarding execution drugs and
personnel as a matter of law, the district court did not abuse
its discretion by dismissing with prejudice those aspects of
the plaintiffs’ claim relating to such information.
Concerning plaintiffs’ claim that Arizona’s restrictions
violated the inmates’ First Amendment right of access to the
courts, the panel agreed with the district court that the claim
failed as a matter of law. The panel held that the district
court did not abuse its discretion by dismissing this claim
without leave to amend.
Judge Berzon concurred in Parts I and II of the majority
opinion, but dissented as to Part III (First Amendment right
of access to the courts). Judge Berzon wrote separately to
call attention to the inmates’ plausible allegations that
Arizona, through its deliberate concealment of information
about its execution process, has violated their First
Amendment right of access to the courts. Judge Berzon
would also hold that Arizona’s approach to devising,
announcing, and recording its execution procedures denied
condemned inmates their right under the Fourteenth
Amendment to procedural due process of law.
4 FIRST AMENDMENT COALITION V. RYAN
COUNSEL
Collin P. Wedel (argued), Joshua E. Anderson, Alycia A.
Degen, and Katherine A. Roberts, Sidley Austin LLP, Los
Angeles, California; Jon M. Sands, Federal Public Defender;
Dale A. Baich and Jessica L. Felker, Assistant Federal Public
Defenders; Office of the Federal Public Defender, Phoenix,
Arizona; for Plaintiffs-Appellants.
Dominic E. Draye (argued), Solicitor General; Lacey Stover
Gard, Chief Counsel; Mark Brnovich, Attorney General;
Office of the Attorney General, Phoenix, Arizona; for
Defendants-Appellees.
OPINION
WATFORD, Circuit Judge:
The plaintiffs in this case are seven Arizona death-row
inmates and the First Amendment Coalition of Arizona, a
non-profit organization that seeks to advance free speech,
accountable government, and civic participation. They
brought this action against officials of the Arizona
Department of Corrections (ADC) to challenge aspects of
the Arizona execution process. We are asked to decide
whether the plaintiffs have pleaded facts that plausibly state
claims that the ADC officials have violated the plaintiffs’
First Amendment rights by: (1) restricting the ability of
execution witnesses to hear the sounds of the entire
execution process; (2) failing to disclose the source and
quality of the lethal-injection drugs that will be used in the
inmates’ executions; and (3) failing to disclose specific
qualifications of the execution team members who will insert
intravenous lines into the inmates.
FIRST AMENDMENT COALITION V. RYAN 5
I
Since the Supreme Court upheld the constitutionality of
a three-drug protocol in Baze v. Rees, 553 U.S. 35 (2008),
the State of Arizona has executed 14 prisoners by lethal
injection. During that time, the State has faced a series of
legal challenges to its execution process. A number of those
challenges have involved whether its executions expose
prisoners to needless pain in violation of the Eighth
Amendment. Although we have rejected the challenge each
time, we have expressed serious concerns about the suffering
caused by Arizona’s lethal-injection process. For instance,
we noted that the execution of Robert Towery was
“perilously close” to falling outside of the constitutional safe
harbor created by Baze, given the length of time it took to
place Towery’s intravenous lines. Lopez v. Brewer,
680 F.3d 1068, 1075 (9th Cir. 2012).
Members of our court have noted serious due process
concerns with Arizona’s execution procedures as well.
These concerns have largely involved the shroud of secrecy
surrounding Arizona’s execution proceedings and the
State’s pattern of deviating from its lethal-injection
protocols at the last minute. See Lopez v. Brewer, 680 F.3d
1084, 1094–95 (9th Cir. 2012) (Reinhardt, J., dissenting
from denial of rehearing en banc). For example, Arizona
informed the court that it intended to use a one-drug protocol
instead of a three-drug protocol less than 48 hours before
Towery’s execution. See Towery v. Brewer, 672 F.3d 650,
652–53 (9th Cir. 2012). Then, when carrying out Towery’s
execution, the State restricted public and attorney
observation, prohibited Towery from describing the pain he
experienced, and limited the notes recorded in the official
execution log. See Lopez, 680 F.3d at 1082–83 (Berzon, J.,
concurring in part and dissenting in part). These practices
6 FIRST AMENDMENT COALITION V. RYAN
have constrained the ability of death-row inmates to
challenge the constitutionality of Arizona’s execution
process, raising procedural due process concerns. See id. at
1083–84. This lack of information has also hampered
judicial review and public evaluation of the process.
In 2014, six death-row inmates filed this 42 U.S.C.
§ 1983 action against various ADC officials in response to
the problems described above. The inmates asserted, among
other things, that they have a First Amendment right to
detailed information regarding the drugs to be used in their
executions and the qualifications of execution team
members. See Wood v. Ryan, 759 F.3d 1076, 1079 (9th Cir.),
vacated, 573 U.S. 976 (2014). Joseph Wood, one of the
original plaintiffs in this action, filed a motion for a
preliminary injunction seeking a stay of his impending
execution until he obtained the requested information. Our
court concluded that Wood had raised serious questions as
to whether he was entitled to the requested information
under the First Amendment and granted a conditional stay.
Id. at 1080–86, 1088. The Supreme Court summarily
vacated that decision.
Arizona executed Wood a day after the stay was vacated.
Wood’s execution was botched in several ways. According
to the allegations in the plaintiffs’ complaint, Wood rose up
and gasped for air about 12 minutes into his execution, after
first appearing to be sedated. He continued to struggle to
breathe until he died, nearly two hours after the drugs were
first administered. During that time, Wood was
administered 15 doses of lethal-injection drugs, even though
Arizona’s protocol calls for only two. The execution team
also failed to perform consciousness checks before each
injection, as they were required to do. According to
FIRST AMENDMENT COALITION V. RYAN 7
journalists who attended the execution, Wood appeared to be
in agony throughout the process.
After Wood’s execution, the First Amendment Coalition
joined the inmates in filing the First Amended Complaint.
The parties agreed to stay the litigation until the ADC
published a set of revised execution procedures. The district
court lifted the stay after the new procedures were published,
at which point the plaintiffs filed the operative Second
Amended Complaint.
As relevant to this appeal, the plaintiffs challenge three
of Arizona’s practices under the First Amendment. We
explain these practices in some detail below. The plaintiffs
also asserted various Eighth Amendment, due process, and
equal protection claims. Those claims have been dismissed
or settled by the parties.
First, the plaintiffs claim that Arizona unconstitutionally
restricts the ability of execution witnesses to hear the sounds
of the entire execution process. Under Arizona’s current
procedures, witnesses observe the execution in a designated
witness room adjacent to the execution room. Although this
room has windows looking into the execution room, those
windows are covered by curtains during the preliminary
steps of the execution. Witnesses view the prisoner through
closed-circuit monitors as he is secured on the table in the
execution room, makes his last statement, and has
intravenous lines inserted. During the initial procedures, the
witnesses can listen to the sounds in the execution room
through speakers connected to an overhead microphone.
After the intravenous lines are inserted, execution team
members turn off the closed-circuit monitors and open the
curtains to the execution room. They also turn off the
overhead microphone. At that point, the witnesses can still
8 FIRST AMENDMENT COALITION V. RYAN
view the execution, but they can no longer hear the sounds
from the execution room, other than in brief moments when
execution team members turn on the execution-room
microphone to give updates about the prisoner’s level of
consciousness. In their complaint, the plaintiffs seek an
injunction that would allow witnesses to hear the sounds of
the entire execution proceeding, from the time that the
prisoner is brought into the execution room to the time of
death.
Second, the plaintiffs claim that ADC officials have
violated their First Amendment rights by failing to disclose
certain information regarding the source and quality of the
lethal-injection drugs that will be used in the inmates’
executions. Arizona’s procedures require the Department of
Corrections to disclose some information about the drug
protocol to be used in an execution. That information
includes the chemical composition and dosages of the drugs,
as well as the procedures for administering them. The
procedures also require officials to ensure that the drugs are
not expired and are properly stored. In their complaint, the
plaintiffs request additional information regarding the
manufacturers, sellers, lot numbers, National Drug Codes,
and expiration dates of the drugs.
Third, the plaintiffs claim that ADC officials are
violating the First Amendment by failing to disclose the
qualifications of each execution team member who will
insert intravenous lines into the inmates. Arizona’s
procedures require such individuals to be “currently certified
or licensed within the United States” to place intravenous
lines. The procedures specify that the individual may be a
physician, physician assistant, nurse, emergency medical
technician, paramedic, military corpsman, or any other
certified or licensed personnel. The plaintiffs argue that
FIRST AMENDMENT COALITION V. RYAN 9
more specific information regarding each team member’s
qualifications is necessary because under the current
procedures, an amateur with an online certificate would be
authorized to insert the intravenous lines. The plaintiffs thus
seek documentation from the ADC to establish that the
execution team members who will insert intravenous lines
are qualified to do so.
The plaintiffs advance two theories under the First
Amendment to challenge the practices described above.
They first challenge Arizona’s practices as violating their
First Amendment right of access to governmental
proceedings. That right guarantees the public and the press
a measure of access to governmental proceedings, to ensure
that public discussion of governmental affairs is informed.
See Globe Newspaper Co. v. Superior Court, 457 U.S. 596,
604–05 (1982). Under this theory, the plaintiffs contend,
ADC officials are violating the First Amendment by limiting
access to the sounds of the execution process and by
concealing information regarding execution drugs and
personnel, thereby depriving the public of information
necessary to have an informed debate about capital
punishment in Arizona.
The plaintiffs also assert a separate claim under the First
Amendment predicated on violation of the inmates’ right of
access to the courts. That right guarantees prisoners a
meaningful opportunity to bring legal challenges to their
sentences and the conditions of their confinement. See
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
According to the complaint, ADC officials are violating the
inmates’ First Amendment rights by limiting their access to
important information about the execution process, thus
hindering their ability to challenge the constitutionality of
their executions.
10 FIRST AMENDMENT COALITION V. RYAN
The district court dismissed the plaintiffs’ First
Amendment claims under Federal Rule of Civil Procedure
12(b)(6). The court held that the right of access to
governmental proceedings does not encompass either the
right to hear the sounds of the execution process or the right
to obtain the requested information regarding execution
drugs and personnel. The district court’s decision turned
largely on its reading of California First Amendment
Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), which
held that the right of access to governmental proceedings
includes the right to view executions in their entirety. Id. at
873–77. The district court construed the holding of that case
as limited to the right to view executions, not the right to hear
the sounds of executions or the right to obtain information
regarding execution drugs and personnel. The court also
concluded that the plaintiffs had not plausibly alleged a
historical tradition or the functional importance of access to
execution sounds and information, as required by the
relevant First Amendment test.
The district court rejected the plaintiffs’ other First
Amendment theory as well. The court explained that the
First Amendment right of access to the courts does not
include the right to discover grievances. In the court’s view,
the inmates are requesting access to execution sounds and
information about execution drugs and personnel in order to
discover whether they can assert a colorable Eighth
Amendment claim. The court concluded as a matter of law
that the inmates are not entitled to such information under
the First Amendment right of access to the courts.
II
We turn first to the claim that ADC officials have
violated the plaintiffs’ right of access to governmental
proceedings.
FIRST AMENDMENT COALITION V. RYAN 11
A
We conclude that the First Amendment right of access to
governmental proceedings encompasses a right to hear the
sounds of executions in their entirety. We also conclude that
on the facts alleged, Arizona’s restrictions on press and
public access to the sounds of executions impermissibly
burden that right. We thus reverse the district court’s
decision as to this restriction.
1
Our conclusion follows directly from the holding and
reasoning of Woodford. In that case, we considered a
California regulation that prevented witnesses from
observing the initial steps of the execution process, during
which the prisoner is brought into the execution chamber,
secured to the gurney, and has the intravenous lines inserted.
See Woodford, 299 F.3d at 871. We held that the public has
a First Amendment right to view executions in their entirety.
See id. at 877. In reaching that conclusion, we applied the
two-part test for analyzing whether a First Amendment right
of access to governmental proceedings exists: (1) “whether
the place and process have historically been open to the press
and general public,” and (2) “whether public access plays a
significant positive role in the functioning of the particular
process in question.” Press-Enterprise Co. v. Superior
Court, 478 U.S. 1, 8 (1986) (Press-Enterprise II). We
determined that public viewing of executions in their entirety
is rooted in historical tradition and that public observation
plays a significant role in the functioning of capital
punishment. See Woodford, 299 F.3d at 875–77. We
therefore ruled that the public has a qualified First
Amendment right to view executions in their entirety.
12 FIRST AMENDMENT COALITION V. RYAN
We first consider here whether the plaintiffs in this case
have alleged facts that state a plausible claim that the ADC
has violated their First Amendment right to hear the sounds
of executions in their entirety. As in Woodford, we apply the
Press-Enterprise II test to determine whether such a First
Amendment right of access exists.
The historical tradition of public access described in
Woodford includes the ability to hear the sounds of
executions. In the Second Amended Complaint, the
plaintiffs cite historical examples in which the public and the
press were able to attend hangings with no barriers between
the prisoners and witnesses. These allegations echo our
reasoning in Woodford. We explained there that executions
have historically been open to the press and the general
public. See id. at 875–76. The crowds that gathered to watch
those executions could, no doubt, hear the sounds of the
entire execution process, even if not with perfect clarity.
The defendants argue that, even if that was the case, the
plaintiffs are seeking an amplified sound broadcast from the
execution room, which is not rooted in historical tradition.
But that mischaracterizes the nature of the plaintiffs’ request.
Arizona has chosen to have witnesses view the events
through a soundproof window. The plaintiffs are asking for
the microphone in the execution room to be left on during
the entire execution process not because they want amplified
audio, but because they want witnesses to be able to hear the
sounds as they would if they were viewing the execution
directly rather than through a soundproof window.
The plaintiffs have also plausibly alleged that such
access would play a significant role in the proper functioning
of capital punishment. They allege that allowing witnesses
to hear the sounds of the entire execution process will ensure
informed and accurate media coverage of the event, which
FIRST AMENDMENT COALITION V. RYAN 13
in turn will help the public determine whether executions in
Arizona are being carried out in a humane and lawful
manner. To support this allegation, they cite historical
examples in which media coverage of executions has
sparked public debate about the appropriate method of
execution in Arizona.
The defendants argue that leaving the microphone on
during the entire process will provide no additional benefit
to the functioning of capital punishment in Arizona. They
point out that journalists were able to report on the choking
and coughing sounds that Joseph Wood made during his
execution under the State’s current procedures. However,
although reporters could hear those sounds during the brief
moments when Wood’s execution team provided updates,
they could not hear anything else in the nearly two hours it
took for Wood to die. Lifting Arizona’s restriction on the
witnesses’ ability to hear would ensure more comprehensive
coverage of executions in the State.
As we explained in Woodford, the plaintiffs have alleged
a legally cognizable theory. Execution witnesses need to be
able to observe and report on the entire process so that the
public can determine whether lethal injections are fairly and
humanely administered. See id. at 876. Barring witnesses
from hearing sounds after the insertion of intravenous lines
means that the public will not have full information
regarding the administration of lethal-injection drugs and the
prisoner’s experience as he dies.
2
Although we hold that, on the facts alleged, the public
and the press have a constitutional right to hear the sounds
of the entire execution process, that does not end our inquiry.
In Woodford, after we held that the public has a qualified
14 FIRST AMENDMENT COALITION V. RYAN
First Amendment right to view executions, we went on to
analyze whether California’s restriction on such observation
impermissibly burdened that right. See id. at 885. We
concluded that it did.
First, we determined that a deferential standard of review
is appropriate in this context because executions take place
inside prisons, and corrections officials must have broad
discretion to carry out the complex task of prison
administration. See id. at 877–79. We thus analyzed
whether California’s regulation was “reasonably related to
legitimate penological objectives, or whether it represent[ed]
an exaggerated response to those concerns.” Id. at 878
(quoting Turner v. Safley, 482 U.S. 78, 87 (1987)). We
explained that there needed to be a “closer fit” between the
regulation and any legitimate penological objectives because
the California regulation at issue did not leave room for case-
by-case discretion. See id. at 879. The restriction
categorically banned witnesses from viewing the initial
procedures of executions, regardless of whether there were
any specific security concerns.
We then considered the four factors relevant to the
inquiry: (1) whether there is a “valid, rational connection
between the prison regulation and the legitimate
governmental interest put forward to justify it,” (2) “whether
there are alternative means of exercising the right that
remain open to prison inmates,” (3) what “impact
accommodation of the asserted constitutional right will have
on guards and other inmates, and on the allocation of prison
resources generally,” and (4) whether there are “obvious,
easy alternatives . . . that fully accommodate[] the prisoner’s
rights at de minimis cost to valid penological interests.”
Turner, 482 U.S. at 89–91 (internal quotation marks
omitted). We concluded that the California viewing
FIRST AMENDMENT COALITION V. RYAN 15
restriction was not reasonably related to a legitimate
penological interest and thus was unconstitutional. See
Woodford, 299 F.3d at 879–85.
The same deferential standard of review applies here as
well. As in Woodford, we are dealing with a regulation
regarding executions that will take place inside a prison. See
id. at 877–79. We consider the four relevant factors to
determine whether Arizona’s restrictions on access to the
sounds of executions are reasonably related to legitimate
penological objectives. As Woodford instructed, we require
a “closer fit” between the restriction and any legitimate
penological interests because the regulation does not allow
for case-by-case discretion. See id. at 879. That is, Arizona
imposes a categorical ban on hearing the sounds of
executions after the intravenous lines are inserted, regardless
of whether there are any specific security risks.
The plaintiffs have alleged facts that state a plausible
claim that Arizona has unconstitutionally restricted the
ability of witnesses to hear the sounds of executions, even
under the deferential standard of review applied in
Woodford. The defendants attempt to justify the restrictions
by arguing that they have a legitimate penological interest in
ensuring that execution team members are not publicly
identified or attacked. But, according to the factual
allegations in the plaintiffs’ complaint, witnesses can hear
sounds from the execution room as the execution team
brings the prisoner into the room, secures him to the table,
and inserts the intravenous lines. Thus, to the extent that
execution team members could be identified by the sound of
their voices, witnesses can already hear their voices during
the initial stages of the execution. The defendants also argue
that allowing witnesses to hear the sounds of the entire
execution process could increase the risk of litigation and
16 FIRST AMENDMENT COALITION V. RYAN
cause execution team members to second-guess their
actions. We reject this argument because Arizona does not
have a legitimate penological interest in hampering efforts
to ensure the constitutionality of its executions. The
plaintiffs have thus plausibly alleged that there is no valid,
rational connection between the regulation and cognizable
governmental interests. See Turner, 482 U.S. at 89–90.
The plaintiffs have also plausibly alleged that, with
Arizona’s restrictions in place, there are no alternative
means for the public to exercise the right to hear the sounds
of executions in their entirety. See id. at 90. As we
explained in Woodford, the public has a right to independent
eyewitness accounts of the entire execution process. See
Woodford, 299 F.3d at 883–84. Reports of executions by the
same prison officials who carry them out are not adequate
substitutes. See id. at 883.
Finally, the plaintiffs have plausibly alleged that there is
an available, low-cost alternative to fully accommodate the
First Amendment right: leaving the microphone in the
execution room on throughout the entire process. See
Turner, 482 U.S. at 90–91. This accommodation would not
have a significant impact on guards, other inmates, or the
allocation of prison resources. See id. at 90. According to
the plaintiffs’ allegations and Arizona’s own records, a
microphone is already set up to carry sounds from the
execution room to the witness room during the initial stages
of the execution process. Leaving the microphone on for the
rest of the process would involve at most only a de minimis
cost.
B
The plaintiffs also assert that the First Amendment right
of access to governmental proceedings entitles them to
FIRST AMENDMENT COALITION V. RYAN 17
information regarding the manufacturers, sellers, lot
numbers, National Drug Codes, and expiration dates of
lethal-injection drugs, as well as documentation regarding
the qualifications of certain execution team members. We
agree with the district court that neither the public nor the
press has a First Amendment right of access to this
information.
As the Supreme Court originally conceptualized it, the
First Amendment right of access to governmental
proceedings refers to the right of the public to attend and
observe those proceedings. In the initial cases recognizing
the right, the Court held that the public has the right to attend
criminal trials, see Globe Newspaper Co., 457 U.S. at 606;
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580
(1980) (plurality opinion), the jury-selection process, see
Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 512
(1984) (Press-Enterprise I), and preliminary hearings, see
Press-Enterprise II, 478 U.S. at 13. In situations in which
other interests justify the closure of a proceeding, the Court
held that the public has a right to access a transcript of the
proceeding within a reasonable time. See Press-Enterprise
II, 478 U.S. at 13; Press-Enterprise I, 464 U.S. at 512. Our
court has since extended the right of access to various
documents filed in criminal proceedings. For example, we
have held that the public has the right to access plea
agreements, see Oregonian Publishing Co. v. United States
District Court, 920 F.2d 1462, 1465–66 (9th Cir. 1990),
documents filed in pretrial proceedings, see Associated
Press v. United States District Court, 705 F.2d 1143, 1145
(9th Cir. 1983), and documents filed in post-conviction
proceedings, see CBS, Inc. v. United States District Court,
765 F.2d 823, 825 (9th Cir. 1985).
18 FIRST AMENDMENT COALITION V. RYAN
The plaintiffs analogize information regarding execution
drugs and personnel to the documents described above.
They argue that the information is just as important to
understanding executions as the documents at issue in our
prior cases are to understanding criminal proceedings, and
that the public therefore has a right of access to the
information sought here. The plaintiffs correctly point out
that we held that such a right likely exists in Wood, 759 F.3d
at 1082–86, but that decision was summarily vacated by the
Supreme Court.
We conclude that the requested information differs from
the requested documents in precedential cases in material
ways and that the public does not have a right of access to
the information at issue here. As explained above, the
Supreme Court has held that the public has a right of access
to transcripts of various criminal proceedings. See, e.g.,
Press-Enterprise II, 478 U.S. at 13 (preliminary hearing);
Press-Enterprise I, 464 U.S. at 512 (jury-selection process).
Information regarding execution drugs and personnel bears
no resemblance to a transcript. It does not provide a
descriptive account of the execution process, as a transcript
would. The reason for providing the public with access to a
transcript also does not apply here. The Supreme Court has
explained that a transcript may serve as a substitute for
holding an open governmental proceeding when other
interests justify the closure of that proceeding. See Press-
Enterprise I, 464 U.S. at 512. There is no need for a
transcript in this context, since the public already has a right
to attend and observe executions. See Woodford, 299 F.3d
at 877.
Information regarding execution drugs and personnel
also differs from other documents to which the public has a
right of access. We have held that the public has the right to
FIRST AMENDMENT COALITION V. RYAN 19
access documents filed in certain judicial proceedings. See,
e.g., Oregonian Publishing Co., 920 F.2d at 1465–66 (plea
agreement and related documents); CBS, Inc., 765 F.2d at
825 (documents filed in post-conviction proceedings);
Associated Press, 705 F.2d at 1145 (documents filed in
pretrial proceedings). Those documents are part of the
official judicial record. See CBS, Inc., 765 F.2d at 826. We
have never held that the right of access extends to documents
beyond those in the record just because they may shed light
on a criminal proceeding. For example, we have never held
that the First Amendment gives the public a right to access
judicial conference notes or to all documents in the
prosecutor’s possession, and the Supreme Court has
suggested that the First Amendment does not provide for
such a right. See Pell v. Procunier, 417 U.S. 817, 833–34
(1974).
Unlike the documents to which the public has a right of
access, the requested information is not part of any official
record of the execution proceeding. It is simply information
in the government’s possession that would enhance the
understanding of executions. But, as the Supreme Court has
stated, the First Amendment does not “mandate[] a right of
access to government information or sources of information
within the government’s control.” Houchins v. KQED, Inc.,
438 U.S. 1, 15 (1978) (plurality opinion).
We also reject the plaintiffs’ argument that the holding
of Woodford—that the public has a right to view executions
in their entirety—directly resolves this issue. According to
the plaintiffs, in analogous medical settings, witnesses
would be able to view drug labels and the nametags of
medical personnel, which would allow them to observe
information regarding the source of drugs and the
qualifications of medical personnel. The plaintiffs argue that
20 FIRST AMENDMENT COALITION V. RYAN
knowing the source of the drugs would, in turn, provide
information about the quality of the drugs. The plaintiffs
thus contend that the right to view executions in their entirety
includes the right to access the requested information
regarding execution drugs and personnel.
Woodford’s holding does not extend that far. There, we
held that the public and the press have the right to view
executions in their entirety, “including those ‘initial
procedures’ that are inextricably intertwined with the
process of putting the condemned inmate to death.”
Woodford, 299 F.3d at 877. We did not hold that there is a
First Amendment right to examine executions in minute
detail, such that witnesses could see the drug labels and the
nametags of execution team members. Nor did we hold that
the public is entitled to all information that is “inextricably
intertwined” with executions. Woodford did not change the
default rule that the right of access “does not extend to every
piece of information that conceivably relates to a
governmental proceeding, even if the governmental
proceeding is itself open to the public.” Wood, 759 F.3d at
1092 (Bybee, J., dissenting).
Other courts have reached the same conclusion. The
Sixth Circuit concluded that the Press-Enterprise II test does
not apply in this context, and held that the public does not
have a First Amendment right of access to information
regarding the identities of execution team members or the
identities of entities that transport, manufacture, compound,
or supply lethal-injection drugs. See Phillips v. DeWine,
841 F.3d 405, 417–20 (6th Cir. 2016). Similarly, the Eighth
Circuit has held that the public does not have a First
Amendment right to know the identities of the entities that
supply and compound lethal-injection drugs. See Zink v.
Lombardi, 783 F.3d 1089, 1111–13 (8th Cir. 2015). And the
FIRST AMENDMENT COALITION V. RYAN 21
Eleventh Circuit has held that the public does not have a
right to know the qualifications of execution team members
or the source of lethal-injection drugs. See Wellons v.
Commissioner, 754 F.3d 1260, 1266–67 (11th Cir. 2014).
Given Arizona’s checkered past with executions, we are
troubled by the lack of detailed information regarding
execution drugs and personnel. Such information would
undoubtedly aid the public and death-row inmates in
monitoring the constitutionality of Arizona’s execution
proceedings. However, as the Supreme Court has held, the
First Amendment does not mandate the disclosure of “all the
information provided by [freedom of information] laws.”
McBurney v. Young, 569 U.S. 221, 232 (2013). Thus,
although the inmates may be able to assert a procedural due
process right to obtain the information they seek, see Lopez,
680 F.3d at 1083–84 (Berzon, J., concurring in part and
dissenting in part), neither the inmates nor the First
Amendment Coalition possesses such a right under the First
Amendment.
Because the First Amendment right of access to
governmental proceedings does not entitle the plaintiffs to
information regarding execution drugs and personnel as a
matter of law, the district court did not abuse its discretion
by dismissing with prejudice those aspects of the plaintiffs’
claim relating to such information.
III
We turn next to the plaintiffs’ claim that Arizona’s
restrictions violate the inmates’ First Amendment right of
access to the courts. We agree with the district court that this
claim fails as a matter of law.
22 FIRST AMENDMENT COALITION V. RYAN
We have held that there are two types of claims that can
be raised in this context. See Silva v. Di Vittorio, 658 F.3d
1090, 1102–04 (9th Cir. 2011), overruled on other grounds
by Coleman v. Tollefson, 135 S. Ct. 1759 (2015). The first
category of claims involves the denial of adequate law
libraries and other legal assistance to prisoners, which
prevents them from challenging their sentences and the
conditions of their confinement. See Hebbe, 627 F.3d
at 342–43. The second category of claims involves active
interference with a prisoner’s right to litigate, such as seizing
and withholding the prisoner’s legal files. See Silva,
658 F.3d at 1102–04. Neither of those rights is implicated
here, for the plaintiffs do not contend that Arizona officials
have limited the inmates’ ability to litigate in any way.
The Supreme Court has explained that the First
Amendment right of access to the courts does not include the
right of prisoners to “discover grievances[] and to litigate
effectively once in court.” Lewis v. Casey, 518 U.S. 343,
354 (1996) (emphasis omitted). That is what the inmates
seek here. According to the Second Amended Complaint,
the inmates are seeking access to execution sounds and
information regarding execution drugs and personnel in
order to discover whether they have a colorable claim that
their executions will be carried out in violation of the Eighth
and Fourteenth Amendments. The First Amendment right
of access to the courts does not entitle the inmates to such
information. See Phillips, 841 F.3d at 420; Zink, 783 F.3d
at 1108; Wellons, 754 F.3d at 1267.
Because the inmates’ right-of-access-to-the-courts claim
fails as a matter of law, the district court did not abuse its
discretion by dismissing this claim without leave to amend.
AFFIRMED in part, REVERSED in part, and
REMANDED.
FIRST AMENDMENT COALITION V. RYAN 23
The parties shall bear their own costs.
BERZON, Circuit Judge, concurring in part and dissenting
in part:
I join Parts I and II of the Court’s opinion but dissent in
part as to Part III.
For one of the initial plaintiffs in this case, any
intervention we might now order may be entirely too late.
The botched execution of Joseph Wood took one hundred
and seventeen minutes. This Court had stayed Wood’s
execution, holding that, until Arizona provided the “name
and provenance of the drugs to be used” and “the
qualifications of the . . . personnel” to be enlisted, his
execution threatened irreparable harm. Wood v. Ryan,
759 F.3d 1076, 1088 (9th Cir.), vacated 573 U.S. 976(2014). 1 The State, we held, could not execute Wood as long
as it continued to conceal “reliable information” about
execution procedures which are “invasive, possibly painful,
and may give rise to serious complications.” Id. at 1085(quoting Cal. First Amendment Coal. v. Woodford, 299 F.3d
868, 876 (9th Cir.2002)). But despite Arizona’s assurances
that “nearly every detail” of its execution protocol had been
made public, Wood’s execution in fact deviated from that
protocol in significant ways, culminating in the injection of
thirteen more doses of lethal drugs than the protocol
authorized. And despite the serious possibility that Wood’s
execution inflicted “needless suffering,” Baze v. Rees,
1
The Supreme Court vacated our stay of Wood’s execution, so the
Wood opinion is not precedential. I cite to the opinion as part of the
historical record of Wood’s execution.
24 FIRST AMENDMENT COALITION V. RYAN
553 U.S. 35, 50 (2008), Arizona has ensured that it remains
unclear what went so tragically wrong—and why its
assurances proved unreliable.
In seeking to prevent his likely-unconstitutional
execution, Wood relied upon an eerily similar case: Towery
v. Brewer, 672 F.3d 650, 661 (9th Cir. 2012). Robert
Towery’s execution had also deviated from Arizona’s
purported protocol, resulting in an hour-long ordeal as
personnel struggled to set IV lines, doubtless producing
considerable pain. See Lopez v. Brewer, 680 F.3d 1068,
1073–75 (9th Cir. 2012). In Lopez, this Court noted the
tension between Arizona’s “touting of the public nature of
the execution” and its “shrouding” of crucial details of the
execution process “in a cloak of secrecy.” Id. at 1075. I
separately argued that the “impenetrable roadblocks”
erected by Arizona to obtaining such information denied
death-row inmates their procedural due process right to have
Eighth Amendment challenges heard at a meaningful time
and in a meaningful manner, Id. at 1082 (Berzon, J.,
concurring in part and dissenting in part). Despite these
admonitions, Arizona has continued to conceal the precise
conditions of Towery’s death.
These deviations in protocol are not isolated. In other
executions, Arizona has obtained its lethal injection drugs
illegally or administered them in unauthorized dosages. And
on at least one occasion, the State issued a warrant of
execution without compliance with provisions of its protocol
which required it to ensure that that the drugs it planned to
use had not expired, discovering its oversight only two days
before the execution.
Arizona is now deploying a range of strategies to
obstruct any effort to understand the difficulties which
plague its executions. First, it grants those who carry out its
FIRST AMENDMENT COALITION V. RYAN 25
executions broad discretion to eliminate the access it
ordinarily allows. Its protocol authorizes Arizona
Department of Corrections (“ADC”) officials to cut the
microphone if the condemned, in making his final statement,
makes any utterance which officials deem “vulgar[]” or
“intentionally offensive.” The threatened use of this
discretion forced Towery to develop a code for
communicating with his counsel from the execution
chamber, a code by which he may have indicated that the
execution procedures were causing him pain. Lopez,
680 F.3d at 1082 (Berzon, J., concurring in part and
dissenting in part). The potential use of such a code in future
executions is not a reassuring prospect, for ADC officials
also retain discretion to close the window curtains of the
execution chamber or to remove witnesses from the facility
if they deem either course of action “merit[ed]” by a
“legitimate penological objective.”
Moreover, Arizona now withholds information
concerning the source and quality of its lethal-injection
drugs. ADC officials had previously provided this
information, pursuant to a court order which they declined
to appeal. The officials justify this change by invoking an
interest in maintaining confidentiality for the sources of
Arizona’s lethal-injection drugs. But they offer no evidence
that their previous compliance with the court order
encumbered their administration of subsequent executions.
Wood, 759 F.3d at 1086. Even assuming the legitimacy of
the State’s interest, that interest does not explain Arizona’s
choice to withhold the same sorts of information provided
for previous executions, which would not compromise
confidentiality. Disclosure of the drugs’ expiration dates, for
example, would not reveal the identities of their
manufacturers. Given the poor fit between the changes
Arizona has made to its execution procedures and the
26 FIRST AMENDMENT COALITION V. RYAN
reasons it has offered to justify them, we can only wonder,
at this stage, as to Arizona’s true objectives.
The remaining plaintiffs in this case now challenge as
forbidden by the First Amendment the shroud of secrecy that
Arizona maintains around its executions. While I join Parts
I and II of the Court’s opinion, I write separately to call
attention to the inmates’ plausible allegations that Arizona,
through its deliberate concealment of information about its
execution process, has violated their First Amendment right
of access to the courts. I also write to reiterate my view that
Arizona’s approach to devising, announcing, and recording
its execution procedures denies condemned inmates their
right under the Fourteenth Amendment to procedural due
process of law.
1. As the majority notes, this Court has recognized two
types of access-to-courts claims: “those involving prisoners’
right to affirmative assistance” and “those involving
prisoners’ rights to litigate without active interference.”
Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011)
(emphases in original), overruled on other grounds by
Coleman v. Tollefson, 135 S. Ct. 1759 (2015). I agree with
the majority that the inmates have not alleged facts that
would give rise to a cause of action of the former type. As a
First Amendment matter, they have no affirmative
entitlement to information regarding the source, quality,
storage conditions, or expiration dates of Arizona’s lethal-
injection drugs or the qualifications of its execution-team
members.
But I part ways with the majority when it comes to the
latter type of claim. The inmates have plausibly alleged that
Arizona has concealed information in a deliberate effort to
limit their ability to litigate the conditions under which they
FIRST AMENDMENT COALITION V. RYAN 27
will be put to death. If that is true, then Arizona has actively
interfered with rights protected by the First Amendment.
The aforementioned distinction is not of the Ninth
Circuit’s making. In Casey v. Lewis, the Supreme Court
made clear that the right of access to courts does not compel
the state affirmatively to “enable the prisoner to discover
grievances, and to litigate effectively once in court,”
518 U.S. 343, 354 (1996), even as it acknowledged that the
right is implicated where the state “hinder[s]” a prisoner’s
“efforts to pursue a legal claim,” id. at 351. Other circuits
have similarly recognized that access to the courts must be
free from “undue interference,” Snyder v. Nolen, 380 F.3d
279, 291 (7th Cir. 2004), in that the state “may not erect
barriers that impede the right,” John L. v. Adams, 969 F.2d
228, 235 (6th Cir. 1992). Cases involving this aspect of the
right turn on the intention with which the state acts. The
proscribed intention of interference might be pursued in any
number of ways.
ADC officials urge that the inmates’ access-to-courts
claims fail as a matter of law because the inmates do not
allege that they are “physically unable” to file Eighth
Amendment claims, “only that they are unable to obtain the
information needed to discover” a potential violation.
Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011). But
the problem here is not that the inmates are unable to obtain
any particular information; it is rather that the State is alleged
to have concealed such information in a deliberate attempt
to “hinder[]” their litigation efforts. Casey, 518 U.S. at 351.
We have never limited our “active interference”
jurisprudence to interference with an inmate’s ability
(physical or otherwise) to file a claim. See Silva, 658 F.3d
at 1102–03. Nor has the Supreme Court embraced such a
limitation. In Christopher v. Harbury, plaintiff Jennifer
28 FIRST AMENDMENT COALITION V. RYAN
Harbury alleged a deprivation of her right of access to the
courts where government officials intentionally deceived her
by concealing information that her husband was being
detained and tortured by foreign military officers who were
paid agents of the Central Intelligence Agency. 536 U.S.
403, 405–08 (2002). If not for the government’s deception,
Harbury argued, she “could have brought a lawsuit that
might have saved her husband’s life.” Id. at 405. The Court
rejected Harbury’s argument, but not on the ground that the
right of access to the courts cannot be violated by deliberate
government concealment of information. Rather, Harbury’s
right-of-access claim failed because she had not identified an
underlying cause of action that had been compromised as a
result of the government’s deception, nor had she sought any
relief that would otherwise be unavailable in a subsequent
lawsuit. Id. at 415, 418–22. Had she alleged a “nonfrivolous”
underlying claim with which the government had interfered
(one whose “arguable nature” offered “more than hope”) and
a remedy for the government’s interference, her case could
not have been dismissed. Id. at 416 (internal quotation marks
omitted).
The inmates here, by contrast, have identified an
underlying claim with which Arizona has allegedly
interfered: that their impending executions threaten a serious
“risk of severe pain,” in violation of the Eighth Amendment.
Baze, 553 U.S. at 61. Given plaintiffs’ detailed allegations
concerning the widespread difficulties involved in obtaining
lethal-injection drugs, the considerable dangers posed by
using drugs obtained from illegal sources or at unauthorized
dosages, and Arizona’s troubling history of deviating from
its own lethal-injection drug protocols, including by
obtaining its drugs illegally, administering them at
unauthorized dosages, and failing to ensure appropriately
that their expiration dates had not lapsed, the underlying
FIRST AMENDMENT COALITION V. RYAN 29
claim is assuredly not frivolous. See Harbury, 536 U.S. at
416. Indeed, given that deviations in protocol marked the
executions of Robert Towery and Joseph Wood—executions
which, for all that the State has permitted us to know, may
well have inflicted more pain than Baze allows—the
“arguable nature” of these claims offers “more than hope.”
Id. at 416.
The inmates have also sought an appropriate remedy: the
demolition of those barriers which Arizona has erected in a
deliberate attempt to interfere with their efforts to access the
courts. The inmates have alleged, in copious detail, that
Arizona has structured its protocol so as to maximize ADC
officials’ discretion to deviate from standard procedure, and
that officials have repeatedly exercised this discretion on a
last-minute basis, making meaningful judicial review near
impossible. Moreover, the inmates allege that Arizona’s
previous use of a paralytic as part of its lethal-injection
protocol may, by design, have served only to mask the pain
suffered by those whom Arizona puts to death, preventing
those still awaiting execution from sparing themselves
similar pain. As Judge Reinhardt observed: “[I]f a skilled
lawyer were instructing the state on how best to avoid any
meaningful review of the constitutionality of its execution
procedures, he would be hard pressed to improve on the
unconscionable regime that the state has adopted.” Lopez v.
Brewer, 680 F.3d 1084, 1095–96 (9th Cir. 2012) (Reinhardt,
J., dissenting from denial of rehearing en banc) (emphasis in
original). Indeed, ADC officials themselves advance an
interest in curtailing “the risk of litigation” as a legitimate
purpose for adopting at least some of their policies. Against
this backdrop, the inmates’ assertion that Arizona has
“deliberately conceal[ed]” critical information about its
execution process, actively interfering with their access to
the courts, is more than plausible.
30 FIRST AMENDMENT COALITION V. RYAN
Additional First Amendment issues may be raised by the
State’s admission that its concealment of the sources of its
lethal-injection drugs is motivated by an interest in
suppressing lawful protest directed at the drugs’
manufacturers. But we need not reach such issues today.
Arizona’s alleged interference with the inmates’ efforts to
access the courts is sufficient.
To be sure, the inquiry into motivational subtleties which
the “active interference” standard demands is not easily
undertaken at the pleading stage. See Silva, 658 F.3d
at 1103–04. The inmates have plausibly alleged Arizona’s
deliberate concealment of a range of information through
barriers which take a variety of forms. On the merits, only
those barriers proven to have been erected in a deliberate
attempt to interfere with litigation efforts could violate the
First Amendment. But the inmates must be permitted to
make that showing. Today’s opinion denies them that
opportunity.
2. Were a procedural due process challenge before us,
we could avoid such a searching inquiry into Arizona’s
intentions. We would ask whether Arizona’s execution
process deprives condemned inmates “the opportunity to be
heard at a meaningful time and in a meaningful manner,”
regardless of what might motivate the deprivation. Mathews
v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)). That the inmates are
unable to litigate meaningfully their liberty interest in
avoiding an unconstitutionally painful execution would be
enough. See Serrano v. Francis, 345 F.3d 1071, 1078 (9th
Cir. 2003).
Relying upon procedural due process would offer the
additional advantage of directing litigation efforts at the
totality of the execution process. Rather than proceeding
FIRST AMENDMENT COALITION V. RYAN 31
barrier by barrier, parsing Arizona’s reasons for adopting
each one, we would ask whether the barriers, taken together,
amount to a procedural due process violation.
This approach would also afford Arizona greater
flexibility in correcting the constitutional deficiencies of its
execution protocols. In Lopez, I wrote that Arizona might
rectify its due process violations in any number of ways,
“including (1) providing a detailed written protocol that
restricts the Director’s discretion and is actually followed in
executions; (2) keeping and making available detailed
accounts of the actual execution processes, including any
evidence of the impact on the pain perception by those
executed; (3) providing either for public access or for more
limited access by counsel to the pre-execution proceedings.”
680 F.3d at 1084 (Berzon, J., concurring in part and
dissenting in part). It is disappointing that Arizona has
continued to decline that invitation. Its adoption of any one
of these suggestions would give the condemned inmates
much of what they seek.
It may well be too late for Joseph Wood and Robert
Towery to vindicate their First Amendment rights of court
access or their rights to due process of law. If nothing
changes, it might soon be too late for some remaining
plaintiffs, as well.