Samuel Lopez v. Janice Brewer ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL VILLEGAS LOPEZ, 
Plaintiff-Appellant,
v.
JANICE K BREWER, Governor of
Arizona; CHARLES L. RYAN,
Director, Arizona Department of
Corrections; RON CREDIO, Warden,
Arizona Department of No. 12-16084
Corrections-Eyman; LANCE R. D.C. No.
HETMER, named as: Lance  2:12-cv-00245-
Hetmer/Warden, Arizona NVW
Department of Corrections-
OPINION
Florence; UNKNOWN PARTIES,
named as: IV Team Leader; IV
Team Members 1-5; Special
Operations Team Leader; Special
Operations Team Recorder;
Special Operations Team Members
1-5; and Does 1-25,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
May 14, 2012—San Francisco, California
Filed May 15, 2012
5573
5574 LOPEZ v. BREWER
Before: M. Margaret McKeown, Marsha S. Berzon, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge McKeown;
Partial Concurrence and Partial Dissent by Judge Berzon
LOPEZ v. BREWER 5577
COUNSEL
Dale A. Baich, Robin C. Konrad, Cary S. Sandman, and Jon
M. Sands, Federal Public Defender’s Office, Phoenix, Ari-
zona; Amanda R. Conley, David Sepanik, and Flora Vigo,
O’Melveny & Myers LLP, San Francisco, California; Denise
I. Yong, Tucson, Arizona; Kelley J. Henry and Henry A. Mar-
tin, Federal Public Defender’s Office, Nashville, Tennessee,
for the plaintiff-appellant.
Kent Ernest Cattani, Thomas C. Horne, and Jeffrey A. Zick,
Arizona Attorney General’s Office, Phoenix, Arizona, for the
defendants-appellees.
OPINION
McKEOWN, Circuit Judge:
We embark upon this opinion with deja vu, the feeling that
we have been here before, but with the knowledge that we
will likely be here again. We have entertained, usually at the
last minute, a number of challenges to Arizona’s execution
protocol. No court has determined the constitutionality of Ari-
zona’s current death penalty protocol, adopted in January
2012, yet we have been asked to address individual provisions
of the protocol in the abstract, without a constitutionally firm
base. Further complicating our task, in certain respects, the
actual procedures followed during individual executions have
not been consistent; instead, in the intervening two months
since we issued Towery v. Brewer, 672 F.3d 650 (9th Cir.
5578 LOPEZ v. BREWER
2012), there is uncertainty as to how the next execution will
be carried out. The State continues to cling to its discretion,
all the while urging us—during oral argument in the waning
hours before execution—to trust that it will exercise its dis-
cretion in a constitutionally permissible manner. The State’s
insistence “on amending its execution protocol on an ad hoc
basis—through add-on practices, trial court representations
and acknowledgments, and last minute written amendments—
leav[es] the courts with a rolling protocol that forces us to
engage with serious constitutional questions and complicated
factual issues in the waning hours before executions.” Id. at
653. Review of death penalty cases is a grim and difficult
undertaking, even without these complications.
BACKGROUND
Arizona death-row inmates Robert Charles Towery, Robert
Henry Moormann, Pete Rovogich, Thomas Arnold Kemp,
Milo McCormick Stanley, and Samuel Villegas Lopez
brought this action under 42 U.S.C. § 1983, asserting that the
Arizona Department of Corrections’ (the “ADC”) execution
protocol violates the Eighth Amendment.1 Lopez, one of the
named plaintiffs with an impending execution date, moved
the district court for a preliminary injunction against the
ADC’s use of its current lethal injection protocol. The district
court denied relief and Lopez appealed. We affirm.
In Towery v. Brewer, we considered an almost equivalent
challenge to Arizona’s current execution protocol by another
named plaintiff in this case. In light of the extensive prior
opinions, we will not repeat the chronology and background.
See id. at 654-55; see also Dickens v. Brewer, 631 F.3d 1139(9th Cir. 2011). Lopez’s challenge, in effect, picks up where
Towery left off.2
1
Some of the named plaintiffs have since been executed.
2
The State has advised that it will use a one-drug protocol in Lopez’s
execution. Lopez does not explicitly argue that the protocol is, in itself,
unconstitutional. To the extent he indirectly makes this claim, it fails
because he provides insufficient evidence to support such a claim.
LOPEZ v. BREWER 5579
In the district court, Lopez alleged that: 1) the ADC’s med-
ical procedures for inserting IV catheters in condemned pris-
oners violates his Eighth Amendment rights; 2) the ADC’s
January 25, 2012, amendment to Department Order 710 (the
“2012 Protocol”) violates his right to equal protection under
the Fourteenth Amendment; and 3) the ADC’s execution pro-
tocol violates his rights of access to counsel and the courts.
Lopez moved for a preliminary injunction to enjoin his exe-
cution to allow for litigation of these claims. The district court
considered the evidence in the record and, without holding an
evidentiary hearing, denied the request for a preliminary
injunction.
The district court held that Lopez had not presented a sub-
stantial likelihood of success on the merits regarding his claim
that the 2012 Protocol facially violates the Eighth Amend-
ment. Lopez claimed that the ADC’s actions surrounding the
insertion of IV catheters in condemned prisoners demon-
strates an objectively intolerable risk of harm, even where a
one-drug protocol is used instead of a three-drug protocol.
The district court held that the mere presence of pain and dis-
comfort resulting from the placement of IV lines did not con-
stitute “an objectively intolerable risk of harm” and that some
pain was an inescapable consequence of death.
Lopez also claimed that the 2012 Protocol violates his right
to equal protection because each of the prisoners executed
since the adoption of the Protocol has been treated differently
with respect to IV placement and that these variances affected
the risk of pain to which each was subjected. Because individ-
ualized and changing factors may impact IV placement and
because use of a femoral catheter is no more likely to create
a risk of cruel and unusual punishment than the use of a
peripheral catheter, the district court concluded that Lopez
failed to raise serious questions on the merits of his equal pro-
tection claim.
5580 LOPEZ v. BREWER
Finally, the district court upheld the prohibition on in-
person non-contact visitation with the condemned’s attorney
after 7:00 a.m. on the day of the scheduled execution. It found
the prohibition proper because communication with counsel
by telephone is still permitted past 7:00 a.m. The district also
determined that Lopez is not entitled to have counsel observe
the IV-placement procedure.
ANALYSIS
On appeal, Lopez challenges four aspects of the district
court’s denial of the preliminary injunction: 1) application of
the “serious questions” test; 2) the conclusion that the 2012
Protocol does not violate Lopez’s Eighth Amendment rights;
3) the conclusions regarding the ADC’s restrictions on in-
person non-contact counsel visits; and 4) the decision not to
hold an evidentiary hearing. We review this denial of a pre-
liminary injunction for abuse of discretion. Lands Council v.
McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc). An
abuse of discretion will be found if the district court based its
decision “on an erroneous legal standard or clearly erroneous
findings of fact.” Id. We note that in this appeal Lopez did not
advance the argument offered by the dissent, namely a due
process challenge based on unfettered discretion and transpar-
ency.
I. PRELIMINARY INJUNCTION STANDARD
[1] The district court appropriately articulated the legal
principles governing the grant of a preliminary injunction and
applied these principles to the limited facts presented by
Lopez. A preliminary injunction is “an extraordinary and
drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of persua-
sion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam) (citation omitted). To obtain preliminary injunctive
relief, Lopez must demonstrate that: 1) he is likely to succeed
on the merits of such a claim; 2) he is likely to suffer irrepara-
LOPEZ v. BREWER 5581
ble harm in the absence of preliminary relief; 3) the balance
of equities tips in his favor; and 4) that an injunction is in the
public interest. Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). As we emphasized in Towery, these princi-
ples apply even in the context of an impending execution. 672
F.3d at 657 (citing Hill v. McDonough, 547 U.S. 573, 583-84
(2006)).
[2] Under the “serious questions” variation of the test, a
preliminary injunction is proper if there are serious questions
going to the merits; there is a likelihood of irreparable injury
to the plaintiff; the balance of hardships tips sharply in favor
of the plaintiff; and the injunction is in the public interest.
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131-32 (9th Cir. 2011). The elements of the preliminary
injunction test must be balanced, so that a stronger showing
of one element may offset a weaker showing of another.
“ ‘[S]erious questions going to the merits’ and a balance of
hardships that tips sharply towards the plaintiff can support
issuance of a preliminary injunction, so long as the plaintiff
also shows that there is a likelihood of irreparable injury and
that the injunction is in the public interest.” Id. at 1135.
[3] Lopez takes issue with the district court’s analysis,
arguing that the court failed to balance the four Winter factors
and did not consider whether Lopez presented serious ques-
tions going to the merits of the claims. The district court,
however, articulated the Winter standard and discussed each
of the elements. Although the court’s discussion of irreparable
harm, the balance of equities, and the public interest is brief,
the court did engage with each of these three factors, and thus
did not apply an incorrect legal standard. See United States v.
Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc) (a
court abuses its discretion if it fails to identify and apply the
correct legal rule).
[4] To the extent Lopez argues that the “serious questions
going to the merits” consideration is a separate and indepen-
5582 LOPEZ v. BREWER
dent analysis from the court’s assessment of Lopez’s likeli-
hood of success on the merits, Lopez misunderstands our
precedent. See M.R. v. Dreyfus, 663 F.3d 1100, 1108 (9th Cir.
2011) (articulating preliminary injunction standard in terms of
likelihood of success on the merits or serious questions going
to the merits). Because the district court did not err in deter-
mining that Lopez failed to demonstrate a likelihood of suc-
cess on the merits, it follows that Lopez also failed to raise
serious questions going to the merits.
II. EIGHTH AMENDMENT CLAIM—PLACEMENT OF IV LINES
[5] The Eighth Amendment to the Constitution prohibits
the infliction of “cruel and unusual punishments,” not punish-
ment itself. Part of Lopez’s ultimate punishment—a sentence
of death—is the execution process itself. Lopez challenges
Arizona’s procedures for conducting executions, specifically
the placement of the IV lines, claiming that they present an
intolerable risk of harm rendering the process unconstitu-
tional.
[6] To prevail on an Eighth Amendment claim “there must
be a substantial risk of serious harm, an objectively intolera-
ble risk of harm that prevents prison officials from pleading
that they were subjectively blameless for purposes of the
Eighth Amendment.” Baze v. Rees, 553 U.S. 35, 50 (2009)
(quotation marks omitted). Lopez’s argument that the ADC is
not “subjectively blameless” for its actions is insufficient;
instead, the appropriate benchmark is whether the ADC’s pro-
cedures create “an objectively intolerable risk of harm” that
precludes a finding that the prison officials were subjectively
blameless. In other words, “[s]imply because an execution
method may result in pain, either by accident or as an inescap-
able consequence of death, does not establish the sort of
objectively intolerable risk of harm that qualifies as cruel and
unusual.” Id.Towery’s recent execution is the primary basis of Lopez’s
claim. During the execution, which started at 9:52 a.m., the
LOPEZ v. BREWER 5583
ADC spent approximately thirty minutes, and made at least
six punctures, unsuccessfully attempting to place IV catheters
in both of Towery’s arms near his elbows. The ADC’s records
document that “[a]fter multiple attempts of the left and right
peripheral — (approximately 4 in right — 2 in left), IV Team
Leader recommended right femoral as primary and left
peripheral as back-up.” According to attorney testimony,
“[d]uring Mr. Towery’s last words, he also said that he should
have gone left and he went right. He went right when he
should have gone left. He then went on to say he made ‘mis-
take, after mistake after mistake.’ Based on my discussions
with Mr. Towery, this phrase meant that there were problems
or he was hurt during the insertion of the catheters.”
At this point, the Director of the ADC called the Arizona
Attorney General’s Office to “provide[ ] an update regarding
the IV process.” The Team Leader’s recommendation was
then attempted, and the “[r]ight femoral was successful; left
peripheral was unsuccessful.” After further discussion
between the Director and the Team Leader, the “[r]ight hand
peripheral” was chosen as the back-up catheter site. This
attempt was successful at 10:59 a.m., approximately an hour
after the process began.
Lopez claims that this sequence of events, along with other
recent executions conducted by the ADC, demonstrate that he
may be subjected to an unconstitutional level of pain during
his execution. The district court held that “Lopez has not cited
any legal authority or alleged any facts that bring into ques-
tion the prior conclusion in West that the Eighth Amendment
is not offended by administration of lethal chemicals through
a femoral central line. Nor is there any persuasive or even col-
orable reason to think that placement of a peripheral IV line
in a prisoner’s hand, while possibly more uncomfortable than
other peripheral sites, poses an objectively intolerable risk of
severe pain that qualifies as cruel and unusual.” In addition,
“[w]hile undoubtedly disquieting to a condemned inmate
awaiting execution, repeated efforts to set IV lines do not, in
5584 LOPEZ v. BREWER
and of themselves, suggest malevolence from Defendants,
extreme pain, or even unnecessary pain.”
[7] We acknowledge, as demonstrated by the evidence,
that there can be some pain and discomfort associated with
the placement of IV lines and that, depending on the individ-
ual, such placement can be difficult from time to time. An
inmate might also experience some pain from the administra-
tion of the lethal drugs through a relatively smaller vein. The
relevant inquiry, however, is whether placement of the periph-
eral line in the hand, the femoral catheter, and the series of
abortive IV placement attempts, either individually or in com-
bination, lead to an objectively intolerable risk of pain. Lopez
has not documented that they do. The record does not support,
with any likelihood, the conclusion that the pain Towery pur-
portedly suffered establishes an “objectively intolerable” risk
of pain for Lopez, as required under the Eighth Amendment.
See Baze, 553 U.S. at 50. Our sister circuits have taken a simi-
lar view. See Raby v. Livingston, 600 F.3d 552, 558-61 (5th
Cir. 2010) (upholding Texas lethal injection protocol where
evidence of problems with inserting IVs); Cooey v. Strick-
land, 589 F.3d 210, 217-18, 224, 233-34 (6th Cir. 2009)
(upholding Ohio protocol despite evidence of problems insert-
ing IV); Emmett v. Johnson, 532 F.3d 291, 303, 306-08 (4th
Cir. 2008) (upholding Virginia protocol despite problems with
IV lines).
[8] At this stage, we credit Lopez’s characterization of the
Towery execution, as the State offered nothing to the con-
trary. The somewhat increased pain suffered by Towery atten-
dant to his execution was therefore a single, isolated incident,
which “alone does not give rise to an Eighth Amendment vio-
lation, precisely because such an event, while regrettable,
does not suggest cruelty, or that the procedure at issue gives
rise to a ‘substantial risk of serious harm.’ ” Baze, 553 U.S.
at 50 (citation omitted).3 The isolated nature is underscored by
3
Lopez also challenges the pain related to puncture of the femoral artery
and vein. Assuming that puncture of the femoral artery or arterial adminis-
LOPEZ v. BREWER 5585
the fact that both Moormann’s and Kemp’s executions were
completed without similar difficulties. Because Lopez does
not demonstrate a likelihood of success on the merits, the dis-
trict court did not abuse its discretion.
[9] Lopez next argues that the increased pain is avoidable
if qualified individuals are hired to place the IVs.4 The Direc-
tor admitted in December 2011 that “he conducted the last
five executions with full knowledge that at least one of the
Medical Team members did not hold a medical license and
did not administer IVs in his current employment.” West v.
Brewer, No. CV-11-1409-PHX-NVW, 2011 WL 6724628, at
*6 (D. Ariz. Dec. 21, 2011). Our decision in Towery
explained that the 2012 Protocol, as amended by the State’s
representation and commitments to this court, addresses this
issue. The state represented, and we accepted, that “ ‘relevant
experience,’ as used in Paragraph 1.2.5.1 of the 2012 Proto-
col, means that IV Team members must have no less than the
training that is traditionally given for people to be licensed to
place IVs. We view this representation as a binding one that
cabins the meaning of ‘appropriately trained’ and ‘relevant
experience’ in the context of the 2012 Protocol.” Id. at 658(emphasis added). We reaffirm this holding, and note also that
the ADC committed during oral argument that trained profes-
sionals, in this case a licensed physician and nurse, constitute
the IV Team for Lopez’s execution.
[10] Nonetheless, Arizona’s actions come perilously close
to losing safe-harbor protection under Baze. The 2012 Proto-
tration of the lethal drugs leads to pain, Lopez has not demonstrated that
the increased pain meets the Baze standard, either in isolation or in combi-
nation with the other issues discussed here.
4
This challenge is limited to the personnel the Director might hire to
insert the peripheral IV lines. Under the 2012 Protocol, a medically-
licensed physician must insert the femoral central line. 2012 Protocol,
Attach. D, § E.1 (“In no event shall a femoral central line be used without
being done by a medically-licensed physician.”).
5586 LOPEZ v. BREWER
col does not provide for any time-limit with respect to the sit-
ing of IV lines, whereas the protocol blessed in Baze had a
one-hour time limit. Compare 2012 Protocol, Attach. D, § E,
with Baze, 553 U.S. at 45. This limitation was tested with the
siting of Towery’s IV lines, which took almost an hour.
Although this isolated circumstance does not, in itself, create
a serious question going to the merits, the inability of the class
of condemned prisoners to procure details about the execution
process is troubling. This lack of access is compounded by the
State’s touting of the public nature of the execution, while
concurrently curtailing transparency by shrouding the IV-
siting process in a cloak of secrecy.
[11] Recent exercises of the Director’s discretion give us
further cause for concern. For example, detailed execution
logs have given way to vague generalities about the execu-
tion. The “Continuous Correctional Log” related to West’s
execution provides minute-by-minute detail regarding the
insertion of the IV lines.5 In contrast, the log for Towery’s
execution simply concludes, for a 36-minute time period, that
“[a]fter multiple attempts of the left and right peripheral —
(approximately 4 in right — 2 in left), IV Team Leader rec-
ommended right femoral as primary and left peripheral as
back-up.” And, when questioned about the Director’s exercise
of his discretion, the State’s basic argument boils down to a
conclusory statement that the Director is presumed to exercise
his discretion in a constitutionally permissible manner. While
the State correctly claims the Director may order that an exe-
cution attempt be aborted, it cannot explain what circum-
stances, if any, would trigger such an order. Although we
uphold the district court’s decision, we caution, yet again, that
5
With respect to insertion of the lines, the log states: “Medical Team
leader determined there is significant risk of adverse effects if the vein is
defective. A central line was deemed necessary as a backup method to
ensure the safest administration of the chemicals.” Five minutes later, the
log reports that the left arm IV placement attempt failed due to “poor
veins,” and that the right arm was designated as the primary line.
LOPEZ v. BREWER 5587
Arizona’s ad hoc approach risks going beyond Baze’s safe
harbor. Towery, 672 F.3d at 653.
A. EQUAL PROTECTION CLAIM—DISPARATE TREATMENT
Lopez’s equal protection claim is that Arizona treats
inmates differently and that such differences result in uncon-
stitutional disparate treatment. As we noted in Towery, the
state’s decision as to how to administer the chemicals “may
well depend on individualized and changing factors such as
the availability of particular people to participate in the execu-
tion, the supply of drugs available to the State at a given time,
and the condition of the prisoner’s veins.” Id. at 661. For the
same reasons that a similar claim failed in Towery, the district
court held that it fails here as well.
The district court noted that at the time of our decision in
Towery, the ADC had utilized either peripheral or femoral (or
both) IV lines in carrying out each of the previous 26 execu-
tions by lethal injection. The district court found that the use
of a femoral catheter is no more likely to create a risk of cruel
and unusual punishment than the use of a peripheral catheter
and held that Lopez had not raised serious questions or shown
a likelihood of success on the merits of his equal protection
claim.
[12] Lopez points to our language in Towery to argue that
an equal protection claim exists because he has shown “an
actual pattern of treating prisoners differently in ways that did
affect the risk of pain to which they would be subjected, and
therefore the risk of being subjected to cruel and unusual pun-
ishment.” 672 F.3d at 660 (discussing In re Ohio Execution
Protocol Litig, ___ F. Supp. 2d ___, 2012 WL 84548, at *9
(S.D. Ohio Jan. 11, 2012), motion to vacate stay denied, ___
F.3d ___, 2012 WL 118322, at *1 (6th Cir. Jan. 13, 2012)).
This statement cannot be extracted from its context. The most
significant part of the discussion preceded that statement:
namely that a prisoner’s right to be free of cruel and unusual
5588 LOPEZ v. BREWER
punishment “is not affected simply because that prisoner is
treated less favorably than another, where one means of exe-
cution is no more likely to create a risk of cruel and unusual
punishment than the other, and both are constitutionally avail-
able.” Id.6
[13] Since each condemned inmate is physiologically dif-
ferent, no two prisoners would necessarily be similarly situ-
ated with respect to the siting of IV lines. While Lopez may
be correct that the pain suffered by an inmate could depend
on whether the Director elects to use a peripheral or femoral
line, Lopez does not demonstrate that the Director has exer-
cised his discretion in a manner that increases a prisoner’s risk
of being subjected to an objectively intolerable risk of pain.
Nor does he demonstrate that the Director has exercised his
discretion in a constitutionally prohibited manner, for
instance, based on a suspect or any other classification. The
district court did not abuse its discretion in holding that Lopez
fails to raise a serious question going to the merits on his
equal protection claim.
III. ACCESS TO COUNSEL
[14] In Towery, we stated that “[c]ounsel for Towery and
Moormann will be permitted in-person visits with their cli-
ents, including during the morning of the execution, under the
long-standing ADC practice, as reflected in Department Order
6
Unlike Lopez’s challenge, the In re Ohio Execution Protocol Litigation
case involved challenges to deviations from the Ohio execution protocol
by prison officials other than the Director, despite language in the Ohio
protocol that the Director, and only the Director, could approve such devi-
ations. 2012 WL 84548, at *9. Some of these deviations removed various
procedural protections contained in the Ohio execution protocol—for
example, requirements to review an inmate’s medical chart—which argu-
ably exposed the inmates to differing risks of pain depending on whether
the written protocol was followed. Lopez’s argument, however, appears to
be that the Director’s exercise of discretion under the protocol is itself
unconstitutionally impermissible.
LOPEZ v. BREWER 5589
710-IO-F (Nov. 5, 2004), § 710.02, ¶ 1.3.3.5.” 672 F.3d at
658. Our decision in Towery was expressly contingent upon
the State’s representations and commitments made during the
preliminary injunction hearing before this court. Id. Contrary
to the Director’s assertion, Towery did not “incorrectly rely on
a 2004 protocol referring to visitation.” Instead, we noted that
the 2004 protocol—which permitted counsel visits up to 45
minutes—was representative of the ADC’s long-standing
practice of permitting counsel in-person visits with clients,
including during the morning of the execution.7 Consistent
with its representations to this court, the State permitted in-
person non-contact attorney visits until 9:15 a.m. on the
mornings of Towery’s and Moormann’s executions.
The ADC now claims that its representations in Towery
were limited to the Moormann and Towery executions and
did not waive the Director’s right to exercise his discretion
with respect to the scheduling of future in-person attorney vis-
its on the morning of a scheduled execution. In fact, for
Kemp’s execution, the Director notified Kemp’s attorney that
attorney visitation would be permitted from 6:00 a.m. until
7
See ADC Internal Management Procedure 500.4 (Feb. 4, 1986) § 4.4.5
(“Visits from the Attorney of Record and a Chaplain of condemned
inmate’s choice shall be permitted up to ½ hour prior to the scheduled
time of the execution.”); Internal Management Procedure 500 (Mar. 10,
1993) § 5.6.3.6 (“Non-Contact Visits from the Attorney of Record and a
Chaplain of condemned inmate’s choice shall be permitted up to two
hours prior to the scheduled execution.”); Internal Management Procedure
500.4 (Dec. 24, 1994) § 5.2.1.2.4 (“Visits from the Attorney of Record
and a Chaplain of condemned inmate’s choice shall be permitted up to
one-half hour before the scheduled execution time.”); Department Order
710-IO-F (Nov. 5, 2004) § 1.3.3.5 (“Visits from the Attorney of Record
and a Department Chaplain of condemned inmate’s choice are permitted
up to forty-five (45) minutes prior to the scheduled execution.”); Depart-
ment Order 710.09 (Sept. 15, 2009) § 1.6.2 (“The inmate’s visitation privi-
leges shall be terminated at 2100 hours the day prior to the execution,
excluding non-contact visits with the inmate’s Attorney of Record and
facility chaplain as approved by the Division Director for Offender Opera-
tions.”); Department Order 710.09 (May 12, 2011) § 1.5.2 (same).
5590 LOPEZ v. BREWER
7:00 a.m. on the morning of the execution; any subsequent
contact would occur telephonically and only within the discre-
tion of the Director. The ADC has notified Lopez that a simi-
lar practice will be used for his execution.
We made clear in Towery that the State’s repeated ad hoc
modifications to its written protocol—“through add-on prac-
tices, trial court representations and acknowledgments, and
last minute written amendments”—is not sustainable. 672
F.3d at 653. Since the implementation of Department Order
710.09 in September 15, 2009, Arizona has incrementally,
and without reason, imposed restrictions on in-person non-
contact attorney visits on the morning of a scheduled execu-
tion. The 2012 Protocol, as written, permits the Director to
preclude any in-person non-contact visits with counsel
beyond 9:00 p.m. the day before the execution. Lopez is
understandably concerned about what will actually occur in
his case. While the State assured us at oral argument that the
Director has no plans to deviate from his current practice of
permitting attorney non-contact visits from 6:00 to 7:00 a.m.
on the morning of the execution, we once again find ourselves
evaluating a practice that is not, in fact, the written protocol.
The State cites confidentiality of the execution team and
timeliness of the execution as concerns that justify the written
prohibition. While confidentiality is a legitimate concern in
the abstract, the State proffers no contemporaneous evidence
of any breaches of confidentiality by defense counsel. See
Cal. First Amend. Coalition v. Woodford, 299 F.3d 868, 880
(9th Cir. 2002) (noting that defendants’ fear that execution
team members will be publicly identified and retaliated
against was an overreaction, supported only by questionable
speculation). The State also fails to provide evidence that
attorney visits led to delays in the execution. For example,
Moormann’s execution started on time even though counsel
was meeting with Moormann until 9:15 a.m. And prior ver-
sions of the protocol permitted non-contact visits up to 30
minutes before the execution. Thus, the State has failed to
LOPEZ v. BREWER 5591
provide, and we cannot discern, any penological justification
for the 9:00 p.m. cutoff on the day before the execution, nor
for the 7:00 a.m. cutoff on the morning of the execution. Id.
at 878 (“in reviewing a challenge to a prison regulation that
burdens fundamental rights, we are directed to ask whether
the regulation is reasonably related to legitimate penological
objectives, or whether it represents an exaggerated response
to those concerns.” (quoting Turner v. Safley, 482 U.S. 78, 87
(1987)) (internal quotation marks omitted)).
[15] The difficulty with the State’s variable limitation on
attorney visits on the morning of the execution is that an indi-
vidual petitioner has no expectation baseline. The policy can
change up to the last hour. Until the record is developed
through trial and final resolution of the underlying litigation,
counsel and the court are subject to the “rolling protocol.”
Towery, 672 F.3d at 653. To stabilize the counsel visit proto-
col, as an interim temporary matter, pending trial and any sub-
sequent appeal, we direct the Director to permit counsel in-
person non-contact visitation until 9:00 a.m. on the morning
of a scheduled execution.
The remainder of Lopez’s counsel challenge deals with
having counsel observe the IV-placement procedure. The dis-
trict court did not abuse its discretion in denying this request.
IV. EVIDENTIARY HEARING
[16] Lopez claims that the new evidence relating to the
executions of Moormann, Towery, and Kemp tips the likeli-
hood of success in his favor. As discussed above, the new evi-
dence does not alter our conclusion that the district court did
not abuse its discretion in denying Lopez’s motion for a pre-
liminary injunction. See Stanley v. Schriro, 598 F.3d 612, 617
(9th Cir. 2010) (noting that this court reviews denials of evi-
dentiary hearing requests for an abuse of discretion).8 An evi-
8
A doctor’s speculation that Kemp’s shaking “suggests a partial sei-
zure” caused by either the “medication administration, previous head
injury or stroke, or a history of seizures,” is insufficient to raises a serious
question going to the merits.
5592 LOPEZ v. BREWER
dentiary hearing was not required or warranted, and the
district court did not abuse its discretion in so concluding. See
Silva v. Woodford, 279 F.3d 825, 833 (9th Cir. 2002) (noting
that an evidentiary hearing is required where a defendant’s
“allegations, if proved, would establish the right to relief.”).
CONCLUSION
[17] The district court did not abuse its discretion in deny-
ing the injunction. Lopez’s emergency motion for a stay of
execution is denied for the same reason.
AFFIRMED, subject to interim modification with
respect to counsel visits. Motion for stay of execution
DENIED.
BERZON, Circuit Judge, concurring in part and dissenting in
part:
We find ourselves once again ruling on life and death
issues on the eve of an execution. And once again, these
issues arise on an appeal of the denial of an emergency
motion for a stay of execution sought on the basis that the
lethal injection mode of execution as the state will administer
it will create such a substantial risk of serious pain as to vio-
late the Eighth Amendment. See Towery v. Brewer, 672 F.3d
650 (9th Cir. 2012); Beaty v. Brewer, 649 F.3d 1071 (9th Cir.
2011); Landrigan v. Brewer, 625 F.3d 1144 (9th Cir. 2010),
vacated by 131 S. Ct. 445 (2010).
In this instance, I cannot help but concur in the majority’s
conclusion that Lopez has not at this point in the litigation
demonstrated the requisite “serious question” as to whether
his execution will violate the Eighth Amendment if allowed
to proceed. I also concur in most of the majority’s reasoning.
In particular, Lopez has not proven that during the Towery
LOPEZ v. BREWER 5593
execution, the pain suffered by Towery—for there assuredly
was considerable pain, as the majority’s account of the hour-
long difficulty in setting IV lines illustrates—was sufficiently
severe to meet the high standard the Supreme Court has set
for finding an Eighth Amendment violation in carrying out an
execution. See Baze v. Rees, 553 U.S. 35, 50 (2008). Without
that proof, Lopez cannot project that he will be exposed to the
risk of similar treatment, and therefore to a risk of harm so
great as to constitute cruel and unusual punishment. More-
over, given the exceedingly short time before his execution,
it will be impossible for Lopez ever to so prove, even if Tow-
ery did in fact suffer cruel and unusual punishment, or to
avoid similar unconstitutional punishment for himself.
For me, unlike for the majority, that failure of proof cannot
be the end of the story in this preliminary injunction appeal.
It is far from clear to me that, were there the opportunity for
this litigation to proceed in the ordinary course—that is,
through full discovery—the requisite proof will not be avail-
able. And I lay the blame for the present state of this litigation
at the feet of the State.
In my view, Arizona has through its approach to devising,
announcing, and recording the execution procedures it uses
effectively denied Lopez of his procedural due process right
to have his Eighth Amendment challenge heard at a meaning-
ful time in a meaningful manner. It has done so by (1) grant-
ing the Director immense discretion in determining crucial
aspects of the execution procedure rather than explaining in
advance in any detail how the execution will be carried out;
(2) ensuring that the important phases of executions are car-
ried out behind closed doors; and (3) providing little informa-
tion after-the-fact to the public, and to inmates awaiting
execution and their lawyers as to the details of recent execu-
tions, including information as to the causes and impact of
difficulties such those encountered during Towery’s execution
—difficulties that, for all we now know, might be “sure or
5594 LOPEZ v. BREWER
very likely to cause . . . needless suffering,” Baze, 553 U.S.
at 50, and might indeed have caused Towery such suffering.
1. As we recounted in the last appeal in this case:
Although “the procedures for [carrying out the death] penalty
must be implemented in a reasoned, deliberate, and constitu-
tional manner[, o]ver time, the State of Arizona . . . has
insisted on amending its execution protocol on an ad hoc basis
—through add-on practices, trial court representations and
acknowledgments, and last minute written amendments—
leaving the courts with a rolling protocol that forces us to
engage with serious constitutional questions and complicated
factual issues in the waning hours before executions.” Tow-
ery, 672 F.3d at 653. “This approach cannot continue,” we
warned. Id.
But it has. Just as Arizona chose not to follow the protocol
we upheld in Dickens v. Brewer, 631 F.3d 1139 (9th Cir.
2011), instead amending its protocol by watering down to
vagaries and assertions of directorial discretion its core pro-
tections, so it has backtracked on some of the assurances pro-
vided us by counsel during the first appeal in this case. In
ruling on Moorman and Towery’s emergency motions for
stays, we relied on the State’s representations made during
oral argument regarding both the qualifications of the IV
Team and access to counsel. Towery, 672 F.3d at 658. We
viewed these representations as binding on the State, and
explicitly conditioned our holding on them. Id. Now we are
told that the access to counsel has been cut back from what
we approved, that any in-person contact with counsel the day
of the execution is available only at the Director of the Ari-
zona Department of Corrections’ (“Director”) discretion, and
that although the expectation is that the IV Team for Lopez’s
execution will again consist of a doctor and a nurse, the
Director has no obligation to assure that such medically quali-
fied personnel are available and may not do so in the future.
The upshot is that Lopez, and others facing execution in the
future, are not presented with any written, binding protocol
LOPEZ v. BREWER 5595
such as the ones in Baze and in Dickens on which to focus in
determining whether their impending execution will meet
constitutional standards. Instead, the information they are pro-
vided consists largely of last-minute representations by coun-
sel for the Director as to how the Director expects to carry out
the immediately impending execution.
This mode of proceeding is particularly problematic here
because, in my view, the January, 2012 protocol is probably
unconstitutional as written in significant respects. We never
reached the question in the previous appeal of the constitu-
tionality of the written protocol, and the majority does not
reach it here, because the last minute representations made by
counsel filled in the likely constitutional gaps with for-this-
execution-only promises concerning how the Director was
prepared to constrain his declared discretion. But on the issue
of the IV Team’s qualifications and training and of the issue
of access to counsel, the written protocol appears to me both
to “create[ ] a demonstrated risk of severe pain” Baze, 553
U.S. at 61, and to sanction the possibility of an unconstitu-
tional denial of the right to counsel.
For example, where the protocol approved in Dickens
required that IV Team members be “medically trained,” Ari-
zona’s January, 2012 protocol now requires only that the indi-
viduals inserting peripheral IV lines be “appropriately
trained.” Where the earlier protocol required that IV Team
members have “current and relevant professional experience,”
it now requires only “one year of relevant experience,” which
could have been in the distant past. Towery, 672 F.3d at 654.
In the Arizona executions reviewed in West v. Brewer, for
instance, the IV settings in the challenged executions were
carried out by a correctional officer who hadn’t set an IV line
in 15 years and had no specific recollection of the military
training in which he was taught this procedure. 2011 WL
6724628, at *6 (D. Ariz. Dec. 21, 2011).
These concerns are only heightened by the protocol’s
equally watered-down training requirements. The protocol we
5596 LOPEZ v. BREWER
approved in Dickens required that the IV Team members “re-
sponsible for inserting the IVs” must participate in “at least
ten rehearsals per year.” 631 F.3d at 1143. The 2012 protocol
requires only “one training session . . . within one day prior
to a scheduled execution.” Towery, 672 F.3d at 655. These
standards are so lax as to both qualifications and training that
they may well create a significant risk that the team that is
assembled in any given execution will be incompetent to
carry out the execution without causing severe pain.
In addition to permitting the Director to assemble an
incompetent IV Team, the 2012 protocol also permits the
Director to restrict beyond the bounds permitted by the Con-
stitution an inmate’s right to counsel in the final hours before
he is to be executed. Arizona’s practice under earlier proto-
cols had been to permit non-contact visits by both attorneys
and a facility chaplain the morning of the execution, in many
instances up until 45 minutes before the scheduled time of
execution. Id. at 658. The 2012 protocol, however, grants the
Director the discretion to forbid attorney visits—but not the
visits of the facility chaplain—after 9 p.m. the night before an
execution. Id. at 655.
The constitutional right of access to the courts includes the
right to in-person visits with counsel. Ching v. Lewis, 895
F.2d 608, 610 (9th Cir. 1990). That right cannot be restricted
without some legitimate penal justification. Id.; see also Tur-
ner v. Safley, 482 U.S. 78, 89 (1987). The state has to this
point offered none. While it has suggested that allowing attor-
ney visits in accordance with the old protocol could cause
delays, Moorman’s execution, to cite just one example, pro-
ceeded in a timely manner despite his meeting with his attor-
ney up until 9:15 a.m. The state’s interest in maintaining the
confidentiality of IV Team members also cannot justify this
restriction, as facility chaplains are assured access on the
morning of the execution under the new protocol; presum-
ably, chaplains are as observant as lawyers regarding who is
present at the site of the execution. Moreover, the attorneys
LOPEZ v. BREWER 5597
for condemned prisoners in Arizona have been required to
agree to confidentiality regarding the identity of the individu-
als preparing to carry out the execution before obtaining
access to their clients and have done so—without, as far as the
record shows, any breaches in confidentiality. The upshot is
that neither the delay concern nor the confidentiality rationale
rests on any factual basis in the present record.
2. Despite these apparent deficiencies in the governing
protocol, it is impossible at this juncture to say with the requi-
site degree of assurance whether the particular procedures that
will be used to execute Lopez will create a “substantial risk
of serious harm.” Towery, 672 F.3d at 653 (quoting Baze, 553
U.S. at 49-50). This uncertainty is not due to any failing on
the part of Lopez or his attorneys. Instead, by continually
making representations at the last minute regarding self-
imposed, but transient, limitations on the broad discretion
accorded by the protocol, the Director has both precluded the
affected inmates from litigating the risk of serious harm cre-
ated by the protocol itself and cabined those inmates’ ability
to litigate fully, after the usual discovery and opportunity to
obtain expert testimony and other evidence, the actual circum-
stances of their own executions, and to do so in advance of
the day they will be put to death. Their attorneys have been
relegated to repeated, exhausting, preliminary injunction eve-
of-execution challenges to the constantly moving target that
Arizona’s practices have created. Such challenges necessarily
proceed on truncated records, and appeals are limited by the
abuse-of-discretion standard. Lands Council v. McNair, 537
F.3d 981, 986 (9th Cir. 2008) (en banc).
Moreover, other aspects of the manner in which Arizona
has been carrying out its now-frequent executions—there
have been three in the last four months—further stymie any
meaningful ability of condemned prisoners to litigate before
they are put to death the constitutionality of the procedures
that will be used to execute them. Aside from challenging the
written protocol on its face, another way condemned prisoners
5598 LOPEZ v. BREWER
can attempt to demonstrate the likely impact of the procedures
that will be used during their execution is to demonstrate that
past executions carried out in accord with similar procedures
have resulted in executions that violated the Eighth Amend-
ment. But that approach can succeed only if there is detailed
information available concerning past executions carried out
with similar procedures.
Arizona puts impenetrable roadblocks in the way of obtain-
ing such information in time to use it before a condemned
prisoner is executed. First, the state insists upon extreme
secrecy in carrying out executions. Witnesses are allowed
only at the very end of the lethal injection process, during the
actual administration of the lethal drugs after the IV lines
have been set and the drugs concocted and readied for admin-
istration. Most of what can go wrong will go wrong before the
small part of the execution process exposed to public view.
We have held that the First Amendment requires broader
public access to the process of carrying out executions—
which are, after all, carried out as a result of public decisions,
in implementation of a controversial public policy. See Cali-
fornia First Amendment Coalition v. Woodford, 299 F.3d 868(9th Cir. 2002). There has been no First Amendment chal-
lenge of which I am aware to Arizona’s contrary practice, and
I am not suggesting that we should hold the practice unconsti-
tutional on that basis at this juncture. But the fact that Califor-
nia and other states, see Ohio Execution Policy 01-COM-11,
§ IV.G.4, have carried out their executions in full view sug-
gests one way in which Arizona could provide a fair opportu-
nity to challenge future executions conducted similarly—
namely, by exposing to the public the actual impact of the
procedures used and thereby permitting exposure through
media and witnesses of any indications of serious pain during
those executions.
Second, as the majority opinion describes, Arizona has
recently increased the secrecy with which it conducts execu-
LOPEZ v. BREWER 5599
tions in another way: Although it used to keep detailed logs
concerning what occurred during executions, its recent logs
have been summary and perfunctory, making them useless for
the purpose of discovering why whatever went wrong went
wrong, and what was the impact on the prisoner being exe-
cuted. One can only surmise that the reason for this change
was to make it more difficult for condemned prisoners to liti-
gate the nature of the risk created by the procedures used in
the past; no other reason for recording less about the execu-
tion process than was done before comes to mind.
Third, as the majority opinion also describes, Arizona
makes sure that the prisoners about to be executed cannot
themselves describe any pain they suffered or mistakes made
during the execution, by threatening to cut off their last state-
ment if they do so. According to the undisputed record in this
case, inmates have been told that their microphones will be
cut off if they make statements critical of the Arizona Depart-
ment of Corrections. In an attempt to adjust to this edict,
Towery and his lawyer developed a code by which Towery
indicated that he sought access to counsel during the setting
of the IV lines and was denied, and may have indicated that
the execution procedures had caused him pain.
Finally, in a recent letter to Director Charles Ryan, Lopez’s
lawyers, who also represent the other plaintiffs in this lawsuit,
have requested that they be permitted to observe the pre-
execution process or observe videotapes of it. With appropri-
ate assurances of confidentiality as to the identity of the indi-
viduals participating in the execution, such a procedure could
provide a measure of procedural due process to other plain-
tiffs, if not to Lopez, by allowing some meaningful access to
essential information that the state refuses otherwise to pro-
vide. But the request has not been granted.
These secrecy restrictions and refusals of public and attor-
ney access, taken together, leave condemned prisoners, their
attorneys, the district court, and this court with precious little
5600 LOPEZ v. BREWER
indication of whether past executions have actually been con-
ducted in a constitutional manner. The condemned clients,
without access to their attorneys, are left to communicate with
them in elaborate codes during their last statements, while we
are left to parse cryptic execution logs and autopsy reports in
an effort to determine whether an inmate suffered pain, and
if so, how much.
The trouble that plagued Towery’s execution highlights the
practical problems this obsessive secrecy creates for any
meaningful litigation in the constricted time periods permitted
by Arizona’s moving target approach to execution procedures.
After approximately half an hour trying to site a functioning
catheter, the Director decided, for reasons unknown, to con-
tact the Attorney General’s office and provide “an update
regarding the IV process.” So the Director had access to coun-
sel during the execution, although Towery—despite asking
for such access at some point—did not. After 50 minutes—
just 10 minutes short of the hour time limit allotted for this
task under the protocol reviewed in Baze, 553 U.S. at 55—a
femoral catheter had finally been placed. Only 59 minutes
into the execution did the IV team succeed in placing a
backup line (in a location known to create a danger of pain if
used to administer drugs, so the backup line was either useless
or possibly unconstitutional). An autopsy showed that Tow-
ery’s arms had been pierced several times, and that his femo-
ral artery had been pierced as well.1 This entire process was
conducted behind closed doors and, as the majority notes,
recorded in only the most general of notes. Because of the
secrecy, we have no way of knowing the degree of pain
caused Towery; for all we know, it reached the standard for
unconstitutional punishment set in Baze. It is possible that
discovery during the course of this lawsuit could establish,
through expert evidence and depositions of those present that
it did — but by then, Lopez will be long dead, as, in all likeli-
1
The record establishes that administering pentobarbital into the femoral
artery rather than the vein can be very painful.
LOPEZ v. BREWER 5601
hood, will be some or all of the remaining plaintiffs. None of
the executed individuals will have had a fair chance to litigate
the constitutionality of the procedures applied to them during
their execution.
To my mind, this combination of circumstances, not any
one of them—the last minute changes in protocols; the even
more last minute attestations to limitations on the Director’s
discretion for individual executions; the lack of access of the
public and counsel to the pre-execution procedures; the failure
to record in any detail what occurs during executions; and the
restrictions on any reports by the condemned prisoners them-
selves of pain encountered during the execution process—
amounts to a procedural due process violation. Lopez clearly
has a liberty interest in avoiding a mode of execution that
constitutes cruel and unusual punishment. See Serrano v.
Francis, 345 F.3d 1071, 1078 (9th Cir. 2003). The events that
took place during the Towery execution demonstrate that
there is at least some risk that Lopez will be subjected to such
an unconstitutional execution. Yet, Lopez has effectively been
denied his right to be heard in a meaningful manner before he
dies concerning the constitutionality of the processes that will
be used to execute him. And this due process problem is not
intractable; it could be solved in a variety 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) provid-
ing either for public access or for more limited access by
counsel to the pre-execution proceedings.
“[P]rocedural due process rules are shaped by the risk of
error inherent in the truth-finding process.” Matthews v.
Eldridge, 424 U.S. 319, 344 (1976). Here, the risk of error is
enormous. There is no redo, and the result of the constitu-
tional error, if it occurs, will be severe pain, or, at least, a high
likelihood of suffering such pain. Without at least one of the
5602 LOPEZ v. BREWER
protections I have indicated, the plaintiff will be dead before
it is possible to have a hearing as to the constitutionality of his
execution that even approximates the access to the relevant
facts ordinarily accorded litigants. And the absence of these
protections is the result of Arizona’s choices, in several
instances the choice to cut back on procedural protections pre-
viously accorded.
Executing someone convicted of a capital crime is a grim
endeavor. Reviewing the details of impending executions to
assure against unconstitutional executions is grim as well, a
task judges would rather avoid. Yet, while we as judges can-
not and should not micromanage executions, we do have an
obligation to stand as a last bulwark against excessively pain-
ful administrations of the death penalty. To do that, we need
to be presented with the relevant facts, gathered in some feasi-
ble fashion. As matters now stand, Arizona has made the
gathering of such facts by condemned prisoners so difficult
that meaningful judicial consideration at a relevant time is not
possible. By doing so, Arizona has denied Lopez, and others
awaiting execution in Arizona, due process of law. I would
stay Lopez’s execution until this denial of due process is cor-
rected by one or more of the means I have indicated.2
2
Given the press of time under which we have operated in this case, I
may wish to further explain my views on this matter at a later date.