Joseph Wood, III v. Charles Ryan ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH RUDOLPH WOOD, III, No. 14-16310
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-01447-
NVW-JFM
CHARLES L. RYAN, Director of the
Arizona Department of Corrections;
RON CREDIO, Warden, ASPC- OPINION
Eyman; LANCE R. HETMER, Warden,
ASPC-Florence; 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,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
July 18, 2014—San Francisco, California
Filed July 19, 2014
2 WOOD V. RYAN
Before: Sidney R. Thomas, Ronald M. Gould,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Thomas;
Dissent by Judge Bybee
SUMMARY*
Death Penalty
The panel reversed the district court’s denial of a motion
by Arizona state prisoner Joseph Rudolph Wood, III, who is
scheduled to die by lethal injection on July 23, 2014, for a
preliminary injunction delaying his execution until he
receives information he seeks from the Arizona Department
of Corrections regarding the method of his execution.
In a 42 U.S.C. § 1983 action filed by Wood and five other
capital prisoners, the Wood argued that, by withholding the
information, the Department has violated his First
Amendment rights.
The panel did not reach the ultimate merits of the case,
but held that Wood has raised serious questions as to the
positive role that access to lethal-injection drug information
and executioner qualifications will have in the public debate
on methods of execution. Given the evidence presented by
Wood regarding the historical right of access, the panel
concluded that Wood has raised serious questions as to
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WOOD V. RYAN 3
whether a First Amendment right, in the context of public
executions, attaches to the specific information he requests.
Because Wood has raised serious questions going to the
merits of his First Amendment claim, the panel concluded
that he has also established irreparable injury. Given the
small impact the injunction will have on the state, the
importance of First Amendment rights generally, and the
critical importance of providing the public with the
information it needs to debate the most severe form of
punishment that exists, the panel concluded that the balance
of equities tips sharply in Wood’s favor. The panel also
concluded that the injunction is in the public interest.
Dissenting, Judge Bybee wrote that the majority’s
newfound right of access is a dramatic extension of anything
that this court or the Supreme Court has previously
recognized, and it is in direct conflict with a very recent
decision of the Eleventh Circuit. Judge Bybee wrote that the
remedy is equally novel. He wrote that even if there were a
First Amendment right of access, Wood would have no more
right to the information than any other member of the public,
and that it is unthinkable that if anyone else had brought this
suit this court would stop a lawful execution until the State
yielded the information.
COUNSEL
Jon M. Sands, Federal Public Defender, Dale A. Baich &
Robin C. Konrad (argued), Assistant Federal Public
Defenders, District of Arizona, Phoenix, Arizona, on behalf
of Plaintiff-Appellant.
4 WOOD V. RYAN
Thomas C. Horne, Attorney General, Jeffrey A. Zick, Chief
Counsel, John Pressley Todd, Special Assistant Attorney
General, Jeffrey L. Sparks (argued) & Matthew Binford,
Assistant Attorneys General, State of Arizona, Phoenix,
Arizona, for Defendants-Appellees.
OPINION
THOMAS, Circuit Judge:
Joseph Wood (“Wood”) is scheduled to die by lethal
injection on July 23, 2014. Wood seeks information from the
Arizona Department of Corrections (“Department”) regarding
the method of his execution, which the Department has not
provided. Wood argues that, by withholding this information,
the Department has violated his First Amendment rights. He
seeks a preliminary injunction delaying his execution until he
receives the information. The district court denied Wood’s
motion. Although we do not reach the ultimate merits of the
case, we conclude that Wood has presented serious questions
going to the merits of his claim, and that the balance of
hardships tips sharply in his favor. We therefore reverse the
district court’s denial of the motion for a preliminary
injunction.
I
A
Wood was convicted and sentenced to death for the 1989
murders of his estranged girlfriend, Debra Dietz, and her
father, Eugene Dietz. His conviction and sentence were
affirmed on direct appeal by the Arizona Supreme Court.
WOOD V. RYAN 5
State v. Wood, 881 P.2d 1158, 1177 (Ariz. 1994). The United
States Supreme Court denied Wood’s Petition for a Writ of
Certiorari. Wood v. Arizona, 515 U.S. 1147 (1995). In 1996,
Wood filed a state petition for post-conviction review. The
state post-conviction court and the Arizona Supreme Court
denied relief. In 2002, Wood filed a second post-conviction
relief petition. The state post-conviction court and Arizona
Supreme Court again denied relief. The federal district court
denied his petition for a writ of habeas corpus. We affirmed
the denial of his habeas petition. Wood v. Ryan, 693 F.3d
1104, 1122 (9th Cir. 2012).
On April 22, 2014, the Arizona Attorney General filed a
motion seeking a Warrant of Execution. The Arizona
Supreme Court granted the motion on May 28, 2014, setting
Wood’s execution date for July 23, 2014.
On April 22, the same day the State filed a motion
seeking a warrant of execution, its Attorney General’s office
sent Wood’s attorney, Julie Hall, a letter informing her that if
the warrant was granted, the Department would use two
drugs—Midazolam and Hydromorphone—to execute Wood.
The State also indicated that if the Department could procure
the drug Pentobarbital, it would “provide notice of its intent
to use that drug.”
On April 30, the head of Arizona’s Federal Public
Defender’s Capital Habeas Unit, Dale Baich, sent the
Department the first of four letters inquiring about the method
the Department would use to execute Wood. He asked first
about the two-drug protocol, inquiring about how the
Department chose the amounts to be used of both drugs, the
name and manufacturer of both drugs, the source of the drugs,
and the credentials of those who would administer them. He
6 WOOD V. RYAN
requested similar information concerning the Pentobarbital
protocol and also asked how long the Department would plan
to look for that drug.
The Department responded on May 6, indicating that it
would use the new two-drug protocol on Wood if the warrant
were granted, and that it had chosen the amounts of both
drugs based on declarations and sworn testimony in “the Ohio
Execution Protocol litigation.” It also indicated that the drugs
would be domestically obtained and FDA-approved, although
it would not release other identifying information, citing
Arizona’s confidentiality law, Ariz. Rev. Stat. § 13-757. It
noted that the qualifications of the IV team had not changed
since the Department updated its protocol in 2012 to “include
assurances of the” team’s qualifications. Finally, the
Department added that it will “continue to look for a source
of pentobarbital indefinitely.”
Baich responded on May 9. He again requested the drug
manufacturer information, along with lot numbers and
expiration dates for the two drugs. He also asked for copies
of the actual documents in the Ohio litigation upon which the
Department relied in devising its new protocol. Baich asked
for clarification of the Department's claims that it would use
the new two-drug protocol, but also continue to search for
Pentobarbital. Finally, given the recent problematic
execution in Oklahoma and past criticism of the Department
by the district court in Arizona, Baich asked for the
qualifications of the medical professionals who would
perform the execution.
Baich followed up on May 15, forecasting the current
litigation and directing the Department to preserve all
electronically stored information and other documentation
WOOD V. RYAN 7
that pertains to the questions Baich had asked. He sent a
second letter on that date, reiterating the questions from his
previous letters and asking for documents from the
Department in a variety of areas pertaining to his questions.
The Department responded on June 6, providing certain
redacted records in response to Baich’s request. These
records include redacted purchase orders, invoices, and order
confirmations for Midazolam and Hydromorphone. Although
information about the manufacturers and suppliers was
redacted, the documents do display the expiration dates of the
Midazolam and Hydromorphone: September and October
2015. The Department refused to answer Wood’s remaining
requests and also referred him again to the State’s execution
protocol and the Ohio Execution Protocol litigation. In a
June 25, 2014 letter, the Department provided final
confirmation that Wood would be executed using the
two-drug protocol, consisting of Midazolam and
Hydromorphone. Following this correspondence, Wood still
seeks: (1) the source(s), manufacturer(s), National Drug
Codes (“NDCs”), and lot numbers of the drugs the
Department intends to use in his execution; (2) non-
personally identifying information detailing the qualifications
of the personnel the Department will use in his execution; and
(3) information and documents explaining how the
Department developed its current lethal-injection drug
protocol.
B
On June 26, 2014, Wood and five other capital prisoners
(“Wood” or “Plaintiffs”) filed a 42 U.S.C. § 1983 complaint
in the District of Arizona, seeking equitable, injunctive, and
declaratory relief. In the complaint, the Plaintiffs argue the
8 WOOD V. RYAN
Department has not provided sufficient information in
response to requests by the Federal Defender and alleges
three counts: that by deliberately concealing lethal injection
information, the Department has violated Plaintiffs’ (1) First
Amendment right to petition the government for redress of
grievances and (2) First Amendment right to be informed
about the manner in which Arizona implements the death
penalty; and (3) that Arizona’s protocol, developed without
complying with the Food, Drug and Cosmetics Act, violates
the Supremacy Clause of Article VI of the Constitution.
On July 2, Wood filed a motion for a preliminary
injunction or temporary restraining order. Wood argued the
district court should grant an injunction preventing the
Department from carrying out his execution until it provides
him with the information he requests. In a July 10 order, the
district court denied Wood’s preliminary injunction motion.
The court concluded that the motion—founded on Wood’s
second First Amendment claim—was unlikely to succeed on
the merits and that Wood had failed to present “serious
questions” going to the claim’s merits. See Developmental
Servs. Network v. Douglas, 666 F.3d 540, 544 (9th Cir. 2011)
(“Nevertheless, if a plaintiff fails to show that he has some
chance on the merits, that ends the matter.”). Wood filed a
timely notice of appeal on July 10. We have jurisdiction
under 28 U.S.C. § 1292(a)(1).
II
A
Wood appeals the district court’s denial of his preliminary
injunction motion. We review the “denial of a preliminary
WOOD V. RYAN 9
injunction for abuse of discretion.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
To obtain a preliminary injunction on his First
Amendment claim, Wood “must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest.” Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). We also recognize a variation on the
Winter test—the “serious questions” version—which requires
the plaintiff to demonstrate that “‘serious questions going to
the merits were raised and the balance of hardships tips
sharply in the plaintiff’s favor.’” Towery v. Brewer, 672 F.3d
650, 657 (9th Cir. 2012) (quoting Alliance for the Wild
Rockies, 632 F.3d at 1135). The plaintiff must still establish
the other Winter factors as well. Id. “This approach requires
that the elements of the preliminary injunction test be
balanced, so that a stronger showing of one element may
offset a weaker showing of another.” Id. The “serious
questions” version does not require a “separate and
independent analysis from the court’s assessment of
[Wood’s] likelihood of success on the merits.” Lopez v.
Brewer, 680 F.3d 1068, 1073 (9th Cir. 2012). There are
special considerations in a capital case when a plaintiff
requests a stay of execution. “‘[F]iling an action that can
proceed under § 1983 does not entitle the complainant to an
order staying an execution as a matter of course.’” Towery,
672 F.3d at 657 (quoting Hill v. McDonough, 547 U.S. 573,
583–84 (2006)). “Rather, ‘a stay of execution is an equitable
remedy’ and ‘equity must be sensitive to the State’s strong
interest in enforcing its criminal judgments without undue
interference from the federal courts.’” Id. (quoting Hill, 547
U.S. at 584).
10 WOOD V. RYAN
B
The district court concluded that Wood was unlikely “to
show that he has some chance on the merits” of his First
Amendment claim, and therefore denied the motion.
Developmental Servs. Network, 666 F.3d at 544. In the claim
at issue, Wood argues that the Department is violating his
“First Amendment right of access to execution-related
governmental information.” To prevail at the preliminary
injunction stage, Wood1 must raise serious questions going to
the merits of his First Amendment claim: (1) that this case is
actually the type of case to which our right of access analysis
properly applies; and (2) that the First Amendment right of
access attaches to the execution-related governmental
information he seeks. Cal. First Amendment Coal. v.
Woodford, 299 F.3d 868, 873–77 (9th Cir. 2002). We address
each question in turn.
1
The Supreme Court has recognized “that the First
Amendment guarantees the public—and the press—a
qualified right of access to governmental proceedings.” Cal.
First Amendment Coal., 299 F.3d at 873. Underlying this
1
Wood and his co-plaintiffs sue to enforce a public First Amendment
right. They may sue to enforce that right as individual citizens. Cf. Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982) (stating that
the First Amendment protections in cases involving the right of access to
governmental proceedings ensures “that the individual citizen can
effectively participate in and contribute to our republican system of self-
government” (emphasis added)); see also Pell v. Procunier, 417 U.S. 817,
822 (1974) (“[A] prison inmate retains those First Amendment rights that
are not inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system.”).
WOOD V. RYAN 11
right “is the common understanding that ‘a major purpose of
that Amendment was to protect the free discussion of
governmental affairs.’” Globe Newspaper Co., 457 U.S. at
604 (1982) (quoting Mills v. Alabama, 384 U.S. 214, 218
(1966)). This protection ensures “that the individual citizen
can effectively participate in and contribute to our republican
system of self-government.” Id. The Supreme Court has
recognized a qualified right of access to criminal trials,
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
579–80 (1980), the testimony of child victims of sex offenses,
Globe Newspaper Co., 457 U.S. at 603–11, voir dire, Press-
Enterprise Co. v. Superior Court, 464 U.S. 501, 505–11
(1984), and preliminary hearings, Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 10–13 (1986) (“Press-Enterprise
II”).
Applying the two-factor analysis described in Press-
Enterprise II, we recognized in California First Amendment
Coalition “that the public enjoys a First Amendment right to
view executions from the moment the condemned is escorted
into the execution chamber, including those ‘initial
procedures’ that are inextricably intertwined with the process
of putting the condemned inmate to death.” 299 F.3d at 877.
In acknowledging this right, we noted that “[t]o determine
whether lethal injection executions are fairly and humanely
administered, or whether they ever can be, citizens must have
reliable information about the ‘initial procedures,’ which are
invasive, possibly painful and may give rise to serious
complications.” Id. at 876 (emphasis added).
Since Richmond Newspapers, Inc., we have recognized
not just a right of access to certain court proceedings, but also
to documents related to those proceedings in which we found
a right of access. Oregonian Publ’g Co. v. United States
12 WOOD V. RYAN
Dist. Court, 920 F.2d 1462, 1465 (9th Cir. 1990) (“Under the
first amendment, the press and the public have a presumed
right of access to court proceedings and documents.”).
For example, in Oregonian Publishing Co., we
recognized a qualified right of access not just to “plea
agreements,” but to “related documents.” Id. at 1465–66.
The “related documents” in that case included the
memorandum by the defendant supporting his motion to seal
the plea agreement and the district court’s findings in support
of its order to seal. Id. at 1463–64. In Seattle Times Co. v.
United States Dist. Court, 845 F.2d 1513, 1514–17 (9th Cir.
1988), we also recognized a qualified right of access to
pretrial release proceedings and related documents, including
financial affidavits filed in support of a motion for court-
appointed counsel and briefs filed regarding preliminary
detention. Similarly, in CBS, Inc. v. United States Dist.
Court, 765 F.2d 823, 824–26 (9th Cir. 1985), we
acknowledged a qualified right of access to post-trial
documents, including a motion to reduce a criminal sentence
and the prosecution’s response. See also id. at 825 (stating
the “presumption that the public and the press have a right of
access to criminal proceedings and documents filed therein”).
In Phoenix Newspapers, Inc. v. United States Dist. Court, 156
F.3d 940, 946–49 (9th Cir. 1998), we recognized a qualified
right of access to transcripts of closed post-trial proceedings.
Finally, we recently acknowledged the First Amendment right
of access “to civil proceedings and associated records and
documents.” Courthouse News Serv. v. Planet, 750 F.3d 776,
786 (9th Cir. 2014).
In short, the right to access to documents intrinsically
associated with public proceedings forms an important
component of the Press-Enterprise II First Amendment right
WOOD V. RYAN 13
of access. To be sure, the First Amendment does not
generally grant “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). Relying on
this general principle, Arizona argues that the information
Wood seeks cannot be subjected to the Press-Enterprise II
right of access analysis. But this straw man argument begs
the question. The issue is not whether Press-Enterprise II
grants a generalized right of access to executive branch
documents. It does not. Rather, the question is whether,
consistent with our precedents, the documents sought in this
case are so intrinsically intertwined with a recognized right
that disclosure is required.
In California Free Amendment Coalition, we recognized
a right to view the entire execution, including those initial
procedures “inextricably intertwined” with the process of
putting an inmate to death. 299 F.3d at 877. And in that
case, we explicitly stated the focus and scope of that right:
providing citizens with “reliable information” about the
execution’s initial procedures, “which are invasive, possibly
painful and may give rise to serious complications.” 299 F.3d
at 876. Here, like the memoranda, factual findings, affidavits,
and transcripts recognized in other cases, Wood seeks access
to documents—information regarding the drugs that will be
used to execute him, the qualifications of the execution team,
and the documents and evidence the State relied on in
adopting its new execution protocol—that are related to, and
arguably necessary for a full understanding of, a proceeding
in which we have already granted a qualified right of access.
This information is “inextricably intertwined” with the
process of putting Wood to death. As a result, the Press-
14 WOOD V. RYAN
Enterprise II analysis applies as to the information Wood
seeks.2
2
Under the Press-Enterprise II First Amendment test, two
“‘complementary considerations’” inform the analysis: “(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.’” Cal. First Amendment
Coal., 299 F.3d at 875 (quoting Press-Enterprise II, 478 U.S.
at 8–9) (alteration in original).
2
The dissent argues that our First Amendment right of access analysis
only applies to formally filed documents “that transcribe or memorialize
official proceedings.” But the proceeding at issue, an execution, is
different than all of the other proceedings in which we have recognized a
qualified right of access. Executions do not involve the same type of
formal dockets or filed documents as criminal trials, or pretrial and post-
trial proceedings. Moreover, our holding in California First Amendment
Coalition recognized a right of access to executions and clarified that the
right seeks to give citizens “reliable information” about the initial
procedures involved in an execution, including the process of
administering lethal drugs. 299 F.3d at 876. The information Wood seeks
is closely tied to the underlying proceeding. And the informed citizenry
we described is critical to the successful functioning of the death penalty,
unlike in a case like Jury Service Resource Center v. Muniz. When the
nonprofit organization in that case sought access to jury pool records, the
court explicitly acknowledged that the jury pool selection process is
removed from the public trial and that “public access plays no significant
role in the . . . function of collecting and winnowing names for jury lists.”
134 P.3d 948, 954 (Or. 2006). Given the unique nature of an execution,
and keeping in mind the boundaries of our holding and reasoning in
California First Amendment Coalition, we apply Press-Enterprise II to the
information Wood seeks without announcing the expansive new rule the
dissent describes.
WOOD V. RYAN 15
i
Wood has at least raised serious questions about the
historical openness surrounding the information he seeks.
Because Wood seeks materials inextricably intertwined with
the execution, our analysis focuses in part on the historic
openness of the execution itself. See, e.g., Oregonian Publ’g
Co., 920 F.2d at 1465–66 (recognizing a right of access to
plea agreements and “related documents” by assessing the
historical tradition of access to plea agreements alone);
Seattle Times Co., 845 F.2d at 1516–17 (recognizing a right
of access to pretrial detention proceedings “and documents
filed therein” by analyzing the limited history of formal and
informal pretrial proceedings). As we noted in California
First Amendment Coalition, executions in both England and
the United States have historically been “open to all comers.”
299 F.3d at 875. Public executions were historically “a
fixture of American society,” taking place in the middle of
the day in “the public square.” John D. Bessler, Death in the
Dark: Midnight Executions in America 23 (1997). Even
when executions were moved from the public square into
prisons, “states implemented procedures that ensured
executions would remain open to some public scrutiny.” Cal.
First Amendment Coal., 299 F.3d at 875. As we noted in
California First Amendment Coalition, “[e]very state
authorizing the death penalty currently requires that official
witnesses be present at each execution.” Id. at 875. Indeed,
Arizona law explicitly requires the presence of “at least
twelve reputable citizens.” Ariz. Rev. Stat. § 13-758. In
sum, the broad tradition of a public right of access to
executions is indisputable.
Similarly, as Wood has demonstrated, important details
about early methods of executions were also public. For
16 WOOD V. RYAN
example, public accounts in some states supplied information
about both the types of ropes used in hangings and the
manufacturers who provided them.3 Public outcry over a
reportedly botched hanging in Arizona led to debate over
methods of execution and the eventual adoption in that state
of the gas chamber. See Scott Christianson, The Last Gasp:
The Rise and Fall of the American Gas Chamber 100–01
(2010). Similarly, the company that produced the cyanide
used in Nevada’s gas chambers, California Cyanide
Company, publicly contracted with the state, and the
identities of many of the officials who handled the chemical
up until the point of execution were a matter of public record.
See id. at 76–79. Newspapers reported openly on gas
chambers, describing their size, cost, and makeup, and
explained that Eaton Metal Products Co., which delivered gas
chambers to states like Arizona, had a “patent on the death
machine.”4 Furthermore, although the method was not used
in Arizona, public debate over the adoption of the electric
chair in some states revolved in part around the specific
details of the type of electricity and equipment used in the
3
See, e.g., Chris Woodyard, Enough Rope: The Hangman’s Rope in the
Press, Haunted Ohio (Jan. 19, 2013), http://hauntedohiobooks.com/news/
enough-rope-the-hangmans-rope-in-the-press/ (summarizing news reports
describing the types of ropes used in executions and the suppliers who
produced them); see also, e.g., John Brown, Hanged with Kentucky Rope,
University of Kentucky Libraries, http://nkaa.uky.edu/
record.php?note_id=1625 (last visited Jul. 18, 2014) (explaining that
different ropes were submitted for use in the hanging of John Brown, were
displayed to the public before the execution, and the strongest and most
durable was selected).
4
Eight States Now Are Using Gas Chambers for Executions, Sarasota
Herald Tribune, Jan. 2, 1955, at 17, available at http://news.google.com/
newspapers?nid=1755&dat=19550102&id=t-QhAAAAIBAJ&sjid=82
QEAAAAIBAJ&pg=2642,267124.
WOOD V. RYAN 17
executions. See Stuart Banner, The Death Penalty: An
American History 178–85 (2002). Finally, in some states,
like Florida, state law dictated that the sheriff would serve as
“deputy executioner” of the execution, providing a sense not
just of the identity but, just as importantly, the qualifications
of the person overseeing the execution. See Ken Driggs, A
Current of Electricity Sufficient in Intensity to Cause
Immediate Death: A Pre-Furman History of Florida’s
Electric Chair, 22 Stetson L. Rev. 1169, 1179–84 & n.52
(1993).
Wood also points to evidence that states have made
details about their lethal injection drug protocols available to
the public. Indeed, following litigation, the State of Arizona
released the manufacturer of the drug Pentobarbital, the
drug’s National Drug Code, the drug’s lot number, and its
expiration date. Notice of Disclosure, Schad v. Brewer, No.
2:13-cv-13-02001-ROS (D. Ariz. Oct. 5, 2013), ECF No. 24.
In response to a public records request, the state of Arkansas
in 2013 released information about its lethal injection drugs,
including the pharmaceutical manufacturer and batch
numbers. And in Texas, the Attorney General only recently
changed course and started keeping secret the source of its
lethal injection drugs.5 Similarly, Louisiana has only recently
attempted to shield the identities of suppliers of lethal
injection drugs.6
5
Greg Abbott, Keep Execution Drug Supplier Secret, Austin American-
Statesman, May 29, 2014, http://www.mystatesman.com/news/news/
greg-abbott-keep-execution-drug-supplier-secret/nf9bQ/?icmp=
statesman_internallink_textlink.
6
Julia O’Donoghue, Make Louisiana Execution Drug Suppliers Secret,
State Prison Boss Asks Legislature, New Orleans Times-Picayune,
18 WOOD V. RYAN
This evidence does not conclusively establish a historical
tradition of public access to the sources of lethal injection
methods or the qualifications of executioners. Nor does it
show with certainty that all states have acted alike in terms of
making execution-related information public, or that states
have always been the primary guarantor of transparency. But
such exhaustiveness is not required at the preliminary
injunction stage. Instead, we ask only whether Wood raises
“serious questions” going to the merits. Towery, 672 F.3d at
657.
Moreover, the first factor in the Press-Enterprise II test is
not necessarily dispositive. See Seattle Times Co., 845 F.2d
at 1516 (noting that the “history and [] prevalent use of
informal procedures” in pretrial detention proceedings, in lieu
of an “unbroken history of public access,” “should not
automatically foreclose a right of access”); see also Phoenix
Newspapers, 156 F.3d at 948 (noting that as to post-trial
transcript access, even if the history factor was “not
dispositive,” the second factor would be). Here, Wood has
provided evidence that executions in general have long been
open to the public, and that information regarding the
methods of execution and the qualifications of the
executioners have been open as well. This evidence, at a
minimum, raises “serious questions” as to the historical right
of access to the information Wood seeks.
ii
In recognizing a qualified right of access to viewing the
entirety of executions, we noted that “[i]ndependent public
May 14, 2014, http://www.nola.com/politics/index.ssf/2014/05/
louisiana_execution_drugs.html.
WOOD V. RYAN 19
scrutiny . . . plays a significant role in the proper functioning
of capital punishment.” Cal. First Amendment Coal., 299
F.3d at 876. The Supreme Court has stated that no rigid
standard for appropriate methods of execution exists and that,
in the Eighth Amendment context, the Court must determine
what type of execution constitutes cruel and unusual
punishment “from the evolving standards of decency that
mark the progress of a maturing society.” Trop v. Dulles, 356
U.S. 86, 101 (1958). As a result, “[a]n informed public
debate is critical in determining” whether a specific execution
method comports with this country’s “evolving standards of
decency.” Cal. First Amendment Coal., 299 F.3d at 876.
Indeed, we have specifically held that “[t]o determine
whether lethal injection executions are fairly and humanely
administered, or whether they can ever be, citizens must have
reliable information about the ‘initial procedures,’ which are
invasive, possibly painful, and may give rise to serious
complications.” Id. (emphasis added). Providing access to
executions also creates a sense of fairness that commands
more respect for the judicial process from the public. Id.
That same reasoning compels us to conclude that Wood
has raised serious questions as to the positive role public
access to the information he seeks would play in executions.
There has been a seismic shift in the lethal injection world in
the last five years, as states have struggled to obtain the drug
traditionally used in executions, thiopental.7 In response,
states “began using [the drug] pentobarbital as a substitute,”
but its primary manufacturer, the pharmaceutical company
Lundbeck, stopped selling the drug to prisons because it
7
Erik Eckholm & Katie Zezima, States Face Shortage of Key Lethal
Injection Drug, N.Y. Times, Jan. 21, 2011, http://www.nytimes.com/
2011/01/22/us/22lethal.html.
20 WOOD V. RYAN
opposes the death penalty.8 States are now seeking new types
and combinations of drugs, like Midazolam and
Hydromorphone, and states are enacting laws to shield the
identities not just of executioners, but of the companies that
produce lethal injection drugs.9 See, e.g., Ga. Code Ann.
§ 42-5-36. But several flawed executions this year, including
two in Oklahoma, and one in Ohio featuring the same two
drugs at issue here, have sparked public curiosity and debate
over the types—and quality—of drugs that should be used in
lethal injections.10
Given the law in California First Amendment Coalition,
and the factual backdrop of the past six months in particular,
more information about the drugs used in lethal injections can
help an alert public make better informed decisions about the
changing standards of decency in this country surrounding
8
David Jolly, Danish Company Blocks Sale of Drug for U.S.
Executions, N.Y. Times, Jul. 1, 2011, http://www.nytimes.com/
2011/07/02/world/europe/02execute.html.
9
Pete Williams, Will Courts Lift Veil of Secrecy Around Lethal
Injections, NBC News, Feb. 27, 2014, http://www.nbcnews.com/
storyline/lethal-injection/will-courts-lift-veil-secrecy-around-lethal-inje
ctions-n40171.
10
Id.; Max Ehrenfreund, Dennis McGuire Executed in Ohio with
New Combination of Lethal Drugs, Wash. Post, Jan. 16, 2014,
http://www.washingtonpost.com/national/dennis-mcguire-executed-in-
ohio-with-new-combination-of-lethal-drugs/2014/01/16/612e22a2-7ede
-11e3-93c1-0e888170b723_story.html; see also Editorial, Secrecy Behind
Executions, N.Y. Times, Jan. 29, 2014, http://www.nytimes.com/2014/
01/30/opinion/secrecy-behind-executions.html; Megan McCracken &
Jennifer Moreno, Op-Ed, Secret Drugs, Agonizing Deaths, N.Y. Times,
Apr. 13, 2014, http://www.nytimes.com/2014/04/14/opinion/ secret-drugs-
agonizing-deaths.html?smid=fb-share&_r=2.
WOOD V. RYAN 21
lethal injection. Knowing the source and manufacturer of the
drugs, along with the lot numbers and NDCs, allows the
public to discern whether state corrections departments are
using safe and reliable drug manufacturers. Similarly,
knowing the specific qualifications of those who will perform
the execution will give the public more confidence than a
state’s generic assurance that executions will be administered
safely and pursuant to certain qualifications and standards.
Arizona argues that the information Wood seeks offers
little value to the public debate and that releasing this
information will serve instead to deter drug manufacturers
from providing lethal injection drugs and lead to public
disclosure of the identities of those who will administer the
drugs. We recognize that the State has a strong interest in
carrying out its criminal judgments. Towery, 672 F.3d at 657.
But the State’s argument ignores the ongoing and intensifying
debate over lethal injection in this country, and the
importance of providing specific and detailed information
about how safely and reliably the death penalty is
administered. Moreover, the State can point to no evidence
in the record to support its claim that pharmaceutical
companies will stop providing drugs if this information is
released or that no alternatives are available even if some
companies do change course. There is nothing in the record,
save speculation, that manufacturers will not provide the
product. Indeed, Arizona has continued to effectively
administer the death penalty using domestically produced
lethal injection chemicals since it released drug information
in Schad v. Brewer. Similarly, the State fails to point to
evidence to support its claim that releasing the qualifications
of those administering the execution will lead to them being
identified publicly.
22 WOOD V. RYAN
In sum, Wood has raised serious questions on the merits
as to the positive role that access to lethal-injection drug
information and executioner qualifications will have in the
public debate on methods of execution. And given the
evidence presented by Wood regarding the historical right of
access, we conclude that Wood has raised serious questions
as to whether a First Amendment right, in the context of a
public executions, attaches to the specific information he
requests.
C
We proceed to consider the remaining three Winter
factors. First, Wood will face irreparable harm if the
injunction is not granted. We have previously stated that
“‘[t]he loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable
injury.’” Associated Press v. Otter, 682 F.3d 821, 826 (9th
Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))
(alteration in original); see also Valle Del Sol Inc. v. Whiting,
709 F.3d 808, 828 (9th Cir. 2013) (same); Sanders Cnty.
Republican Cent. Comm. v. Bullock, 698 F.3d 741, 748 (9th
Cir. 2012) (same). Here, as to Wood’s specific claims, they
likely will become moot after his execution.
Similarly, we have also stated that “a party seeking
preliminary injunctive relief in a First Amendment context
can establish irreparable injury sufficient to merit the grant of
relief by demonstrating the existence of a colorable First
Amendment claim.” Warsoldier v. Woodford, 418 F.3d 989,
1001 (9th Cir. 2005) (internal quotation marks omitted).
Because Wood has raised serious questions going to the
merits of his First Amendment claim, we conclude he has
also established irreparable injury.
WOOD V. RYAN 23
D
Because we conclude only that Wood has raised “serious
questions” going to the merits of his claim, he must also show
that the balance of equities tips sharply in his favor. Towery,
672 F.3d at 657. We acknowledge that Arizona does have a
“strong interest in enforcing its judgments without undue
interference from federal courts.” Id. at 661 (internal
quotation marks omitted). The state’s interest is especially
strong in a case like this one, in which legal proceedings have
continued for more than twenty years beyond the crime.
Bible v. Schriro, 651 F.3d 1060, 1066 (9th Cir. 2011) (“[T]he
further delay from a stay [of execution] would cause hardship
and prejudice to the State and victims, given that the appellate
process in this case has already spanned more than two
decades.”).
Nevertheless, we conclude the balance of equities here
tips sharply in Wood’s favor. Wood is seeking to enforce a
public, First Amendment right. He wants a stay of his
execution only until he receives the information he seeks.
Thus, it is unlikely that granting the injunction would
unnecessarily delay the state’s ability to enforce its
judgments. Moreover, as we discussed above, the State has
failed to provide any record evidence of the damage it
believes will occur if it is forced to reveal this information.
Given the small impact the injunction will have on the state,
the importance of First Amendment rights generally, and the
critical importance of providing the public with the
information it needs to debate the most severe form of
punishment that exists, we conclude that the balance of
equities tips sharply in Wood’s favor.
24 WOOD V. RYAN
E
Finally, since Wood’s execution would likely not be
delayed much, if at all, by giving him the information he
seeks, the public interest factor weighs in Wood’s favor.
“Courts considering requests for preliminary injunctions have
consistently recognized the significant public interest in
upholding First Amendment principles.” Associated Press,
682 F.3d at 826 (internal quotation marks omitted). Indeed,
as we discussed above, this information will play an
important role in the ongoing and intensifying public debate
over capital punishment and lethal injection methods
specifically.
Arizona’s recent history reinforces the role of this
information in the public discourse. In the case of Donald
Beaty, the State announced eighteen hours before the
execution that it intended to switch to the use of a drug that
it had never tested and in the use of which it had never trained
its executioners. Beaty v. Brewer, 649 F.3d 1071, 1072 (9th
Cir. 2011) (Reinhardt, J., dissenting from the denial of
rehearing en banc). In the cases of Robert Towery and
Robert Moormann, the state changed its written execution
protocol at the last minute, then changed course yet again,
informing the court just hours before argument that it was
switching the method of execution “because it discovered at
the last minute that the originally-planned drugs had expired”
a month before. Towery, 672 F.3d at 652–53. Here, the State
has announced that it will use an untested protocol, and that
it reserves the right to use Pentobarbital if it becomes
available. The recent history in Arizona does not provide a
reliable source of data as to its current method of execution,
underscoring the need for transparency.
WOOD V. RYAN 25
Information concerning execution protocol is not only of
general interest to the public, it is important for consideration
by the courts. For example, data concerning gas chamber
executions informed our decision to ban such executions.
Fierro v. Gomez, 77 F.3d 301, 306–09 (9th Cir. 1996),
judgment vacated, 519 U.S. 918 (1996). It also informed our
decision to sustain hanging as a method of execution in
Campbell v. Wood, 18 F.3d 662, 681–87 (9th Cir. 1994). We,
and the public, cannot meaningfully evaluate execution
protocol cloaked in secrecy. It is in the public’s interest that
Wood’s injunction be granted.
III
Because we conclude that Wood has raised serious
questions as to the merits of his First Amendment claim; that
the balance of equities tips sharply in his favor; that he will
face irreparable harm if the injunction is not granted; and that
the injunction is in the public interest; we conclude that the
district court abused its discretion in denying Wood’s
preliminary injunction request. We do not decide with
certainty that a First Amendment right exists to the
information Wood seeks, nor do we resolve the merits of the
Plaintiffs’ underlying § 1983 claim. We do, however, reverse
the district court’s denial of Wood’s preliminary injunction
motion. We grant a conditional preliminary injunction,
staying Wood’s execution until the State of Arizona has
provided him with (a) the name and provenance of the drugs
to be used in the execution and (b) the qualifications of the
medical personnel, subject to the restriction that the
information provided will not give the means by which the
26 WOOD V. RYAN
specific individuals can be identified. Once he has received
that information, the injunction shall be discharged without
more and the execution may proceed.
REVERSED.
BYBEE, Circuit Judge, dissenting:
Arizona intends to execute Joseph R. Wood III on July
23, 2014. On the eve of his execution, Wood asserts a
generalized First Amendment right of public access to
information in the government’s possession regarding the
State’s supplier of lethal drugs, its execution personnel, and
the manner in which the State developed its lethal-injection
protocol. Wood asks this court to stay his execution pending
the resolution of his request for information. The majority not
only finds that Wood’s novel First Amendment argument will
likely prevail, but also that he is entitled to a stay of his
execution until the State complies. Both are unprecedented.
The majority’s newfound right of access is a dramatic
extension of anything that we or the Supreme Court have
previously recognized, and it is in direct conflict with a very
recent decision of the Eleventh Circuit, Wellons v. Comm’r,
Ga. Dep’t of Corr., No. 14-12663-P, 2014 WL 2748316, —
F.3d — (11th Cir. June 17, 2014), and a recent decision of the
Georgia Supreme Court, Owens v. Hill, 758 S.E.2d 794 (Ga.
2014). The remedy is equally novel. Even if there were a First
Amendment right of access, Wood would have no more right
to the information than any other member of the public. It is
unthinkable that if anyone else had brought this suit we would
WOOD V. RYAN 27
stop a lawful execution until the State yielded the
information.
The majority has charted a new course, one I cannot
follow. I respectfully dissent.
I
Wood shot and killed his estranged girlfriend, Debra
Dietz, and her father, Eugene Dietz, on August 7, 1989, at a
Tucson automotive paint and body shop owned and operated
by the Dietz family. A jury convicted Wood of two counts of
first-degree murder and two counts of aggravated assault. He
was then sentenced to death. See Wood v. Ryan, 693 F.3d
1104 (9th Cir. 2012).
On March 26, 2014, the Arizona Attorney General
announced that the Arizona Department of Corrections
(ADC) had changed its lethal-injection protocol to allow for
the use of a two-drug protocol using midazolam and
hydromorphone in carrying out executions.1 The Attorney
General explained that the State could no longer reliably
obtain pentobarbital to perform lethal injections because
when the identities of pentobarbital manufacturers were
disclosed publicly, some manufacturers received threats and
became unwilling to supply pentobarbitral to state
1
The current execution protocol, found in Department Order 710, calls
for the use of 50 mg of midazolam and 50 mg of hydromorphone. It also
provides for one-drug protocols using pentobarbital or sodium pentothal.
28 WOOD V. RYAN
corrections’ agencies. This created a public safety issue as
ADC was compelled to seek alternative lethal drugs.2
On April 22, 2014, the State moved for a warrant of
execution for Wood.3 That same day, the State sent a letter to
Wood’s counsel informing her that ADC would use the two-
drug protocol for the execution. The State also indicated that
if ADC could obtain pentobarbital, ADC would provide
notice of its intent to use that drug.
On April 30, 2014, Wood’s counsel sent ADC a letter
requesting (1) information regarding the provenance of
ADC’s midazolam and hydromorphone, (2) an explanation of
ADC’s continuing search for pentobarbital, (3) information
regarding the Drug Enforcement Administration (DEA)
qualifications of ADC personnel who would participate in
Wood’s execution, and (4) an explanation of how ADC
developed its two-drug protocol.
On May 6, 2014, ADC replied, indicating that the drugs
were “domestically obtained” and “FDA approved.” ADC
declined to provide further information about the drugs based
on ADC’s interpretation of Arizona’s executioner-
confidentiality statute, Ariz. Rev. Stat. § 13-757(C). ADC
noted that it continued to look for pentobarbital and would
inform Wood if it obtained the drug. ADC also declined to
provide specific information about the DEA qualifications of
2
See Press Release, Attorney Gen. of Ariz., State of Arizona
Announces Change to Lethal Injection Protocol (March 26, 2014),
https://www.azag.gov/press-release/state-arizona-announces-change-
lethal-injection-protocol.
3
A warrant of execution was issued on May 28, 2014.
WOOD V. RYAN 29
the execution personnel, but stated that “the qualifications for
the IV team as set forth in Department Order 710.02-1.2.5
have not changed since the ADC amended the protocol in
September, 2012, to include assurances of the IV team’s
qualifications.” Finally, ADC stated that the development of
ADC’s two-drug protocol was based on affidavits and
testimony in Case No. 2:11-CV-1016, in the Southern District
of Ohio.
On May 9, 2014, Wood’s counsel responded, seeking
clarification and requesting the specific Ohio documents
referenced in ADC’s letter. Counsel again requested the
qualifications of the personnel who would participate in
Wood’s execution, as well as evidence demonstrating that
ADC had verified those qualifications.
On May 15, 2014, Wood’s counsel sent another letter,
again asking for the DEA and medical qualifications of ADC
personnel, along with information about the development of
ADC’s two-drug protocol. Counsel also requested documents
regarding correspondence with various state and federal
agencies.
On June 6, 2014, ADC sent Wood a response in which it
provided copies of purchase orders, invoices, and order
confirmations for the midazolam and hydromorphone.
Although the documents reveal the drug names and expiration
dates—September and October 2015—information about the
manufacturers and suppliers of the drugs was redacted. ADC
also stated that the Inspector General had verified the
qualifications of ADC personnel, both before and after
issuance of Wood’s warrant of execution, and that in the
event a central femoral line were used, it would be placed by
a person currently licensed or certified to do so. ADC
30 WOOD V. RYAN
declined to provide copies of the Ohio documents, asserting
that because the Federal Public Defender’s Office was
involved in the Ohio litigation, Wood’s counsel—the Federal
Public Defender—would already have access to them.
On June 26, 2014, Wood filed a civil rights complaint
alleging three claims: (1) a violation of the First Amendment
right of access to the courts, (2) a violation of the First
Amendment right of access to governmental proceedings, and
(3) a Supremacy Clause violation based on ADC’s alleged
failure to follow the Food, Drug, and Cosmetics Act in
adopting its lethal-injections protocol.
On June 28, 2014, Wood received final notice from ADC
that it would use the two-drug protocol for his execution.
Wood then filed a motion for a preliminary injunction on July
2, 2014, based only on his right of access to governmental
proceedings claim. The district court denied that motion on
July 10, 2014, reasoning that Wood could not show a
likelihood of success on the merits because he has no First
Amendment right of access to the specific information that he
seeks. Wood filed a timely notice of appeal.
II
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of the equities tips in his favor, and
that an injunction is in the public interest.” Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Under the
“serious questions” version of this test articulated by our
court, “a preliminary injunction is appropriate when a
plaintiff demonstrates that serious questions going to the
WOOD V. RYAN 31
merits were raised and the balance of the hardships tips
strongly in the plaintiff’s favor.” Towery v. Brewer, 672 F.3d
650, 657 (9th Cir. 2012). The “serious questions” version
“requires that the elements of the preliminary injunction test
be balanced, so that a stronger showing of one element may
offset a weaker showing of another.” Id.In the context of a capital case, the Supreme Court has
emphasized that these principles apply when a condemned
prisoner asks a federal court to enjoin his impending
execution because “[f]iling an action that can proceed under
§ 1983 does not entitle the complainant to an order staying an
execution as a matter of course.” Hill v. McDonough, 547
U.S. 573, 583–84 (2006). Rather, “a stay of execution is an
equitable remedy” and “equity must be sensitive to the State’s
strong interest in enforcing its criminal judgments without
undue interference from the federal courts.” Id. at 584. We
review the denial of a preliminary injunction for abuse of
discretion. Towery, 672 F.3d at 657.
III
“Neither the First Amendment nor the Fourteenth
Amendment mandates 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). Thus, “[a]s a general rule,
citizens have no first amendment right of access to
traditionally nonpublic government information.” McGehee
v. Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983). Open
meetings laws, such as the Government in the Sunshine Act,
5 U.S.C. § 552b, and public records acts, such as the Freedom
of Information Act, 5 U.S.C. § 552, provide persons with a
broad, statutory right of access to government proceedings
32 WOOD V. RYAN
and documents. But, in general, the right of access is
statutory, not constitutional, in nature: “[The Supreme] Court
has repeatedly made clear that there is no constitutional right
to obtain all the information provided by FOIA laws.”
McBurney v. Young, 133 S. Ct. 1709, 1718 (2013).
The Supreme Court has recognized a qualified First
Amendment right of access to some governmental
proceedings, principally those related to the courts. See
Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8–14 (1986)
(“Press-Enterprise II”); Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 603–11 (1982); Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 579 (1980). “Underlying th[is]
First Amendment right of access . . . is the common
understanding that a major purpose of that Amendment was
to protect the free discussion of governmental affairs.” Globe
Newspaper, 457 U.S. at 604 (internal quotation marks and
citation omitted). The Court has applied the right of public
access to proceedings in criminal trials, including preliminary
hearings, Press-Enterprise II, 478 U.S. at 8–14, voir dire,
Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510–11
(1984) (“Press-Enterprise I”), the testimony of the child
victim of a sex offense, Globe Newspaper Co., 457 U.S. at603–11, and criminal trials in general, Richmond
Newspapers, Inc., 448 U.S. at 580. We have explained that
this qualified First Amendment right of access applies to
“criminal proceedings and documents filed therein,”CBS, Inc.
v. U.S. Dist. Court, 765 F.2d 823, 825 (9th Cir. 1985), and
have said that it extends to pretrial release proceedings,
Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1517
(9th Cir. 1988), and pretrial suppression hearings, United
States v. Brooklier, 685 F.2d 1162, 1170–71 (9th Cir. 1982).
We have limited the right of access to “documents filed
therein” to documents that transcribe or memorialize official
WOOD V. RYAN 33
proceedings: transcripts of closed hearings that occurred
during jury deliberations, Phoenix Newspapers, Inc. v. U.S.
Dist. Court, 156 F.3d 940, 949 (9th Cir. 1998), plea
agreements and related documents, Oregonian Publ’g Co. v.
U.S. Dist. Court, 920 F.2d 1462, 1465–66 (9th Cir. 1990),
and pretrial release documents, Seattle Times Co., 845 F.2d
at 1517.
In California First Amendment Coalition v. Woodford,
299 F.3d 868 (9th Cir. 2002), we extended these cases to
reach the conclusion that “the public enjoys a First
Amendment right to view executions from the moment the
condemned enters the execution chamber” to the time he is
pronounced dead. Id. at 877. We arrived at this conclusion
after addressing the considerations set forth in Press-
Enterprise II: (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 II, 478 U.S. at 8–9. First, we found that there is a
public right to view execution proceedings because
“[h]istorically, executions were open to all comers.” Cal.
First Amendment Coal., 299 F.3d at 875. We observed that
even when California abolished public executions, it provided
that official witnesses should be present at the execution, a
practice followed by every state that authorizes the death
penalty. Id. Second, we found that “[i]ndependent public
scrutiny [of the execution proceeding] . . . plays a significant
role in the proper functioning of capital punishment.” Id. at
876. We explained that “public observation of executions
fosters the same sense of catharsis that public observation of
criminal trials fosters.” Id. at 877. Notably, we said nothing
about the public’s right to gain access to any documents
related to the execution.
34 WOOD V. RYAN
In California First Amendment Coalition, we were careful
to explain that this right of public access is a right belonging
to the public, and not a right belonging to any individual. See
id. at 873 (“It is well-settled that the First Amendment
guarantees the public . . . a qualified right of access to
governmental proceedings.” (emphasis added)). Very
recently, the Eleventh Circuit recognized this important
distinction in a case where the plaintiff sought governmental
information regarding lethal injection, as in the case before us
today. Wellons, 2014 WL 2748316, at *5–6 (affirming the
district court’s denial of a preliminary injunction in part
because public access cases “turn on the public’s, rather than
the individual’s, need to be informed so as to foster debate”).
At oral argument and in his briefing, Wood makes clear that
he is asserting a right of access enjoyed by the public at large,
and not a right or privilege personal to him. Whatever the
scope of the First Amendment right of access, Wood has no
greater claim than any other member of the public.
IV
Wood seeks the following information: the source(s),
manufacturer(s), National Drug Codes, and lot numbers of the
drugs that ADC intends to use in his execution; information
regarding the medical, professional, and controlled-
substances qualifications of the personnel that ADC intends
to use in his execution; and information and documents
detailing the manner in which ADC developed its two-drug
protocol. It is important to note that the State has already
disclosed significant information, including the type of drugs,
the dosages to be used, and their expiration dates, as well as
the fact that the drugs are domestically obtained and FDA
approved; the necessary qualifications for ADC personnel
and the fact that the Inspector General verified the
WOOD V. RYAN 35
qualifications of ADC personnel both before and after the
issuance of Wood’s warrant of execution; and the actual two-
drug protocol itself.
The fundamental flaw in Wood’s request for a
preliminary injunction is that Wood does not actually assert
a right of access to a governmental proceeding. The Supreme
Court has long held that the First Amendment does not
provide a general right to information in the government’s
possession. See Houchins, 438 U.S. at 15; L.A. Police Dep’t
v. United Reporting Publ’g Corp., 528 U.S. 32, 40 (1999)
(“[W]hat we have before us is nothing more than a
governmental denial of access to information in its
possession. California could decide not to give out arrestee
information at all without violating the First Amendment.”);
McBurney, 133 S. Ct. at 1718. And the Court has cautioned
that “[t]he Constitution itself is neither a Freedom of
Information Act nor an Official Secrets Act.” Houchins, 438
U.S. at 14. This default principle—that there is no general
First Amendment right to information in the government’s
possession—ought to guide our analysis.
The qualified First Amendment right of access to
governmental proceedings is properly viewed as a exception
to the default principle, limited to governmental “proceedings
and documents filed therein.” CBS, Inc., 765 F.2d at 825.
This right 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. It is not
a tool for judges to pry open the doors of state and federal
agencies because they believe that public access to this type
of information would be a good idea. It is a qualified right to
certain “proceedings and documents filed therein” and
nothing more. In effect, the right prevents the government
36 WOOD V. RYAN
from restraining access to proceedings and filed documents
that have historically been made available to the public. It is
a First Amendment obligation by estoppel, not an untethered
license to governmental information.
Wood contends that our precedent guarantees access to
the information that he seeks. It does nothing of the kind.
Unlike the plaintiffs in California First Amendment
Coalition, Wood does not seek access to a criminal
proceeding, nor does he seek documents filed in a proceeding
or transcripts of the proceeding. Instead, he wants
information in the government’s possession; effectively, he
has taken the general right of the public to view executions
and turned it into a FOIA request for documents related to the
execution. California First Amendment Coalition says
nothing about information in the government’s possession.
Wood points to our opinion in Courthouse News Service
v. Planet, 750 F.3d 776 (9th Cir. 2014), as support for the
notion that there is a right of access to all records associated
with public governmental proceedings. Although we
observed that “[t]he federal courts of appeals have widely
agreed that [the right of access] extends to civil proceedings
and associated records and documents,” we also
acknowledged that only public records associated with a
governmental proceeding—not all records and information
associated with a proceeding—are subject to Press-Enterprise
II. Id. at 786 (“[T]he right of access to public records and
proceedings is necessary to the enjoyment of the right to free
speech.” (emphasis added)). Courthouse News Service thus
cannot support Wood’s position.
Wood does not cite a single case in which an appellate
court has found a right of access to the type of information at
WOOD V. RYAN 37
issue in this appeal. No other case has granted a First
Amendment right to lot numbers. No other case has granted
a First Amendment right to documents relied upon by a state
agency in the development of an official policy.4 In so doing,
the majority dramatically expands the scope of the right of
access in a way that causes what used to be a limited
exception to swallow the default rule, which is that “the First
Amendment . . . [does not] mandate[] a right of access to
government information or sources of information within the
government’s control.” Houchins, 438 U.S. at 15. How far
does this newly expanded right reach? It is undisputed that
the right of access extends to criminal trials. Richmond
Newspapers, Inc., 448 U.S. at 580. Does it now extend to all
documents in the prosecutor’s possession? Jury pool records?
See Jury Serv. Res. Ctr. v. De Muniz, 134 P.3d 948 (Or. 2006)
(rejecting such a claim).5 Jurors’ addresses? See
4
Not only is the majority’s position unsupported by a decision from any
appellate court, it creates a circuit split with an opinion issued by the
Eleventh Circuit just last month, Wellons, 2014 WL 2748316, at *6, and
it is flatly inconsistent with an opinion issued by the Georgia Supreme
Court two months ago, Hill, 758 S.E.2d at 805–06.
5
Recognizing the distinction between “proceedings and documents
filed therein” and information in the government’s possession, the Oregon
Supreme Court wrote:
[T]he Court of Appeals mistook access to a public trial for access
to government information. The United States Supreme Court’s
emphasis in the Press-Enterprise cases was on access of the
public to the trial itself, not on the process that lead to the
selection of the actors in that event. Those cases establish that the
public has a right to attend criminal trials. The selection of names
for the list of prospective jurors, however, is one or more
(sometimes several) steps removed from the trial itself. . . .
Unlike actual trials, public access plays no significant role in the
official and largely rote function of collecting and winnowing
38 WOOD V. RYAN
Commonwealth v. Long, 922 A.2d 892 (Pa. 2007) (same). Of
course not, but that is the implication of the majority’s
holding.6
And the principle doesn’t improve by trying to confine
today’s rule to executions. Our decision in California First
Amendment Coalition was an application of the Supreme
Court’s right of access to public proceedings. Today’s ruling
strikes out on its own. Either the majority’s ruling has much
broader implications, or it is Justice Roberts’s famous
“restricted railroad ticket, good for this day and train only.”
Smith v. Allwright, 321 U.S. 649, 669 (1944) (Roberts, J.,
dissenting).
V
Wood has not asserted a First Amendment right of access
claim. But even assuming that he has, the question becomes
whether the right attaches. This analysis is informed by two
“complementary considerations”: (1) “whether the place and
names for jury lists. . . . So understood, the dispute is far more
analogous to cases in which the United States Supreme Court has
ruled that the general public does not have a First Amendment
right of access to places, information, and documents within the
government’s control than it is to the Press-Enterprise cases.
Jury Serv. Res. Ctr., 134 P.3d at 954.
6
The majority purports to limit its holding to information “inextricably
intertwined” with execution. Maj. Op. at 13. That’s a responsible sounding
phrase. Unfortunately, the veneer of responsibility is only skin deep. If lot
numbers and National Drug Codes are “inextricably intertwined,” then
documents in the prosecution’s possession and jury pool records—which
are far more relevant to a core public proceeding—are certainly
“inextricably intertwined” as well.
WOOD V. RYAN 39
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 II, 478 U.S. at 8–9.
A. Historically Open to the Press and General Public
Wood seeks access to three broad categories of
information: (1) manufacturer information, (2) information
about the qualifications of ADC personnel, and (3)
information about the manner in which ADC developed its
two-drug protocol. Wood argues that the information that he
seeks is analogous to information disclosed about different
methods of execution in the past. For example, some old
newspaper accounts include detailed information about ropes
used for hangings and the tradesmen and companies that
supplied them. Apparently, there was only one company west
of the Mississippi that made lethal gas, and a newspaper once
published an article on the manufacturer of the gas chambers.
Wood points out that even today, the Pinal County Historical
Museum displays twenty-eight nooses used for executions in
Arizona.7
There are a number of reasons why Wood’s historical
evidence, relied upon by the majority, see Maj. Op. at 15–17,
is insufficient. First, he has not shown a “historical tradition
of public access” to the means of execution beyond what
witnesses to the execution could see. Cal. First Amendment
Coal., 299 F.3d at 875 (emphasis added). Wood’s historical
evidence is best characterized as sporadic and anecdotal. The
7
See Pinal County Historical Soc. & Museum, Our Exhibits,
www.pinalcountyhistoricalmuseum.org/exhibits.htm (last visited July 19,
2014).
40 WOOD V. RYAN
fact that Godfrey Boger’s obituary revealed that he made
ropes for hangings tells us very little.8 As does the fact that
the Pinal County Historical Museum displays nooses today.
Episodic and, at times, non-contemporaneous instances of
public disclosure cannot establish a historical tradition of
public access. If, in this area, we are not guided by the
historical record, we have no guidance but our own sense of
what we would like disclosed by the government.
Second, neither the majority nor Wood has shown that the
government historically provided open access to the identities
of a particular manufacturer. Indeed, several of his examples
reveal that it was the manufacturers themselves who chose to
publicize their identities. But the relevant consideration is
whether the government has historically made the particular
proceeding open to the public. See Cal. First Amendment
Coal., 299 F.3d at 875 (“When executions were moved out of
the public fora and into prisons, the states implemented
procedures that ensured executions would remain open to
some public scrutiny.” (emphasis added)). Press-Enterprise
II stands for the proposition that if the government has
traditionally made a certain proceeding public, it must
continue to do so. By construing the right of public access
more broadly than any court to date, the majority creates a
perverse incentive for the government not to open
“proceedings and documents filed therein” to the public in the
first place so as not to bind itself going forward. Today’s
decision thus undermines the very purpose of the right of
public access. If the government is further estopped from
restricting access when private actors choose to make
proceedings or records public, the government has an
additional incentive to take steps to keep private actors from
8
See Made Hangman’s Ropes, The Gazette Times, July 16, 1911, at 13.
WOOD V. RYAN 41
disclosing information regarding governmental proceedings
and records. And what happens when the government’s
efforts fall short? Can individuals who are determined to
disclose governmental information foist a First Amendment
obligation on the government to grant access in the future by
disclosing government secrets? Surely not. Edward
Snowden’s leaks are not relevant to the question of whether
there is a First Amendment right of access to FISA court
proceedings.
Third, although Wood claims that Arizona previously
disclosed drug manufacturer information, Wood has not
shown that the State voluntarily disclosed the specific type of
manufacturer information that he seeks. Arizona has
disclosed this information only pursuant to discovery or under
court order. See Schad v. Brewer, No. CV-13-2001-PHX-
ROS, 2013 WL 5551668 (D. Ariz. Oct. 7, 2013). Moreover,
even if the State had at one time voluntarily disclosed such
information, it does not a tradition make. The history of
executions by lethal injection is relatively short, as the states
have made adjustments to their protocols in response to
developments, both public and scientific. Such disclosures do
not demonstrate that the information Wood seeks has been
historically available to the public.
Fourth, Wood has adduced no historical evidence—
none—to support a right of access to two of the three types of
information that he seeks: (1) information about
qualifications of execution personnel, and (2) information
about the manner in which ADC developed its two-drug
protocol. As to the former, there is substantial evidence that
information about personnel has not been historically
available to the public. See Ellyde Roko, Note, Executioner
Identities: Toward Recognizing a Right to Know Who is
42 WOOD V. RYAN
Hiding Beneath the Hood, 75 Fordham L. Rev. 2791, 2829
(2007) (acknowledging that “[h]istorically, executioners have
hidden behind a hood—both literally and figuratively.”). And,
as to the latter, information about the process by which a state
entity developed a policy or program is the proper subject of
statutory disclosure laws.
Wood has thus failed to establish a historical tradition of
access to any of the information that he seeks. Although the
lack of historical evidence may not foreclose a right of
access, Seattle Times, Co., 845 F.2d at 1516, this failing
leaves Wood with a tough row to hoe. He would have to show
that Press-Enterprise II’s second consideration “weighs
heavily in favor” of his asserted right in order to overcome
his failing on the first consideration. Id. And, as explained
below, he cannot do so.
B. Access Plays a Significant Positive Role
The second factor in determining whether there is First
Amendment right of public access is “whether public access
plays a significant positive role in the functioning of the
particular process in question.” Press-Enterprise II, 478 U.S.
at 8.
1. Manufacturer’s identity
Publicly disclosing the identity of the manufacturer of the
drugs to be used in Wood’s execution would not “play[] a
significant positive role in the functioning” of Arizona’s
execution protocol. Id. In California First Amendment
Coalition, we reasoned that “[a]n informed public debate is
critical in determining whether execution by lethal injection
comports with ‘the evolving standards of decency which
WOOD V. RYAN 43
mark the progress of a maturing society.’” 299 F.3d at 876
(quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Here, the
State has already disclosed the type of drugs that will be used
in Wood’s execution, the dosages of those drugs, their
expiration dates, the fact that they are FDA approved, and the
fact that they were produced domestically. The question
before us is whether releasing the name of the
manufacturer—or related information such as the National
Drug Codes and lot numbers—would have a significant
marginal benefit on the public discourse concerning Wood’s
execution beyond the benefit that obtains from releasing the
information already provided by the State. See Seattle Times,
845 F.2d at 1516 (“The [Supreme] Court has examined
whether public access plays a particularly significant positive
role in the actual functioning of the proceeding.” (emphasis
added)).
The information already released by the State enables
informed debate about the lawfulness and propriety of
Arizona’s two-drug cocktail. The public knows precisely how
the State intends to end Wood’s life and can investigate
whether the drugs are suited to that purpose. Wood correctly
points out that it is “of particular significance to the public to
know that the State that is carrying out its execution process
is doing so through unlawful means.” But he does not—and
cannot—explain why knowing the drugs’ manufacturer
would contribute to discussing whether Arizona’s method is
lawful. The identity of the chemicals and their quantities
permits a full examination of the issue. Not every conceivable
piece of information is equally relevant to the important,
ongoing public conversation about the lawfulness of a
particular lethal-injection protocol.
44 WOOD V. RYAN
The only marginal benefit of disclosing the identity of the
manufacturer of the drugs is that it enables the public to
discuss the manufacturer’s decision to supply Arizona with
the chemicals used in an execution. There is certainly value
in such knowledge. For example, consumers who are opposed
to capital punishment might wish to avoid doing business
with the manufacturers. But the fact that there are some
discursive benefits to disclosing the identities of the
manufacturers is hardly dispositive. We must also consider
the costs of disclosing the information. As the Supreme Court
aptly put it, “[a]lthough many governmental processes
operate best under public scrutiny, it takes little imagination
to recognize that there are some kinds of government
operations that would be totally frustrated if conducted
openly.” Press-Enterprise II, 478 U.S. at 8–9. The disclosure
of information previously kept private by the government
often enhances the scope or accuracy of public discourse in
some way. But the disclosure of certain kinds of information
also hobbles the state’s ability to carry out its legitimate
functions. When disclosure inhibits the effectiveness of the
process at issue without producing substantial benefits, then
public access to the information does not “play[] a significant
positive role in the functioning of the particular process in
question.” Id. at 8.
Several courts have observed that disclosing the
manufacturer of drugs used in executions inhibits the
functioning of the process in ways that harm the state, its
citizens, and the inmate himself. As the Georgia Supreme
Court recently explained, “without the confidentiality offered
to execution participants . . . there is a significant risk that
persons and entities necessary to the execution would become
unwilling to participate.” Hill, 758 S.E.2d at 806. In a dissent
from denial of rehearing en banc joined by seven other
WOOD V. RYAN 45
members of our court, Chief Judge Kozinski observed that
“Arizona has a legitimate interest in avoiding a public attack
on its private drug manufacturing sources.” Landrigan v.
Brewer, 625 F.3d 1132, 1143 (9th Cir. 2010) (Kozinski, C.J,
dissenting from denial of rehearing en banc). In Chief Judge
Kozinski’s view, Arizona had “good reasons” to keep the
identity of the manufacturer private because a journalist
suggested that the company might be criminally liable under
a European Union regulation. Id.Arizona’s ability to enforce its execution protocol will be
hindered if it cannot reliably obtain the drugs needed to
perform executions. Disclosure of the information that is
supposed to “play[] a significant positive role in the
functioning of the particular process in question” might
instead destroy the process altogether. Press-Enterprise II,
478 U.S. at 8 (emphasis added). Inmates may suffer if the
State is forced to turn to less reliable execution methods that
might inflict unnecessary pain. In a recent case, Texas
disclosed the name of the compounding pharmacy that
produced the chemicals to be used in an execution. Whitaker
v. Livingston, No. H-13-2901, 2013 U.S. Dist. LEXIS
144367, at *7 (S.D. Tex. Oct. 7, 2013). The inmate “notified
the court that the compounding pharmacy was demanding
that Texas return the drugs because it was being harassed.”
Id. The inmate was not pleased about the prospect of
additional public discourse concerning the drugs that would
be used to end his life. Instead, he was understandably
“worrie[d] that Texas may have to use a different drug to
execute him.” Id. State legislatures have responded to the
possibility that no manufacturer will provide the drugs used
in lethal injections. For example, Tennessee recently
reauthorized the use of the electric chair as an alternative
46 WOOD V. RYAN
method of execution in the event that the drugs necessary to
perform a lethal injection become unavailable.9
Arizona had these developments in mind when it changed
its protocol. A press release from the Arizona Attorney
General explains that “compounding pharmacies in Texas and
Oklahoma that had been providing pentobarbital for
executions are now refusing to provide it after their identity
was released publicly and they began to receive threats. This
kind of reaction has caused companies that sell the drug to
corrections’ agencies to stop supplying it for the purposes of
inmate executions.”10 For this reason, the press release
describes the need for confidentiality as a “public safety
issue.” In the end, efforts to disclose the manufacturers’
identities only renders the imposition of capital punishment
more cruel than necessary by making it more difficult for
states to reliably and safely execute inmates who were long-
ago sentenced to death. Individuals like Wood, who have
been lawfully tried and sentenced, are used as a means to
accomplish a long-term policy objective that ought to be
conveyed to state legislatures rather than federal courts.11
9
See Tim Ghianni, Tennessee Reinstates Electric Chair as
Death Penalty Option, May 23, 2014, available at
http://www.reuters.com/article/2014/05/23/us-usa-tennessee-execution-
idUSBREA4M03520140523.
10
See Press Release, Attorney Gen. of Ariz., State of Arizona
Announces Change to Lethal Injection Protocol (March 26, 2014),
https://www.azag.gov/press-release/state-arizona-announces-change-
lethal-injection-protocol.
11
The majority thinks that exposing the names of the manufacturers of
drugs used in lethal injections is especially important in light of the
“seismic shift in the lethal injection world in the last five years” and the
“flawed executions this year” involving the drugs at issue here. Maj. Op.
WOOD V. RYAN 47
Finally, Wood contends that there is no record evidence
in this case that disclosing the identity of the manufacturer
will “extend the pressure on qualified suppliers not to supply
the drugs.” The majority likewise asserts that “the State can
point to no evidence in the record to support its claim that
pharmaceutical companies will stop providing drugs if this
information is released.” Maj. Op. at 21. But, in addition to
the aforementioned case law, Wood’s own brief cites multiple
news reports detailing how companies have stopped
supplying states with drugs used in executions after their
identities have been disclosed. Such evidence is crucial to
Wood’s argument because it is the only indication that
disclosure of the manufacturer’s identity would “play[] a
significant positive role in the functioning” of Arizona’s
execution process. Press-Enterprise II, 478 U.S. at 8. The
majority also cites news reports as evidence that there has
been a “seismic shift in the lethal injection world” as
manufacturers have stopped providing thiopental and
pentobarbital. Maj. Op. at 19. The majority considers the
evidence that drug manufacturers are susceptible to public
pressure for the proposition that disclosure creates a dialogue
about capital punishment, but ignores the same evidence to
the extent that it shows that disclosure potentially hinders the
at 19–20. But the “seismic shift” and “flawed executions” have been
caused in part by past disclosures of the manufacturers of the drugs used
in lethal injections that have made the drugs difficult or impossible to
obtain. As the majority points out, “[s]tates are now seeking new types
and combinations of drugs” because thiopental and pentobarbital are no
longer readily available. Maj. Op. at 20. The majority identifies a policy
development it deems undesirable—the need to use different and possibly
less effective drugs to carry out lethal injections—and then interprets the
First Amendment in a novel manner in order to exacerbate rather than
ameliorate the problem.
48 WOOD V. RYAN
State’s ability to lawfully carry out its lethal-injection
protocol by making the requisite drugs harder to obtain.
We do not know with certainty how the public or the drug
manufacturer will react if Arizona discloses the
manufacturer’s identity. But we do know, from the case law
and the arguments advanced by Wood himself, that disclosure
might impact Arizona’s ability to perform a lawful execution
using domestically produced, FDA-approved drugs. When we
compare the risk to Arizona’s execution protocol to the
alleged benefits of additional public discourse about the
subject, it is clear that Wood cannot show that “public access
plays a significant positive role in the functioning of the
particular process in question.” Press-Enterprise II, 478 U.S.
at 8 (emphasis added).
2. Executioners’ qualifications
For much the same reason, publicly disclosing additional
information about the qualifications of the individuals who
will participate in Wood’s execution would not “play[] a
significant positive role in the functioning” of Arizona’s
execution protocol. Id. Wood contends that “information
about the qualifications of the persons who will execute
him—in the name of Arizona’s citizens—is a matter that is
squarely within the sphere of ‘informed public debate.’” Even
if that is true, it is not the issue before us. Once again, the
State has already disclosed ample information about the
qualifications of those who will participate in the execution.
The State informed Wood that the Inspector General had
verified the qualifications of the personnel and that a central
femoral line would only be inserted by a person licensed or
certified to perform the procedure. The question is thus
whether disclosing the specific qualifications of the actual
WOOD V. RYAN 49
individuals chosen by the State to conduct the execution
would have a significant marginal benefit on the public
discourse concerning Wood’s execution beyond the benefit
that obtains from releasing the information already provided
by the State.
As with the drug manufacturer’s identity, the information
offered by the State related to the executioners’ qualifications
enables informed debate about the lawfulness and propriety
of Arizona’s execution protocol. The public knows what
qualifications are required of medical personnel who
participate in the execution and how those qualifications are
verified. Wood does not—and cannot—explain how the
public’s knowledge of, say, the medical school or nursing
school attended by each person participating in the execution,
would “play[] a significant positive role in the functioning of
the particular process in question.” Id. Such information is,
at best, irrelevant.
The only way such information could meaningfully
contribute to public discourse is if specific information about
the qualifications of the personnel allowed for members of
the public to identify them. The names of the individuals who
take part in the execution, like the names of the companies
that manufacture the drugs used in the execution, would
certainly contribute to public debate. Members of the public
could, for example, protest outside their homes or offices.
Reporters could call and ask them about why they decided to
participate in an execution. The problem, of course, is that
this kind of public discourse would not “play[] a significant
positive role in the functioning of the particular process in
question.” Id. (emphasis added). Rather, it would severely
inhibit Arizona’s ability to conduct lawful executions by
making it difficult to find qualified personnel willing to risk
50 WOOD V. RYAN
their privacy and their careers to participate in an execution.
See Hill, 758 S.E.2d at 805 (“The reasons for offering such
privacy are obvious, including avoiding the risk of
harassment or some other form of retaliation from persons
related to the prisoners or from others in the community who
might disapprove of the execution as well as simply offering
those willing to participate whatever comfort or peace of
mind that anonymity might offer.”). Arizona’s confidentiality
statute responds to these precise concerns. Ariz. Rev. Stat.
§ 13-757(C) (“The identity of executioners and other persons
who participate or perform ancillary functions in an execution
and any information contained in the records that would
identify those persons is confidential.”).
Wood correctly points out that we cannot know whether
disclosing the qualifications of the individuals participating
in the execution will lead to the discovery of their names and
other personal information. But the mere possibility that this
might occur would dissuade qualified individuals from
performing a lawful task on behalf of the State and its
citizens. Cf. Long, 922 A.2d at 904–05 (Pa. 2007) (holding
that the First Amendment right of public access does not
extend to jurors’ addresses in part because the disclosure of
such information “may make the average citizen less willing
to serve on a jury, especially if he or she believes that the
media, the defendant, or the defendant’s family and friends
know where he or she lives”). As with the ongoing efforts to
deter drug companies from producing the compounds that
most quickly and painlessly cause death, attempts to dissuade
qualified medical personnel from participating in lawful
executions will likely only harm inmates sentenced to die by
forcing states to rely on less experienced professionals.
WOOD V. RYAN 51
Disclosing more specific details about the qualifications
of the individuals who participate in the execution process
risks interfering with the legitimate operation of Arizona’s
execution protocol without meaningfully contributing to the
public discourse surrounding Wood’s execution.
3. Development of protocol
Lastly, Wood has not shown that disclosing information
about how ADC developed its execution protocol will have
any effect whatsoever on public dialogue about the subject.
The thirty-two page protocol sets out in precise detail how an
execution will proceed. The two-drug portion of the protocol
includes the type and quantity of drugs that will be used along
with a nine-step process for administering the drugs. Anyone
who reads the protocol will know exactly how Arizona plans
to carry out an execution. Wood does not suggest what might
be gleaned from reviewing information generated during the
protocol’s development, let alone how access to such
information will “play[] a significant positive role in the
functioning” of an execution. Press-Enterprise II, 478 U.S. at
8 (emphasis added).
In sum, Wood has not shown a historical tradition of
public access to the information that he seeks, and he cannot
show that such access would play a significant positive role
in the functioning of the State’s administration of lethal
injection. Accordingly, he has no First Amendment right to
access the information and he cannot show a likelihood of
success on the merits.
52 WOOD V. RYAN
VI
The parties and the district court understandably focused
primarily on the likelihood that Wood’s First Amendment
claim will succeed on the merits. But we must also consider
the other factors that comprise the preliminary injunction
analysis, in particular the likelihood of irreparable harm in the
absence of preliminary relief. See Winter, 555 U.S. at 20.
No one doubts that Wood “has a strong interest in being
executed in a constitutional manner.” Beaty v. Brewer, 649
F.3d 1071, 1072 (9th Cir. 2011). But the right asserted by
Wood differs from the constitutional challenges often raised
by inmates facing execution. The First Amendment right of
public access inheres in all of the members of the public, and
not just the inmate who has been sentenced to death. See Cal.
First Amendment Coal., 299 F.3d at 873 (“[T]he First
Amendment guarantees the public—and the press—a
qualified right of access to governmental proceedings.”
(emphasis added)). The fact that Wood will soon be executed
absent judicial intervention does not necessarily mean that
there will likely be “irreparable harm in the absence of
preliminary relief.” Winter, 555 U.S. at 20. Wood’s claim is
premised on the notion that society will have a richer
discourse about his execution if everyone is made aware of
certain details, such as the manufacturer of the drugs used and
the qualifications of the executioners employed. It is not self-
evident that the First Amendment right will be irreparably
harmed if that information is not disclosed before Wood’s
execution, but is instead disclosed only if the view espoused
by Wood ultimately prevails after the case is fully litigated.
Whatever benefit society derives from being able to discuss
who made the drug and who injected it would presumably
WOOD V. RYAN 53
still inure to the public if that conversation occurred after
Wood has been executed.
Despite the impression offered by the substance of the
briefs and opinions in this case, this litigation is not really
about the scope of the First Amendment right of the public to
access certain information pertaining to an execution. The
existence and scope of that right could be fully litigated by a
member of the public who feels he has been
unconstitutionally deprived of the information at issue. See
Wellons, 2014 WL 2748316, at *6 (holding that the purported
First Amendment right of public access to information about
the manufacturer of drugs used in an execution and the
identities of the executioners “turn[s] on the public’s, rather
than the individual’s, need to be informed so as to foster
debate”).
And, despite the impression offered by the majority’s
disposition, this litigation is not even about staying Wood’s
execution. Arizona now faces a difficult choice. The State can
continue to enforce its confidentiality statute and refrain from
executing Wood or anyone else until it prevails on the merits,
as seems quite likely. Or, the State can disclose the
information required by the majority and execute Wood,
knowing that it might be impossible to obtain the drugs
necessary to carry out future lawful executions once the
identity of the manufacturer is no longer confidential. Either
way, the First Amendment has been co-opted as the latest tool
in this court’s ongoing effort to bar the State from lawfully
imposing the death penalty.
54 WOOD V. RYAN
VII
The decision to inflict the death penalty is a grave and
solemn one that deserves the most careful consideration of
the public, the elected branches of government, and the
courts. We must be cognizant that a life is at stake. But we
cannot conflate the invocation of a constitutional right
belonging to the public at-large—such as the First
Amendment right of public access to certain proceedings and
documents—with a policy judgment about if and when the
death penalty ought to be imposed. In so doing, we usurp the
authority of the Arizona legislature and disregard the
instructions of the Supreme Court.
The district court did not abuse its discretion when it
denied Wood’s request for a preliminary injunction. I would
affirm the district court’s judgment.
I respectfully dissent.