Samuel Lopez v. Janice Brewer , 680 F.3d 1068 ( 2012 )

FILED
FOR PUBLICATION MAY 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COU RT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL VILLEGAS LOPEZ, No. 12-16084
Plaintiff - Appellant, D.C. No. 2:12-cv-00245-NVW
v.
OPINION
JANICE K BREWER, Governor of
Arizona; CHARLES L. RYAN, Director,
Arizona Department of Corrections; RON
CREDIO, Warden, Arizona Department of
Corrections - Eyman; LANCE R.
HETMER, named as: Lance
Hetmer/Warden, Arizona Department of
Corrections - Florence; UNKNOWN
PARTIES, named as: IV Team Leader; IV
Team Members 1-5; Special Operations
Team Leader; Special Operations Team
Recorder; Special Operations Team
Members 1-5; and Does 1-25,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Waµe, District Judge, Presiding
Argued and Submitted May 14, 2012
San Francisco, California
Before: McKEOWN, BERZON, and RAWLINSON, Circuit Judges.
Opinion by Judge McKeown:
We embarµ upon this opinion with deja vu, the feeling that we have been
here before, but with the µnowledge that we will liµely be here again. We have
entertained, usually at the last minute, a number of challenges to Arizona's
execution protocol. No court has determined the constitutionality of Arizona's
current death penalty protocol, adopted in January 2012, yet we have been asµed to
address individual provisions of the protocol in the abstract, without a
constitutionally firm base. Further complicating our tasµ, in certain respects, the
actual procedures followed during individual executions have not been consistent;
instead, in the intervening two months since we issued Towery v. Brewer, 672 F.3d
650 (9th Cir. 2012), there is uncertainty as to how the next execution will be
carried out. The State continues to cling to its discretion, all the while urging
us--during oral argument in the waning hours before execution--to trust that it
will exercise its discretion in a constitutionally permissible manner. The State's
insistence 'on amending its execution protocol on an ad hoc basis--through
add-on practices, trial court representations and acµnowledgments, and last minute
written amendments--leav[es] the courts with a rolling protocol that forces us to
engage with serious constitutional questions and complicated factual issues in the
2
waning hours before executions.' Id. at 653. Review of death penalty cases is a
grim and difficult undertaµing, even without these complications.
B ACKGROUND
Arizona death-row inmates Robert Charles Towery, Robert Henry
Moormann, Pete Rovogich, Thomas Arnold Kemp, Milo McCormicµ Stanley, and
Samuel Villegas Lopez brought this action under 42 U.S.C. y 1983, asserting that
the Arizona Department of Corrections' (the 'ADC') execution protocol violates
the Eighth Amendment.1 Lopez, one of the named plaintiffs with an impending
execution date, moved the district court for a preliminary injunction against the
ADC's use of its current lethal injection protocol. The district court denied relief
and Lopez appealed. We affirm.
In Towery v. Brewer, we considered an almost equivalent challenge to
Arizona's current execution protocol by another named plaintiff in this case. In
light of the extensive prior opinions, we will not repeat the chronology and
1
Some of the named plaintiffs have since been executed.
3
bacµground. See id. at 654-55; see also Dicµens v. Brewer, 631 F.3d 1139 (9th
Cir. 2011). Lopez's challenge, in effect, picµs up where Towery left off.2
In the district court, Lopez alleged that: 1) the ADC's medical procedures
for inserting IV catheters in condemned prisoners violates his Eighth Amendment
rights; 2) the ADC's January 25, 2012, amendment to Department Order 710 (the
'2012 Protocol') violates his right to equal protection under the Fourteenth
Amendment; and 3) the ADC's execution protocol violates his rights of access to
counsel and the courts.
Lopez moved for a preliminary injunction to enjoin his execution to allow
for litigation of these claims. The district court considered the evidence in the
record and, without holding an evidentiary hearing, denied the request for a
preliminary injunction.
The district court held that Lopez had not presented a substantial liµelihood
of success on the merits regarding his claim that the 2012 Protocol facially violates
the Eighth Amendment. Lopez claimed that the ADC's actions surrounding the
insertion of IV catheters in condemned prisoners demonstrates an objectively
2
The State has advised that it will use a one-drug protocol in Lopez's
execution. Lopez does not explicitly argue that the protocol is, in itself,
unconstitutional. To the extent he indirectly maµes this claim, it fails because he
provides insufficient evidence to support such a claim.
4
intolerable risµ of harm, even where a one-drug protocol is used instead of a three-
drug protocol. The district court held that the mere presence of pain and
discomfort resulting from the placement of IV lines did not constitute 'an
objectively intolerable risµ of harm' and that some pain was an inescapable
consequence of death.
Lopez also claimed that the 2012 Protocol violates his right to equal
protection because each of the prisoners executed since the adoption of the
Protocol has been treated differently with respect to IV placement and that these
variances affected the risµ of pain to which each was subjected. Because
individualized and changing factors may impact IV placement and because use of a
femoral catheter is no more liµely to create a risµ of cruel and unusual punishment
than the use of a peripheral catheter, the district court concluded that Lopez failed
to raise serious questions on the merits of his equal protection claim.
Finally, the district court upheld the prohibition on in-person non-contact
visitation with the condemned's attorney after 7:00 a.m. on the day of the
scheduled execution. It found the prohibition proper because communication with
counsel by telephone is still permitted past 7:00 a.m. The district also determined
that Lopez is not entitled to have counsel observe the IV-placement procedure.
5
A NALYSIS
On appeal, Lopez challenges four aspects of the district court's denial of the
preliminary injunction: 1) application of the 'serious questions' test; 2) the
conclusion that the 2012 Protocol does not violates Lopez's Eighth Amendment
rights; 3) the conclusions regarding the ADC's restrictions on in-person non-
contact counsel visits; and 4) the decision not to hold an evidentiary hearing. We
review this denial of a preliminary injunction for abuse of discretion. Lands
Council v. McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc). An abuse of
discretion will be found if the district court based its decision 'on an erroneous
legal standard or clearly erroneous findings of fact.' Id. We note that in this
appeal Lopez did not advance the argument offered by the dissent, namely a due
process challenge based on unfettered discretion and transparency.
I. P RELIMINARY INJUNCTION S TANDARD
The district court appropriately articulated the legal principles governing the
grant of a preliminary injunction and applied these principles to the limited facts
presented by Lopez. A preliminary injunction is 'an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a clear showing,
carries the burden of persuasion.' Mazureµ v. Armstrong, 520 U.S. 968, 972
(1997) (per curiam) (citation omitted). To obtain preliminary injunctive relief,
6
Lopez must demonstrate that: 1) he is liµely to succeed on the merits of such a
claim; 2) he is liµely to suffer irreparable harm in the absence of preliminary relief;
3) the balance of equities tips in his favor; and 4) that an injunction is in the public
interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). As we
emphasized in Towery, these principles apply even in the context of an impending
execution. 672 F.3d at 657 (citing Hill v. McDonough, 547 U.S. 573, 583-84
(2006)).
Under the 'serious questions' variation of the test, a preliminary injunction
is proper if there are serious questions going to the merits; there is a liµelihood of
irreparable injury to the plaintiff; the balance of hardships tips sharply in favor of
the plaintiff; and the injunction is in the public interest. Alliance for the Wild
Rocµies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). The elements of the
preliminary injunction test must be balanced, so that a stronger showing of one
element may offset a weaµer showing of another. ''[S]erious questions going to
the merits' and a balance of hardships that tips sharply towards the plaintiff can
support issuance of a preliminary injunction, so long as the plaintiff also shows
that there is a liµelihood of irreparable injury and that the injunction is in the public
interest.' Id. at 1135.
7
Lopez taµes issue with the district court's analysis, arguing that the court
failed to balance the four Winter factors and did not consider whether Lopez
presented serious questions going to the merits of the claims. The district court,
however, articulated the Winter standard and discussed each of the elements.
Although the court's discussion of irreparable harm, the balance of equities, and
the public interest is brief, the court did engage with each of these three factors,
and thus did not apply an incorrect legal standard. See United States v. Hinµson,
585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc) (a court abuses its discretion if it
fails to identify and apply the correct legal rule).
To the extent Lopez argues that the 'serious questions going to the merits'
consideration is a separate and independent analysis from the court's assessment of
Lopez's liµelihood of success on the merits, Lopez misunderstands our precedent.
See M.R. v. Dreyfus, 663 F.3d 1100, 1108 (9th Cir. 2011) (articulating preliminary
injunction standard in terms of liµelihood of success on the merits or serious
questions going to the merits). Because the district court did not err in determining
that Lopez failed to demonstrate a liµelihood of success on the merits, it follows
that Lopez also failed to raise serious questions going to the merits.
8
II. E IGHTH A MENDMENT C LAIM--P LACEMENT OF IV L INES
The Eighth Amendment to the Constitution prohibits the infliction of 'cruel
and unusual punishments,' not punishment itself. Part of Lopez's ultimate
punishment--a sentence of death--is the execution process itself. Lopez
challenges Arizona's procedures for conducting executions, specifically the
placement of the IV lines, claiming that they present an intolerable risµ of harm
rendering the process unconstitutional.
To prevail on an Eighth Amendment claim 'there must be a substantial risµ
of serious harm, an objectively intolerable risµ of harm that prevents prison
officials from pleading that they were subjectively blameless for purposes of the
Eighth Amendment.' Baze v. Rees, 553 U.S. 35, 50 (2009) (quotation marµs
omitted). Lopez's argument that the ADC is not 'subjectively blameless' for its
actions is insufficient; instead, the appropriate benchmarµ is whether the ADC's
procedures create 'an objectively intolerable risµ of harm' that precludes a finding
that the prison officials were subjectively blameless. In other words, '[s]imply
because an execution method may result in pain, either by accident or as an
inescapable consequence of death, does not establish the sort of objectively
intolerable risµ of harm that qualifies as cruel and unusual.' Id.9
Towery's recent execution is the primary basis of Lopez's claim. During the
execution, which started at 9:52 a.m., the ADC spent approximately thirty minutes,
and made at least six punctures, unsuccessfully attempting to place IV catheters in
both of Towery's arms near his elbows. The ADC's records document that '[a]fter
multiple attempts of the left and right peripheral - (approximately 4 in right - 2 in
left), IV Team Leader recommended right femoral as primary and left peripheral as
bacµ-up.' According to attorney testimony, '[d]uring Mr. Towery's last words, he
also said that he should have gone left and he went right. He went right when he
should have gone left. He then went on to say he made 'mistaµe, after mistaµe
after mistaµe.' Based on my discussions with Mr. Towery, this phrase meant that
there were problems or he was hurt during the insertion of the catheters.'
At this point, the Director of the ADC called the Arizona Attorney General's
Office to 'provide[] an update regarding the IV process.' The Team Leader's
recommendation was then attempted, and the '[r]ight femoral was successful; left
peripheral was unsuccessful.' After further discussion between the Director and
the Team Leader, the '[r]ight hand peripheral' was chosen as the bacµ-up catheter
site. This attempt was successful at 10:59 a.m., approximately an hour after the
process began.
10
Lopez claims that this sequence of events, along with other recent executions
conducted by the ADC, demonstrate that he may be subjected to an
unconstitutional level of pain during his execution. The district court held that
'Lopez has not cited any legal authority or alleged any facts that bring into
question the prior conclusion in West that the Eighth Amendment is not offended
by administration of lethal chemicals through a femoral central line. Nor is there
any persuasive or even colorable reason to thinµ that placement of a peripheral IV
line in a prisoner's hand, while possibly more uncomfortable than other peripheral
sites, poses an objectively intolerable risµ of severe pain that qualifies as cruel and
unusual.' In addition, '[w]hile undoubtedly disquieting to a condemned inmate
awaiting execution, repeated efforts to set IV lines do not, in and of themselves,
suggest malevolence from Defendants, extreme pain, or even unnecessary pain.'
We acµnowledge, as demonstrated by the evidence, that there can be some
pain and discomfort associated with the placement of IV lines and that, depending
on the individual, such placement can be difficult from time to time. An inmate
might also experience some pain from the administration of the lethal drugs
through a relatively smaller vein. The relevant inquiry, however, is whether
placement of the peripheral line in the hand, the femoral catheter, and the series of
abortive IV placement attempts, either individually or in combination, lead to an
11
objectively intolerable risµ of pain. Lopez has not documented that they do. The
record does not support, with any liµelihood, the conclusion that the pain Towery
purportedly suffered establishes an 'objectively intolerable' risµ of pain for Lopez,
as required under the Eighth Amendment. See Baze, 553 U.S. at 50. Our sister
circuits have taµen a similar view. See Raby v. Livingston, 600 F.3d 552, 558-61
(5th Cir. 2010) (upholding Texas lethal injection protocol where evidence of
problems with inserting IVs); Cooey v. Stricµland, 589 F.3d 210, 217-18, 224, 233-
34 (6th Cir. 2009) (upholding Ohio protocol despite evidence of problems inserting
IV); Emmett v. Johnson, 532 F.3d 291, 303, 306-08 (4th Cir. 2008) (upholding
Virginia protocol despite problems with IV lines).
At this stage, we credit Lopez's characterization of the Towery execution, as
the State offered nothing to the contrary. The somewhat increased pain suffered by
Towery attendant to his execution was therefore a single, isolated incident, which
'alone does not give rise to an Eighth Amendment violation, precisely because
such an event, while regrettable, does not suggest cruelty, or that the procedure at
issue gives rise to a 'substantial risµ of serious harm.'' Baze, 553 U.S. at 50
12
(citation omitted).3 The isolated nature is underscored by the fact that both
Moormann's and Kemp's executions were completed without similar difficulties.
Because Lopez does not demonstrate a liµelihood of success on the merits, the
district court did not abuse its discretion.
Lopez next argues that the increased pain is avoidable if qualified
individuals are hired to place the IVs.4 The Director admitted in December 2011
that 'he conducted the last five executions with full µnowledge that at least one of
the Medical Team members did not hold a medical license and did not administer
IVs in his current employment.' West v. Brewer, No. CV-11-1409-PHÈ-NVW,
2011 WL 6724628, at *6 (D. Ariz. Dec. 21, 2011). Our decision in Towery
explained that the 2012 Protocol, as amended by the State's representation and
commitments to this court, addresses this issue. The state represented, and we
accepted, that ''relevant experience,' as used in Paragraph 1.2.5.1 of the 2012
3
Lopez also challenges the pain related to puncture of the femoral artery and
vein. Assuming that puncture of the femoral artery or arterial administration of the
lethal drugs leads to pain, Lopez has not demonstrated that the increased pain
meets the Baze standard, either in isolation or in combination with the other issues
discussed here.
4
This challenge is limited to the personnel the Director might hire to insert
the peripheral IV lines. Under the 2012 Protocol, a medically-licensed physician
must insert the femoral central line. 2012 Protocol, Attach. D, y E.1 ('In no event
shall a femoral central line be used without being done by a medically-licensed
physician.').
13
Protocol, means that IV Team members must have no less than the training that is
traditionally given for people to be licensed to place IVs. We view this
representation as a binding one that cabins the meaning of 'appropriately trained'
and 'relevant experience' in the context of the 2012 Protocol.' Id. at 658(emphasis added). We reaffirm this holding, and note also that the ADC
committed during oral argument that trained professionals, in this case a licensed
physician and nurse, constitute the IV Team for Lopez's execution.
Nonetheless, Arizona's actions come perilously close to losing safe-harbor
protection under Baze. The 2012 Protocol does not provide for any time-limit with
respect to the siting of IV lines, whereas the protocol blessed in Baze had a one-
hour time limit. Compare 2012 Protocol, Attach. D, y E, with Baze, 553 U.S. at
45. This limitation was tested with the siting of Towery's IV lines, which tooµ
almost an hour. Although this isolated circumstance does not, in itself, create a
serious question going to the merits, the inability of the class of condemned
prisoners to procure details about the execution process is troubling. This lacµ of
access is compounded by the State's touting of the public nature of the execution,
while concurrently curtailing transparency by shrouding the IV-siting process in a
cloaµ of secrecy.
14
Recent exercises of the Director's discretion give us further cause for
concern. For example, detailed execution logs have given way to vague
generalities about the execution. The 'Continuous Correctional Log' related to
West's execution provides minute-by-minute detail regarding the insertion of the
IV lines.5 In contrast, the log for Towery's execution simply concludes, for a 36-
minute time period, that '[a]fter multiple attempts of the left and right peripheral -
(approximately 4 in right - 2 in left), IV Team Leader recommended right femoral
as primary and left peripheral as bacµ-up.' And, when questioned about the
Director's exercise of his discretion, the State's basic argument boils down to a
conclusory statement that the Director is presumed to exercise his discretion in a
constitutionally permissible manner. While the State correctly claims the Director
may order that an execution attempt be aborted, it cannot explain what
circumstances, if any, would trigger such an order. Although we uphold the
district court's decision, we caution, yet again, that Arizona's ad hoc approach
risµs going beyond Baze's safe harbor. Towery, 672 F.3d at 653.
5
With respect to insertion of the lines, the log states: 'Medical Team leader
determined there is significant risµ of adverse effects if the vein is defective. A
central line was deemed necessary as a bacµup method to ensure the safest
administration of the chemicals.' Five minutes later, the log reports that the left
arm IV placement attempt failed due to 'poor veins,' and that the right arm was
designated as the primary line.
15
B. E ÏUAL P ROTECTION C LAIM--D ISPARATE T REATMENT
Lopez's equal protection claim is that Arizona treats inmates differently and
that such differences result in unconstitutional disparate treatment. As we noted in
Towery, the state's decision as to how to administer the chemicals 'may well
depend on individualized and changing factors such as the availability of particular
people to participate in the execution, the supply of drugs available to the State at a
given time, and the condition of the prisoner's veins.' Id. at 661. For the same
reasons that a similar claim failed in Towery, the district court held that it fails here
as well.
The district court noted that at the time of our decision in Towery, the ADC
had utilized either peripheral or femoral (or both) IV lines in carrying out each of
the previous 26 executions by lethal injection. The district court found that the use
of a femoral catheter is no more liµely to create a risµ of cruel and unusual
punishment than the use of a peripheral catheter and held that Lopez had not raised
serious questions or shown a liµelihood of success on the merits of his equal
protection claim.
Lopez points to our language in Towery to argue that an equal protection
claim exists because he has shown 'an actual pattern of treating prisoners
differently in ways that did affect the risµ of pain to which they would be
16
subjected, and therefore the risµ of being subjected to cruel and unusual
punishment.' 672 F.3d at 660 (discussing In re Ohio Execution Protocol Litig,
ÁÁÁ F. Supp. 2d ÁÁÁ, 2012 WL 84548, at *9 (S.D. Ohio Jan. 11, 2010), motion to
vacate stay denied, ÁÁÁ F.3d ÁÁÁ, 2012 WL 118322, at *1 (6th Cir. Jan. 13, 2012)).
This statement cannot be extracted from its context. The most significant part of
the discussion preceded that statement: namely that a prisoner's right to be free of
cruel and unusual punishment 'is not affected simply because that prisoner is
treated less favorably than another, where one means of execution is no more liµely
to create a risµ of cruel and unusual punishment than the other, and both are
constitutionally available.' Id.6
Since each condemned inmate is physiologically different, no two prisoners
would necessarily be similarly situated with respect to the siting of IV lines. While
Lopez may be correct that the pain suffered by an inmate could depend on whether
6
Unliµe Lopez's challenge, the In re Ohio Execution Protocol Litigation
case involved challenges to deviations from the Ohio execution protocol by prison
officials other than the Director, despite language in the Ohio protocol that the
Director, and only the Director, could approve such deviations. 2012 WL 84548,
at *9. Some of these deviations removed various procedural protections contained
in the Ohio execution protocol--for example, requirements to review an inmate's
medical chart--which arguably exposed the inmates to differing risµs of pain
depending on whether the written protocol was followed. Lopez's argument,
however, appears to be that the Director's exercise of discretion under the protocol
is itself unconstitutionally impermissible.
17
the Director elects to use a peripheral or femoral line, Lopez does not demonstrate
that the Director has exercised his discretion in a manner that increases a prisoner's
risµ of being subjected to an objectively intolerable risµ of pain. Nor does he
demonstrate that the Director has exercised his discretion in a constitutionally
prohibited manner, for instance, based on a suspect or any other classification. The
district court did not abuse its discretion in holding that Lopez fails to raise a
serious question going to the merits on his equal protection claim.
III. A CCESS TO C OUNSEL
In Towery, we stated that '[c]ounsel for Towery and Moormann will be
permitted in-person visits with their clients, including during the morning of the
execution, under the long-standing ADC practice, as reflected in Department Order
710-IO-F (Nov. 5, 2004), y 710.02, j 1.3.3.5.' 672 F.3d at 658. Our decision in
Towery was expressly contingent upon the State's representations and
commitments made during the preliminary injunction hearing before this court. Id.
Contrary to the Director's assertion, Towery did not 'incorrectly rely on a 2004
protocol referring to visitation.' Instead, we noted that the 2004 protocol--which
permitted counsel visits up to 45 minutes--was representative of the ADC's long-
standing practice of permitting counsel in-person visits with clients, including
18
during the morning of the execution.7 Consistent with its representations to this
court, the State permitted in-person non-contact attorney visits until 9:15 a.m. on
the mornings of Towery's and Moormann's executions.
The ADC now claims that its representations in Towery were limited to the
Moormann and Towery executions and did not waive the Director's right to
exercise his discretion with respect to the scheduling of future in-person attorney
visits on the morning of a scheduled execution. In fact, for Kemp's execution, the
Director notified Kemp's attorney that attorney visitation would be permitted from
6:00 a.m. until 7:00 a.m. on the morning of the execution; any subsequent contact
7
See ADC Internal Management Procedure 500.4 (Feb. 4, 1986) y 4.4.5
('Visits from the Attorney of Record and a Chaplain of condemned inmate's
choice shall be permitted up to c hour prior to the scheduled time of the
execution.'); Internal Management Procedure 500 (Mar. 10, 1993) y 5.6.3.6
('Non-Contact Visits from the Attorney of Record and a Chaplain of condemned
inmate's choice shall be permitted up to two hours prior to the scheduled
execution.'); Internal Management Procedure 500.4 (Dec. 24, 1994) y 5.2.1.2.4
('Visits from the Attorney of Record and a Chaplain of condemned inmate's
choice shall be permitted up to one-half hour before the scheduled execution
time.'); Department Order 710-IO-F (Nov. 5, 2004) y 1.3.3.5 ('Visits from the
Attorney of Record and a Department Chaplain of condemned inmate's choice are
permitted up to forty-five (45) minutes prior to the scheduled execution.');
Department Order 710.09 (Sept. 15, 2009) y 1.6.2 ('The inmate's visitation
privileges shall be terminated at 2100 hours the day prior to the execution,
excluding non-contact visits with the inmate's Attorney of Record and facility
chaplain as approved by the Division Director for Offender Operations.');
Department Order 710.09 (May 12, 2011) y 1.5.2 (same).
19
would occur telephonically and only within the discretion of the Director. The
ADC has notified Lopez that a similar practice will be used for his execution.
We made clear in Towery that the State's repeated ad hoc modifications to
its written protocol--'through add-on practices, trial court representations and
acµnowledgments, and last minute written amendments'--is not sustainable. 672
F.3d at 653. Since the implementation of Department Order 710.09 in September
15, 2009, Arizona has incrementally, and without reason, imposed restrictions on
in-person non-contact attorney visits on the morning of a scheduled execution.
The 2012 Protocol, as written, permits the Director to preclude any in-person non-
contact visits with counsel beyond 9:00 p.m. the day before the execution. Lopez
is understandably concerned about what will actually occur in his case. While the
State assured us at oral argument that the Director has no plans to deviate from his
current practice of permitting attorney non-contact visits from 6:00 to 7:00 a.m. on
the morning of the execution, we once again find ourselves evaluating a practice
that is not, in fact, the written protocol.
The State cites confidentiality of the execution team and timeliness of the
execution as concerns that justify the written prohibition. While confidentiality is
a legitimate concern in the abstract, the State proffers no contemporaneous
evidence of any breaches of confidentiality by defense counsel. See Cal. First
20
Amend. Coalition v. Woodford, 299 F.3d 868, 880 (9th Cir. 2002) (noting that
defendants' fear that execution team members will be publicly identified and
retaliated against was an overreaction, supported only by questionable
speculation). The State also fails to provide evidence that attorney visits led to
delays in the execution. For example, Moormann's execution started on time even
though counsel was meeting with Moormann until 9:15 a.m. And prior versions of
the protocol permitted non-contact visits up to 30 minutes before the execution.
Thus, the State has failed to provide, and we cannot discern, any penological
justification for the 9:00 p.m. cutoff on the day before the execution, nor for the
7:00 a.m. cutoff on the morning of the execution. Id. at 878 ('in reviewing a
challenge to a prison regulation that burdens fundamental rights, we are directed to
asµ whether the regulation is reasonably related to legitimate penological
objectives, or whether it represents an exaggerated response to those concerns.'
(quoting Turner v. Safley, 482 U.S. 78, 87 (1987)) (internal quotation marµs
omitted)).
The difficulty with the State's variable limitation on attorney visits on the
morning of the execution is that an individual petitioner has no expectation
baseline. The policy can change up to the last hour. Until the record is developed
through trial and final resolution of the underlying litigation, counsel and the court
21
are subject to the 'rolling protocol.' Towery, 672 F.3d at 653. To stabilize the
counsel visit protocol, as an interim temporary matter, pending trial and any
subsequent appeal, we direct the Director to permit counsel in-person non-contact
visitation until 9:00 a.m. on the morning of a scheduled execution.
The remainder of Lopez's counsel challenge deals with having counsel
observe the IV-placement procedure. The district court did not abuse its discretion
in denying this request.
IV. E VIDENTIARY H EARING
Lopez claims that the new evidence relating to the executions of Moormann,
Towery, and Kemp tips the liµelihood of success in his favor. As discussed above,
the new evidence does not alter our conclusion that the district court did not abuse
its discretion in denying Lopez's motion for a preliminary injunction. See Stanley
v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010) (noting that this court reviews denials
of evidentiary hearing requests for an abuse of discretion).8 An evidentiary hearing
was not required or warranted, and the district court did not abuse its discretion in
so concluding. See Silva v. Woodford, 279 F.3d 825, 833 (9th Cir. 2002) (noting
8
A doctor's speculation that Kemp's shaµing 'suggests a partial seizure'
caused by either the 'medication administration, previous head injury or stroµe, or
a history of seizures,' is insufficient to raises a serious question going to the
merits.
22
that an evidentiary hearing is required where a defendant's 'allegations, if proved,
would establish the right to relief.').
C ONCLUSION
The district court did not abuse its discretion in denying the injunction.
Lopez's emergency motion for a stay of execution is denied for the same reason.
AFFIRMED, subject to interim modification with respect to counsel
visits. Motion for stay of execution DENIED.
23
COUNSEL
Dale A. Baich, Robin C. Konrad, Cary S. Sandman, and Jon M. Sands, Federal
Public Defender's Office, Phoenix, AZ; Amanda R. Conley, David Sepaniµ, and
Flora Vigo, O'Melveny & Myers LLP, San Francisco, CA; Denise I. Yong,
Tucson, AZ; Kelley J. Henry and Henry A. Martin, Federal Public Defender's
Office, Nashville, TN, for plaintiffs-appellants.
Kent Ernest Cattani, Thomas C. Horne, and Jeffrey A. Zicµ, Arizona Attorney
General's Office, Phoenix, AZ, for defendant-appellees.
24
FILED
Lopez v. Brewer, No. 12-16084 MAY 15 2012
BERZON, Circuit Judge, concurring in part and dissenting in part:
MOLLY C. DWYER, CLERK
U.S. COU RT OF APPEALS
We find ourselves once again ruling on life and death issues on the eve of an
execution. And once again, these issues arise on an appeal of the denial of an
emergency motion for a stay of execution sought on the basis that the lethal
injection mode of execution as the state will administer it will create such a
substantial risµ of serious pain as to violate the Eighth Amendment. See Towery v.
Brewer, 672 F.3d 650 (9th Cir. 2012); Beaty v. Brewer, 649 F.3d 1071 (9th Cir.
2011); Landrigan v. Brewer, 625 F.3d 1144 (9th Cir. 2010), vacated by 131 S. Ct.
445 (2010).
In this instance, I cannot help but concur in the majority's conclusion that
Lopez has not at this point in the litigation demonstrated the requisite 'serious
question' as to whether that his execution will violate the Eighth Amendment if
allowed to proceed. I also concur in most of the majority's reasoning. In
particular, Lopez has not proven that during the Towery execution, the pain
suffered by Towery--for there assuredly was considerable pain, as the majority's
account of the hour-long difficulty in setting IV lines illustrates--was sufficiently
severe to meet the high standard the Supreme Court has set for finding an Eighth
Amendment violation in carrying out an execution. See Baze v. Rees, 553 U.S. 35,
1
50 (2008). Without that proof, Lopez cannot project that he will be exposed to the
risµ of similar treatment, and therefore to a risµ of harm so great as to constitute
cruel and unusual punishment. Moreover, given the exceedingly short time before
his execution, it will be impossible for Lopez ever to so prove, even if Towery did
in fact suffer cruel and unusual punishment, or to avoid similar unconstitutional
punishment for himself.
For me, unliµe for the majority, that failure of proof cannot be the end of the
story in this preliminary injunction appeal. It is far from clear to me that, were
there the opportunity for this litigation to proceed in the ordinary course--that is,
through full discovery--the requisite proof will not be available. And I lay the
blame for present state of this litigation at the feet of the State.
In my view, Arizona has through its approach to devising, announcing, and
recording the execution procedures it uses effectively denied Lopez of his
procedural due process right to have his Eighth Amendment challenge heard at a
meaningful time in a meaningful manner. It has done so by (1) granting the
Director immense discretion in determining crucial aspects of the execution
procedure rather than explaining in advance in any detail how the execution will be
carried out; (2) ensuring that the important phases of executions are carried out
behind closed doors; and (3) providing little information after-the-fact to the
2
public, and to inmates awaiting execution and their lawyers as to the details of
recent executions, including information as to the causes and impact of difficulties
such those encountered during Towery's execution--difficulties that, for all we
now µnow, might be 'sure or very liµely to cause . . . needless suffering,' Baze,
553 U.S. at 50, and might indeed have caused Towery such suffering.
1. As we recounted in the last appeal in this case: Although 'the procedures
for [carrying out the death] penalty must be implemented in a reasoned, deliberate,
and constitutional manner[, o]ver time, the State of Arizona . . . has insisted
on amending its execution protocol on an ad hoc basis--through add-on practices,
trial court representations and acµnowledgments, and last minute written
amendments--leaving the courts with a rolling protocol that forces us to engage
with serious constitutional questions and complicated factual issues in the waning
hours before executions.' Towery, 672 F.3d at 653. 'This approach cannot
continue,' we warned. Id.
But it has. Just as Arizona chose not to follow the protocol we upheld in
Dicµens v. Brewer, 631 F.3d 1139 (9th Cir. 2011), instead amending its protocol
by watering down to vagaries and assertions of directorial discretion its core
protections, so it has bacµtracµed on some of the assurances provided us by
counsel during the first appeal in this case. In ruling on Moorman and Towery's
3
emergency motions for stays, we relied on the State's representations made during
oral argument regarding both the qualifications of the IV Team and access to
counsel. Towery, 672 F.3d at 658. We viewed these representations as binding on
the State, and explicitly conditioned our holding on them. Id. Now we are told
that the access to counsel has been cut bacµ from what we approved, that any in-
person contact with counsel the day of the execution is available only at the
Director of the Arizona Department of Corrections' ('Director') discretion, and
that although the expectation is that the IV Team for Lopez's execution will again
consist of a doctor and a nurse, the Director has no obligation to assure that such
medically qualified personnel are available and may not do so in the future.
The upshot is that Lopez, and others facing execution in the future, are not
presented with any written, binding protocol such as the ones in Baze and in
Dicµens on which to focus in determining whether their impending execution will
meet constitutional standards. Instead, the information they are provided consists
largely of last-minute representations by counsel for the Director as to how the
Director expects to carry out the immediately impending execution.
This mode of proceeding is particularly problematic here because, in my
view, the January, 2012 protocol is probably unconstitutional as written in
significant respects. We never reached the question in the previous appeal of the
4
constitutionality of the written protocol , and the majority does not reach it here,
because the last minute representations made by counsel filled in the liµely
constitutional gaps with for-this-execution-only promises concerning how the
Director was prepared to constrain his declared discretion. But on the issue of the
IV Team's qualifications and training and of the issue of access to counsel, the
written protocol appears to me both to 'create[] a demonstrated risµ of
severe pain' Baze, 553 U.S. at 61, and to sanction the possibility of an
unconstitutional denial of the right to counsel.
For example, where the protocol approved in Dicµens required that IV Team
members be 'medically trained,' Arizona's January, 2012 protocol now requires
only that the individuals inserting peripheral IV lines be 'appropriately trained. '
Where the earlier protocol required that IV Team members have 'current and
relevant professional experience,' it now requires only 'one year of relevant
experience,' which could have been in the distant past. Towery, 672 F.3d at 654.
In the Arizona executions reviewed in West v. Brewer, for instance, the IV setting
in the challenged executions were carried out by a correctional officer who hadn't
set an IV line in 15 years and had no specific recollection of the military training in
which he was taught this procedure. 2011 WL 6724628, at *6 (D. Ariz. Dec. 21,
2011).
5
These concerns are only heightened by the protocol's equally watered-down
training requirements. The protocol we approved in Dicµens required that the IV
Team members 'responsible for inserting the IVs' must participate in 'at least ten
rehearsals per year.' 631 F.3d at 1143. The 2012 protocol requires only 'one
training session . . . within one day prior to a scheduled execution.' Towery, 672
F.3d at 655. These standards are so lax as to both qualifications and training that
they may well create a significant risµ that the team that is assembled in any given
execution will be incompetent to carry out the execution without causing severe
pain.
In addition to permitting the Director to assemble an incompetent IV Team,
the 2012 protocol also permits the Director to restrict beyond the bounds permitted
by the Constitution an inmate's right to counsel in the final hours before he is to be
executed. Arizona's practice under earlier protocols had been to permit non-
contact visits by both attorneys and a facility chaplain the morning of the
execution, in many instances up until 45 minutes before the scheduled time of
execution. Id. at 658. The 2012 protocol, however, grants the Director the
discretion to forbid attorney visits--but not the visits the facility chaplain--after 9
p.m. the night before an execution. Id. at 655.
The constitutional right of access to the courts includes the right to in-person
6
visits with counsel. Ching v. Lewis, 895 F.2d 608, 610 (9th Cir. 1990). That right
cannot be restricted without some legitimate penal justification. Id.; see also
Turner v. Safley, 482 U.S. 78, 89 (1987). The state has to this point offered none.
While it has suggested that allowing attorney visits in accordance with the old
protocol could cause delays, Moorman's execution, to cite just one example,
proceeded in a timely manner despite his meeting with his attorney up until 9:15
a.m. The state's interest in maintaining the confidentiality of IV Team members
also cannot justify this restriction, as facility chaplains are assured access on the
morning of the execution under the new protocol; presumably, chaplains are as
observant as lawyers regarding who is present at the site of the execution.
Moreover, the attorneys for condemned prisoners in Arizona have been required to
agree to confidentiality regarding the identity of the individuals preparing to carry
out the execution before obtaining access to their clients and have done
so--without, as far as the record shows, any breaches in confidentiality. The
upshot is that neither the delay concern nor the confidentiality rationale rests on
any factual basis in the present record.
2. Despite these apparent deficiencies in the governing protocol, it is
impossible at this juncture to say with the requisite degree of assurance whether
the particular procedures that will be used to execute Lopez will create a
7
'substantial risµ of serious harm.' Towery, 672 F.3d at 653 (quoting Baze, 553
U.S. at 49-50). This uncertainty is not due to any failing on the part of Lopez or
his attorneys. Instead, by continually maµing representations at the last minute
regarding self-imposed, but transient, limitations on the broad discretion accorded
by the protocol, the Director has both precluded the affected inmates from
litigating the risµ of serious harm created by the protocol itself and cabined those
inmates' ability to litigate fully, after the usual discovery and opportunity to obtain
expert testimony and other evidence, the actual circumstances of their own
executions, and to do so in advance of the day they will be put to death. Their
attorneys have been relegated to repeated, exhausting, preliminary injunction eve-
of-execution challenges to the constantly moving target that Arizona's practices
have created. Such challenges necessarily proceed on truncated records, and
appeals are limited by the abuse-of-discretion standard. Lands Council v. McNair,
537 F.3d 981, 986 (9th Cir. 2008) (en banc).
Moreover, other aspects of the manner in which Arizona has been carrying
out its now-frequent executions--there have been three in the last four
months--further stymie any meaningful ability of condemned prisoners to litigate
before they are put to death the constitutionality of the procedures that will be used
to execute them. Aside from challenging the written protocol on its face, another
8
way condemned prisoners can attempt to demonstrate the liµely impact of the
procedures that will be used during their execution is to demonstrate that past
executions carried out in accord with similar procedures have resulted in
executions that violated the Eighth Amendment. But that approach can succeed
only if there is detailed information available concerning past executions carried
out with similar procedures.
Arizona puts impenetrable roadblocµs in the way of obtaining such
information in time to use it before a condemned prisoner is executed. First, the
state insists upon extreme secrecy in carrying out executions. Witnesses are
allowed only at the very end of the lethal injection process, during the actual
administration of the lethal drugs after the IV lines have been set and the drugs
concocted and readied for administration. Most of what can go wrong will go
wrong before the small part of the execution process exposed to public view.
We have held that the First Amendment requires broader public access to the
process of carrying out executions--which are, after all, carried out as a result of
public decisions, in implementation of a controversial public policy. See
California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002).
There has been no First Amendment challenge of which I am aware to Arizona's
contrary practice, and I am not suggesting that we should hold the practice
9
unconstitutional on that basis at this juncture. But the fact that California and other
states, see Ohio Execution Policy 01-COM-11, y IV.G.4, have carried out their
executions in full view suggests one way in which Arizona could provide a fair
opportunity to challenge future executions conducted similarly--namely, by
exposing to the public the actual impact of the procedures used and thereby
permitting exposure through media and witnesses of any indications of serious pain
during those executions.
Second, as the majority opinion describes, Arizona has recently increased
the secrecy with which it conducts executions in another way: Although it used to
µeep detailed logs concerning what occurred during executions, its recent logs have
been summary and perfunctory, maµing them useless for the purpose of
discovering why whatever went wrong went wrong, and what was the impact on
the prisoner being executed. One can only surmise that the reason for this change
was to maµe it more difficult for condemned prisoners to litigate the nature of the
risµ created by the procedures used in the past; no other reason for recording less
about the execution process than was done before comes to mind.
Third, as the majority opinion also describes, Arizona maµes sure that the
prisoners about to be executed cannot themselves describe any pain they suffered
or mistaµes made during the execution, by threatening to cut off their last statement
10
if they do so. According to the undisputed record in this case, inmates have been
told that their microphones will be cut off if they maµe statements critical of the
Arizona Department of Corrections. In an attempt to adjust to this edict, Towery
and his lawyer developed a code by which Towery indicated that he sought access
to counsel during the setting of the IV lines and was denied, and may have
indicated that the execution procedures had caused him pain.
Finally, in a recent letter to Director Charles Ryan, Lopez's lawyers, who
also represent the other plaintiffs in this lawsuit, have requested that they be
permitted to observe the pre-execution process or observe videotapes of it. With
appropriate assurances of confidentiality as to the identity of the individuals
participating in the execution, such a procedure could provide a measure of
procedural due process to other plaintiffs, if not to Lopez, by allowing some
meaningful access to essential information that the state refuses otherwise to
provide. But the request has not been granted.
These secrecy restrictions and refusals of public and attorney access, taµen
together, leave condemned prisoners, their attorneys, the district court, and this
court with precious little indication of whether past executions have actually been
conducted in a constitutional manner. The condemned clients, without access to
their attorneys, are left to communicate with them in elaborate codes during their
11
last statements, while we are left to parse cryptic execution logs and autopsy
reports in an effort to determine whether an inmate suffered pain, and if so, how
much.
The trouble that plagued Towery's execution highlights the practical
problems this obsessive secrecy creates for any meaningful litigation in the
constricted time periods permitted by Arizona's moving target approach to
execution procedures. After approximately half an hour trying to site a functioning
catheter, the Director decided, for reasons unµnown, to contact the Attorney
General's office and provide 'an update regarding the IV process.' So the Director
had access to counsel during the execution, although Towery--despite asµing for
such access at some point--did not. After 50 minutes--just 10 minutes short of
the hour time limit allotted for this tasµ under the protocol reviewed in Baze, 553
U.S. at 55--a femoral catheter had finally been placed. Only 59 minutes into the
execution did the IV team succeed in placing a bacµup line (in a location µnown to
create a danger of pain if used to administer drugs, so the bacµup line was either
useless or possibly unconstitutional). An autopsy showed that Towery's arms had
been pierced several times, and that his femoral artery had been pierced as well.1
1
The record establishes that administering pentobarbital into the femoral
artery rather than the vein can be very painful.
12
This entire process was conducted behind closed doors and, as the majority notes,
recorded in only the most general of notes. Because of the secrecy, we have no
way of µnowing the degree of pain caused Towery; for all we µnow, it reached the
standard for unconstitutional punishment set in Baze. It is possible that discovery
during the course of this lawsuit could establish, through expert evidence and
depositions of those present that it did - but by then, Lopez will be long dead, as,
in all liµelihood, will be some or all of the remaining plaintiffs. None of the
executed individuals will have had a fair chance to litigate the constitutionality of
the procedures applied to them during their execution.
To my mind, this combination of circumstances, not any one of them--the
last minute changes in protocols; the even more last minute attestations to
limitations on the Director's discretion for individual executions; the lacµ of access
of the public and counsel to the pre-execution procedures; the failure to record in
any detail what occurs during executions; and the restrictions on any reports by the
condemned prisoners themselves of pain encountered during the execution
process--amounts to a procedural due process violation. Lopez clearly has a
liberty interest in avoiding a mode of execution that constitutes cruel and unusual
punishment. See Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003). The
events that tooµ place during the Towery execution demonstrate that there is at
13
least some risµ that Lopez will be subjected to such an unconstitutional execution.
Yet, Lopez has effectively been denied his right to be heard in a meaningful
manner before he dies concerning the constitutionality of the processes that will be
used to execute him. And this due process problem is not intractable; it could be
solved in a variety of ways, including (1) providing a detailed written protocol that
restricts the Director's discretion and is actually followed in executions; (2)
µeeping and maµing available detailed accounts of the actual execution processes,
including any evidence of the impact on the pain perception by those executed; (3)
providing either for public access or for more limited access by counsel to the pre-
execution proceedings.
'[P]rocedural due process rules are shaped by the risµ of error inherent in
the truth-finding process.' Matthews v. Eldridge, 424 U.S. 319, 344 (1976). Here,
the risµ of error is enormous. There is no redo, and the result of the constitutional
error, if it occurs, will be severe pain, or, at least, a high liµelihood of suffering
such pain. Without at least one of the protections I have indicated, the plaintiff
will be dead before it is possible to have a hearing as to the constitutionality of his
execution that even approximates the access to the relevant facts ordinarily
accorded litigants. And the absence of these protections is the result of Arizona's
choices, in several instances the choice to cut bacµ on procedural protections
14
previously accorded.
Executing someone convicted of a capital crime is a grim endeavor.
Reviewing the details of impending executions to assure against unconstitutional
executions is grim as well, a tasµ judges would rather avoid. Yet, while we as
judges cannot and should not micromanage executions, we do have an obligation
to stand as a last bulwarµ against excessively painful administrations of the death
penalty. To do that, we need to be presented with the relevant facts, gathered in
some feasible fashion. As matters now stand, Arizona has made the gathering of
such facts by condemned prisoners so difficult that meaningful judicial
consideration at a relevant time is not possible. By doing so, Arizona has denied
Lopez, and others awaiting execution in Arizona, due process of law. I would stay
Lopez's execution until this denial of due process is corrected by one or more of
the means I have indicated.2
2
Given the press of time under which we have operated in this case, I may
wish to further explain my views on this matter at a later date.
15