Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 1 of 31
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:14−cv−01447−NVW

CASREF,DTE

Wood et al v. Ryan et al Assigned to: Senior Judge Neil V Wake Related Case: 2:11−cv−01409−NVW
Case in other court: Ninth Circuit, 14−16310
Ninth Circuit, 17−16330 − Mandate 11/05/19 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 06/26/2014 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Joseph Rudolph Wood, III TERMINATED: 09/18/2014

represented by Aimee G Mackay Sidley Austin LLP − Los Angeles, CA 555 W 5th St., Ste. 4000 Los Angeles, CA 90013 213−896−6000 Fax: 213−896−6600 Email: amackay@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alycia Ann Degen Sidley Austin LLP − Los Angeles, CA 555 W 5th St., Ste. 4000 Los Angeles, CA 90013 213−896−6000 Fax: 213−869−6600 Email: adegen@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Collin Partington Wedel Sidley Austin LLP − Los Angeles, CA 555 W 5th St., Ste. 4000 Los Angeles, CA 90013 213−896−6649 Fax: 213−896−6600 Email: cwedel@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dale A Baich Federal Public Defenders Office − Phoenix 850 W Adams St., Ste. 201 Phoenix, AZ 85007 602−382−2816 Fax: 602−889−3960 Email: dale_baich@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua E Anderson Sidley Austin LLP − Los Angeles, CA 555 W 5th St., Ste. 4000 Los Angeles, CA 90013

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213−896−6000 Fax: 213−896−6600 Email: janderson@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lauren Ann McCray Sidley Austin LLP − Los Angeles, CA 555 W 5th St., Ste. 4000 Los Angeles, CA 90013 213−896−6000 Fax: 213−896−6600 Email: lmccray@sidley.com TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E Haddad Sidley Austin LLP − Los Angeles, CA 555 W 5th St., Ste. 4000 Los Angeles, CA 90013 213−896−6000 Fax: 213−896−6600 Email: mhaddad@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robin C Konrad Federal Public Defenders Office 850 W Adams St Ste 201 Phoenix, AZ 85007 602−382−2700 Fax: 602−382−2800 Email: robin_konrad@fd.org TERMINATED: 04/05/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Graham S Henry

represented by Aimee G Mackay (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alycia Ann Degen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amanda V Lopez Sidley Austin LLP − Los Angeles, CA 555 W 5th St., Ste. 4000 Los Angeles, CA 90013 213−896−6000 Fax: 213−896−6600 Email: alopez@sidley.com TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Collin Partington Wedel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dale A Baich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Lynn Felker Federal Public Defenders Office − Phoenix 850 W Adams St., Ste. 201 Phoenix, AZ 85007 602−382−2772 Email: Jessica_Felker@fd.org TERMINATED: 07/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua E Anderson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine A Roberts Sidley Austin LLP − Los Angeles, CA 555 W 5th St., Ste. 4000 Los Angeles, CA 90013 213−896−6000 Fax: 213−896−6600 Email: kate.roberts@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Ann McCray (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E Haddad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Light Sidley Austin LLP − Los Angeles, CA 555 W 5th St., Ste. 4000 Los Angeles, CA 90013 213−896−6000 Fax: 213−896−6600 Email: mlight@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robin C Konrad (See above for address)

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TERMINATED: 04/05/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff David Gulbrandson

represented by Aimee G Mackay (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alycia Ann Degen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amanda V Lopez (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Collin Partington Wedel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dale A Baich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Lynn Felker (See above for address) TERMINATED: 07/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua E Anderson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine A Roberts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lauren Ann McCray (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E Haddad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Matt Light (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robin C Konrad (See above for address) TERMINATED: 04/05/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Todd Smith

represented by Aimee G Mackay (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alycia Ann Degen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amanda V Lopez (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Collin Partington Wedel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dale A Baich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Lynn Felker (See above for address) TERMINATED: 07/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua E Anderson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine A Roberts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lauren Ann McCray (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Mark E Haddad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matt Light (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robin C Konrad (See above for address) TERMINATED: 04/05/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Charles M Hedlund

represented by Aimee G Mackay (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alycia Ann Degen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amanda V Lopez (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Collin Partington Wedel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dale A Baich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Lynn Felker (See above for address) TERMINATED: 07/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua E Anderson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine A Roberts (See above for address)

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 7 of 31

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lauren Ann McCray (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E Haddad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matt Light (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robin C Konrad (See above for address) TERMINATED: 04/05/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Eldon Schurz named as: Eldon Schurz

represented by Aimee G Mackay (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alycia Ann Degen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amanda V Lopez (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Collin Partington Wedel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dale A Baich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Lynn Felker (See above for address) TERMINATED: 07/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 8 of 31

Joshua E Anderson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine A Roberts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lauren Ann McCray (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E Haddad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matt Light (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robin C Konrad (See above for address) TERMINATED: 04/05/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
First Amendment Coalition of Arizona Incorporated TERMINATED: 05/18/2016

represented by Aimee G Mackay (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alycia Ann Degen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Collin Partington Wedel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dale A Baich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua E Anderson (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 9 of 31

ATTORNEY TO BE NOTICED

Lauren Ann McCray Sidley Austin LLP − Los Angeles, CA 555 W 5th St., Ste. 4000 Los Angeles, CA 90013 213−896−6633 Fax: 213−896−6600 Email: lmccray@sidley.com TERMINATED: 10/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E Haddad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robin C Konrad (See above for address) TERMINATED: 04/05/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Robert Poyson

represented by Aimee G Mackay (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alycia Ann Degen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Collin Partington Wedel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dale A Baich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Lynn Felker (See above for address) TERMINATED: 07/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua E Anderson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine A Roberts (See above for address) LEAD ATTORNEY

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 10 of 31

PRO HAC VICE ATTORNEY TO BE NOTICED

Mark E Haddad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matt Light (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robin C Konrad (See above for address) TERMINATED: 04/05/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Roger Scott

represented by Aimee G Mackay (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alycia Ann Degen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Collin Partington Wedel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dale A Baich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Lynn Felker (See above for address) TERMINATED: 07/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua E Anderson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine A Roberts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mark E Haddad

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 11 of 31
(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Light (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robin C Konrad (See above for address) TERMINATED: 04/05/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Charles L Ryan Director of the Arizona Department of Corrections

represented by David Daniel Weinzweig Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−7989 Fax: 602−364−2214 TERMINATED: 02/02/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Lee Sparks Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−4686 Email: jeffrey.sparks@azag.gov TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Alan Zick Office of the Attorney General 1275 W Washington St Phoenix, AZ 85007 602−542−8594 Fax: 602−542−4849 Email: cadocket@azag.gov TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Pressley Todd Office of the Attorney General Capital Litigation Section 1275 W Washington St. Phoenix, AZ 85007−2997 602−542−8590 Fax: 602−542−4849 Email: john.todd@azag.gov TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Ann Done

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Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−4686 Email: julie.done@azag.gov TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lacey Stover Gard Office of the Attorney General Capital Litigation Section 400 W Congress St., Ste. S315 Tucson, AZ 85701−1367 520−628−6520 Email: lacey.gard@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Oramel Horace Skinner Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−8327 Fax: 602−542−4377 Email: o.h.skinner@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keith Joseph Miller Office of the Attorney General − Phoenix 1275 W Washington St. Phoenix, AZ 85007−2997 602−542−8594 Fax: 602−542−8308 Email: keith.miller@azag.gov ATTORNEY TO BE NOTICED

Matthew H Binford − Inactive Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−4686 Email: matthew.binford@azag.gov TERMINATED: 04/22/2015

Defendant
Ron Credio Warden, ASPC − Eyman TERMINATED: 01/29/2016

represented by Jeffrey Lee Sparks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Alan Zick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Pressley Todd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lacey Stover Gard (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Patrice Chiasson Office of the Attorney General 400 W Congress St., Ste. S315 Tucson, AZ 85701 520−628−6656 Fax: 520−628−6878 Email: laura.chiasson@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew H Binford − Inactive (See above for address) TERMINATED: 04/22/2015

Defendant
Lance Hetmer Warden, ASPC − Florence TERMINATED: 09/18/2014

represented by Jeffrey Lee Sparks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Alan Zick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Pressley Todd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lacey Stover Gard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Patrice Chiasson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keith Joseph Miller (See above for address) ATTORNEY TO BE NOTICED

Matthew H Binford − Inactive (See above for address) TERMINATED: 04/22/2015

Defendant
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

Defendant
Janice Brewer Governor; named as Jan M. Brewer in the Amended Complaint TERMINATED: 01/29/2016

represented by Jeffrey Lee Sparks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant
Greg Fizer Warden, ASPC−Florence

Jeffrey Alan Zick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Pressley Todd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lacey Stover Gard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Patrice Chiasson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew H Binford − Inactive (See above for address) TERMINATED: 04/22/2015
represented by David Daniel Weinzweig (See above for address) TERMINATED: 02/02/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Lee Sparks (See above for address) TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Alan Zick (See above for address) TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Pressley Todd (See above for address) TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Ann Done (See above for address) TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith Joseph Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lacey Stover Gard (See above for address) LEAD ATTORNEY

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 15 of 31

ATTORNEY TO BE NOTICED

Laura Patrice Chiasson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Oramel Horace Skinner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew H Binford − Inactive (See above for address) TERMINATED: 04/22/2015

Defendant
James O'Neil Warden

represented by David Daniel Weinzweig (See above for address) TERMINATED: 02/02/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Lee Sparks (See above for address) TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Pressley Todd (See above for address) TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Ann Done (See above for address) TERMINATED: 08/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lacey Stover Gard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Oramel Horace Skinner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keith Joseph Miller (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/26/2014

# Docket Text
1 PRISONER CIVIL RIGHTS COMPLAINT. Filing fee received: $400.00, receipt number 0970−10605488 filed by David Gulbrandson, Charles M Hedlund, Todd Smith, Eldon Schurz, Graham S Henry, Joseph Rudolph Wood, III. (submitted by Dale Baich) (Attachments: # 1 Civil Cover Sheet)(REK) (Entered: 06/26/2014)

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06/26/2014 06/26/2014 06/26/2014 06/26/2014
07/02/2014 07/02/2014 07/02/2014 07/02/2014 07/02/2014 07/02/2014 07/02/2014
07/03/2014 07/03/2014 07/07/2014 07/08/2014 07/09/2014

2 SUMMONS Submitted by David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith, Joseph Rudolph Wood, III. (submitted by Dale Baich) (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(REK) (Entered: 06/26/2014)
3 NOTICE OF ASSIGNMENT: (REK) (Entered: 06/26/2014)
4 Summons Issued as to Ron Credio, Lance Hetmer, Charles L Ryan. (Attachments: # 1 Summons, # 2 Summons)(REK). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 06/26/2014)
5 NOTICE TO FILER OF DEFICIENCY re: 1 Complaint filed by Graham S Henry, Joseph Rudolph Wood, III, Charles M Hedlund, Eldon Schurz, Todd Smith, David Gulbrandson. Other: Pursuant to the Electronic Case Filing Administrative Policies and Procedures Manual Section II(B), attorneys are required to submit the automated Civil Cover Sheet when filing a new case. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (REK) (Entered: 06/26/2014)
6 *NOTICE of Appearance by Jeffrey Alan Zick on behalf of Charles L Ryan, Ron Credio, Lance Hetmer. (Zick, Jeffrey) *Modified filers on 7/2/2014 (LFIG). (Entered: 07/02/2014)
7 *NOTICE of Appearance by John Pressley Todd on behalf of Charles L Ryan, Ron Credio, Lance Hetmer. (Todd, John) *Modified filers on 7/2/2014 (LFIG). (Entered: 07/02/2014)
8 *NOTICE of Appearance by Jeffrey Lee Sparks on behalf of Charles L Ryan, Ron Credio, Lance Hetmer. (Sparks, Jeffrey) *Modified filers on 7/2/2014 (LFIG). (Entered: 07/02/2014)
9 *NOTICE of Appearance by Lacey Stover Gard on behalf of Charles L Ryan, Ron Credio, Lance Hetmer. (Gard, Lacey) *Modified filers on 7/2/2014 (LFIG). (Entered: 07/02/2014)
10 *NOTICE of Appearance by Matthew H Binford on behalf of Charles L Ryan, Ron Credio, Lance Hetmer. (Binford, Matthew) *Modified filers on 7/2/2014 (LFIG). (Entered: 07/02/2014)
11 MOTION for Preliminary Injunction by Joseph Rudolph Wood, III. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Baich, Dale) (Entered: 07/02/2014)
12 ORDER that Defendants shall file a response to Plaintiff's 11 Motion for Preliminary Injunction or Temporary Restraining Order no later than 5:00 PM on Monday, 07/07/14. Plaintiff may file a reply no later than 4:00 PM on Tuesday, 07/08/14. FURTHER ORDERED that oral argument on Plaintiff's 11 motion will be held on Wednesday, 07/09/14, at 10:00 AM in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Judge Neil V. Wake. See order for details. Signed by Judge Neil V. Wake on 7/2/14. (NKS) (Entered: 07/02/2014)
13 MOTION for Leave to Appear Videoconference (unopposed) by Joseph Rudolph Wood, III. (Attachments: # 1 Text of Proposed Order)(Baich, Dale) (Entered: 07/03/2014)
14 ORDER granting the Motion (Doc. 13 ). Signed by Judge Neil V. Wake on 7/3/14. (NKS) (Entered: 07/03/2014)
15 RESPONSE in Opposition re: 11 MOTION for Preliminary Injunction filed by Charles L Ryan. (Sparks, Jeffrey) (Entered: 07/07/2014)
16 REPLY to Response to Motion re: 11 MOTION for Preliminary Injunction filed by Joseph Rudolph Wood, III. (Attachments: # 1 Exhibit)(Baich, Dale) (Entered: 07/08/2014)
17 MINUTE ENTRY for proceedings held before Judge Neil V. Wake: Oral Argument held on 7/9/2014. Counsel argue their respective positions regarding Plaintiff Joseph Rudolph Wood III's Motion for Preliminary Injunction or Temporary Restaining Order (Doc. 11 ). Motion taken under advisement. Order to follow.

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07/09/2014 07/09/2014
07/10/2014 07/10/2014 07/10/2014 07/11/2014 07/11/2014 07/18/2014
07/23/2014 07/23/2014 07/23/2014 07/23/2014 07/23/2014 07/23/2014

APPEARANCES: Robin Konrad and Dale Baich for Plaintiff. Matthew Binford, Jeffrey Zink, Lacey Gard and Jeffrey Sparks for Defendants. (Court Reporter Laurie Adams.) Hearing held 10:06 a.m. to 10:59 a.m. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 07/09/2014)
18 TRANSCRIPT REQUEST by Joseph Rudolph Wood, III for proceedings held on 07/09/2014, Judge Neil V Wake hearing judge(s). (Baich, Dale) (Entered: 07/09/2014)
19 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Preliminary Injunction Proceedings held on 7/9/2014, before Judge Wake. Court Reporter Laurie Adams. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/30/2014. Redacted Transcript Deadline set for 8/11/2014. Release of Transcript Restriction set for 10/7/2014. (VPB) (Entered: 07/10/2014)
20 STRICKEN by Doc. 25 − MOTION to Dismiss for Failure to State a Claim by Charles L Ryan. (Zick, Jeffrey) Modified on 7/18/2014 (NKS). (Entered: 07/10/2014)
21 ORDER that Plaintiff Wood's Motion for Preliminary Injunction or Temporary Restraining Order (Doc. 11 ) is DENIED. See order for complete details. Signed by Judge Neil V. Wake on 7/10/14. (NKS) (Entered: 07/10/2014)
22 NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 21 Order on Motion for Preliminary Injunction by Joseph Rudolph Wood, III. (Baich, Dale) (Entered: 07/10/2014)
23 *USCA Case Number re: 22 Notice of Appeal. Case number 14−16310, Ninth Circuit Court of Appeals. (LAD) (Distributed by the Ninth Circuit) Modified to correct appeal number on 8/5/2014 (REW). (Entered: 07/11/2014)
24 TRANSCRIPT REQUEST of July 9, 2014 by Charles L Ryan for proceedings held on 7/9/2014, Judge Neil V Wake hearing judge(s). (Zick, Jeffrey) (Entered: 07/11/2014)
25 ORDER that motions pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c) are discouraged if the defect can be cured by filing an amended pleading. Therefore, the parties must meet and confer prior to the filing of such motions to determine whether it can be avoided. FURTHER ORDERED striking the Defendants' Motion to Dismiss Complaint Pursuant to Rule 12(B)(6) (Doc. 20 ) without prejudice. Counsel may elect to refile a motion once they have complied with this Order. Signed by Judge Neil V. Wake on 7/18/14. (NKS) (Entered: 07/18/2014)
26 Emergency MOTION to Stay Execution by Joseph Rudolph Wood, III. (Konrad, Robin) (Entered: 07/23/2014)
27 TRANSCRIPT REQUEST by Joseph Rudolph Wood, III for proceedings held on 7/23/2014, Judge Neil V Wake hearing judge(s). (Baich, Dale) (Entered: 07/23/2014)
28 MOTION by Joseph Rudolph Wood, III. (Attachments: # 1 Text of Proposed Order)(Baich, Dale) (Entered: 07/23/2014)
29 ORDER granting Plaintiff's 28 Emergency Motion for Preservation of Evidence. See Order for details. Signed by Judge Neil V Wake on July 23, 2014.(NVW, vg) (Entered: 07/23/2014)
30 NOTICE re: Notice Regarding Preservation of Evidence by David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith re: 29 Order on Motion for Miscellaneous Relief . (Konrad, Robin) (Entered: 07/23/2014)
33 MINUTE ENTRY for proceedings held before Judge Neil V. Wake: Telephonic Motion Hearing held on 7/23/2014. The Court denies the Emergency Motion for Stay of Execution (Doc. 26 ) as moot for the reasons stated on the record. Separate order to issue. (Court Reporter Laurie Adams.) Hearing held 3:27 p.m. to 3:57 p.m. (NKS) (Entered: 07/24/2014)

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 18 of 31

07/24/2014
07/24/2014 07/24/2014 07/24/2014 08/04/2014 08/19/2014 09/10/2014 09/10/2014 09/10/2014 09/10/2014 09/10/2014 09/10/2014 09/10/2014 09/10/2014 09/10/2014 09/10/2014 09/10/2014

31 NOTICE OF FILING OF OFFICIAL REDACTED TRANSCRIPT of Motion Proceedings held on 7/23/2014, before Judge Wake. Court Reporter Laurie Adams. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/14/2014. Redacted Transcript Deadline set for 8/25/2014. Release of Transcript Restriction set for 10/22/2014. (VPB) (Entered: 07/24/2014)
32 SEALED TRANSCRIPT of Telephonic Proceedings on 7/23/14 before Judge Neil V. Wake. Court Reporter: Laurie Adams. (MAP) (Entered: 07/24/2014)
34 ORDER finding as moot 26 Plaintiff's Motion for Emergency Stay of Execution. Signed by Judge Neil V. Wake on July 24, 2014.(NVW, vg) (Entered: 07/24/2014)
35 NOTICE: Ex Parte Communication on July 23, 2014 (see document for complete details). Signed by Judge Neil V. Wake on 7/24/14. (NKS) (Entered: 07/24/2014)
36 NOTICE re: Joint Notice of Rule 12(c) Conferral Meeting Betwen the Parties by Charles L Ryan . (Zick, Jeffrey) (Entered: 08/04/2014)
37 NOTICE re: Joint Notice of Conferral Meeting and Agreed Upon Dates by Joseph Rudolph Wood, III . (Baich, Dale) (Entered: 08/19/2014)
38 MOTION for Admission Pro Hac Vice as to attorney Alycia A Degen on behalf of plaintiffs David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith, and Joseph Rudolph Wood, III. (BAS) (Entered: 09/10/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX150237 as to Alycia A Degen. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/10/2014)
39 MOTION for Admission Pro Hac Vice as to attorney Mark E Haddad on behalf of plaintiffs David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith, and Joseph Rudolph Wood, III. (BAS) (Entered: 09/10/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX150238 as to Mark E Haddad. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/10/2014)
40 MOTION for Admission Pro Hac Vice as to attorney Aimee G Mackay on behalf of plaintiffs David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith, and Joseph Rudolph Wood, III. (BAS) (Entered: 09/10/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX150239 as to Aimee G Mackay. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/10/2014)
41 MOTION for Admission Pro Hac Vice as to attorney Lauren A McCray on behalf of plaintiffs David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith, and Joseph Rudolph Wood, III. (BAS) (Entered: 09/10/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX150240 as to Lauren A McCray. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/10/2014)
42 MOTION for Admission Pro Hac Vice as to attorney Joshua E Anderson on behalf of plaintiffs David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith, and Joseph Rudolph Wood, III. (BAS) (Entered: 09/10/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX150242 as to Joshua E Anderson. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/10/2014)
43 MOTION for Admission Pro Hac Vice as to attorney Collin P Wedel on behalf of plaintiffs David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith, and Joseph Rudolph Wood, III. (BAS) (Entered: 09/10/2014)

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 19 of 31

09/10/2014 09/10/2014
09/17/2014 09/17/2014 09/17/2014 09/17/2014 09/17/2014 09/17/2014 09/18/2014 09/18/2014 09/18/2014 09/30/2014 10/09/2014 10/16/2014 10/16/2014 10/16/2014

PRO HAC VICE FEE PAID. $ 35, receipt number PHX150243 as to Collin P Wedel. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/10/2014)
44 ORDER pursuant to General Order 09−08 granting 38 Motion for Admission Pro Hac Vice; granting 39 Motion for Admission Pro Hac Vice; granting 40 Motion for Admission Pro Hac Vice; granting 41 Motion for Admission Pro Hac Vice; granting 42 Motion for Admission Pro Hac Vice; granting 43 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 09/10/2014)
45 NOTICE of Appearance by Mark E Haddad on behalf of David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith. (Haddad, Mark) (Entered: 09/17/2014)
46 NOTICE of Appearance by Joshua Eugene Anderson on behalf of David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith. (Anderson, Joshua) (Entered: 09/17/2014)
47 NOTICE of Appearance by Alycia Ann Degen on behalf of David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith. (Degen, Alycia) (Entered: 09/17/2014)
48 NOTICE of Appearance by Collin Partington Wedel on behalf of David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith. (Wedel, Collin) (Entered: 09/17/2014)
49 NOTICE of Appearance by Lauren Ann McCray on behalf of David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith. (McCray, Lauren) (Entered: 09/17/2014)
50 NOTICE of Appearance by Aimee Grace Mackay on behalf of David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith. (Mackay, Aimee) (Entered: 09/17/2014)
51 AMENDED COMPLAINT against All Defendants filed by Charles M Hedlund. (Attachments: # 1 Exhibit)(Baich, Dale) (Entered: 09/18/2014)
52 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by Charles M Hedlund . (Attachments: # 1 Attachment)(Baich, Dale) (Entered: 09/18/2014)
53 *AMENDED COMPLAINT against All Defendants filed by Charles M Hedlund. (Attachments: # 1 Exhibit)(Baich, Dale) *Modified on 9/19/2014 to reflect PDF is duplicate of Doc. 51 . (LFIG) (Entered: 09/18/2014)
54 NOTICE re: of Filing of Letter by Charles M Hedlund . (Attachments: # 1 Attachment)(Haddad, Mark) (Entered: 09/30/2014)
55 First MOTION to Dismiss Counts/Claims : 2, 3, and 9 and Part of Claim 1 of the First Amended Complaint by Janice Brewer, Ron Credio, Greg Fizer, Charles L Ryan, Unknown Parties. (Zick, Jeffrey) (Entered: 10/09/2014)
56 MOTION for Admission Pro Hac Vice as to attorney Katherine A Roberts on behalf ofDavid Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, and Todd Smith. (BAS) (Entered: 10/16/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX151421 as to Katherine A Roberts. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/16/2014)
57 MOTION for Admission Pro Hac Vice as to attorney Matt Light on behalf of David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, and Todd Smith. (BAS) (Entered: 10/16/2014)

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 20 of 31

10/16/2014 10/16/2014 10/16/2014 10/16/2014
10/16/2014 10/20/2014 10/21/2014
10/29/2014

PRO HAC VICE FEE PAID. $ 35, receipt number PHX151420 as to Matt Light. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/16/2014)
58 MOTION for Admission Pro Hac Vice as to attorney Amanda V Lopez on behalf of David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, and Todd Smith. (BAS) (Entered: 10/16/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX151419 as to Amanda V Lopez. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/16/2014)
59 ORDER pursuant to General Order 09−08 granting 56 Motion for Admission Pro Hac Vice; granting 57 Motion for Admission Pro Hac Vice; granting 58 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/16/2014)
60 ORDER staying briefing on Defendants' motion to dismiss and setting a status conference for Tuesday, 10/28/14, at 1:30 p.m. in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003−2151 before Judge Neil V. Wake. See order for complete details. Signed by Judge Neil V. Wake on 10/16/14. (NKS) (Entered: 10/16/2014)
61 Consent MOTION to Continue Status Conference by Charles M Hedlund. (Attachments: # 1 Text of Proposed Order)(Baich, Dale) (Entered: 10/20/2014)
62 ORDER: The Court having reviewed the Plaintiffs' Consent Motion to Continue October 28 Status Conference (Doc. 61 ), ORDERED granting the Motion. FURTHER ORDERED continuing the Status Conference from 10/28/14 to 10/29/14, at 1:30 PM, in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Judge Neil V. Wake. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 10/21/2014)
63 MINUTE ENTRY for proceedings held before Judge Neil V. Wake: Status Conference held on 10/29/2014. Current case status discussed. The Court lays out its thoughts on how to proceed moving forward. By no later than Friday, December 12, 2014, both sides are ordered to meet and confer regarding the options proposed by the Court. The Court requests briefing from both sides regarding why the Court should or should not stay the proceedings based on the current complaint. Briefing on this issue is ordered as follows: initial brief from defendants is due by Friday, November 21, 2014; brief from plaintiffs is due by Thursday, December 18, 2014; reply brief from defendants is due by Friday, January 9, 2015.

10/29/2014 10/29/2014 10/29/2014

APPEARANCES: Dale Baich, Mark Haddad, Robin Konrad, Amanda Lopez and Collin Wedel for Plaintiffs. Matthew Binford, Jeffrey Zick, Jeffrey Sparks and Lacey Gard for Defendants. (Court Reporter Laurie Adams.) Hearing held 1:38 p.m. to 2:42 p.m. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 10/29/2014)
64 TRANSCRIPT REQUEST by Charles M Hedlund for proceedings held on 10/29/2014, Judge Neil V Wake hearing judge(s). (Baich, Dale) (Entered: 10/29/2014)
65 TRANSCRIPT REQUEST by Charles L Ryan for proceedings held on 10/29/14, Judge Neil V Wake hearing judge(s). (Binford, Matthew) (Entered: 10/29/2014)
66 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference Proceedings held on 10/29/2014, before Judge Neil V. Wake. Court Reporter: Laurie A. Adams. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/19/2014. Redacted Transcript Deadline set for 12/1/2014. Release of Transcript Restriction set

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 21 of 31

11/21/2014
11/24/2014
11/25/2014 12/02/2014 04/22/2015 06/05/2015 10/23/2015 10/23/2015 10/23/2015 10/27/2015 10/27/2015 10/28/2015
11/03/2015 11/06/2015 11/06/2015

for 1/27/2015. (RAP) (Entered: 10/31/2014)
67 STIPULATION Joint Stipulation for Temporary Stay by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Eldon Schurz, Todd Smith, Joseph Rudolph Wood, III. (Attachments: # 1 [Proposed] Order Granting Joint Stipulation for Temporary Stay)(Haddad, Mark) (Entered: 11/21/2014)
68 ** VACATED BY 187 ORDER ** ORDER pursuant to the parties' Joint Stipulation for Temporary Stay (Doc. 67 ) − this action, including briefing on the pending motion to dismiss (ECF No. 55 ), and briefing regarding a stay, is stayed immediately. See order for complete details. Signed by Judge Neil V. Wake on 11/24/14. (NKS) Modified on 6/22/2017 (LAD). (Entered: 11/24/2014)
69 ORDER that Defendants' Partial Motion to Dismiss (Doc. 55 ) is denied without prejudice. See order for details. Signed by Judge Neil V. Wake on 11/25/14. (NKS) (Entered: 11/25/2014)
70 ORDER vacating the Court's briefing schedule issued on 10/29/14 (Doc. 63) as moot. Signed by Judge Neil V. Wake on 12/2/14. (NKS) (Entered: 12/02/2014)
71 NOTICE of Attorney Withdrawal of Matthew H. Binford filed by Jeffrey Lee Sparks. (Sparks, Jeffrey) (Entered: 04/22/2015)
72 NOTICE of Appearance by Laura Patrice Chiasson on behalf of Janice Brewer, Ron Credio, Greg Fizer, Lance Hetmer. (Chiasson, Laura) (Entered: 06/05/2015)
73 NOTICE re: Notice of Publishing of Revised Execution Protocol and Compliance with Court Order by Charles L Ryan . (Sparks, Jeffrey) (Entered: 10/23/2015)
74 MOTION to Lift Stay by Charles L Ryan. (Attachments: # 1 Text of Proposed Order)(Sparks, Jeffrey) (Entered: 10/23/2015)
75 NOTICE of Errata by Defendant Charles L Ryan.. (Sparks, Jeffrey) (Entered: 10/23/2015)
76 *NOTICE of Attorney Withdrawal of Amanda V. Lopez filed by Alycia Ann Degen. (Degen, Alycia) *Modified to terminate attorney Amanda Lopez on 10/28/2015 (KGM). (Entered: 10/27/2015)
77 *NOTICE of Attorney Withdrawal of Lauren A. McCray filed by Alycia Ann Degen. (Degen, Alycia) *Modified to terminate attorney Lauren McCray on 10/28/2015 (KGM). (Entered: 10/27/2015)
78 ORDER TO SHOW CAUSE − that Defendants shall file a Notice no later than 11/18/15 indicating what execution drugs the Arizona Department of Corrections has in its possession and which of the four alternative execution protocols it intends to implement. Plaintiffs must file a response to Defendants' Notice that incorporates a response to the Motion to Lift Stay no later than 12/09/15. Defendants may file a reply no later than 12/16/15. FURTHER ORDERED that if the Arizona Department of Corrections does not currently possess the required lethal drugs for a particular protocol, or any of its four alternative protocols, Defendants shall show cause why the Court can or should adjudicate any protocol that cannot be implemented or why this action is ripe for consideration. Signed by Judge Neil V. Wake on 10/28/15. (NKS) (Entered: 10/28/2015)
79 *RESPONSE TO ORDER TO SHOW CAUSE by Charles L Ryan re: 78 Order to Show Cause, Set/Reset Motion and R&R Deadlines/Hearings . (Sparks, Jeffrey) *Modified to correct event type on 11/4/2015 (KGM). (Entered: 11/03/2015)
80 ORDER that Plaintiffs' response to Defendants' Notice that incorporates a response to the motion to lift stay must be filed no later than 11/25/15. Defendants may reply within 7 days of Plaintiffs' response. Signed by Judge Neil V. Wake on 11/6/15. (NKS) (Entered: 11/06/2015)
81 NOTICE of Appearance by Julie Ann Done on behalf of Charles L Ryan. (Done, Julie) (Entered: 11/06/2015)

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 22 of 31

11/25/2015
11/25/2015 12/03/2015 12/09/2015 12/10/2015 12/15/2015
01/12/2016

82 ORDER: IT IS ORDERED that Defendants' time to file a Reply in support of their Motion to Lift Stay (Doc. 74 ) is extended to December 11, 2015. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 11/25/2015)
83 RESPONSE to Motion re: 74 MOTION to Lift Stay filed by Joseph Rudolph Wood, III. (Baich, Dale) (Entered: 11/25/2015)
84 *REPLY to Response to Motion re: 74 MOTION to Lift Stay by Defendant Charles L Ryan. (Sparks, Jeffrey) *Modified to correct event type on 12/3/2015 (KGM). (Entered: 12/03/2015)
85 ORDER granting 74 Defendants' Motion to Lift Stay as to Protocol C. The stay is lifted and this action will proceed to that extent. See PDF document for details. Signed by Judge Neil V Wake on 12/8/15.(LSP) (Entered: 12/09/2015)
86 NOTICE re: Regarding Order Issued December 9, 2015 by Joseph Rudolph Wood, III . (Baich, Dale) (Entered: 12/10/2015)
87 MINUTE ORDER: Pursuant to the Court's December 8, 2015 Order (Doc. 85 ), IT IS ORDERED setting a Status Conference for 1/12/2016 at 1:30 PM in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Judge Neil V Wake. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NVW, vg) (Entered: 12/15/2015)
88 MINUTE ENTRY for proceedings held before Judge Neil V. Wake: Status Conference held on 01/12/16. Discussion is held regarding the entire stay being lifted. Plaintiffs' counsel indicates that an amended complaint will be filed by no later than Tuesday, 01/26/16. Case status discussed. Potential discovery discussed. Written order to follow.

01/12/2016
01/13/2016 01/13/2016
01/15/2016 01/26/2016 01/26/2016

APPEARANCES: Mark E. Haddad, Dale A. Baich and Collin P. Wedel for Plaintiffs. Jeffrey L. Sparks, Lacey S. Gard and John P. Todd for Defendants. (Court Reporter Laurie Adams.) Hearing held 1:36 p.m. to 2:44 p.m. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 01/12/2016)
89 ORDER the stay in this matter is lifted in its entirety and this action will proceed. Plaintiffs must file their First Amended Complaint no later than January 26, 2016. The provision of the parties' Stipulation prohibiting the State from seeking a warrant of execution until after (1) this action has been resolved through settlement among the parties; or (2) this Court has entered a final judgment on the merits remains in effect. Signed by Judge Neil V. Wake on 1/12/16. (CLB) (Entered: 01/12/2016)
90 TRANSCRIPT REQUEST by Joseph Rudolph Wood, III for proceedings held on 1/12/2016, Judge Neil V Wake hearing judge(s). (Baich, Dale) (Entered: 01/13/2016)
92 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of STATUS CONFERENCE proceedings held on 01/12/2016, before Judge Neil V. Wake. (Court Reporter: Laurie A. Adams). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/3/2016. Redacted Transcript Deadline set for 2/16/2016. Release of Transcript Restriction set for 4/12/2016. (RAP) (Entered: 01/15/2016)
91 TRANSCRIPT REQUEST by Janice Brewer, Charles L Ryan for proceedings held on 01/12/16, Judge Neil V Wake hearing judge(s). (Sparks, Jeffrey) (Entered: 01/15/2016)
93 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by First Amendment Coalition of Arizona Incorporated . (Attachments: # 1 Exhibit)(Baich, Dale) (Entered: 01/26/2016)
94 *Filed at (Doc. 97 ) LODGED Proposed Second Amended Complaint. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by First Amendment Coalition of Arizona Incorporated. (Baich, Dale) Modified on 1/29/2016 (EJA). (Entered: 01/26/2016)

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 23 of 31

01/26/2016 01/29/2016 01/29/2016
02/19/2016 03/03/2016 03/07/2016
03/07/2016 03/07/2016 03/14/2016 03/15/2016
03/29/2016 03/29/2016 03/29/2016 04/05/2016 04/07/2016

95 NOTICE of Service of Discovery filed by First Amendment Coalition of Arizona Incorporated. (Konrad, Robin) (Entered: 01/26/2016)
96 ORDER that Plaintiffs' Second Amended Complaint (Doc. 94 ) be filed. FURTHER ORDERED that Defendants file a responsive pleading within 21 days. Signed by Judge Neil V Wake on 1/29/16. (EJA) (Entered: 01/29/2016)
97 *SECOND AMENDED COMPLAINT against Greg Fizer, Charles L Ryan, Unknown Parties, James O'Neil filed by David Gulbrandson, First Amendment Coalition of Arizona Incorporated, Charles M Hedlund, Todd Smith, Eldon Schurz, Graham S Henry, Robert Poyson, Roger Scott.(EJA) *Modified text on 1/29/2016 (EJA). (Entered: 01/29/2016)
98 MOTION to Dismiss for Failure to State a Claim by Greg Fizer, James O'Neil, Charles L Ryan. (Attachments: # 1 Exhibit Exhibit A)(Weinzweig, David) (Entered: 02/19/2016)
99 NOTICE of Service of Discovery filed by David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Konrad, Robin) (Entered: 03/03/2016)
100 *REQUEST re: for Judicial Notice in Support of 102 Plaintiffs' Opposition to Defendants' Motion to Dismiss Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) by Plaintiffs First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Haddad, Mark) *Modified to correct document number on 3/8/2016 (EJA). (Entered: 03/07/2016)
101 Additional Attachments to Main Document re: 100 Request by Plaintiffs First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Haddad, Mark) (Entered: 03/07/2016)
102 RESPONSE in Opposition re: 98 MOTION to Dismiss for Failure to State a Claim filed by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Haddad, Mark) (Entered: 03/07/2016)
103 *REPLY to Response to Motion re: 98 Motion to Dismiss for Failure to State a Claim by Defendant Greg Fizer. (Sparks, Jeffrey) *Modified to correct event type on 3/15/2016 (KGM). (Entered: 03/14/2016)
104 IT IS ORDERED setting oral argument re: 98 State Defendants' Motion to Dismiss for 4/7/2016 at 01:30 PM in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Judge Neil V Wake. Ordered by Judge Neil V Wake. (NVW, vg)(This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.) (Entered: 03/15/2016)
105 REPORT of Rule 26(f) Planning Meeting by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Attachments: # 1 Affidavit Declaration of Collin P. Wedel)(Haddad, Mark) (Entered: 03/29/2016)
106 NOTICE of Service of Discovery filed by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith, Joseph Rudolph Wood, III. (Konrad, Robin) (Entered: 03/29/2016)
107 NOTICE of Service of Discovery filed by Janice Brewer, Greg Fizer, James O'Neil, Charles L Ryan. (Sparks, Jeffrey) (Entered: 03/29/2016)
108 NOTICE of Attorney Substitution by Dale A Baich. (Baich, Dale) (Entered: 04/05/2016)
109 MINUTE ENTRY for proceedings held before Judge Neil V. Wake: Oral Argument held on 04/07/16. Counsel address the Court's questions and state their respective positions regarding the Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 98 ). Motion taken under advisement. Written order to follow.

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 24 of 31

04/07/2016 04/07/2016
04/08/2016 04/11/2016 04/12/2016 04/12/2016
04/15/2016 05/18/2016

APPEARANCES: Mark E. Haddad, Dale A. Baich, Joshua E. Anderson, Katherine A. Roberts, Collin P. Wedel and Jessica L. Felker for Plaintiffs. David W. Weinzweig, Jeffrey L. Sparks, Lacey S. Gard and Julie A. Done for Defendants. (Court Reporter David German.) Hearing held 1:35 p.m. to 3:37 p.m. (with a recess from 2:24 p.m. to 2:41 p.m.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 04/07/2016)
110 TRANSCRIPT REQUEST by David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith for proceedings held on 4/07/2016, Judge Neil V Wake hearing judge(s). (Baich, Dale) (Entered: 04/07/2016)
111 NOTICE TO FILER OF DEFICIENCY re: AO435 110 Transcript Request filed by Graham S Henry, Charles M Hedlund, Robert Poyson, Eldon Schurz, Todd Smith, Roger Scott, David Gulbrandson. Item 17 − TRANSCRIPT REQUESTED: No portions or dates of proceedings specified. FOLLOW−UP ACTION REQUIRED: Please refile with portions and dates of proceedings in Item 17. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RAP) (Entered: 04/07/2016)
112 AMENDED TRANSCRIPT REQUEST pursuant to 111 Notice of Deficiency by David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith for proceedings held on 4/07/2016, Judge Neil V Wake hearing judge(s). (Baich, Dale) (Entered: 04/08/2016)
113 TRANSCRIPT REQUEST by Janice Brewer, Ron Credio, Greg Fizer, Lance Hetmer, Charles L Ryan, Unknown Parties for proceedings held on 4/7/16, Judge Neil V Wake hearing judge(s). (Sparks, Jeffrey) (Entered: 04/11/2016)
114 SUPPLEMENT Submission Re: California First Amendment Coalition v. Woodford by Plaintiffs First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Haddad, Mark) (Entered: 04/12/2016)
116 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of ORAL ARGUMENT proceedings held on 04/07/2016, before Judge Neil V. Wake. (Court Reporter: David C. German). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/3/2016. Redacted Transcript Deadline set for 5/13/2016. Release of Transcript Restriction set for 7/11/2016. (RAP) (Entered: 04/20/2016)
115 *NOTICE of Service of Discovery by Greg Fizer, James O'Neil, Charles L Ryan . (Sparks, Jeffrey) *Modified to correct event on 4/18/2016 (KMG). (Entered: 04/15/2016)
117 ORDER that Defendants' motion to dismiss (Doc. 98 ) is granted with prejudice as to the following claims in Plaintiffs' Second Amended Complaint: Claim 1 (in part): First Amendment right to know efficacy of midazolam. Claim 2: Substantive due process claim against use of paralytic. Claims 3 and 4: First Amendment claims to information about the execution. Claim 5: First Amendment right of access to courts. Claim 8: Class of one equal protection violation. FURTHER ORDERED that Defendants' motion to dismiss (Doc. 98 ) is denied as to the following claims in Plaintiffs' Second Amended Complaint: Claim 1 (in part): Eighth Amendment claim as to midazolam and paralytic. Claim 6: Eighth Amendment claim for failure to follow protocol. Claim 7: Procedural due process claim for failure to follow protocol. FURTHER ORDERED that Plaintiff First Amendment Coalition of Arizona, Inc., is dismissed from this action with prejudice, as any amendment would be futile. FURTHER ORDERED that Plaintiffs' unopposed request for judicial notice of the 1992 General Election Arizona Publicity Pamphlet (Doc. 100 ) is granted. FURTHER ORDERED: (1) that Defendants shall file an answer to Plaintiffs' Second Amended Complaint no later than Friday, 05/27/16. (2) that initial disclosures shall be served no later than Wednesday, 06/08/16. (3) that the parties shall file a joint proposed Discovery Plan pursuant to Federal Rule of Civil Procedure 26(f) no later than Friday, 06/24/16. (4) that a Scheduling Conference pursuant to Federal Rule of Civil Procedure 16 is set for Wednesday,

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 25 of 31

05/18/2016
05/27/2016 06/08/2016 06/08/2016 06/14/2016 06/24/2016 06/24/2016 06/27/2016 06/29/2016

06/29/16, at 1:30 PM in Courtroom 504, Sandra Day O'Connor U.S. Courthouse, 401 West Washington Street, Phoenix, Arizona 85003. See order for complete details. Signed by Judge Neil V. Wake on 5/18/16. (NKS) (Entered: 05/18/2016)
118 ORDER ISSUED: Scheduling Conference is set for 06/29/16, at 1:30 PM in Courtroom 504, Sandra Day O'Connor U.S. Courthouse, 401 West Washington Street, Phoenix, Arizona 85003. ORDERED that Defendants' Answer to Plaintiffs' Second Amended Complaint (Doc. 97 ) is due on or before 05/27/16. The parties are ordered to provide initial disclosures on or before 06/08/16, in the form required by Federal Rule of Civil Procedure 26(a)(1). See order for details. Signed by Judge Neil V. Wake on 5/18/16. (NKS) (Entered: 05/18/2016)
119 Defendants' ANSWER to 97 Amended Complaint by Greg Fizer, James O'Neil, Charles L Ryan, Unknown Parties.(Sparks, Jeffrey) (Entered: 05/27/2016)
120 NOTICE of Service of Discovery filed by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith, Joseph Rudolph Wood, III. (Felker, Jessica) (Entered: 06/08/2016)
121 *NOTICE of Service of Discovery filed by Charles Ryan, Greg Fizer, James O'Neil. (Sparks, Jeffrey) *Modified to correct filers on 6/9/2016 (KGM). (Entered: 06/08/2016)
122 ORDER − This matter is set for a scheduling conference on 06/29/16. In addition to the issues outlined in the order setting the conference (Doc. 118 ), the parties shall be prepared to discuss the following questions (see order for details). Signed by Judge Neil V. Wake on 6/14/16. (NKS) (Entered: 06/14/2016)
123 NOTICE re: of Protocol Amendment, Response to Court Order, and Suggestion of Mootness by Janice Brewer, Ron Credio, Greg Fizer, Lance Hetmer, James O'Neil, Charles L Ryan re: 122 Order . (Sparks, Jeffrey) (Entered: 06/24/2016)
124 REPORT of Rule 26(f) Planning Meeting by David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Felker, Jessica) (Entered: 06/24/2016)
125 MOTION for Entry of Judgment under Rule 54(b) by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Attachments: # 1 Text of Proposed Order)(Haddad, Mark). (Entered: 06/27/2016)
126 MINUTE ENTRY for proceedings held before Judge Neil V. Wake: In−Court Hearing (set as a Scheduling Conference) held on 06/29/16. The Court advises counsel of its preliminary thoughts. Counsel address those issues. As discussed on the record, defendants shall file their comprehensive mootness motion by no later than Friday, 07/29/16. The Court directs counsel to meet and confer regarding discovery issues by no later than Friday, 08/12/16. Counsel shall file a supplemental case management report addressing discovery in detail and identifying any disagreements the parties may have by Friday, 08/19/16.

06/29/2016 06/29/2016

APPEARANCES: Mark E. Haddad, Joshua E. Anderson, Dale A. Baich, Jessica L. Felker and Collin P. Wedel for Plaintiffs. Jeffrey L. Sparks, Lacey S. Gard and David D. Weinzweig for Defendants. (Court Reporter Laurie Adams.) Hearing held 1:35 p.m. to 2:32 p.m. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 06/29/2016)
127 TRANSCRIPT REQUEST by David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith, Joseph Rudolph Wood, III for proceedings held on 6/29/2016, Judge Neil V Wake hearing judge(s). (Baich, Dale) (Entered: 06/29/2016)
132 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Scheduling Conference proceedings held on 06/29/2016, before Judge Neil V. Wake. (Court Reporter: Laurie A. Adams). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 26 of 31

06/30/2016 06/30/2016
07/08/2016 07/14/2016 07/25/2016
07/25/2016
07/29/2016 08/05/2016 08/10/2016 08/19/2016 08/19/2016 08/22/2016 09/06/2016

Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/20/2016. Redacted Transcript Deadline set for 8/1/2016. Release of Transcript Restriction set for 9/27/2016. (RAP) (Entered: 07/14/2016)
128 TRANSCRIPT REQUEST by Charles L Ryan for proceedings held on June 29, 2016, Judge Neil V Wake hearing judge(s). (Sparks, Jeffrey) (Entered: 06/30/2016)
129 ORDER that Defendants shall file their motion addressing mootness, ripeness, and any other issues of justiciability no later than 07/29/16. FURTHER ORDERED that no later than 08/12/16, counsel shall meet and confer about discovery issues. FURTHER ORDERED that no later than 08/19/16, counsel shall file a supplemental case management report addressing discovery in detail and identifying any disagreements the parties may have. Signed by Judge Neil V. Wake on 6/30/16. (NKS) (Entered: 06/30/2016)
130 *NOTICE of Service of Discovery re: Defendant's Notice of Mailing of Amended Responses to Plaintiffs' Request for Production by Janice Brewer, Greg Fizer, James O'Neil, Charles L Ryan . (Sparks, Jeffrey) *Modified to correct event on 7/11/2016 (REK). (Entered: 07/08/2016)
131 *RESPONSE in Opposition re: 125 MOTION for Entry of Judgment under Rule 54(b) filed by Charles L Ryan, James O'Neil and Greg Fizer. (Gard, Lacey) *Modified to add correct filer on 7/14/2016 (LSP). (Entered: 07/14/2016)
133 REPLY to Response to Motion re: 125 MOTION for Entry of Judgment under Rule 54(b) filed by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Attachments: # 1 Exhibit Wedel Declaration)(Haddad, Mark) (Entered: 07/25/2016)
134 NOTICE of Errata re: 133 Reply to Response to Motion Certificate of Service to Reply in Support of Plaintiffs' Motion for Entry of Final Judgment as to Claims 3 and 4 Pursuant to Fed. R. Civ. P. 54(b) by Plaintiffs First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith.. (Attachments: # 1 Errata Certificate of Service to Reply in Support of Plaintiffs' Motion for Entry of Final Judgment as to Claims 3 and 4 Pursuant to Fed. R. Civ. P. 54(b))(Felker, Jessica) (Entered: 07/25/2016)
135 MOTION to Dismiss Counts/Claims : Claim 1 by Ron Credio, Greg Fizer, James O'Neil, Charles L Ryan. (Attachments: # 1 Exhibit Attachment)(Sparks, Jeffrey) (Entered: 07/29/2016)
136 NOTICE of Service of Discovery filed by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Baich, Dale) (Entered: 08/05/2016)
137 ORDER denying Plaintiffs' Motion for Entry of Final Judgment as to Claims 3 and 4. (Doc. 125 .) See order for details. Signed by Senior Judge Neil V. Wake on 8/10/16. (NKS) (Entered: 08/10/2016)
138 STATUS REPORT Joint Supplemental Case Management Report by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Anderson, Joshua) (Entered: 08/19/2016)
139 NOTICE of Service of Discovery filed by Greg Fizer, James O'Neil, Charles L Ryan. (Sparks, Jeffrey) (Entered: 08/19/2016)
140 Additional Attachments to Main Document re: 138 Report − Status Appendices by Plaintiffs First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Felker, Jessica) (Entered: 08/22/2016)
141 *NOTICE of Service of Discovery re: of Mailing of Discovery Responses by Janice Brewer, Ron Credio, Greg Fizer, Charles L Ryan . (Sparks, Jeffrey) *Modified to correct event type on 9/7/2016 (EJA). (Entered: 09/06/2016)

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 27 of 31

09/19/2016 10/05/2016 10/07/2016
10/17/2016 10/19/2016

142 NOTICE of Service of Discovery filed by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Anderson, Joshua) (Entered: 09/19/2016)
143 NOTICE re: of Mailing of Amended Discovery Responses by Greg Fizer, James O'Neil, Charles L Ryan . (Sparks, Jeffrey) (Entered: 10/05/2016)
144 ORDER that a hearing in this matter is will be held on 10/19/16 at 2:00 PM in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003−2151. FURTHER ORDERED that the parties must be prepared to discuss the issues detailed in this Order. FINALLY ORDERED that Defendants must file a brief two days prior to the hearing explaining why Ohio's acquisition of midazolam does not defeat their mootness argument. Signed by Senior Judge Neil V. Wake on 10/7/16. (NKS) (Entered: 10/07/2016)
145 BRIEF re: 144 Order, Set/Reset Hearings by Defendants Greg Fizer, James O'Neil, Charles L Ryan. (Sparks, Jeffrey) (Entered: 10/17/2016)
146 MINUTE ENTRY for proceedings held before Senior Judge Neil V. Wake: In−Court Hearing held on 10/19/16. Counsel address the Court's questions. The Court sets 12/09/16 as the deadline for the Defendants to file their replacement motion. The Plaintiffs shall have until 01/20/17 to file a response to the replacement motion. Written order to follow.

10/19/2016 10/19/2016
10/20/2016 10/24/2016 12/09/2016 12/19/2016 12/21/2016

APPEARANCES: Collin P. Wedel, Mark E. Haddad, Jessica L. Felker, Joshua E. Anderson and Dale A. Baich for Plaintiffs. Jeffrey L. Sparks, Lacey S. Gard and David D. Weinzweig for Defendants. (Court Reporter Laurie Adams.) Hearing held 2:06 p.m. to 2:59 p.m. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 10/19/2016)
147 TRANSCRIPT REQUEST by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith for proceedings held on 10/19/2016, Judge Neil V Wake hearing judge(s). (Baich, Dale) (Entered: 10/19/2016)
150 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Hearing proceedings held on 10/19/2016, before Judge Neil V. Wake. (Court Reporter: Laurie A. Adams). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/9/2016. Redacted Transcript Deadline set for 11/21/2016. Release of Transcript Restriction set for 1/17/2017. (RAP) (Entered: 10/26/2016)
148 TRANSCRIPT REQUEST by Greg Fizer, James O'Neil, Charles L Ryan for proceedings held on 10/19/2016, Judge Neil V Wake hearing judge(s). (Sparks, Jeffrey) (Entered: 10/20/2016)
149 ORDER that Defendants may refile their motion to dismiss on mootness no later than 12/09/16. Plaintiffs may respond by 01/20/17. Defendants may file a reply by 01/27/17. FURTHER ORDERED that Defendants' Motion to Dismiss (Doc. 135 ) is denied without prejudice. Signed by Senior Judge Neil V. Wake on 10/21/16. (NKS) (Entered: 10/24/2016)
151 *MOTION to Dismiss for Lack of Jurisdiction filed by Greg Fizer, James O'Neil, Charles L Ryan, Charles L Ryan. (Sparks, Jeffrey) *Modified to correct event type on 12/9/2016 (DXD). (Entered: 12/09/2016)
152 STIPULATION For Settlement And Dismissal of Claim One by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Haddad, Mark) (Entered: 12/19/2016)
153 ORDER that the parties submit a revised form of order on a stand−alone document. Signed by Senior Judge Neil V. Wake on 12/21/16. (NKS) (Entered: 12/21/2016)

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 28 of 31

12/21/2016 12/22/2016
12/22/2016 12/23/2016 01/13/2017 01/27/2017 02/02/2017 02/09/2017 02/13/2017 02/24/2017 03/02/2017

154 Additional Attachments to Main Document re: 152 Stipulation [Proposed] Order for Dismissal of Claim One by Plaintiffs First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Haddad, Mark) (Entered: 12/21/2016)
155 ORDER (re: Doc. 152 ) − (1) Claim One of Plaintiffs' Second Amended Complaint is dismissed, without prejudice. (2) Upon any showing by any Plaintiff or any other current or future prisoner sentenced to death in the State of Arizona that ADC intends to use midazolam, or any other benzodiazepine, in an execution or in an execution protocol, Claim One shall be reinstated and reopened pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, and, based on the agreement and consent of the parties granted in their stipulated settlement agreement (Doc. 152 ), an injunction shall issue, in this action or in a separate action for breach of the parties' stipulated settlement agreement, permanently enjoining ADC from using midazolam, or any other benzodiazepine, in an execution or in an execution protocol. (3) Plaintiffs shall not be awarded attorneys' fees or costs incurred in litigating Claim One unless Defendants or ADC breach the parties' stipulated settlement agreement, in which case Plaintiffs shall be entitled to seek an award of their reasonable attorneys' fees and costs incurred in litigating Claim One, in an amount to be determined by the Court, either in this action or in a separate action for breach of the parties' stipulated settlement agreement. In that circumstance, Plaintiffs shall also be entitled to seek to collect their reasonable attorneys' fees and costs incurred in moving to enforce this stipulated settlement agreement. Signed by Senior Judge Neil V. Wake on 12/22/16. (NKS) (Entered: 12/22/2016)
156 ORDER (TEXT ONLY): IT IS ORDERED denying the Defendants' Replacement Motion to Dismiss Claim 1 (Doc. 151 ) as moot. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 12/22/2016)
157 ORDER that the parties must submit a joint status report to the Court as described herein no later than Friday, 01/27/17. Signed by Senior Judge Neil V. Wake on 12/23/16. (NKS) (Entered: 12/23/2016)
158 NOTICE re: Publication of Revised Execution Protocol by Greg Fizer, James O'Neil, Charles L Ryan . (Attachments: # 1 Appendix Attachment)(Sparks, Jeffrey) (Entered: 01/13/2017)
159 STATUS REPORT (Joint) in Response to the Court's December 23, 2016 Order by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Attachments: # 1 Exhibit /Attachment A, # 2 Exhibit /Attachment B)(Anderson, Joshua) (Entered: 01/27/2017)
160 NOTICE of Attorney Withdrawal of David Weinzweig filed by Jeffrey Lee Sparks. (Sparks, Jeffrey) (Entered: 02/02/2017)
161 NOTICE of Service of Discovery filed by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Felker, Jessica) (Entered: 02/09/2017)
162 *ORDER: The Court has reviewed the parties' Joint Status Report 159 . Fact discovery due by 3/24/2017. Proposed Pretrial Order due by 7/7/2017. See order for additional deadlines and details. Signed by Senior Judge Neil V Wake on 2/13/2017. (LMR) *Modified text on 2/14/2017 to include proposed pretrial order deadline (ATD). (Entered: 02/13/2017)
163 SUPPLEMENT Complaint Pursuant to Fed. R. Civ. P. (15)d re: 162 Order by Plaintiffs First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Haddad, Mark) *Modified on linkage 2/27/2017 (DXD). (Entered: 02/24/2017)
164 REPORT of Joint Summary of Discovery Dispute Re Plaintiff Graham S. Henry's Interrogatories Nos. 2, 3, 4, and 18 by Plaintiffs First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Anderson, Joshua) (Entered:

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 29 of 31

03/06/2017 03/07/2017 03/10/2017 03/10/2017 03/10/2017 03/13/2017 03/21/2017 03/27/2017
03/31/2017
04/06/2017 04/14/2017 04/19/2017 04/19/2017

03/02/2017)
165 ORDER: Final Pretrial Conference set for 8/30/2017 at 02:00 PM. Proposed Final Pretrial Order due by 7/7/2017. Trial to the Court set for 9/11/2017 at 08:45 AM in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Senior Judge Neil V Wake. See order for additional deadlines and details. Signed by Senior Judge Neil V Wake on 3/6/2017. (LMR) (Entered: 03/06/2017)
166 ORDER pursuant to the parties' first joint statement of discovery dispute 164 : Objections are overruled and Defendants have 14 days to show cause why fees should not be assessed for Plaintiffs' preparation of the discovery dispute. See order for additional details. Signed by Senior Judge Neil V Wake on 3/7/2017. (LMR) (Entered: 03/07/2017)
167 NOTICE of Appearance by Keith Joseph Miller on behalf of Lance Hetmer, James O'Neil, Charles L Ryan(Director of the Arizona Department of Corrections). (Miller, Keith) (Entered: 03/10/2017)
168 NOTICE of Service of Discovery filed by Greg Fizer, James O'Neil, Charles L Ryan. (Sparks, Jeffrey) (Entered: 03/10/2017)
169 ANSWER to Complaint Supplemental [Doc 163] by Lance Hetmer, James O'Neil, Charles L Ryan(Director of the Arizona Department of Corrections).(Miller, Keith) (Entered: 03/10/2017)
170 *NOTICE of Service of Discovery filed by Charles L Ryan, James O'Neil and Greg Fizer (Director of the Arizona Department of Corrections). (Gard, Lacey) *Modified to add filers on 3/14/2017 (EJA). (Entered: 03/13/2017)
171 RESPONSE TO ORDER TO SHOW CAUSE re: 166 Order by Defendants Greg Fizer, James O'Neil, Charles L Ryan, Unknown Parties. (Sparks, Jeffrey) (Entered: 03/21/2017)
172 Joint MOTION for Clarification of the Court's Scheduling Orders of February 13, 2017 (ECF No. 162) and March 6, 2017 (ECF No. 165) re: 165 Order, Set/Reset Deadlines/Hearings, 162 Order, Set Deadlines by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith, Joseph Rudolph Wood, III. (Attachments: # 1 Text of Proposed Order Proposed Order Re Joint Motion for Clarification of the Court's Scheduling Orders of February 13, 2017 (ECF No. 162) and March 6, 2017 (ECF No. 165))(Anderson, Joshua) (Entered: 03/27/2017)
173 ORDER granting in part and denying in part the parties' Joint Motion for Clarification 172 . Joint Motion for Clarification is granted to the extent explained in the attached order and is otherwise denied. The deadline to file a joint proposed pretrial order and proposed findings of fact and conclusions of law is extended until 8/11/2017. All other deadlines and requirements remain unchanged. See attached order for additional details. Signed by Senior Judge Neil V Wake on 3/31/2017.(LMR) (Entered: 03/31/2017)
174 ORDER: Plaintiffs may reply to Defendants' response to the Order to Show Cause within 14 days of this Order and Defendants may file a sur−reply within 10 days of Plaintiffs' reply. See order for additional details. Signed by Senior Judge Neil V Wake on 4/6/2017. (LMR) (Entered: 04/06/2017)
175 NOTICE of Service of Discovery filed by Joseph Rudolph Wood, III. (Roberts, Katherine) (Entered: 04/14/2017)
176 REPLY re: 171 Response to Order to Show Cause, 174 Order [PLAINTIFFS' REPLY TO DEFENDANTS' RESPONSE TO ORDER TO SHOW CAUSE] by Plaintiffs First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Anderson, Joshua) (Entered: 04/19/2017)
177 NOTICE of Errata re: 176 Reply to Defendants' Response to Order to Show Cause by Plaintiffs First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith.. (Attachments: # 1 Certificate of Record Exhibit A)(Anderson, Joshua)

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 30 of 31

05/01/2017 05/16/2017
05/30/2017 06/07/2017 06/12/2017

(Entered: 04/19/2017)
178 SUR REPLY re: 176 Reply Sur−Reply to Plaintiff's Reply to Defendant's Response to Order to Show Cause by Defendants Greg Fizer, James O'Neil, Charles L Ryan. (Sparks, Jeffrey) Modified on 5/2/2017 (KGM). (Entered: 05/01/2017)
179 ORDER: Before the Court is Defendants' response to the Court's Order to Show Cause 171 . Defendants are sanctioned in the reasonable amount of Plaintiffs'attorneys' fees for preparation of the parties' first joint discovery dispute. By 5/30/2017, Plaintiffs shall communicate to Defendants the amount of fees they are claiming. If the parties are unable to agree upon the quantification of fees, Plaintiffs may submit their proposed request 6/9/2017. Defendants may respond by 6/23/2017. Plaintiffs may reply by 6/30/2017. See order for additional details. Signed by Senior Judge Neil V Wake on 5/16/2017. (LMR) (Entered: 05/16/2017)
180 ORDER: The Court finds that an additional degree of planning is necessary to prepare for trial in this matter. Status Conference is set for 6/12/2017 at 10:30 AM in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Senior Judge Neil V Wake. See order for additional details. Signed by Senior Judge Neil V Wake on 5/30/2017. (LMR) (Entered: 05/30/2017)
181 Joint MOTION to Continue Deadlines for Submission of Letters and Arranging Conference With The Court Re: Anticipated Summary Judgment Motions Pursuant to Paragraph 7 of This Court's February 13, 2017 Order (ECF # 162) by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith, Joseph Rudolph Wood, III. (Attachments: # 1 Text of Proposed Order Re Motion for Summary Judgment Deadlines)(Anderson, Joshua) (Entered: 06/07/2017)
182 MINUTE ENTRY for proceedings held before Senior Judge Neil V Wake: Status Conference held on 6/12/2017. Status of settlement is discussed. Final Pretrial Conference and Bench Trial dates are affirmed.

06/13/2017 06/15/2017
06/21/2017 06/21/2017 06/22/2017

APPEARANCES: Joshua Anderson, Dale Baich and Jessica Felker for Plaintiffs. Keith Miller, Jeffrey Sparks and John Todd for Defendants. (Court Reporter Laurie Adams.) Hearing held 10:42 AM to 11:05 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LMR) (Entered: 06/12/2017)
183 TRANSCRIPT REQUEST by First Amendment Coalition of Arizona Incorporated for proceedings held on 06/12/17, Judge Neil V Wake hearing judge(s). (Felker, Jessica) (Entered: 06/13/2017)
184 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference proceedings held on 06/12/2016, before Judge Neil V. Wake. (Court Reporter: Laurie A. Adams). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2017. Redacted Transcript Deadline set for 7/17/2017. Release of Transcript Restriction set for 9/13/2017. (RAP) (Entered: 06/19/2017)
185 ORDER: In accordance with the discussion in open court on June 12, 2017, IT IS ORDERED that the Joint Motion to Continue, etc., (Doc. 181 ) is denied.(NVW, vg)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/21/2017)
186 STIPULATION Settlement Agreement and Proposed Order for Dismissal of Claims Six and Seven by David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Attachments: # 1 Text of Proposed Order For Dismissal of Claims Six and Seven)(Haddad, Mark) (Entered: 06/21/2017)
187 ORDER FOR DISMISSAL OF CLAIMS SIX AND SEVEN − Pursuant to 186 Stipulated Settlement Agreement − Claims Six and Seven of Plaintiffs' Second Amended Complaint and Supplemental Complaint are dismissed, without prejudice. Plaintiffs shall not be awarded attorneys' fees or costs incurred in litigating Claims Six and Seven unless Defendants, Defendants' successors, or the ADC breach the parties'

Case: 2:14-cv-1447 As of: 12/09/2019 10:09 AM MST 31 of 31

06/27/2017 06/28/2017 06/28/2017
06/29/2017 07/07/2017 07/26/2019 08/16/2019 08/16/2019 08/19/2019 11/05/2019

Stipulated Settlement Agreement, in which case Plaintiffs shall be entitled to an award, either in this action or in a separate action for breach of the parties' Stipulated Settlement Agreement, of their reasonable attorneys' fees and costs incurred in litigating this action from its inception through the date of this Order (which currently are in excess of $2,630,000), as determined by the Court after briefing by the parties. In that circumstance, Plaintiffs shall also be entitled to seek to collect their reasonable attorneys' fees and costs incurred in moving to enforce the parties' Stipulated Settlement Agreement and this Order. The stay order (Doc. 68 ) entered November 24, 2014, is vacated. With the entry of this Order, all claims of all parties have been disposed of. The Clerk shall terminate this case. (See document for full details). Signed by Senior Judge Neil V Wake on 6/22/17. (LAD) (Entered: 06/22/2017)
188 Joint MOTION for Judgment Final by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. (Attachments: # 1 Exhibit A ([Proposed] Judgment)(Haddad, Mark) (Entered: 06/27/2017)
189 ORDER − IT IS THEREFORE ORDERED that Joint Motion for Judgment for Entry of Final Judgment (Doc. 188 ) is denied as unnecessary. (See document for further details). Signed by Senior Judge Neil V Wake on 6/28/17. (LAD) (Entered: 06/28/2017)
190 NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 189 Order on Motion for Judgment, 117 Order on Motion to Dismiss for Failure to State a Claim, 187 Order Dismissing Case, Order on Stipulation, Order Lifting Stay by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith. Filing fee received: $ 505.00, receipt number 0970−14380661. (Attachments: # 1 Exhibit A − Final Judgment, # 2 Exhibit B − June 2017 Order, # 3 Exhibit C − May 2016 Order)(Haddad, Mark) (Entered: 06/28/2017)
191 USCA Case Number re: 190 Notice of Appeal, Ninth Circuit Case number 17−16330. (LSP) (Entered: 06/29/2017)
192 TRANSCRIPT REQUEST (Notice Re Order Re Appeal) by First Amendment Coalition of Arizona Incorporated, David Gulbrandson, Charles M Hedlund, Graham S Henry, Robert Poyson, Eldon Schurz, Roger Scott, Todd Smith for proceedings held on N/A, Judge Neil V Wake hearing judge(s). (Haddad, Mark) (Entered: 07/07/2017)
193 NOTICE of Attorney Withdrawal of Jessica Felker filed by Jessica Lynn Felker. (Felker, Jessica) (Entered: 07/26/2019)
194 *NOTICE of Appearance by Oramel Horace Skinner on behalf of Greg Fizer, Charles L Ryan, James O'Neil. (Skinner, Oramel) *Modified to add additional filer on 8/19/2019 (REK). (Entered: 08/16/2019)
195 NOTICE of Attorney Substitution by Oramel Horace Skinner. (Skinner, Oramel) (Entered: 08/16/2019)
196 *Amended NOTICE of Attorney Substitution by Oramel Horace Skinner. (Skinner, Oramel) *Modified text on 8/19/2019 (REK). (Entered: 08/19/2019)
198 MANDATE of USCA (17−16330) AFFIRMED in part, REVERSED in part, and REMANDED re: 190 Notice of Appeal filed by First Amendment Coalition of Arizona Incorporated, Eldon Schurz, Todd Smith, Roger Scott, David Gulbrandson, Graham S Henry, Charles M Hedlund, Robert Poyson. (Attachments: # 1 Opinion)(GMP) (Entered: 11/05/2019)

 
 Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 1 of 21

1 Jon M. Sands

2

Federal Public Defender District of Arizona

3 Dale A. Baich (OH Bar No. 0025070)

4

Robin C. Konrad (AL Bar No. N76K-2194) 850 West Adams Street, Suite 201

5 Phoenix, Arizona 85007

6

dale_baich@fd.org robin_konrad@fd.org

7 602.382.2816

602.889.3960 facsimile 8

9 Counsel for Plaintiffs

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE DISTRICT OF ARIZONA

12 Joseph Rudolph Wood III, Graham S.

13 Henry, David Gulbrandson, Todd

Smith, Charles M. Hedlund, Eldon 14 Schurz,

15

Plaintiffs,

16

v.

Case No. ___________
COMPLAINT FOR EQUITABLE, INJUNCTIVE, AND DECLARATORY RELIEF [42 U.S.C § 1983]

17 Charles L. Ryan, Director of the
18 Arizona Department of Corrections;

19 Ron Credio, Warden, ASPC – Eyman; Lance Hetmer, Warden, ASPC –

20 Florence; and John Does, Unknown

21 ADC Personnel, in their official capacities as Employees, Contractors,

22 and/or Agents of the Arizona

23

Department of Corrections, Defendants.

24

25

Nature of Action

26

1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and

27 threatened violations by the Arizona Department of Corrections (“ADC”) of Plaintiffs’

28 First Amendment right to petition the government for redress of grievances; their First

1

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 2 of 21

1 Amendment right of access to governmental proceedings in the execution context; their

2 right to due process under the Fourteenth Amendment; and their right not to be executed

3 by a State acting contrary to federal law, in violation of Article VI of the United States

4 Constitution.

5

2. Plaintiffs seek equitable, injunctive, and declaratory relief to prevent

6 Defendants from carrying out Plaintiffs’ executions in violation of the Constitution.

7

3. This Complaint does not challenge Plaintiffs’ underlying capital

8 conviction or sentence of death, nor does it allege that lethal injection as a form of

9 execution is per se unconstitutional.

10

Jurisdiction and Venue

11

4. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal

12 question), 28 U.S.C. § 1343 (civil-rights violations), 28 U.S.C. § 2201 (declaratory

13 relief), and 28 U.S.C. § 2202 (injunctive relief). Plaintiffs invoke this Court’s

14 jurisdiction pursuant to Article III of the United States Constitution, the First and

15 Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983.

16

5. Venue is proper pursuant to 28 U.S.C. § 1391(b). Plaintiffs are currently

17 incarcerated at the Arizona State Prison Complex (“ASPC”)–Eyman, Browning Unit,

18 4374 East Butte Avenue, Florence, Arizona, located in this District.

19

6. All executions conducted by ADC occur at the Central Unit at ASPC–

20 Florence. The events giving rise to this Complaint have occurred and/or will occur in

21 this District.

22

The Parties

23

7. Plaintiff Joseph Rudolph Wood III is a United States citizen and a resident

24 of the State of Arizona. He is currently subject to a sentence of death imposed by the

25 Superior Court of Pima County. Plaintiff is incarcerated at ASPC-Eyman, Browning

26 Unit, in Florence, Arizona.

27

8. Plaintiff Wood is under a warrant of execution. His execution has been

28 scheduled for July 23, 2014. Plaintiff Wood refuses to choose his method of execution;

2

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 3 of 21

1 therefore, ADC must use lethal injection to execute him. His execution is scheduled to

2 take place at the Central Unit at ASPC-Florence within the State of Arizona and within

3 this judicial district.

4

9. Plaintiff Graham S. Henry is a United States citizen and a resident of the

5 State of Arizona. He is currently subject to a sentence of death imposed by the Superior

6 Court of Mohave County. Plaintiff is incarcerated at ASPC-Eyman, Browning Unit, in

7 Florence, Arizona.

8

10. Plaintiff David Gulbrandson is a United States citizen and a resident of the

9 State of Arizona. He is currently subject to a sentence of death imposed by the Superior

10 Court of Maricopa County. Plaintiff is incarcerated at ASPC-Eyman, Browning Unit, in

11 Florence, Arizona.

12

11. Plaintiff Todd Smith is a United States citizen and a resident of the State of

13 Arizona. He is currently subject to a sentence of death imposed by the Superior Court of

14 Coconino County. Plaintiff is incarcerated at ASPC-Eyman, Browning Unit, in Florence,

15 Arizona.

16

12. Plaintiff Charles M. Hedlund is a United States citizen and a resident of

17 the State of Arizona. He is currently subject to a sentence of death imposed by the

18 Superior Court of Maricopa County. Plaintiff is incarcerated at ASPC-Eyman, Browning

19 Unit, in Florence, Arizona.

20

13. Plaintiff Eldon Schurz is a United States citizen and a resident of the State

21 of Arizona. He is currently subject to a sentence of death imposed by the Superior Court

22 of Maricopa County. Plaintiff is incarcerated at ASPC-Eyman, Browning Unit, in

23 Florence, Arizona.

24

14. Defendant Charles L. Ryan is the director of ADC and is being sued in his

25 official capacity for equitable, injunctive, and declaratory relief.

26

15. Defendant Ron Credio is the Warden of ASPC-Eyman, where Plaintiffs

27 are incarcerated, and is being sued in his official capacity for equitable, injunctive, and

28 declaratory relief.

3

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 4 of 21

1

16. Defendant Lance Hetmer is the Warden of ASPC-Florence, where

2 Plaintiffs will be executed, and is being sued in his official capacity for equitable,

3 injunctive, and declaratory relief.

4

17. Defendants John Does, Unknown ADC Personnel, are staff or agents of

5 ADC or the State of Arizona who are ADC’s officers, successors in office, agents,

6 contractors, and employees, along with those acting in concert with them, who have

7 participated or will participate in Plaintiffs’ executions in capacities involving, inter alia,

8 setting IV lines, handling drugs that are classified as controlled substances, and

9 developing and implementing ADC’s execution procedures—including the protocols

10 governing the preparation and administration of drugs designed to execute people.

11 Plaintiffs are not aware of the true identities of the John Does, but allege that when

12 Plaintiffs discover their identities, Plaintiffs will amend this Complaint accordingly.

13

Exhaustion of Administrative Remedies

14

18. Plaintiffs do not believe that exhaustion is necessary under the Prison

15 Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, because this suit does not

16 challenge prison conditions, and because there are no available administrative remedies

17 that could address the challenged constitutional violations. Despite the inapplicability of

18 the PLRA, Plaintiffs have exhausted all the remedies available to them in an effort to

19 resolve these issues.

20

19. On April 22, 2014, the day the State moved for a warrant of execution for

21 Plaintiff Wood, Jeffrey A. Zick, Chief Counsel of the Capital Litigation Section of the

22 Office of the Arizona Attorney General, sent a letter to counsel for Mr. Wood, indicating

23 that ADC intends to use a two-drug protocol with midazolam and hydromorphone to

24 execute Mr. Wood.

25

20. In that same letter, Mr. Zick stated that if “ADC is able to procure

26 pentobarbital, ADC will provide notice of its intent to use that drug . . . ”

27

28

4

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 5 of 21

1

21. On April 30, 2014, counsel for Mr. Wood sent Defendant Ryan a letter

2 requesting information about the provenance of the midazolam and hydromorphone, and

3 asked for an explanation of ADC’s continuing search for pentobarbital.

4

22. In his April letter, Mr. Wood’s counsel asked for information about the

5 DEA qualifications of the personnel who are expected to participate in Mr. Wood’s

6 execution.

7

23. In his April letter, counsel for Mr. Wood asked Defendant Ryan to explain

8 how ADC decided to use the amounts of midazolam and hydromorphone that ADC

9 selected.

10

24. In his April letter, counsel for Mr. Wood asked Defendant Ryan to explain

11 why the amounts of midazolam and hydromorphone differ from the amounts required in

12 the State of Ohio’s lethal-injection protocol, which apparently served as ADC’s model.

13

25. On May 6, 2014, Defendant Ryan replied to the April letter, and declined

14 to provide information about the drugs, based on ADC’s interpretation of Arizona’s

15 executioner-confidentiality statute; instead, he avowed that the drugs are “domestically

16 obtained” and “FDA approved.”

17

26. In that same letter, Defendant Ryan noted that ADC continued to look for

18 pentobarbital, and said that ADC would inform counsel for Mr. Wood if ADC

19 succeeded.

20

27. Defendant Ryan also declined to provide specific information about the

21 DEA qualifications of the personnel expected to participate in Mr. Wood’s execution;

22 Defendant Ryan instead stated that the protocol addresses qualifications.

23

28. Defendant Ryan stated that the development of ADC’s two-drug protocol

24 was based on testimony and affidavits in federal district court in an Ohio lethal-injection

25 matter, though he failed to explain why the amounts of the drugs differed.

26

29. On May 9, counsel for Mr. Wood sent a follow-up letter requesting

27 clarification and more detail, as well as specific Ohio documents referenced in

28 Defendant Ryan’s letter.

5

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 6 of 21

1

30. In that same letter, counsel for Mr. Wood asked for qualifications of the

2 medical professional who was expected to participate in Mr. Wood’s execution, as well

3 as for evidence demonstrating that ADC verified those qualifications.

4

31. On May 15, counsel for Mr. Wood sent a second follow-up letter, again

5 asking for DEA and medical qualifications, and for information pertaining to the

6 development of ADC’s two-drug protocol.

7

32. In this second follow-up letter, counsel for Mr. Wood also asked for

8 documents pertaining to correspondence with various state departments of corrections,

9 and with various federal agencies.

10

33. On May 15, counsel for Mr. Wood also sent Defendant Ryan a “litigation

11 hold” letter.

12

34. Defendant Ryan sent counsel for Mr. Wood a response on June 6, 2014,

13 and included redacted copies of purchase orders, invoices, and order confirmations for

14 midazolam and hydromorphone, as well as copies of six emails from Director Robert

15 Patton, Director of the Oklahoma Department of Corrections to ADC officials.

16

35. Information about the manufacturers and suppliers of the midazolam and

17 hydromorphone has been redacted from copies of the purchase orders, invoices, and

18 order confirmations.

19

36. Defendant Ryan avowed that the Inspector General verified the

20 qualifications of the medical professionals on the IV team.

21

37. Defendant Ryan declined to provide copies of the Ohio documents;

22 instead, he asserted that “the Federal Public Defender’s Office” was involved in the

23 matter, and therefore, Arizona’s (separate and distinct) office must have access to those

24 same documents.

25

38. Defendant Ryan failed to identify the specific documents upon which he

26 relied.

27

39. To date, Defendant Ryan has refused to provide evidence that the

28 midazolam and hydromorphone are FDA-approved drugs.

6

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 7 of 21

1

40. To date, Defendant Ryan has refused to provide evidence that ADC will

2 only obtain lawful, FDA-approved pentobarbital.

3

41. To date, Defendant Ryan has refused to provide evidence that ADC

4 execution personnel are authorized by the DEA to handle controlled substances.

5

42. To date, Defendant Ryan has refused to provide evidence that the medical

6 personnel are qualified.

7

43. To date, Defendant Ryan has refused to provide evidence elucidating

8 ADC’s method of determining why Arizona chose the amounts of midazolam and

9 hydromorphone to use in its lethal-injection protocol.

10

Relevant Facts

11

44. Plaintiffs incorporate by reference each and every statement and allegation

12 set forth throughout this Complaint as if fully rewritten here.

13

Arizona’s Execution Statute and Lethal-Injection Protocol

14

45. Arizona Revised Statutes section 13-757 establishes Arizona’s method of

15 execution.

16

46. Section 13-757(A) establishes that the “penalty of death shall be inflicted

17 by an intravenous injection of a substance or substances in a lethal quantity sufficient to

18 cause death, under the supervision of the state department of corrections.”

19

47. Section 13-757(C), the executioner-confidentiality statute, protects from

20 public-records requests the identity of “executioners and other persons who participate

21 or perform ancillary functions and any information that would identify those persons….”

22

48. The Arizona Legislature has given complete authority to the Director to

23 develop the lethal-injection protocol, which includes the procedures for carrying out an

24 execution, as well as the specific drug protocols, without oversight.

25

49. The Arizona Legislature does not require that ADC’s lethal-injection

26 protocol to be reviewed by any authority.

27

50. Beginning in 2009, ADC changed its written lethal-injection protocol at

28 least eight times. The 2009 version of the written lethal-injection protocol was replaced

7

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 8 of 21

1 on May 12, 2011. The protocol was changed twice more in 2011: on June 10, 2011, and

2 September 12, 2011. ADC then changed the protocol three times in 2012: January 25,

3 2012; June 5, 2012; and September 21, 2012. The current protocol became effective on

4 March 26, 2014.

5

51. ADC deviated from its written drug protocol at least once during that time.

6

52. In September 2009, the protocol called for a three-drug protocol using

7 sodium thiopental, pancuronium bromide, and potassium chloride.

8

53. In May 2011, ADC made changes to the protocol unrelated to the

9 administration of drugs.

10

54. On May 24, 2011, the DEA informed ADC that ADC had obtained its

11 sodium thiopental in violation of the CSA.

12

55. The next day, May 25, 2011, in response to the DEA’s notification, ADC

13 executed Donald Beaty using a drug that was not in the protocol.

14

56. Donald Beaty was executed with pentobarbital instead of the thiopental

15 that was required under the three-drug protocol.

16

57. Donald Beaty was executed with pentobarbital solely because ADC was

17 unable to use its supply of thiopental.

18

58. On June 10, 2011, ADC changed the protocol, to allow the use of either

19 sodium thiopental or pentobarbital in the three-drug protocol. Whichever drug was to be

20 administered was to be administered via four separate syringes, each containing 1.25g of

21 the drug.

22

59. On September 12, 2011, ADC changed the part of the protocol that

23 described the administration method for the pentobarbital, changing administration from

24 four syringes of 1.25g to two syringes of 2.5g of the drug.

25

60. On January 25, 2012, the protocol was changed to allow a three-drug

26 protocol with either thiopental or pentobarbital, as well as a one-drug protocol with

27 either sodium thiopental or pentobarbital.

28

8

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 9 of 21

1

61. The January 25, 2012 protocol added a provision that explicitly gave

2 ADC’s director the sole discretion as to which drug protocol ADC would use in each

3 execution.

4

62. On June 5, 2012, ADC made changes to the protocol unrelated to the

5 administration of the drugs.

6

63. On September 21, 2012, the protocol was changed to remove the three-

7 drug protocol, leaving a one-drug protocol with either sodium thiopental or

8 pentobarbital.

9

64. The September 21, 2012 protocol added an explicit statement giving the

10 Director the ability to use drugs other than the protocol-specified drugs.

11

65. The September 21, 2012 protocol also removed the requirement that the

12 condemned prisoner be constantly monitored while lethal drugs were administered to

13 him.

14

66. The current protocol, which became effective March 26, 2014, added a

15 two-drug protocol with midazolam and hydromorphone.

16

67. All the written protocols contain a provision that requires the written

17 protocol to be followed—unless the Director determines that deviation or adjustment is

18 required.

19

68. The Director is not constrained or guided in any decision to deviate or

20 adjust the lethal-injection protocol.

21

69. According to Defendant Ryan, ADC’s current two-drug protocol was

22 developed after ADC personnel reviewed and modified the amounts of drugs required in

23 the State of Ohio’s lethal-injection protocol.

24

70. ADC’s current protocol provides that ADC can carry out lethal-injection

25 executions with a single-drug protocol using sodium pentothal (“sodium thiopental”); in

26 with a single-drug protocol using pentobarbital; or with a two-drug protocol using

27 midazolam and hydromorphone.

28

9

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 10 of 21

1

71. On information and belief, ADC has not submitted any version of its

2 lethal-injection protocol to the Food and Drug Administration (“FDA”) for review under

3 the federal Food, Drug, and Cosmetics Act (“FDCA”), and related regulations.

4

Federal Drug Laws

5

72. Drugs are regulated by, inter alia, the FDCA.

6

73. The FDCA is enforced by the FDA.

7

74. The FDA requires registered drug establishments to provide the agency

8 with current lists of all drugs the establishments produce for commercial distribution.

9

75. Each drug produced by registered drug establishments is identified by a

10 unique number called the National Drug Code (“NDC”).

11

76. Each FDA-approved drug has an expiration date.

12

77. Each FDA-approved drug has a lot number.

13

78. If a drug is classified as a controlled substance under the federal

14 Controlled Substances Act (“CSA”), the drug is also regulated by the federal Drug

15 Enforcement Agency (“DEA”).

16

79. If a drug is a controlled substance, individuals who wish to handle it must

17 have appropriate registration from the DEA.

18

80. Sodium thiopental is a controlled substance.

19

81. Pentobarbital is a controlled substance.

20

82. Midazolam is a controlled substance.

21

83. Hydromorphone is a controlled substance.

22

Sodium Thiopental & ADC’s Use of the Drug

23

84. Beginning in 2010, ADC developed a history of using illegitimately

24 obtained controlled-substance drugs in executions.

25

85. In 2010, ADC’s protocol called for lethal injections to be carried out via a

26 three-drug procedure, the first drug of which was sodium thiopental.

27

86. Sodium thiopental is a Schedule III drug under the CSA.

28

10

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 11 of 21

1

87. In September 2010, the State of Arizona scheduled the execution of Jeffrey

2 Landrigan.

3

88. In 2010, ADC was unable to obtain a domestic source of sodium

4 thiopental, owing to a nationwide shortage of that drug.

5

89. On October 20, 2010, the State admitted during a hearing before the

6 Arizona Supreme Court that ADC had obtained sodium thiopental that was not

7 manufactured by a domestic source.

8

90. In 2010 and 2011, various prisoners on Arizona’s death row informed

9 ADC and the courts that ADC had likely violated the CSA and the FDCA when it

10 acquired non-domestic sodium thiopental.

11

91. In 2010 and 2011, Defendant Ryan repeatedly avowed in state and federal

12 courts that ADC had complied with applicable laws when it obtained the non-domestic

13 sodium thiopental.

14

92. In May 2011, the DEA informed the State that ADC had violated the CSA

15 when ADC imported sodium thiopental.

16

93. ADC used illegitimately obtained sodium thiopental in the execution of

17 Jeffrey Landrigan on October 26, 2010.

18

94. ADC used illegitimately obtained sodium thiopental in the execution of

19 Eric King on March 29, 2011.

20

95. In October 2011, ADC’s then-Deputy Director provided documents during

21 his deposition in a civil-rights lawsuit that indicated that he ignored counterfeiting and

22 efficacy concerns about imported sodium thiopental.

23

96. In March 2012, in a case filed against the FDA that challenged the legality

24 of the importation of sodium thiopental for purposes of lethal injection, the United States

25 District Court for the District of Columbia found that the importation of that drug was a

26 violation of the FDCA.

27

97. In July 2013, the United States Court of Appeals for the D.C. Circuit

28 affirmed the decision of the D.C. district court.

11

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 12 of 21

1

98. Sodium thiopental is not legally available to departments of corrections in

2 the United States.

3

Pentobarbital

4

99. FDA-approved pentobarbital is sold under the brand name Nembutal®.

5

100. Nembutal® has an NDC.

6

101. Pentobarbital is a Schedule II drug under the CSA.

7

102. ADC has previously provided Nembutal® procurement records to counsel

8 with the Office of the Federal Public Defender for the District of Arizona (“FPD”).

9

103. In August 2011, during litigation unrelated to the current matter, ADC

10 provided the FPD with photographs and other documentation about its supply of 11 Nembutal.®

12

104. According to ADC’s August 2011 procurement records, ADC ordered 75

13 grams of Nembutal® on September 27, 2010.

14

105. According to ADC’s August 2011 procurement records, the September

15 2010 purchase was the only supply of Nembutal® ADC possessed at the time it produced

16 those records.

17

106. According to ADC’s August 2011 procurement records, ADC’s supply of

18 Nembutal® purchased in 2010 expired in March 2013.

19

107. In October 2013, in response to an order of this Court, ADC turned over

20 information about its supply of Nembutal® to two death-row prisoners (“2013 Release”).

21

108. In the 2013 Release, ADC revealed the manufacturer, NDC, lot number,

22 and expiration date of its supply of Nembutal.®

23

109. ADC did not appeal this Court’s order that directed ADC to provide the

24 2013 Release.

25

Legal Suppliers of Nembutal®

26

110. From 2010 (when ADC purchased its supply of Nembutal®) through

27 approximately January 2012, Lundbeck was the only FDA-approved source of 28 pentobarbital, which was marketed as Nembutal®.

12

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 13 of 21

1

111. In July 2011, Lundbeck instituted distribution controls on Nembutal.®

2

112. Lundbeck’s distribution controls established a limited set of distributors

3 authorized to sell Nembutal®.

4

113. Lundbeck instituted its distribution controls to prevent the legitimate sale

5 of Nembutal® to departments of corrections in states that use lethal injection for capital

6 punishment.

7

114. In December 2011, Lundbeck announced the sale of its interest in

8 Nembutal® to Akorn.

9

115. When Akorn purchased Lundbeck’s interest in Nembutal®, Akorn kept

10 Lundbeck’s distribution controls in place.

11

116. Currently, Akorn is the only FDA-approved source of pentobarbital.

12

117. As of July 2011, ADC had no legitimate source from which to purchase

13 Nembutal®.

14

118. ADC has applied to the DEA to obtain a license to import pentobarbital.

15

Midazolam and Hydromorphone

16

119. FDA-approved sources of midazolam and hydromorphone have NDCs.

17

120. Midazolam is a Schedule IV drug under the CSA.

18

121. Hydromorphone is a Schedule II drug under the CSA.

19

Submission of Clinical-Investigation Protocols to the FDA

20

122. The authority of the FDA aims at maintaining a high standard of human

21 health protection. This objective has been made clear in the FDCA. The “[m]ission” of

22 the FDA is described in 21 U.S.C. § 393(b) as to “promote the public health by promptly

23 and efficiently reviewing clinical research” and “with respect to such [regulated]

24 products, protect the public health by ensuring that … human … drugs are safe and

25 effective.” Accordingly the FDA is in charge of safeguarding the public health and the

26 protection of the health of every drug user.

27

123. Congress has established only two legal routes to move a new drug into

28 interstate commerce: The drug must either be the subject of an approved new drug

13

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 14 of 21

1 application (NDA),1 or it must be the subject of an Investigational New Drug (“IND”) 2 application filed with FDA.2

3

124. Under FDA regulations, “‘Interstate commerce’ applies to all steps in a

4 product's manufacture, packaging, and distribution.”3 Therefore, it is sufficient that “at

5 least some of [the] ingredients or packaging […] originate from out of state, or even out 6 of the country.”4

7

125. The connection with interstate commerce required for FDCA jurisdiction

8 shall be presumed to exist in actions to enforce the requirements of the FDCA’s drug 9 provisions.5

10

126. A “drug” is any substance “intended to affect the structure or any function

11 of the body of man.”6

12

127. An “investigational new drug” is defined as a “new drug or biological drug

13 that is used in a clinical investigation.”7

14

128. A drug is a “new” drug if its “composition . . . is such that such drug is not

15 generally recognized, among experts qualified by scientific training and experience to

16 evaluate the safety and effectiveness of drugs, as safe and effective for use under the 17 conditions prescribed, recommended, or suggested in the labeling thereof.”8

18

19

1 21 U.S.C. § 355(a).

20

2 21 U.S.C. § 355(i).

21

3 FDA, Key Legal Concepts: Interstate Commerce, Adulterated, and Misbranded,

22 online at: http://www.fda.gov/Cosmetics/GuidanceRegulation/LawsRegulations/ucm074248.htm.

23

4 FDA, Key Legal Concepts: Interstate Commerce, Adulterated, and Misbranded,

24 online at: http://www.fda.gov/Cosmetics/GuidanceRegulation/LawsRegulations/ucm074248.htm.

25

5 21 U.S.C. § 379a.

26

6 21 U.S.C. § 321(g)(1).

27

7 21 C.F.R. § 312.3(a).

28

8 21 U.S.C. § 321(p)(1).

14

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 15 of 21

1

129. The term “new drug” is a statutory term of art, such that even a drug that

2 has already been marketed can be deemed a “new drug” for purposes of the FDCA.9

3

130. A person intending to conduct a clinical investigation with an

4 investigational new drug does not need an approved NDA, but instead must submit an 5 Investigational New Drug (“IND”) application to the FDA.10

6

131. A clinical investigation is “any experiment in which a drug is administered

7 or dispensed to, or used involving, one or more human subjects”.11

8

132. For purposes of the FDCA, “an experiment is any use of a drug except for

9 the use of a marketed drug in the course of medical practice.”12

10

133. Because a “drug” is any substance “intended to affect” the structure or any

11 function in the human body, ADC’s use of midazolam, hydromorphone, pentobarbital,

12 thiopental, or other substances, constitutes the use of “drugs” in its lethal-injection

13 protocol.

14

134. Because ADC is using drugs in combinations and doses that are not

15 “recognized, among experts qualified by scientific training and experience to evaluate

16 the safety and effectiveness of drugs, as safe and effective for use under the conditions

17 prescribed,” ADC’s use of these drugs constitutes the use of “new drugs.”

18

135. Because an “experiment” is defined as “any use of a drug except for the

19 use of a marketed drug in the course of medical practice[,]” ADC’s lethal-injection

20 procedures constitute an experiment on death-row prisoners, including Plaintiffs.

21

22

9 21 U.S.C. § 321(p)(1) (“Any drug . . . the composition of which is such that

such drug is not generally recognized, among experts qualified by scientific training and

23 experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof . . .

24 .”) (emphasis added); see also United States v. 50 Boxes More or Less, 909 F.2d 24 (1st Cir. 1990) (holding that a drug that had been sold for thirty-five years was nevertheless

25 deemed a “new drug” because it was not generally recognized among experts as safe and effective).

26

10 21 C.F.R. § 312.20(a).

27

11 21 C.F.R. § 312.3(b).

28

12 21 C.F.R. § 312.3(b).

15

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 16 of 21

1

136. Because a clinical investigation is defined as “any experiment in which a

2 drug is administered or dispensed to, or used involving, one or more human subjects[,]”

3 ADC’s lethal-injection protocol constitutes a clinical investigation.

4

137. ADC’s use of lethal-injection drugs constitutes the use of an

5 “investigational new drug” because it is a “new drug” used in a clinical investigation.

6

138. The FDCA and its related regulations do not provide for exceptions to the

7 IND requirement for drugs used in executions.

8

139. Although Arizona’s lethal-injection statute does not specify that ADC

9 comply with the FDCA, ADC must nevertheless do so, under the Supremacy Clause of

10 Article VI of the United States Constitution.

11

140. Because ADC’s lethal-injection protocol constitutes a clinical

12 investigation with an investigational new drug, ADC must submit its protocol(s) to the

13 FDA for review in an IND application.

14

Claims for Relief

15 Claim One: By deliberately concealing necessary information from 16 Plaintiffs, Defendants have violated Plaintiffs’ First Amendment right
17 to petition the government for redress of grievances.

18

141. Plaintiffs incorporate by reference each and every statement and allegation

19 set forth throughout this Complaint as if fully rewritten here.

20

142. Defendants’ refusal to provide Plaintiffs with information that would

21 enable them to determine how the State intends to execute them denies Plaintiffs’ First

22 Amendment right to petition the government for redress of grievances.

23

143. The First Amendment right to petition the government for redress of

24 grievances includes the right of access to the courts.

25

144. The right of access to the courts is especially critical for prisoners, because

26 their access to other remedies is limited.

27

145. State action that denies a plaintiff the opportunity to litigate gives rise to a

28 claim that the State is violating the plaintiff’s right of access to the courts.

16

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 17 of 21

1

146. The right of access to the courts is an ancillary claim, which is necessary

2 for the vindication of underlying rights.

3

147. By deliberately concealing information about the specific drugs the State

4 intends to use to execute Plaintiffs, Defendants have erected a condition that frustrates

5 Plaintiffs’ ability to litigate their claims relating to the constitutionality of their

6 executions. This frustrating condition deprives Plaintiffs of their First Amendment right

7 to petition the government for redress of grievances. This frustrating condition also

8 deprives Plaintiffs of their due-process right of access to the courts.

9

148. Defendants’ deliberate concealment of information that would enable

10 Plaintiffs to determine how the State intends to carry out their death sentences, including

11 information relating to lethal-injection drugs, the authority of Defendants to handle

12 controlled substances, and the qualifications of the execution personnel, deprives

13 Plaintiffs of their right not to be deprived of their lives without due process of law.

14

149. Defendants’ deliberate concealment of information that would enable

15 Plaintiffs to determine how the State intends to carry out their death sentences, including

16 information relating to lethal-injection drugs, the authority of Defendants to handle

17 controlled substances, and the qualifications of the execution personnel, deprives

18 Plaintiffs of their ability to determine whether the State is capable of carrying out their

19 executions in a lawful, constitutional manner.

20 Claim Two: By deliberately concealing necessary information from

21

Plaintiffs, Defendants have violated Plaintiffs’ First Amendment right to be informed about the manner in which the State implements the

22 most serious penalty available in the criminal-justice system.

23

150. Plaintiffs incorporate by reference each and every statement and allegation

24 set forth throughout this Complaint as if fully rewritten here.

25

151. Defendants’ deliberate concealment of information that would enable

26 Plaintiffs to determine how the State intends to carry out their death sentences, including

27 information relating to lethal-injection drugs and the authority of Defendants to handle

28

17

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 18 of 21

1 controlled substances, deprives Plaintiffs of their First Amendment right of access to

2 governmental proceedings.

3

152. Defendants’ deliberate concealment of information that would enable

4 Plaintiffs to determine how the State intends to carry out their death sentences, including

5 information relating to lethal-injection drugs and the authority of Defendants to handle

6 controlled substances, deprives Plaintiffs of their First Amendment right to be informed

7 about how the State intends to implement the most serious punishment possible: the

8 penalty of death.

9 Claim Three: Defendants’ use of a lethal-injection protocol that they

10

developed without complying with the federal Food, Drug, and Cosmetics Act, violates the Supremacy Clause of Article VI of the

11 Constitution, and deprives Plaintiffs of their right to be executed in a

12 manner that comports with the Supremacy Clause of the Constitution.

13

153. Plaintiffs incorporate by reference each and every statement and allegation

14 set forth throughout this Complaint as if fully rewritten here.

15

154. Defendants’ lethal-injection protocol qualifies as a “clinical investigation”

16 under the FDCA and related regulations.

17

155. Protocols for clinical investigations must be submitted to the FDA for

18 review, absent an exception that would exempt the protocol.

19

156. The FDCA does not contain an exception for drugs used in executions.

20

157. Defendants’ failure to submit their lethal-injection protocol to the FDA for

21 review violates the FDCA.

22

158. Defendants’ failure to comply with the FDCA violates the Supremacy

23 Clause of the United States Constitution.

24

159. Defendants’ plan to execute Plaintiffs under a lethal-injection protocol that

25 violates the Supremacy Clause violates Plaintiffs’ right to be executed in a manner that

26 comports with federal law and the United States Constitution.

27

28

18

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 19 of 21

1

Prayer for Relief

2 Wherefore, Plaintiffs pray for:

3

1. Temporary, preliminary, and permanent injunctive relief to enjoin the

4

Defendants, their officers, agents, servants, employees, and all persons acting

5

in concert with them from concealing information that is not related to the

6

identification of persons participating in executions, that is necessary to

7

ensuring Plaintiffs’ First Amendment right to petition the government for

8

redress of grievances, including but not limited to:

9

i. The FDA-approved manufacturer(s) and other suppliers of the lethal-

10

injection drugs that ADC will or may use in Plaintiffs’ executions;

11

ii. The lot numbers of the lethal-injection drugs that ADC will or may use

12

in Plaintiffs’ executions;

13

iii. The NDCs of the lethal-injection drugs that ADC will or may use in

14

Plaintiffs’ executions;

15

iv. The expiration dates of the lethal-injection drugs that ADC will or may

16

use in Plaintiffs’ executions;

17

v. Documentation (not including personally identifying information)

18

indicating that those who will handle controlled substances in the

19

executions have the appropriate DEA authorization to do so;

20

vi. Documentation (not including personally identifying information)

21

indicating that those who will be responsible for inserting any IVs are

22

qualified to do so.

23

2. Temporary, preliminary, and permanent injunctive relief to enjoin the

24

Defendants, their officers, agents, servants, employees, and all persons acting

25

in concert with them from concealing execution-related, non-personally-

26

identifying information that Plaintiffs require in order to ensure their First

27

Amendment right of access to governmental proceedings, including but not

28

limited to:

19

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 20 of 21

1

i. The FDA-approved manufacturer(s) and other suppliers of the lethal-

2

injection drugs that ADC will or may use in Plaintiffs’ executions;

3

ii. The lot numbers of the lethal-injection drugs that ADC will or may use

4

in Plaintiffs’ executions;

5

iii. The NDCs of the lethal-injection drugs that ADC will or may use in

6

Plaintiffs’ executions;

7

iv. The expiration dates of the lethal-injection drugs that ADC will or may

8

use in Plaintiffs’ executions;

9

v. Documentation (not including personally identifying information)

10

indicating that those who will handle controlled substances in the

11

executions have the appropriate DEA authorization to do so;

12

vi. Documentation (not including personally identifying information)

13

indicating that those who will be responsible for inserting any IVs are

14

qualified to do so.

15

3. Temporary, preliminary, and permanent injunctive relief to enjoin the

16

Defendants, their officers, agents, servants, employees, and all persons acting

17

in concert with them from executing Plaintiffs unless and until Defendants

18

comply with the FDCA (and therefore with the Supremacy Clause of the

19

Constitution).

20

4. Appropriate and necessary discovery and an evidentiary hearing to permit

21

Plaintiffs to prove their constitutional claims; and

22

5. Any such other relief as the Court deems just and proper.

23

24

25

26

27

28

20

Case 2:14-cv-01447-NVW Document 1 Filed 06/26/14 Page 21 of 21

1 Respectfully submitted this 26th day of June, 2014.

2

Jon M. Sands

3

Federal Public Defender

District of Arizona

4

Dale A. Baich

5

Robin C. Konrad

6

s/ Dale A. Baich

7

Counsel for Plaintiffs

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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21

 
 1 WO 2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 10 Joseph Rudolph Wood, III,

No. CV-14-1447-PHX-NVW (JFM)

11

Plaintiff,

12

vs.

ORDER

13 Charles L. Ryan, et al.,

14

Defendants.

15

16

17

Before the Court is the Motion for Preliminary Injunction or Temporary

18 19 Restraining Order filed by Plaintiff Joseph Rudolph Wood III. (Doc. 11.) Wood seeks

20 an injunction requiring Defendants to disclose certain information about the drugs, drug

21 protocol, and personnel that will be involved in his execution, which is set for July 23, 22 23 2014. (Id.) Briefing on the motion was completed on July 8, 2014. (Docs. 15, 16.) The

24 Court heard oral argument on July 9, 2014.

25 This order states the Court’s findings of fact and conclusions of law pursuant to
26
27 Federal Rule of Civil Procedure 52(a)(2). For the reasons that follow, Wood’s motion

28 will be denied.

1

1

BACKGROUND

2 The Court has considered the pleadings and exhibits. Based on these documents,
3

4 the Court finds that the following facts are undisputed.

5

On April 22, 2014, the State moved for a warrant of execution. That same day,

6

7 Jeffrey A. Zick, Chief Counsel of the Capital Litigation Section of the Office of the

8 Arizona Attorney General, sent a letter to Wood’s counsel informing them that the

9 Arizona Department of Corrections intends to use a two-drug protocol consisting of 10
11 midazolam and hydromorphone to execute Wood. (Doc. 119, Ex. A.) Zick also stated

12 that if “ADC is able to procure pentobarbital, ADC will provide notice of its intent to

13 use that drug.” (Id.)
14

15

A warrant of execution was issued on May 28, 2014.

16

The current execution protocol, found in Department Order 710, and effective

17 March 26, 2014, calls for the use of 50 mg of midazolam and 50 mg of hydromorphone.
18

19 It also provides for one-drug protocols using pentobarbital or sodium pentothal. (See

20 Doc. 11, Ex. I.)

21

22

Between April 30 and June 6, 2014, the parties exchanged a series of letters. On

23 April 30, Wood’s counsel sent Defendant Ryan a letter requesting information about the

24 provenance of the midazolam and hydromorphone and asking for an explanation of the 25 26 Department of Corrections’ continuing search for pentobarbital. (Id., Ex. B.) Counsel

27 also sought information about the Drug Enforcement Administration qualifications of

28

2

1 the personnel who would participate in Plaintiff’s execution asked Ryan to explain how
2 the Department of Corrections determined the midazolam and hydromorphone dosages
3

4 in its protocol and asked why the amounts of midazolam and hydromorphone differ

5 from the amounts required in the State of Ohio’s lethal-injection protocol. (Id.)

6

7

On May 6, Ryan replied to the April 30 letter. (Id., Ex. F.) He declined to provide

8 further information about the drugs, based on the Department of Corrections’

9 interpretation of Arizona’s executioner-confidentiality statute, A.R.S. § 13-757(C). (Id.) 10
11 However, he avowed that the drugs are “domestically obtained” and “FDA approved.”

12 (Id.) Ryan further noted that the Department of Corrections continued to look for

13 pentobarbital and would inform Plaintiff’s counsel if it obtained the drug. (Id.) Ryan
14
15 declined to provide specific information about the Drug Enforcement Administration

16 qualifications of the execution personnel, but stated that “the qualifications of the IV 17
team as set forth in Department Order 710.02-1.2.5 have not changed since the ADC 18 19 amended the protocol in September, 2012, to include assurances of the IV team’s

20 qualifications.” (Id.) He also indicated that the development of the Department of
21 22 Corrections’ two-drug protocol was based on affidavits and testimony in Case No. 2:11-

23 CV-1016, in the Southern District of Ohio. (Id.)

24

On May 9, Woods counsel sent a follow-up letter seeking clarification and

25

26 requesting specific Ohio documents referenced in Ryan’s letter. (Id., Ex. C.) Counsel

27 again asked for the qualifications of the medical professionals who would participate in

28

3

1 Wood’s execution, as well as evidence demonstrating that the Department of
2 Corrections had verified those qualifications. (Id.)
3

4

On May 15, Wood’s counsel sent another letter, again asking for the Drug

5 Enforcement Administration and medical qualifications, along with information about
6 7 the development of the Department of Corrections’ two-drug protocol. (Id., Ex. D.)

8 Counsel also requested documents pertaining to correspondence with various state

9 departments of corrections and federal agencies. (Id.)

10

11

On June 6, Ryan sent Wood’s counsel a response. (Id., Ex. G.) Ryan provided

12 redacted copies of purchase orders, invoices, and order confirmations for the midazolam

13 and hydromorphone. (Id.) The documents display the drug names and expiration
14
15 dates—September and October 2015. (Id.) Information about the manufacturers and

16 suppliers of the midazolam and hydromorphone was redacted. (Id.) Ryan also avowed 17
that the Inspector General had verified the qualifications of the medical professionals on 18 19 the IV team; in the event that a central femoral line was used, it would be placed by a

20 person currently licensed or certified to do so. (Id.) Defendant Ryan declined to provide
21 22 copies of the Ohio documents, asserting that because the Federal Public Defender’s

23 Office was involved in the Ohio litigation, Wood’s counsel would have access to the

24 documents. (Id.)

25

26

On June 26, Wood and plaintiffs Graham S. Henry, David Gulbrandson, Todd

27 Smith, Charles M. Hedlund, and Eldon Schurz filed a civil rights complaint alleging

28

4

1 three claims: a violation of their First Amendment right of access to the courts (Claim
2 One), a violation of their First Amendment right of access to governmental proceedings
3

4 (Claim Two), and a Supremacy Clause violation based on the Department of

5 Corrections’ alleged failure to follow the Food, Drug, and Cosmetics Act in adopting its
6 7 lethal-injection protocol. (Claim 3). (Doc. 1.)

8

On June 28, 2014, Wood received final notice from the Department of

9 Corrections stating that his execution would be carried out using the midazolam and 10
11 hydromorphone two-drug protocol. (Doc. 16, Ex. M.)

12

On July 1, 2014, Wood filed his motion for a preliminary injunction. (Doc. 11.)

13 DISCUSSION
14

15

Wood seeks the following information: the source(s), manufacturer(s), National

16 Drug Codes (NDCs), and lot numbers of the drugs Defendants intend to use in his 17
execution; non-personally-identifying information detailing the medical, professional, 18 19 and controlled-substances qualifications and certifications of the personnel Defendants

20 intend to use in his execution; and information and documents detailing the manner in
21 22 which Defendants developed their lethal-injection drug protocol. (Doc. 11 at 1.) The

23 motion is based solely on Claim Two, alleging that Defendants’ refusal to provide the

24 information violates Plaintiff’s right of access to governmental proceedings. (See id. at 25 26 9; Doc. 16 at 2 & n.2.)

27

28

5

1 I. 2
3

APPLICABLE LAW A. Standard for Injunctive Relief

4

A preliminary injunction is “an extraordinary and drastic remedy, one that should

5 not be granted unless the movant, by a clear showing, carries the burden of persuasion.”
6 7 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted). An

8 injunction may be granted only where the movant shows that “he is likely to succeed on

9 the merits, that he is likely to suffer irreparable harm in the absence of preliminary 10
11 relief, that the balance of equities tips in his favor, and that an injunction is in the public

12 interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also

13 Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir. 2005). Alternatively, under the
14
15 Ninth Circuit’s “serious questions” version of the sliding-scale test, a preliminary

16 injunction is appropriate when a plaintiff demonstrates that “serious questions going to 17
the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor.” 18 19 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (citation

20 omitted). This approach requires that the elements of the preliminary injunction test be
21 22 balanced, so that a stronger showing of one element may offset a weaker showing of

23 another.

24

In the context of a capital case, the Supreme Court has emphasized that these

25

26 principles apply when a condemned prisoner asks a federal court to enjoin his

27 impending execution. “Filing an action that can proceed under § 1983 does not entitle

28

6

1 the complainant to an order staying an execution as a matter of course.” Hill v.
2 McDonough, 547 U.S. 573, 583–84 (2006). Rather, “a stay of execution is an equitable
3

4 remedy” and “equity must be sensitive to the State’s strong interest in enforcing its

5 criminal judgments without undue interference from the federal courts.” Id. at 584; see
6 7 Beardslee, 395 F.3d at 1068.

8

B. First Amendment Right of Access to Governmental Proceedings

9

“Neither the First Amendment nor the Fourteenth Amendment mandates a right

10

11 of access to government information or sources of information within the government’s

12 control.” Houchins v. KQED, 438 U.S. 1, 15 (1978) (plurality opinion). The Supreme

13 Court “has never intimated a First Amendment guarantee of a right of access to all
14
15 sources of information within government control.” Id. at 9; see McBurney v. Young,

16 133 S. Ct. 1709, 1718 (2013) (“This Court has repeatedly made clear that there is no

17 constitutional right to obtain all the information provided by FOIA laws.”).
18

19

There is, however, a First Amendment right of public access to governmental

20 proceedings. In California First Amendment Coalition v. Woodford, 299 F.3d 868, 873–
21 22 74 (9th Cir. 2002), the Ninth Circuit explained that “[i]t is well-settled that the First

23 Amendment guarantees the public—and the press—a qualified right of access to

24 governmental proceedings.” See Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 8– 25 26 14 (1986) (“Press- Enterprise II”); Globe Newspaper Co. v. Superior Court, 457 U.S.

27 596, 603–11 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 579 (1980).

28

7

1 The right of access is premised on “the common understanding that ‘a major purpose of
2 [the First] Amendment was to protect the free discussion of governmental affairs.’”
3

4 Globe Newspaper, 457 U.S. at 604 (quoting Mills v. Alabama, 384 U.S. 214, 218

5 (1966)).

6

7

Whether the public has a First Amendment right of access to particular

8 governmental proceedings is informed by two “complimentary considerations”: (1)

9 “whether the place and process have historically been open to the press and general 10
11 public” and (2) “whether public access plays a significant positive role in the

12 functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8–9.

13 In California First Amendment Coalition, the Ninth Circuit noted that under its
14
15 precedent the right of access extends to a “broad range of criminal proceedings” and

16 “documents filed therein.” 299 F.3d at 874 (citation omitted). Based on these principles, 17
the court concluded that the press and the public have a First Amendment right to view 18 19 execution proceedings from the moment the condemned enters the execution chamber

20 to the time he is pronounced dead. Id. at 885–86. The court reasoned as follows:

21

22

Independent public scrutiny—made possible by the public and media witnesses to an execution—plays a significant role in the proper

23

functioning of capital punishment. An informed public debate is critical in

24

determining whether execution by lethal injection comports with “the evolving standards of decency which mark the progress of a maturing

25

society.” To determine whether lethal injection executions are fairly and

26

humanely administered, or whether they ever can be, citizens must have reliable information about the “initial procedures,” which are invasive,

27

possibly painful and may give rise to serious complications. This

28

information is best gathered first-hand or from the media, which serves as

8

1

the public’s surrogate. Further, “public access . . . fosters an appearance of

2

fairness, thereby heightening public respect for the judicial process.”

Finally, public observation of executions fosters the same sense of

3

catharsis that public observation of criminal trials fosters. . . .

4

Accordingly, the same functional concerns that drove the Court to

5

recognize the public’s right of access to criminal trial proceedings compel us to hold that the public has a First Amendment right to view the

6

condemned as he enters the execution chamber, is forcibly restrained and

7

fitted with the apparatus of death.

8 Id. at 876 (citations omitted).

9 II. 10
11

ANALYSIS Wood contends that he is likely to succeed on the merits of Claim Two, alleging

12 a violation of his right of access to governmental proceedings under the First

13 Amendment. The Court disagrees.
14

15

Plaintiff relies principally on Schad v. Brewer, No. CV-13-2001-PHX-ROS,

16 2013 WL 5551668 (D.Ariz. Oct. 7, 2013), and California First Amendment Coalition. 17
(Doc. 11 at 10–12.) California First Amendment Coalition did not address a right of 18 19 access to documentary information about lethal injection drugs, the development of

20 lethal injection protocols, or the qualification of the execution team. In Schad, however,
21 22 the court relied on California First Amendment Coalition to grant relief on the

23 plaintiff’s claim of First Amendment right of access to government proceedings. The

24 court required Defendants to disclose the manufacturer, NDCs, lot numbers, and 25 26 expiration dates of the lethal injection drugs. The court found that the plaintiff had a

27 right to the drug information because historically executions have been open events and

28

9

1 public access to the drug information plays a significant positive role in the functioning
2 of capital punishment. The court stated that “the public must have reliable information
3

4 about the lethal injection drugs themselves in order to judge the propriety of the

5 particular means used to carry out an execution.” Id., at *5.

6

7

For the reasons discussed next, the Court reaches a different result in this case.

8

Since the ruling in Schad, two courts have addressed similar claims of First

9 Amendment right of access to pre-execution state records and information. Both courts 10
11 cited California First Amendment Coalition but denied the First Amendment claims. In

12 Owens v. Hill, --- S.E.2d ----, 2014 WL 2025129 (Ga. 2014), the Supreme Court of

13 Georgia rejected the inmate’s claim of a First Amendment right of access to information
14
15 concerning the identity of the drug manufacturer. The court cited the test formulated in

16 Press-Enterprise II and applied in California First Amendment Coalition and concluded 17
that “[e]ven adopting the extravagant view that the acquisition of execution drugs is a 18 19 government process subject to this test, we still conclude that Hill’s claims fail to satisfy

20 either of these elements”—i.e., whether access had been granted historically and
21 22 whether public access would play a positive role in the functioning of the process. Id., at

23 *10.

24

In Wellons v. Commissioner, Georgia Dept. of Corrections, --- F.3d ----, 2014

25

26 WL 2748316, at *6 (11th Cir. 2014), a decision issued June 17, 2014, the Eleventh

27 Circuit rejected an inmate’s claim that the State’s failure to provide information about

28

10

1 the drugs to be used in his execution violated his First Amendment right of access to
2 governmental proceedings. The district court denied the inmate’s motion for injunctive
3

4 relief. It “agreed with Defendants that while there may be First Amendment

5 implications involved in the openness of government operations, the cases Wellons
6 7 relies upon [including California First Amendment Coalition] turn on the public’s,

8 rather than the individual’s, need to be informed so as to foster debate.” Id. The Court of

9 Appeals agreed, explaining: 10

11

We agree with the judgment of the district court. Neither the Fifth,

Fourteenth, or First Amendments afford Wellons the broad right “to know

12

where, how, and by whom the lethal injection drugs will be

13

manufactured,” as well as “the qualifications of the person or persons who

will manufacture the drugs, and who will place the catheters.” . . . Wellons

14

has not established a substantial likelihood of success on the merits of his

15

claim that the dearth of information regarding the nature of the

pentobarbital that will be used in his execution and the expertise of those

16

who will carry it out violates the First Amendment or his right to due

17

process. This ground is also a sufficient basis to conclude that the district

court did not abuse its discretion in concluding that Wellons is not entitled

18

to injunctive relief on these claims.

19 Id., at *6 (quotation omitted).
20

21

Having reviewed the cases cited by both parties, particularly California First

22 Amendment Coalition, the Court concludes that the First Amendment does not provide a
23 24 right to access to the specific information Wood seeks. The question addressed in

25 California First Amendment Coalition was “whether the public has a First Amendment

26 right to view executions.” 299 F.3d at 873 (emphasis added). In answering that question, 27 28 the court noted that “[t]he public and press historically have been allowed to watch the

11

1 condemned inmate enter the execution place, be attached to the execution device and
2 then die.” Id. at 876. By contrast, Wood has cited no authority for the proposition that
3

4 the press and general public have historically been granted access to information

5 identifying of the manufacturer of lethal-injection drugs. To the extent that the
6 7 Department of Corrections has disclosed such information to civil rights plaintiffs in the

8 past, it has been pursuant to court order, as in Schad, or during discovery, as in West v.

9 Brewer, No. 2:11-CV-1409-NVW.

10

11

Plaintiff also argues that information identifying the manufacturer of the lethal

12 injection drugs is necessary to the public debate about the death penalty. The Court is

13 not persuaded. Given the information that has already been disclosed, including the type
14
15 of drug, the dosage to be used, and the expiration dates, as well as the fact that the drugs

16 are domestically-obtained and FDA-approved, access to the additional information 17
sought by Plaintiff would not “play[] a significant positive role in the functioning” of 18 19 the death penalty. California First Amendment Coalition, 299 F.3d at 875 (quoting

20 Press-Enterprise II, 478 U.S. at 8). The available information is sufficient for an
21 22 “informed public debate.” Id. at 876.

23

Finally, in contrast to the record considered by the court in Schad, there are not

24 significant questions about the reliability of the information disclosed by the Arizona 25 26 Department of Corrections. 2013 WL 5551668, at *2. For example, there are not

27

28

12

1 concerns that the lethal injection drugs are expired or obtained from a foreign source.
2 Shad, 2013 WL 5551668, at *2.
3

4

The holding in California First Amendment Coalition does not extend a First

5 Amendment right to information identifying the drug manufacturer in this case. That
6 7 case specifically addressed a public right to view the execution process. That principle

8 does not expand to encompass a First Amendment right to compel the government to

9 disclose information about execution drugs beyond that already provided here.

10

11

The same analysis applies to the other categories of information Wood seeks.

12 The Department of Corrections has stated that the qualifications of its execution team

13 personnel have not changed since prior litigation, Towery v. Brewer, No. 2:12-CV-245-
14
15 NVW, and that it developed its two-drug protocol based on declarations and testimony

16 in the Ohio litigation. (Doc. 11, Ex. F.) Declining to provide additional information does

17 not violate the First Amendment.
18

19

In addition, the undisclosed information does not have the practical import

20 necessary to warrant a preliminary injunction even if there were a theoretical basis for
21 22 it. At oral argument, Wood could not articulate any particular significance to the

23 identity of the drug manufacturer beyond an abstract right to the information and its

24 purported usefulness to public debate. (See Doc. 19 at 9–11.) The usefulness of the 25 26 identity of the manufacturer to public debate on the death penalty is attenuated. The

27 real effect of requiring disclosure, however, is to extend the pressure on qualified

28

13

1 suppliers not to supply the drugs, as has happened in the past. See Landrigan v. Brewer,
2 625 F.3d 1132, 1143 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing
3

4 en banc). That purpose carries no weight in favor of compelled disclosure by the

5 equitable remedy of a preliminary injunction. Indeed, the weight it carries is against
6 7 disclosure. The state has a legitimate interest in getting the drugs from legal sources,

8 which would be impeded by disclosure of the source. (Id.)

9

Next, the specific qualifications of the execution personnel is of little

10

11 significance because the protocol states the levels of qualification needed and there is no

12 challenge to the Defendants’ assertion that those qualifications have been met. Also,

13 the detail of information Wood requests might in fact become “identifying”
14
15 information. That result is only a possibility on this sparse record. But the possibility

16 alone weighs against disclosure when nothing specific weighs in favor. 17
Finally, the manner in which the Department of Corrections developed its 18 19 protocol is less important than the protocol itself. The protocol must withstand

20 constitutional scrutiny if challenged, however it was arrived at. Wood does not
21 22 challenge the substance of the protocol on this motion. The absence of specific,

23 articulated value of the information to Wood cuts against suspension of the state court

24 processes to get it. 25 26 / / /

27 / / /

28

14

1

CONCLUSION

2 For the reasons set forth above, Plaintiff’s claim of First Amendment right of
3

4 access to governmental proceedings is not likely to succeed on the merits, not for the

5 ends to which it is asserted here. Winter, 555 U.S. at 20. Nor are there serious questions
6 7 going to the merits of the claim. Cottrell, 632 F.3d at 1135.

8

Under Winter or the Ninth Circuit’s sliding-scale test, “if a plaintiff fails to show

9 that he has some chance on the merits, that ends the matter.” Developmental Services 10
11 Network v. Douglas, 666 F.3d 540, 544 (9th Cir. 2011) (citing Global Horizons, Inc. v.

12 U.S. Dep’t of Labor, 510 F.3d 1054, 1058 (9th Cir. 2007)); see Doe v. Reed, 586 F.3d

13 671, 681 n.14 (9th Cir. 2009) (“Because we conclude that Plaintiffs have failed to
14
15 satisfy the first Winter factor—likelihood of success on the merits—we need not

16 examine the three remaining Winter factors.”). 17
Therefore, Wood has not “by a clear showing, carried the burden of persuasion” 18

19 on his motion for a preliminary injunction. Mazurek, 520 U.S. at 972.

20

IT IS THEREFORE ORDERED that Plaintiff Wood’s Motion for Preliminary

21 22 Injunction or Temporary Restraining Order (Doc. 11) is DENIED.

23

Dated this 10th day of July, 2014.

24

25

26

27

28

15

 
 Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 1 of 56

1 JON M. SANDS

Federal Public Defender, District of Arizona 2 DALE A. BAICH (OH Bar No. 0025070)

3 dale_baich@fd.org ROBIN C. KONRAD (AL Bar No. N76K2194)

4 robin_konrad@fd.org

5

850 West Adams Street, Suite 201 Phoenix, Arizona 85007

6 602.382.2816 | 602.889.3960 facsimile

7 Counsel for Condemned Plaintiffs

8 MARK E. HADDAD (admitted pro hac vice)

mhaddad@sidley.com 9 ALYCIA A. DEGEN (admitted pro hac vice)

10 adegen@sidley.com JOSHUA E. ANDERSON (admitted pro hac vice)
11 janderson@sidley.com

12 AIMEE G. MACKAY (admitted pro hac vice) amackay@sidley.com

13 COLLIN P. WEDEL (admitted pro hac vice)

cwedel@sidley.com 14 LAUREN A. MCCRAY (admitted pro hac vice)

15 lmccray@sidley.com SIDLEY AUSTIN LLP
16 555 West Fifth Street, Suite 4000

17 Los Angeles, California 90013 213.896.6000 | 213.896.6600 facsimile

18 Counsel for the Coalition and Condemned Plaintiffs

19

IN THE UNITED STATES DISTRICT COURT

20

FOR THE DISTRICT OF ARIZONA

21 First Amendment Coalition of Arizona, Inc.; Case No. 2:14-cv-01447-NVW-JFM

Charles Michael Hedlund; Graham S. Henry;

22 David Gulbrandson; Todd Smith; and Eldon FIRST AMENDED COMPLAINT

Schurz, 23

Plaintiffs,

FOR VIOLATIONS OF 42 U.S.C. § 1983 AND

24

v.

EQUITABLE, INJUNCTIVE, AND

25

Jan M. Brewer, Governor; Charles L. Ryan, DECLARATORY RELIEF Director of ADC; Ron Credio, Warden,

26

ASPC–Eyman; Greg Fizer, Warden, ASPC– Florence; and Does 1-10, Unknown ADC

27 Personnel, in their official capacities as Agents of ADC,

28

Defendants.

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 2 of 56

1

Table of Contents

2 INTRODUCTION .............................................................................................................. 1

3 JURISDICTION AND VENUE.........................................................................................7

4 PARTIES TO THE ACTION.............................................................................................8

5 RELEVANT FACTS........................................................................................................ 10
6

A. The Public’s and Press’s Constitutional Right of Access

7

to Execution Proceedings. .......................................................................... 10

8 B. The Constitutional Rights to Which Condemned Prisoners

9

Are Entitled. ............................................................................................... 12

10

C. Obstacles to the Constitutional Use of Lethal Injection. ........................... 13

11

D. Arizona’s Struggles With Implementing Constitutional

12

Procedures for Carrying out Executions. ................................................... 18

13

E. Defendants’ Pre-Wood Botched Executions..............................................24

14

F. Wood’s Botched Execution........................................................................30

15

G. Arizona’s Unconstitutional Procedures Made Wood’s

16

Failed Execution Inevitable........................................................................35

17 EXHAUSTION OF ADMINISTRATIVE REMEDIES..................................................39

18 CLAIMS FOR RELIEF....................................................................................................40
19 PRAYER FOR RELIEF ................................................................................................... 49 20 CERTIFICATE OF SERVICE.........................................................................................54 21

22

23

24

25

26

27

28

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 3 of 56

1

1. This action is brought pursuant to 42 U.S.C. § 1983 by Plaintiff First

2 Amendment Coalition of Arizona, Inc. (“Coalition”) and Plaintiffs Charles Michael

3 Hedlund, Graham Henry, David Gulbrandson, Todd Smith, and Eldon Schurz

4 (collectively, “Condemned Plaintiffs,” and, with the Coalition, “Plaintiffs”). The

5 Coalition and Condemned Plaintiffs jointly seek equitable, injunctive, and declaratory

6 relief to require transparency with respect to the State of Arizona’s execution process,

7 and in particular, to stop and prevent violations and threatened violations by Defendants 8 of Plaintiffs’ First Amendment right of access to governmental proceedings.1 The

9 Condemned Plaintiffs (but not the Coalition) also seek to vindicate additional rights that

10 the Condemned Plaintiffs possess under the Constitution, including to stop and prevent

11 violations and threatened violations by Defendants of the Condemned Plaintiffs’ First

12 Amendment right to petition the government for redress of grievances, their Eighth

13 Amendment rights to be free from being a subject of medical experimentation and from

14 suffering a cruel, unusual, undignified, or lingering death, and their Fourteenth 15 Amendment rights to due process and equal protection.2

16

Introduction

17

2. This First Amended Complaint is filed less than two months after the

18 execution of Joseph Rudolph Wood III, formerly the lead plaintiff in this lawsuit, whose

19 execution was the most recent—and profoundly disturbing—in a series of botched

20 executions carried out by Defendants and the State of Arizona. Arizona’s improvised

21 and unprecedented two-hour execution of Joseph Wood has laid bare fundamental flaws

22 in Arizona’s attempts to implement its lethal injection statute. Without significant

23 changes, ordered and supervised by this Court, Defendants will continue to abuse its

24

25 1 The Coalition seeks only relief for violations and threatened violations of its First 26 Amendment rights, and does not assert claims for violations of the Eighth or Fourteenth
Amendments. 27 2 Condemned Plaintiffs do not in this Complaint challenge their underlying capital 28 convictions.

1

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 4 of 56

1 discretion and violate the Constitution, with a substantial risk of imposing more

2 experiments in human execution with similarly ghastly results, and of doing so without

3 outside public knowledge or meaningful media scrutiny.

4

3. The initial Complaint in this case alleged that Defendants’ ever-shifting

5 execution procedures, along with their efforts to hide how they planned to execute the

6 condemned, impaired the ability of then-Plaintiff Joseph Wood and the other

7 Condemned Plaintiffs to challenge the method by which they would be killed, and thus

8 violated their First Amendment rights to petition the government for redress of 9 grievances and to obtain access to government proceedings and information.3

10

4. While this civil suit was pending, the date for Wood’s execution drew

11 near, and he sought a stay of his execution. Reversing this Court’s decision, the United

12 States Court of Appeals for the Ninth Circuit granted a stay until such time as

13 Defendants provided sufficient information regarding the execution procedure they

14 intended to follow.

15

5. Defendants successfully petitioned the United States Supreme Court to lift

16 the stay, arguing that Wood’s pleas for greater transparency in Arizona’s execution

17 process were unfounded because, in the Defendants’ words, Wood “blithely ignores that

18 nearly every detail about his execution is provided to him and to the general public,

19 including exactly what and how much lethal drugs will be used, how they will be 20 administered, and the qualifications of those placing the IV lines to administer them.”4

21 3 Defendant Governor Jan Brewer was not a Defendant in the initial Complaint, but has

22 been added as a Defendant in this First Amended Complaint.

23 4 Reply Brief of State of Arizona in support of Application for Stay at 2, Ryan v. Wood, No. 14A82 (U.S. July 22, 2014) (emphasis added). Similarly, Judge Bybee, dissenting
24 from the Ninth Circuit Court of Appeals’ grant of stay, asserted that both Wood and

25

“[t]he public know[] precisely how the State intends to end Wood’s life and can investigate [based on already available information] whether the drugs are suited to that

26 purpose,” and, indeed, “[a]nyone who reads the Protocol will know exactly how Arizona

plans to carry out [his] execution.” Wood v. Ryan, --- F.3d ----, No. 14-16310, 2014 WL 27 3563348, at *22 (9th Cir. July 19, 2014) (Bybee, J. dissenting), vacated, 14A82, 2014

28 WL 3600362 (U.S. July 22, 2014).

2

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 5 of 56

1 Defendants’ March 26, 2014, Department Order 710 Execution Procedures

2 (“Procedures”) provided for one dose of 50 milligrams each of midazolam and

3 hydromorphone, with a second dose of each to be administered at the discretion of the

4 Director of the Arizona Department of Corrections (“ADC”), currently Defendant Ryan

5 (“Director”). Arizona had never executed any prisoner with these drugs. Moreover, only

6 one other state previously had used these two drugs in an execution, and the result was

7 Ohio’s botched, January 16, 2014, execution of Dennis McGuire.

8

6. As demonstrated by Wood’s execution on July 23, 2014, Defendants’

9 representations to the Supreme Court were false. Neither Wood, nor the Condemned

10 Plaintiffs, nor the public, nor the press, nor (it would appear) even Defendants knew how

11 Wood’s execution would actually be carried out. Free from the requisite public and

12 media scrutiny of their preparation for and conduct of an execution, scrutiny that is

13 necessary to ensure that a state executes its prisoners humanely, Defendants were free

14 to—and did—abandon the published Procedures and Defendants’ representations to this

15 Court, the Court of Appeals, and the Supreme Court.

16

7. During their nearly two-hour medical experiment with new doses and

17 chemicals, Defendants departed radically from their written Procedures and promises to

18 the courts. When Wood did not expire within twenty minutes after receiving the first

19 dose, but instead (after about twelve minutes) lurched forward against his restraints and

20 began breathing deeply, Defendants began injecting Wood with additional doses of both

21 drugs. As Wood continued to gulp for air, Defendants continued to inject Wood with

22 additional doses of the drugs, ultimately administering 14 additional doses for a total of

23 750 milligrams each of midazolam and hydromorphone, literally hundreds of times 24 greater than the amounts that would be administered in a clinical setting.5

25

26

27 5 Fernanda Santos, Executed Arizona Inmate Got 15 Times Standard Dose, N.Y. TIMES, 28 Aug. 1, 2014, http://nyti.ms/1ohRODF.

3

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 6 of 56

1

8. The result of Defendants’ improvisational execution was that Wood

2 lingered alive for almost two hours after being first injected with what Defendants

3 represented were lethal doses of the two drugs. During his last living hours, he gasped

4 for air more than 640 times. Journalist witnesses who were present at the execution

5 reported Wood’s final 117 minutes in graphic terms that place his suffering far beyond

6 what the Constitution permits:

7

 “like a fish on shore gulping for air”;6

8



“gulp[ing] like a fish on land”;7

9

 “death by apnea”;8

10

 “a snoring, sucking, similar to when a swimming pool filter starts

11

taking in air, a louder noise than I can imitate”;9 and

12

 “I saw a man who was supposed to be dead, coughing—or choking,

13

possibly even gasping for air.”10

14 //

15 //

16 //

17

18

19

20
21 6 Laurie Roberts, Arizona Needs a Timeout After Botched Execution, ARIZ. REPUBLIC, July 23, 2014, http://www.azcentral.com/story/laurieroberts/2014/07/23/woods-
22 execution-botched/13073777. 23 7 Michael Kiefer, Reporter Describes Arizona Execution: 2 Hours, 640 Gasps, ARIZ.
REPUBLIC, July 26, 2014, http://www.azcentral.com/story/news/arizona/politics/ 24 2014/07/24/arizona-execution-joseph-wood-eyewitness/13083637. 25 8 Id. 26 9 Id.
10 Mauricio Martin, Witness to a 2-hour Arizona Execution: Joseph Wood’s Final 117 27 Minutes, GUARDIAN, July 24, 2014, http://www.theguardian.com/commentisfree/2014/ 28 jul/24/witness-arizona-execution-joseph-wood-died.

4

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 7 of 56

1

9. Wood’s execution was also extensively reported by news outlets around

2 the country and around the world, and was again described in terms underscoring the

3 brutality of Defendants’ improvisation:

4



“snoring, gasping and gurgling”;11

5

 “gasping and struggling to breathe”;12

6

 “in grotesque agony, choking his way to death”;13

7

 “[a]nother unexpectedly prolonged execution using disputed lethal

8

injection drugs”;14 and

9

 “[like] catch[ing] a fish and throw[ing] it on the shore, the way the

10

fish opens and closes its mouth.”15

11

10. These reactions were echoed by two of Arizona’s most prominent elected

12 officials. Senator John McCain, a survivor of barbaric treatment during the Vietnam 13 War, initially described Wood’s execution as “torture.”16 Defendant Governor Jan

14 Brewer issued a statement noting her “concern” about “the length of time it took for the 15 administered drug protocol” to kill Wood.17 Although she expressed her confidence in

16
17 11 Editorial, Problems with Execution Drugs Must Be Solved, KNOXVILLE (TN) NEWS SENTINEL, July 28, 2014, http://www.knoxnews.com/opinion/editorials/editorial-
18 problems-with-execution-drugs-must-be-solved_43109448
19 12 Charles P. Pierce, It’s Time to End Our State-Sponsored Barbarism, ESQUIRE, July 24, 2014, http://www.esquire.com/blogs/politics/ Another_Execution_Horror_Story.
20 13 James Poulos, Dysfunction and the Death Penalty, ORANGE CNTY. (CA) REGISTER, 21 Aug. 8, 2014, http://www.ocregister.com/articles/death-631022-penalty-
punishment.html. 22 14 Erik Eckholm, Arizona Takes Nearly 2 Hours to Execute Inmate, N.Y. TIMES, July 23, 23 2014, at A1.
24 15 Megan McCracken & Jennifer Moreno, Botched Executions Can’t Be New Norm, CNN, July 27, 2014, updated Sept. 8, 2014, http://www.cnn.com/2014/07/26/
25 opinion/mccracken-moreno-botched-executions.
26 16 Burgess Everett, John McCain: Arizona Execution ‘Torture,’ POLITICO, July 24, 2014, http://www.politico.com/story/2014/07/john-mccain-arizona-execution-109350.html.
27 17 Press Release, Office of the Governor of Arizona (July 23, 2014), available at 28 http://www.azgovernor.gov/dms/upload/PR_072314_WoodExecution.pdf.

5

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 8 of 56

1 ADC, Defendant Brewer directed the ADC immediately to begin an investigation in 2 light of her concerns.18

3

11. As described in more detail below, ADC is conducting an investigation

4 internally. That investigation is not yet complete and its results have not yet been made

5 available to Plaintiffs or the public.

6

12. During the course of Wood’s prolonged execution, Wood’s counsel sought

7 this Court’s intervention to stop Defendants from proceeding any further. While engaged

8 in a telephonic hearing with the Court, Defendants falsely represented the dosages they

9 had administered to Wood. Specifically, at 3:35 p.m. on the day of the execution (103

10 minutes after the drugs began flowing), Defendants told the Court that Wood had

11 received a “[a] second dose of drugs.” However, as was later revealed, by 3:33 p.m.

12 Wood had received not just his second but also his third through twelfth injections of the

13 drugs; he would receive three more injections during the hearing. At 3:47 p.m.,

14 Defendants told the Court that they would “push chemicals” to try to hasten Wood’s

15 death; by that time, however, Wood had already received his fifteenth and final dose.

16 Because of the secrecy with which Defendants cloak their execution process, no witness

17 present at the execution was able to observe Defendants’ repeated injections of the drugs

18 nor knew how many injections he had received; no one thus could contradict

19 Defendants’ representations to this Court at that time.

20

13. Defendants also represented to this Court that Wood was “brain dead,” and

21 thus beyond resuscitation or experiencing pain. Defendants did not employ, however,

22 instruments that medical professionals use to assess brain death.

23 18 Id.; see also Arizona Dep’t of Corr., Press Release, Independent Review Process for

24 Wood Execution Underway, Aug. 1, 2014, https://corrections.az.gov/article/independent-

25

review-process-wood-execution-underway; Arizona Dep’t of Corr., Press Release, Department of Corrections Statement on Review of July 23 Execution, July 24, 2012,

26 https://corrections.az.gov/article/department-corrections-statement-review-july-23-

execution; Arizona Dep’t of Corr., Press Release, Convicted Murderer Joseph Wood 27 Executed, July 23, 2014, https://corrections.az.gov/article/convicted-murderer-joseph-

28 wood-executed.

6

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 9 of 56

1

14. Moreover, Defendants did not have immediate access to drugs that could

2 reverse the effects of the drugs administered, effectively tying this Court’s hands.

3 Wood’s ongoing labored breathing indicated that he was not, in fact, brain dead.

4

15. Neither Arizona nor any other state has ever attempted to execute an

5 individual using these dosages of these drugs. Defendants’ ever-changing execution

6 procedures, and their pattern of deviating from those procedures before and during an

7 execution, made it foreseeable (if not certain) that Defendants would subject Wood to a

8 death by unusual and cruel means.

9

16. The events during Joseph Wood’s execution were not isolated events.

10 Rather, Wood’s execution followed directly from the excessive discretion Arizona vests

11 in its prison officials for carrying out executions. Defendants have now botched a series

12 of executions due to the flawed written procedures and Defendants’ refusal to even

13 adhere to those flawed procedures. See generally Lopez v. Brewer, 680 F.3d 1084, 1093-

14 94 (9th Cir. 2012) (Pregerson, J., dissental) (discussing series of mishaps and mistakes in

15 Arizona’s attempts to carry out death sentences).

16

17. Defendants blocked from public and judicial scrutiny their acts and

17 decision-making before and during the course of Wood’s execution. Defendants also

18 have blocked attempts by journalists, including some employed by members of the

19 Coalition, to obtain information about what went wrong with Wood’s execution.

20

18. Defendants were aware of the substantial risk of error, pain, prolonged

21 suffering, and indignity that faced Wood, but refused to mitigate that risk. Defendants’

22 insistence upon a right to experiment with human execution free from meaningful public

23 and judicial scrutiny highlights the urgent need for transparency in Arizona’s execution

24 process and procedures.

25

Jurisdiction and Venue

26

19. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal

27 question), 28 U.S.C. § 1343 (civil-rights violations), 28 U.S.C. § 2201 (declaratory

28 relief), and 28 U.S.C. § 2202 (injunctive relief). Plaintiffs invoke this Court’s

7

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 10 of 56

1 jurisdiction pursuant to the First, Eighth, and Fourteenth Amendments to the United

2 States Constitution, and 42 U.S.C. § 1983.

3

20. Venue is proper pursuant to 28 U.S.C. § 1391(b). Condemned Plaintiffs

4 are currently incarcerated at the Arizona State Prison Complex (“ASPC”)–Eyman,

5 Browning Unit, 4374 East Butte Avenue, Florence, Arizona, located in this District.

6 Additionally, the Coalition resides in this District.

7

21. Moreover, all executions conducted by Defendants occur at the Central

8 Unit at ASPC–Florence, which is in this District. Thus, the events giving rise to this

9 Complaint have occurred and/or will occur in this District.

10

Parties to the Action

11

22. Plaintiff First Amendment Coalition of Arizona, Inc., is a non-profit

12 corporation made up of organizations dedicated to advancing free speech, accountable

13 government, and public participation in civic affairs. Founded in 1981, the Coalition is

14 located in Phoenix, Arizona. Members of the Coalition include the Arizona Broadcasters

15 Association; the Arizona Newspapers Association; the Arizona-New Mexico Cable

16 Telecommunication Association; the Arizona Press Club; the Society of Professional

17 Journalists; Valley of the Sun Chapter; and individual news media companies and

18 reporters. The Coalition asserts a claim under only the First Amendment to vindicate the

19 rights of access of the press and the public to government proceedings and information;

20 the Coalition does not join the separate First, Eighth, and Fourteenth Amendment claims

21 advanced by the Condemned Plaintiffs.

22

23. Plaintiff Charles Michael Hedlund is a United States citizen and a resident

23 of the State of Arizona. He is currently subject to a sentence of death imposed by the

24 Superior Court of Maricopa County. Hedlund is incarcerated at ASPC–Eyman,

25 Browning Unit, in Florence, Arizona.

26

24. Plaintiff Graham S. Henry is a United States citizen and a resident of the

27 State of Arizona. He is currently subject to a sentence of death imposed by the Superior

28

8

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 11 of 56

1 Court of Mohave County. Henry is incarcerated at ASPC–Eyman, Browning Unit, in

2 Florence, Arizona.

3

25. Plaintiff David Gulbrandson is a United States citizen and a resident of the

4 State of Arizona. He is currently subject to a sentence of death imposed by the Superior

5 Court of Maricopa County. Gulbrandson is incarcerated at ASPC–Eyman, Browning

6 Unit, in Florence, Arizona.

7

26. Plaintiff Todd Smith is a United States citizen and a resident of the State of

8 Arizona. He is currently subject to a sentence of death imposed by the Superior Court of

9 Coconino County. Smith is incarcerated at ASPC–Eyman, Browning Unit, in Florence,

10 Arizona.

11

27. Plaintiff Eldon Schurz is a United States citizen and a resident of the State

12 of Arizona. He is currently subject to a sentence of death imposed by the Superior Court

13 of Maricopa County. Schurz is incarcerated at ASPC–Eyman, Browning Unit, in

14 Florence, Arizona.

15

28. Defendant Jan M. Brewer is the governor of the State of Arizona and is

16 being sued in her official capacity for equitable, injunctive, and declaratory relief.

17

29. Defendant Charles L. Ryan is the Director of ADC and is being sued in his

18 official capacity for equitable, injunctive, and declaratory relief.

19

30. Defendant Ron Credio is the Warden of ASPC–Eyman, where Condemned

20 Plaintiffs are incarcerated, and is being sued in his official capacity for equitable,

21 injunctive, and declaratory relief.

22

31. Defendant Greg Fizer is the Warden of ASPC–Florence, where

23 Condemned Plaintiffs will be executed, and is being sued in his official capacity for

24 equitable, injunctive, and declaratory relief.

25

32. Defendants John and Jane Does are unknown employees, staff,

26 contractors, or agents of ADC or the State of Arizona who are ADC’s officers,

27 successors in office, agents, contractors, staff, and employees, along with those acting in

28 concert with them, who have participated or will participate in Condemned Plaintiffs’

9

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 12 of 56

1 executions in capacities involving, inter alia, setting IV lines, handling drugs that are

2 classified as controlled substances, and developing and implementing ADC’s execution

3 procedures—including the protocols governing the preparation and administration of

4 drugs designed to execute people. Plaintiffs are not aware of the true identities of the

5 John and Jane Does, but allege that when Plaintiffs discover their identities, Plaintiffs 6 will amend this Complaint accordingly.19

7

33. At all times herein mentioned, each of the Defendants was the agent,

8 servant, representative, officer, director, partner or employee of the other Defendants

9 and, in doing the things herein alleged, was acting within the scope and course of

10 his/her/its authority as such agent, servant, representative, officer, director, partner or

11 employee, and with the permission and consent of each Defendant.

12

Relevant Facts

13

A. The Public’s and Press’s Constitutional Right of Access to Execution

Proceedings.

14

15

34. Because executions reflect public outrage, carry out a public verdict, and

16 exact retribution on behalf of the public, it is imperative—and mandated by the First

17 Amendment—that members of society have information about executions, and that the

18 press have access to and be able to provide the public that information through the

19 media’s reports on the planning for and conduct of the executions.

20

35. The press—and the transparency it necessarily brings to the issues it

21 covers—plays a crucial role in ensuring that members of the public have the information

22 they need to evaluate whether and how their elected officials are adhering to the

23 Constitution as they carry out “a horrendous brutality on our behalf.” Wood v. Ryan, 14-

24 16310, 2014 WL 3563348, at *23 (9th Cir. July 19, 2014) (Kozinski, C.J., dissental),

25 19 For ease of reference, and to distinguish between past actions taken by persons who are 26 also Defendants here, Plaintiffs refer to Defendants variably as “Defendants,” “the State,”
and/or “ADC” where appropriate. Plaintiffs note, however, that their use of any of these 27 phrases should not be interpreted as limiting the scope of their claims, which are brought 28 against each and all of the Defendants.

10

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 13 of 56

1 vacated, 14A82, 2014 WL 3600362 (U.S. July 22, 2014); Cal. First Amendment Coal. v.

2 Woodford, 299 F.3d 868, 876 (9th Cir. 2002) (“To determine whether lethal injection

3 executions are fairly and humanely administered, or whether they ever can be, citizens

4 must have reliable information about the . . . [‘]procedures,’ which are invasive, possibly

5 painful and may give rise to serious complications. This information is best gathered

6 first-hand or from the media, which serves as the public’s surrogate.”). Media access to

7 the details of executions is particularly important because journalists assigned to witness

8 an execution must often report to other media organizations what they observe, as the

9 number of reporters present is often limited.

10

36. Moreover, members of the media have historically had access not just to

11 the event of an execution itself, but also to the state’s pre-execution planning, methods

12 the state intends to use, the qualifications of the persons involved, and potential

13 contingency procedures. Gaining familiarity with the particulars of how the state plans

14 to carry out its “precise execution-day routine” is crucial because, “by knowing what

15 happens in a ‘textbook’ execution . . . reporters are not as likely to be surprised or 16 traumatized, and will know if something goes wrong.”20

17

37. The transparency the media brings is needed, especially in Arizona, both

18 because Arizona has experienced a series of widely publicized problems in carrying out

19 its executions, and also because Arizona has repeatedly blocked attempts by the press to

20 obtain information about its death-penalty regime. As Judge Berzon has noted, “Arizona

21 has recently increased the secrecy with which it conducts executions . . . to make it more

22 difficult for condemned prisoners to litigate the nature of the risk created by the

23 procedures used in the past.” Lopez v. Brewer, 680 F.3d 1084, 1090 (9th Cir. 2012)

24 (Berzon, J., concurring in part and dissenting in part). For example, Judge Berzon has

25

26

27 20 Cynthia Barnett, Covering Executions, AM. JOURNALISM. REV., May 1995, available at 28 http://ajrarchive.org/article.asp?id=1265.

11

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1 suggested that Arizona should “permit[] exposure through media and witnesses of any

2 indications of serious pain during those executions.” Id.

3

B. The Constitutional Rights to Which Condemned Prisoners Are

Entitled.

4 38. Condemned prisoners, including Condemned Plaintiffs, share the same

5 right of access to governmental information that the press and the public enjoy. But they

6 also have unique rights tied to their impending executions. The Eighth Amendment of

7 the Constitution, applicable to the States through the Fourteenth Amendment, prohibits

8 the infliction of “cruel and unusual punishments.” Punishments are “cruel when they

9 involve torture or a lingering death.” Baze v. Rees, 553 U.S. 35, 46 (2008) (quoting In re

10 Kemmler, 136 U.S. 436, 447 (1890)). For more than a century, the States and the

11 American public have sought to ensure the “most humane and practical method” for

12 carrying into effect the sentence of death. See, e.g., Malloy v. South Carolina, 237 U.S.

13 180 (1915); S. BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 192-193, 296-

14 297 (2002) (describing the evolution of executions from hanging, to firing squad, to

15 electrocution, to lethal gas to lethal injection). See generally AUSTIN SARAT, GRUESOME

16 SPECTACLES: BOTCHED EXECUTIONS AND AMERICA’S DEATH PENALTY (2014). A

17 condemned prisoner is entitled to a humane death that does not cause “needless

18 suffering,” prolonged lingering, or deliberate infliction of pain. See Farmer v. Brennan,

19 511 U.S. 825, 846 & n.9 (1994). A condemned person cannot be subjected to a method

20 of execution that creates a “substantial risk of serious harm.” Baze, 553 U.S. at 50.

21 39. In addition to (and subsumed within) a condemned prisoner’s Eighth

22 Amendment right to be from the risk of harm or a lingering death, dozens of treaties,

23 laws, and the interests in life and liberty protected by the Fourteenth Amendment protect

24 a prisoner’s right to dignity and to be free from non-consensual medical experiments.21

25

26 21 See, e.g., 45 U.S.C. § 3515b; 45 C.F.R. Part 46; 40 C.F.R. Part 26; Universal 27 Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Docs. A/RES/217(III), A/810
(Dec. 10, 1948); International Covenant on Civil and Political Rights, G.A. Res. 2220 28 (XXI) A, 21 U.N. Doc., GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966);

12

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 15 of 56

1 See Beardslee v. Woodford, 395 F.3d 1064, 1070 (9th Cir. 2005) (“[T]he Eighth

2 Amendment prohibits punishments that . . . do not accord with ‘the dignity of man . . . .”

3 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).

4

C. Obstacles to the Constitutional Use of Lethal Injection.

5

40. Whether lethal injection adequately ensures these rights is in doubt. This

6 stems in part from the basic premise of lethal injection, which, as Chief Judge Kozinski

7 has recently noted, involves “[s]ubverting medicines meant to heal the human body to

8 the opposite purpose . . . [resulting in] an enterprise doomed to failure.”22

9

41. The American Medical Association and the American Board of

10 Anesthesiology also have concluded that a physician’s participation in capital

11 punishment violates the ethical tenets of medical practice.23

12

42. Likewise, many States have recently encountered difficulty obtaining

13 drugs for lethal injection, in part because several pharmaceutical companies responsible

14

15

16

17 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. res. 39/46, 39 U.N. Doc., GAOR Supp. (No. 51) at 197, U.N. Doc. 18 A/39/51 (1984) (ratified 10/28/98); Declaration on the Protection of All Persons From

19 Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452, 30 U.N. Doc., GAOR Supp. (No. 34) at 91, U.N. Doc.

20 A/10034 (1976); Vienna Declaration and Programme of Action (World Conference on

Human Rights, 1993); Article 3 of the Geneva Conventions; The Nuremburg Code. 21 22 Wood v. Ryan, --- F.3d. ----, 14-16310, 2014 WL 3563348, at *23 (9th Cir. July 19,

22 2014) (Kozinski, C.J. dissental), vacated, 14A82, 2014 WL 3600362 (U.S. July 22,

23 2014). 23 See AMERICAN MEDICAL ASSOCIATION CODE OF MEDICAL ETHICS, Opinion E-2.06 –

24 Capital Punishment (June 2000) (accessed September 8, 2014, at http://www.ama-

25

assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/ opinion206.page); see also COMMENTARY, AMERICAN BOARD OF ANESTHESIOLOGY,

26 ANESTHESIOLOGISTS AND CAPITAL PUNISHMENT (May 2014); “Statement from Drug

Manufacturers and other Medical Professionals,” Death Penalty Information Center, 27 http://www.deathpenaltyinfo.org/lethal-injection-moratorium-executions-ends-after-

28 supreme-court-decision#statements (listing medical opposition).

13

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 16 of 56

1 for making these drugs have refused to make their products available for killing 2 people.24

3

43. In the years since the Supreme Court decided Baze, at which time the

4 majority of States used the same combination of three drugs in their lethal injection

5 protocols—sodium thiopental, pancuronium bromide, and potassium chloride—states

6 have begun experimenting with different untested drug combinations to execute

7 prisoners, and are increasingly turning to untoward (and, in some cases, illegal) methods 8 to obtain the needed drugs required for these experimental combinations.25

9

44. The resort to compounding and/or clandestine means of obtaining drugs

10 for execution, along with other failures of states to protect the condemned from a painful

11 and undignified death, has resulted in a series of lethal-injection mishaps occurring with

12 disturbing frequency.

13

45. Though each states’ mishaps vary, a common thread connecting three

14 recent botched executions is the use of the drugs midazolam and/or hydromorphone.

15

46. Midazolam (also sold under the trade name Hypnovel™ and Versed™) is

16 a short-acting, water-soluble benzodiazepine used most commonly as a premedication

17 for sedation, and less commonly as a general anesthetic. The FDA-approved intravenous

18

19 24 See Deborah W. Denno, Lethal Injection Chaos Post-Baze, 102 GEO. L.J.1331, 1360-

66 (2014); see David Jolly, Danish Company Blocks Sale of Drug for U.S. Executions, 20 N.Y. TIMES, July 1, 2011, http:// nytimes.com/2011/07/02/world/europe/02execute.html.

21 (reporting announcement by Danish pentobarbital manufacturer H. Lundbeck A/S that it “would require customers to buy [pentobarbital] through a single wholesaler and to sign

22 a form confirming they won’t resell it, aren’t a prison, and know Lundbeck opposes

23

executions.”); id. at 1361 (“The shortage of sodium thiopental led prison officials to seek out questionable alternative sources of the drug throughout the world, ranging from

24 England to Pakistan.”).

25

25 Missouri and Texas, for instance, have turned to compounding pharmacies to create analogues of branded drugs. Reliance on compounding pharmacies is risky, however,

26 because regulations governing such pharmacies are lax and vary from state to state, and

instances of contamination abound; American Medical Association guidelines even warn 27 doctors that prescribing compounded medications can lead to malpractice liability. See

28 Denno, 102 GEO. L.J. at 1366-68.

14

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 17 of 56

1 dose for an adult patient is 1 milligram to 2.5 milligrams to induce sedation. Labeling

2 instructions caution that high (e.g., more than 1 milligram) doses must be titrated slowly

3 in order to be effective. Specifically, the FDA-approved label counsels that doses of 1-

4 to-2 milligrams be administered over the course of three minutes. To be effective,

5 midazolam must be stored at temperatures between 68 and 77 degrees Fahrenheit.

6

47. Hydromorphone (also sold under the trade name Dilaudid™) is a potent

7 opioid drug, derived from morphine. The FDA-approved starting intravenous dosage for

8 medicinal use is 0.2 to 1 milligram. To be effective, hydromorphone must also be stored

9 at temperatures between 68 and 77 degrees Fahrenheit.

10

48. To Condemned Plaintiffs’ knowledge and belief, these drugs have never

11 been tested on humans or non-human animals at anywhere near the levels used by 12 Arizona to execute Joseph Wood.26

13

49. On January 16, 2014, the State of Ohio executed Dennis McGuire using a

14 combination of 10 milligrams of midazolam and 40 milligrams of hydromorphone—the

15 same drugs used by Defendants in Wood’s execution, albeit in much smaller amounts.

16 This experiment was the first time in the United States that a two-drug formula of

17 midazolam and hydromorphone had been used to execute a prisoner.

18

50. Information shows that, in advance of McGuire’s execution, Ohio officials

19 exchanged emails with various medical professionals about how the combination of

20 midazolam and hydromorphone would work. These emails and other documents

21 revealed that Ohio was warned that these drugs could cause a prisoner to “gasp” and

22 “hyperventilate” as he died, and that using these drugs to execute a person could end in

23

24 26 See Ashby Jones, Lethal-Injection Drug Is Scrutinized, WALL ST. J., June 1, 2014,

25

http://online.wsj.com/articles/lethal-injection-drug-is-scrutinized-1401668717 (“Anesthesiologists say they typically administer midazolam to a patient only a few

26 milligrams at a time and therefore know little about the effects of much larger doses . . . .

‘It’s uncharted territory’ said David Waisel, an anesthesiologist at Boston Children’s 27 Hospital who has testified on behalf of death-row inmates. ‘States literally have no idea

28 what they're doing to these people.’”).

15

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1 “disaster,” “a terrible, arduous, tormenting execution that is also an ugly visual and

2 shameful spectacle,” in part because, before losing consciousness, the patient likely

3 would be “subjected to the intoxicating effects of these drugs, which include 4 hallucinations.”27 Ohio officials expressed their concern about going forward with

5 something that might become “a distasteful and disgusting spectacle” that “would create

6 the appearance, at least, of suffering, which would upset witnesses and inspire 7 litigation.”28

8

51. Those concerns materialized at McGuire’s execution. Those who

9 witnessed the 26-minute execution reported that McGuire struggled and gasped loudly

10 for air “like a fish lying along the shore puffing for that one gasp of air that would allow 11 it to breathe.”29 After reviewing how McGuire’s execution could have gone so badly, the

12 State of Ohio announced that it would increase the dosages of hydromorphone and 13 midazolam to 50 milligrams each in its next execution.30 Subsequently, a federal court

14 ordered all executions in the State of Ohio stayed until at least January 15, 2015, 15 pending review of the State’s lethal-injection protocol.31

16

52. On April 29, 2014, the State of Oklahoma executed Clayton Lockett.

17 Officials took 51 minutes to place an IV line, eventually believing they had properly

18 inserted the IV in a vein in Lockett’s groin, after unsuccessfully attempting to place the 19 IV in his jugular vein and other locations.32 Oklahoma used an untested three-drug

20

21 27 Josh Sweigart, Ohio Increases Drug Dosage for Executions NEW REPUBLIC, Apr. 28,

2014,

http://www.newrepublic.com/article/119068/exclusive-emails-reveal-states-

22 worries-about-problematic-execution.

23 28 Id.

24 29 Lawrence Hummer, I Witnessed Ohio’s Execution of Dennis McGuire. What I Saw Was Inhumane, GUARDIAN, Jan. 22, 2014, http://www.theguardian.com/commentisfree/

25 2014/jan/22/ohio-mcguire-execution-untested-lethal-injection-inhumane.

26 30 Sweigart, supra note 27. 31 See Order, In re: Ohio Execution Protocol Litig., No. 2:11-cv-1016 (D. Ohio Aug. 8,
27 2014), ECF No. 494.

28 32 Erik Eckholm & John Schwartz, Timeline Describes Frantic Scene at Oklahoma

16

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1 formula that relied on an initial injection of 100 milligrams of midazolam intended to

2 render the prisoner unconscious, after which time the state planned to administer

3 vecuronium bromide (a paralytic) and then potassium chloride (to induce cardiac 4 arrest).33

5

53. The 43-minute execution did not go as planned. More than 20 minutes

6 after the drugs had been administered, Lockett was still conscious, and he struggled to

7 speak. He was reported as saying “Man,” “I’m not,” and “something’s wrong.”

8 Witnesses also reported that Lockett, at points, was seen “twitching” and “convulsing” 9 so violently that “it looked like his whole upper body was trying to lift off the gurney.”34

10 Officials then drew the blinds and discovered that the state’s technicians had missed 11 Lockett’s vein.35 Instead of going into Lockett’s bloodstream, the drugs had massed in

12 Lockett’s muscle tissue, creating a swelling under his skin “smaller than a tennis ball, 13 but larger than a golf ball.”36 Because the insertion point had been obscured from the

14 view of both the witnesses and the physicians, no one had previously noticed the

15 swelling. The curtains were then closed. Technicians then tried to insert the IV into

16 Lockett’s left femoral vein, but accidentally penetrated Lockett’s femoral artery instead,

17 before giving up. After all of this, doctors reported that Lockett’s heart was still beating.

18

19

20 Execution, N.Y. TIMES, May 2, 2014, http://nyti.ms/1ktZUJa.
21 33 Ashby Jones, Lethal-Injection Drug Is Scrutinized, WALL ST. J., June 1, 2014, 22 http://online.wsj.com/articles/lethal-injection-drug-is-scrutinized-1401668717.
34 Josh Levs, Ed Payne & Greg Botelho, Oklahoma Botched Lethal Injection Marks New 23 Front in Battle over Executions, CNN.COM, Apr. 30, 2014, http://www.cnn.com/ 24 2014/04/30/us/oklahoma-botched-execution.
35 One of those officials was Robert Patton. Though he is now the Director of the 25 Oklahoma Department of Corrections, Patton was formerly the Division Director of 26 Offender Operations at the ADC, and was a defendant in previous litigation before this
Court challenging the Arizona lethal injection protocol. 27 36 OKLAHOMA DEPT. OF PUBLIC SAFETY, THE EXECUTION OF CLAYTON D. LOCKETT 18 28 (2014).

17

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1 At that point, the governor of Oklahoma called off the execution, 43 minutes after it had 2 begun.37 Ten minutes later, Lockett died.

3

54. On July 23, 2014, Arizona executed Joseph Wood after reportedly

4 injecting him with 75 times the amount of midazolam used in McGuire’s botched

5 execution, and 7.5 times the amount of midazolam used in Lockett’s botched execution.

6 This was only the second execution carried out in the United States using a combination

7 of midazolam and hydromorphone. The results were graphic, disturbing, and

8 unconstitutional.

9

D. Arizona’s Struggles With Implementing Constitutional Procedures for

Carrying out Executions.

10

11

55. Long before Joseph Wood was taken to the execution chamber, Arizona

12 had failed humanely to execute other condemned prisoners, using a variety of methods.

13

56. On February 21, 1930, Arizona executed Eva Dugan, the first (and last)

14 woman to be executed in the State. At her execution by hanging, the snap of the rope

15 decapitated her, sending her severed head into the crowd of witnesses, five of whom

16 fainted as a result. In part because of Dugan’s horrifically botched execution, Arizona 17 abandoned hanging as its preferred method of execution.38

18

57. Arizona switched its execution method from hanging to the gas chamber, a

19 method that remained in place through April 6, 1992, when it botched the execution of

20 Donald Harding—the first execution to be carried out by Arizona in nearly 30 years.

21 Harding’s death by asphyxiation in the gas chamber took 11 minutes, much of which 22 time he spent cursing and screaming epithets at the state attorney general.39 One reporter

23

24 37 Id. at 18-19.

25

38 See Wood v. Ryan, 14-16310, 2014 WL 3563348, at *6 (9th Cir. July 19, 2014) (“Public outcry over a reportedly botched hanging in Arizona led to debate over methods

26 of execution and the eventual adoption in that state of the gas chamber.”), vacated,

14A82, 2014 WL 3600362 (U.S. July 22, 2014); AUSTIN SARAT, GRUESOME 27 SPECTACLES: BOTCHED EXECUTIONS AND AMERICA’S DEATH PENALTY 54-60 (2014).

28 39 Gruesome Death in Gas Chamber Pushes Arizona Toward Injections, N.Y. TIMES,

18

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1 who witnessed the “ugly event,” during which Harding turned red and purple while 2 writhing in pain, remarked that “animals [are put to] sleep more humanely.”40

3 Conflicting press accounts reported that the scene was so disturbing that the attorney 4 general became physically ill from watching it.41

5

58. In response to Donald Harding’s horrific execution, Arizona voters, by a

6 margin of 77% to 23%, passed a law adopting lethal injection as Arizona’s method of

7 execution. At first, Arizona adopted the three-drug protocol used in other states and later

8 approved by the Supreme Court in Baze: sodium thiopental, a fast-acting barbiturate that

9 is intended to induce anesthesia; pancuronium bromide, a paralytic agent that paralyzes

10 voluntary muscles, thus preventing breathing; and potassium chloride, a toxin that at

11 lethal levels causes cardiac arrest.

12

59. Arizona used these drugs to execute 21 prisoners between 1993 and 2000.

13 Then, from 2000 to 2007, it executed no prisoners. This was due primarily to the

14 pending federal litigation involving the constitutionality of Arizona death sentences. See

15 generally Ring v. Arizona, 536 U.S. 584 (2002) (finding unconstitutional Arizona’s law

16 that aggravating factors are determined by a judge rather than a jury); Schriro v.

17 Summerlin, 542 U.S. 348 (2004) (reversing Ninth Circuit decision and holding that Ring

18 was not retroactive). After this moratorium, on May 22, 2007, Arizona executed Robert

19 Comer, a prisoner who waived his appeals.

20

60. On July 13, 2007, Arizona then sought a warrant of execution for Jeffrey

21 Landrigan. While the State’s motion for a warrant was pending, several prisoners filed a

22 civil complaint against Defendants challenging Arizona’s lethal-injection procedures

23
24 April 25, 1992, http://www.nytimes.com/1992/04/25/us/gruesome-death-in-gaschamber-pushes-arizona-toward-injections.html.
25 40 AUSTIN SARAT, GRUESOME SPECTACLES: BOTCHED EXECUTIONS AND AMERICA’S 26 DEATH PENALTY 112 n.168 (2014).
41 See Elizabeth Weil, It’s Not Whether to Kill, but How, N.Y. TIMES, Nov. 4, 2007, § 4 27 (“One 1992 lethal gas execution in Arizona caused an attorney general to throw up and a 28 warden to threaten to quit if he had to execute by that method again.”).

19

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1 under the Eighth Amendment. See Dickens v. Brewer, No. 07-cv-1770-NVW (D. Ariz.

2 Sept. 14, 2007), ECF No. 1.

3

61. On September 25, 2007, the Arizona Supreme Court issued a warrant of

4 execution for Landrigan, see State v. Landrigan, No. CR-90-0323-AP (Ariz. Sept. 25,

5 2007); that same day, the United States Supreme Court granted certiorari in Baze. On

6 October 11, the Arizona Supreme Court stayed Landrigan’s execution in light of the

7 grant of certiorari in Baze. Landrigan, No. CR-90-0323-AP (Ariz. Oct. 11, 2007).

8 Arizona then amended its execution procedures twice in the next month, while the civil

9 litigation in Dickens was ongoing. After discovery, Defendants agreed to “fix” all of the

10 concerns raised by the plaintiffs (except for plaintiffs’ request that the State switch from

11 a three-drug to a one-drug protocol) by amending its written protocol. Based on

12 Defendants’ promises in their briefing and at oral argument, this Court granted summary

13 judgment on July 1, 2009. Dickens v. Brewer, No. 07-cv-1770-NVW (D. Ariz. July 1,

14 2009). In so doing, this Court warned that “to the extent [Defendants] deviate from [their

15 promises], they’re taking great risks.” See Tr. of Oral Argument at 22:19-20, Dickens v.

16 Brewer, No. 07-cv-1770-NVW (D. Ariz. Sept. 14, 2007), ECF No. 134.

17

62. Arizona again sought a warrant to execute Landrigan. At the time of its

18 renewed request for a death warrant, in April 2010, Defendants’ written procedures still

19 prescribed a three-drug lethal-injection combination, using sodium thiopental as the first

20 chemical. While Arizona’s efforts to obtain this warrant were under way, Landrigan

21 learned of a nationwide shortage of sodium thiopental. In response to an order from the

22 Arizona Supreme Court, Defendants promised that they had sufficient quantity of the

23 drugs needed to execute Landrigan.

24

63. They refused, however, to disclose how they had obtained their sodium

25 thiopental. At oral argument before the Arizona Supreme Court, all Arizona’s counsel

26 would admit was that it was not manufactured by Hospira—which, at the time, was the

27 only FDA-approved domestic manufacturer of sodium thiopental.

28

20

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1

64. This led to a federal lawsuit seeking information about the source of

2 Arizona’s execution drugs. See Landrigan v. Brewer, No. 2:10-cv-2246-ROS (D. Ariz.).

3 The district court granted Landrigan a temporary stay of execution to proceed with his

4 challenge to the use of non-FDA approved sodium thiopental from an unidentified

5 source, and the Court of Appeals for the Ninth Circuit affirmed. The Supreme Court,

6 however, vacated the stay, and Landrigan was executed on October 26, 2010. Brewer v.

7 Landrigan, 131 S. Ct. 445 (2010) (mem.). He was pronounced dead approximately 11

8 minutes after the first drug began to flow.

9

65. The press later discovered and reported that Arizona obtained the sodium

10 thiopental used to execute Landrigan from “a pharmaceutical company operating out of 11 a west London driving school.”42

12

66. Shortly after Landrigan’s execution, on December 10, 2010, the Court of

13 Appeals for the Ninth Circuit heard oral argument in Dickens v. Brewer, 631 F.3d 1139

14 (9th Cir. 2011). Among other things, the Dickens litigation concerned Defendants’

15 repeated errors in carrying out executions, and the refusal actually to follow Arizona’s

16 written protocol for executions. Chief among these errors was Arizona’s decision to hire

17 and give responsibility for carrying out the execution to a medical team member who

18 later testified that he knowingly “improvised” the doses of lethal-injection drugs and

19 never adhered to any protocol. Dickens, 631 F.3d at 1147. Another of Arizona’s medical

20 team members had had his nursing license suspended and had a lengthy arrest record.

21

67. During oral argument, Defendants argued that the problems identified by

22 plaintiffs had been fixed, and contended that it was “purely speculative” to say

23 Defendants would not follow their procedures. Defendants assured the Court of Appeals 24 that they had “every incentive” to follow their protocol as written.43

25 42 Owen Bowcott, London Firm Supplied Drugs for US Executions, GUARDIAN, Jan. 6, 26 2011, http://www.theguardian.com/world/2011/jan/06/london-firm-supplied-drugs-us-
executions. 27 43 During oral argument, the Court ordered Defendants to submit the final written 28 protocol that was at issue; Defendants subsequently filed a notice stating that the

21

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1

68. On February 9, 2011, based on Arizona’s promises to adhere its new

2 procedures, the Ninth Circuit Court of Appeals in Dickens affirmed this Court’s

3 rejection of plaintiffs’ claims. The Court noted that Arizona’s past problems with its

4 execution regime apparently had been fixed and that, based on Defendants’ promises to

5 adhere to their new, Baze-compliant protocol, “[t]he notion that Arizona might adopt and

6 use a new, unconstitutional protocol can only be dismissed as rank speculation.”

7 Dickens, 631 F.3d at 1150.

8

69. On March 29, 2011, Arizona executed Eric King. He was pronounced dead

9 approximately 17 minutes after the first drug began to flow.

10

70. Donald Beaty’s execution was then scheduled for May 25, 2011. On May

11 24, 2011—eighteen hours before Beaty’s execution was to begin, Defendants provided

12 notice that, in accordance with federal concerns regarding the legality of the State’s

13 acquisition of its drugs, Defendants would not be using sodium thiopental, which they

14 had illegally acquired and used in two prior executions (Landrigan and King). Instead,

15 Defendants advised Beaty that they would replace sodium thiopental with pentobarbital.

16 That evening, Beaty filed a motion with the Arizona Supreme Court asking it to vacate

17 the warrant or stay the execution. On May 25, 2011, the Arizona Supreme Court allowed

18 his execution to go forward based on “the State’s avowal that the only change in the

19 execution protocol is to substitute pentobarbital for sodium thiopental.” Order, State v.

20 Beaty, No. CR-85-0211-AP/PC (Ariz. May 25, 2011). Beaty was pronounced dead

21 approximately 11 minutes after the first drug began to flow.

22

71. On June 30, 2011, Defendants executed Richard Bible using the same

23 pentobarbital-based three-drug combination used in Beaty’s execution. He was

24 pronounced dead approximately 6 minutes after the first drug began to flow.

25

26 protocol they intended to follow consisted of the challenged protocol along with all of
27 the unwritten amendments to it to which Defendants had agreed during the course of 28 litigation.

22

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1

72. On July 16, 2011, three days before Thomas West was scheduled to be

2 executed, West and other plaintiffs filed a complaint alleging that Defendants’

3 unwillingness to follow their written protocol, as well as Defendants’ application of their

4 protocol, violated the Eighth Amendment. West v. Brewer, No. 2:11-cv-01409-NVW (D.

5 Ariz.), ECF No. 1. The plaintiffs alleged that Defendants failed to conduct required

6 trainings, failed to obtain drugs legally from a safe and reputable source, and failed to

7 administer drugs through peripheral instead of femoral lines—all in violation of the

8 written protocol. Also on July 16, West filed a motion for a TRO or preliminary

9 injunction.

10

73. This Court denied West’s motion for an injunction, and the Court of

11 Appeals for the Ninth Circuit affirmed. West v. Brewer, 652 F.3d 1060 (9th Cir. 2011).

12 In its order, the panel specifically relied upon representations made by Defendants

13 through counsel. Of note, ADC’s counsel represented that the written lethal-injection

14 protocol adopted in Dickens “had been followed in the past and, more importantly will

15 be followed in West’s execution.” Id. at 1060. The court also relied upon counsel’s

16 representations that the drugs as specified in the protocol were available and in ADC’s

17 possession and that ADC would follow the IV insertion locations as outlined in the

18 protocol. Id. at 1060-61. After his further appeals failed, West was executed on July 19,

19 2011. He was pronounced dead approximately 8 minutes after the first drug began to

20 flow. West was last of five prisoners executed using three-drug combination.

21

74. Despite West’s execution, the civil case he had spearheaded proceeded.

22 After discovery, eighteen depositions, and a three-day bench trial—which demonstrated

23 that ADC had repeatedly deviated from its protocol in past executions and had imported

24 sodium thiopental in violation of federal law—this Court denied plaintiffs the relief they

25 sought, see West v. Brewer, 2011 WL 6724628 (D. Ariz. Dec. 21, 2011), and ADC then

26 changed its protocol again, on January 25, 2012.

27

28

23

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1

E. Defendants’ Pre-Wood Botched Executions.

2

75. Like the prior protocols, the January 2012 protocol provided the ADC

3 Director with unfettered discretion in determining the manner in which a prisoner will be

4 executed, and indeed, expanded that discretion by allowing the Director to choose any

5 one of four different drug protocols. The Director had to inform the prisoner only seven

6 days before the execution which drug protocol would be used. The January 2012

7 protocol also removed safeguards related to screening and training of individuals placing

8 IV lines, and removed the requirement that the peripheral veins be the default method of

9 access. It further removed the requirement of a backup line and removed the ability for a

10 prisoner to have a legal visit on the morning of an execution.

11

76. The abrupt and substantial January 2012 change in lethal-injection

12 procedures prompted another lawsuit by prisoners scheduled for execution. See Towery

13 v. Brewer, No. 12-cv-00245 (D. Ariz.), ECF No. 1. The plaintiffs identified three main

14 problems with the January 2012 procedures: (1) the procedures removed safeguards

15 critical to a constitutionally acceptable means of execution under Baze; (2) they treated

16 similarly situated condemned prisoners differently with no rational or compelling basis;

17 and (3) they interfered with condemned prisoners’ right of access to the court by denying

18 in-person legal visits on the day of a scheduled execution.

19

77. On February 23, 2012, this Court denied plaintiffs’ motion for a

20 preliminary injunction. The plaintiffs appealed, and the Court of Appeals for the Ninth

21 Circuit set argument for 4:00 p.m. on February 27.

22

78. At 10:35 a.m. on February 27—five hours before oral argument was set to

23 begin—ADC notified plaintiffs of its intent to administer a one-drug protocol. ADC,

24 incredibly, apparently discovered only that morning that its pancuronium bromide had

25 been expired for six weeks, despite having sought execution warrants for two upcoming

26 executions more than a month earlier. In response to this discovery, Defendants switched

27 to a method using one injection of a five-gram dose of pentobarbital.

28

24

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1

79. During argument, the Court of Appeals asked questions about how ADC

2 would carry out the impending executions, because the procedures were unclear.

3 Defendants made several promises about how the protocol would be changed to ensure

4 that team members were duly qualified, that IV lines would be properly placed, and that

5 prisoners would have access to counsel on the morning of their executions.

6

80. On February 28, 2012, the Court of Appeals issued an opinion affirming

7 the denial of relief, but it was based not on ADC’s written procedures, but rather on the

8 avowals made by Defendants’ counsel during oral argument. Towery v. Brewer, 672

9 F.3d 650 (9th Cir. 2012) (per curiam). In its decision, the court expressed its

10 exasperation with Defendants. With respect to Defendants’ eleventh-hour “discovery” of

11 the expired pancuronium bromide, the Court complained that, “[h]ow such a discovery

12 escaped the State for the past six weeks is beyond us, and gives us pause as to the

13 regularity and reliability of Arizona’s protocols.” Id. at 653. The court also took issue

14 with Arizona’s repeated deviations from its procedures and string of broken promises:

15

Over time, the State of Arizona, however, has insisted on

16

amending its execution protocol on an ad hoc basis—through

add-on practices, trial court representations and

17

acknowledgments, and last minute written amendments—

18

leaving the courts with a rolling protocol that forces us to

engage with serious constitutional questions and complicated

19

factual issues in the waning hours before executions. This

approach cannot continue. 20

21

. . . . We are mindful of the admonition requiring us to refrain from micro-managing each individual execution, but the

22

admonition has a breaking point. . . . Unless permanent

changes are made in the manner in which Arizona amends its

23

protocols, Arizona’s ongoing conduct may require us to

24

monitor every execution on an ad hoc basis, because the

State cannot be trusted to fulfill its otherwise lawful duty

25

to execute inmates sentenced to death.

26 Id. (emphasis added)

27

28

25

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1

81. On February 29, 2012, Robert Moorman was executed with five grams of

2 pentobarbital. He was pronounced dead approximately 10 minutes after the first drug

3 began to flow.

4

82. On March 8, 2012, Towery’s execution went forward. It took 59 minutes

5 to set the IV lines, one minute shy of Baze’s upper limit on an unconstitutionally lengthy

6 attempt to place an IV line. At that time, ADC did not allow witnesses to view the

7 insertion of the lines. ADC also told prisoners that it would shut off the microphone

8 during a prisoner’s last statement if he said anything disparaging about ADC. Therefore,

9 prior to his execution, Towery and his attorney devised a code so that Towery could

10 communicate any problems during the insertion of the IV lines. While Towery was

11 speaking his last words, he indicated—through code—that he was hurt repeatedly during

12 the insertion of the lines and that the team made many attempts to set the IV lines, and

13 also that he had been prevented from speaking with his counsel. Towery was

14 pronounced dead 9 minutes after the first drug began to flow. See Lopez v. Brewer, 680

15 F.3d 1084, 1091 (9th Cir. 2012) (Berzon, J., concurring in part and dissenting in part)

16 (“[Arizona’s] secrecy restrictions and refusals of public and attorney access, taken

17 together, leave condemned prisoners, their attorneys, the district court, and this court

18 with precious little indication of whether past executions have actually been conducted

19 in a constitutional manner. The condemned clients, without access to their attorneys, are

20 left to communicate with them in elaborate codes during their last statements, while we

21 are left to parse cryptic execution logs and autopsy reports in an effort to determine

22 whether an inmate suffered pain, and if so, how much.”); id. at 1095-96 (Reinhardt, J.,

23 dissental) (explaining the “chilling” details of ADC’s treatment of Towery and

24 concluding that, “if a skilled lawyer were instructing the state on how best to avoid any

25 meaningful review of the constitutionality of its execution procedures, he would be hard

26 pressed to improve on the unconscionable regime that the state has adopted”).

27

83. A private autopsy was performed on Towery on March 16. The autopsy

28 revealed that Towery was punctured at least eleven times—at least three on each arm (at

26

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1 the antecubital fossa), at least one on the right hand, and at least four in the femoral

2 region.

3

84. On April 25, 2012, Thomas Kemp was executed as scheduled, but not as

4 planned. As Judge Pregerson later recounted, “[s]oon after receiving the lethal injection

5 in his central femoral line, Kemp’s right arm and torso began shaking ‘violently.’ . . . [In

6 addition, a]n autopsy report revealed that despite Kemp’s good veins that were quite

7 prominent, Kemp had ‘at least three or more’ punctures, including ‘at least one puncture

8 in the right femoral area and at least two punctures over the left upper extremity.’” Lopez

9 v. Brewer, 680 F.3d 1084, 1093-94 (9th Cir. 2012) (Pregerson, J., dissental). Kemp was

10 pronounced dead 7 minutes after the first drug began to flow.

11

85. The next prisoner scheduled for death, Samuel Lopez, filed a motion for a

12 preliminary injunction to stay his execution on May 1, 2012. The district court denied

13 the motion. On appeal, the Court of Appeals affirmed, but warned Arizona yet again that

14 its constant deviations from its procedures could not continue. “Although we uphold the

15 district court’s decision, we caution, yet again, that Arizona’s ad hoc approach risks

16 going beyond Baze’s safe harbor.” Lopez, 680 F.3d at 1075.

17

86. In her partial concurrence and dissent, Judge Berzon described some of the

18 ways in which ADC had deviated from the promises it had made just months earlier

19 regarding the qualifications of the IV Team and the prisoners’ access to counsel. Id. at

20 1080 (Berzon, J., concurring in part and dissenting in part). In her view, ADC’s

21 “approach to devising, announcing, and recording the execution procedures it uses

22 effectively denied Lopez of his procedural due process right to have his Eighth

23 Amendment challenge heard at a meaningful time in a meaningful manner.” Id. at 1079.

24

87. Lopez petitioned for rehearing en banc, which the Court of Appeals

25 denied. In a dissent from rehearing en banc, Judge Reinhardt, joined by six other judges,

26 expressed the judges’ frustration with Arizona, noting that, after Kemp’s and Towery’s

27 botched executions, it was apparent that “the State of Arizona has subjected prisoners

28 whose lives it takes—and has subjected this court—to a mockery of the constitutional

27

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1 requirement of due process.” Lopez, 680 F.3d at 1094 (Reinhardt, J., dissental); see also

2 id. at 1093-94 (Pregerson, J., dissental).

3

88. On June 27, 2012, Arizona executed Lopez. For the first time, witnesses

4 were able to observe the insertion of the IV lines through a closed-circuit monitor. He

5 was pronounced dead approximately 29 minutes after the pentobarbital began to flow.

6

89. On August 8, 2012, Arizona executed Daniel Cook. Again, witnesses were

7 able to observe the insertion of the IV lines through a closed-circuit monitor. He was

8 pronounced dead approximately 37 minutes after the pentobarbital began to flow.

9

90. On September 21, 2012, Arizona published new lethal-injection

10 procedures.

11

91. On December 5, 2012, Arizona executed Richard Stokley. Again,

12 witnesses were able to observe the insertion of the IV lines through a closed-circuit

13 monitor. It took 50 minutes to set the IV. He was pronounced dead approximately 19

14 minutes after the pentobarbital began to flow.

15

92. The next prisoners scheduled to be executed were Edward Schad and

16 Robert Jones. They filed a motion for a temporary restraining order aimed at obtaining

17 the identity and sourcing of the pentobarbital Arizona planned to use for their

18 executions. Lundbeck, the only legally authorized manufacturer of pentobarbital, had

19 announced in July 2011 that it would no longer sell or make available to prisons any 20 pentobarbital.44 Akorn, another drug company, took over Lundbeck’s distribution of

21 pentobarbital, but it, too, continued Lundbeck’s restrictions. Thus, Schad and Jones

22 asserted that they had a First Amendment right to know how and where Arizona had

23 obtained sufficient quantities of non-expired pentobarbital for their executions,

24 scheduled for more than a year after all sales to prisons had stopped.

25 44 David Jolly, Danish Company Blocks Sale of Drug for U.S. Executions, N.Y. TIMES, 26 July 1, 2011, http:// nytimes.com/2011/07/02/world/europe/02execute.html (reporting
announcement by pentobarbital manufacturer Lundbeck that it “would require customers 27 to buy [pentobarbital] through a single wholesaler and to sign a form confirming they 28 won’t resell it, aren’t a prison, and know Lundbeck opposes executions.”).

28

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1

93. The district court agreed with Schad and Jones, and held that the plaintiffs

2 established a “First Amendment right to access information regarding the manufacturer

3 of the lethal-injection drugs, the National Drug Code of the drugs, the lot numbers of the

4 drugs, and the expiration date of the drugs.” Order at 1, Schad v. Brewer, No. 2:13-cv-

5 2001-ROS (D. Ariz.), ECF No. 23. The court ordered ADC to provide such information

6 no later than 12:00 p.m., on October 5. ADC did not appeal the decision. Instead, it

7 complied with the court’s order and disclosed that the pentobarbital to be used in

8 Schad’s and Jones’s executions was manufactured by Lundbeck.

9

94. On October 9, 2013, Schad was executed as scheduled. Witnesses were

10 able to observe the insertion of the IV lines through a closed-circuit monitor. He was

11 pronounced dead approximately 9 minutes after the pentobarbital began to flow.

12

95. On October 23, 2013, Arizona executed Robert Jones. It took nearly 50

13 minutes for the IV lines to be set. He was pronounced dead approximately 17 minutes

14 after the pentobarbital began to flow. Jones’s execution was the last of eight executions

15 in which ADC used a one-drug protocol of pentobarbital.

16

96. On March 26, 2014, Defendants adopted the Procedures applicable to this

17 matter, which provided for one dose of 50 milligrams each of midazolam and

18 hydromorphone.

19

97. The next prisoner scheduled for execution was Joseph Wood. After

20 seeking a warrant to execute him, Defendant Ryan informed Wood that Defendants

21 planned to use the never-before-used two-drug formula of midazolam and

22 hydromorphone and at dosages of 50 milligrams each.

23 //

24 //

25 //

26

27

28

29

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1

98. Since the West litigation, Arizona’s last nine executions have gone as

2 follows:

3

4

Prisoner Name

Date

Drug

5 Robert

Feb. 29, 5 grams

6 Moorman 2012

pentobarbital

7 Robert

Mar. 8, 5 grams

2012

pentobarbital

8 Towery

9 10

Thomas Kemp

Apr. 25, 5 grams

2012

pentobarbital

11 Samuel
Lopez

June 27, 5 grams

2012

pentobarbital

12 Daniel 13 Cook

Aug. 8, 5 grams

2012

pentobarbital

Dec. 5, 5 grams

14 Richard 2012

pentobarbital

15 Stokely

16

Edward

Oct. 9,

5 grams

17 Schad

2013

pentobarbital

Time to Die After Injecting
Drug(s) 10 min.

Difficulty setting IV

Strong Physical Reaction

9 min.
7 min. 29 min.

Nearly hour-long attempt to place IV successfully; punctured artery; at least 11 punctures Multiple punctures from botched IV attempts

Violent seizures

37 min.

19 min. 9 min.

Set right arm on first attempt; three unsuccessful attempts on left arm; 50 total minutes to set IVs

18 Robert
Jones

Oct. 23, 5 grams

2013

pentobarbital

17 min.

Nearly 50 minutes for IV lines to be set

19
Joseph
20 Wood
21

July 23, 2014

750 mg midazolam; 750 mg hydromorphone

117 min.

Loud, prolonged gasping

22 F. Wood’s Botched Execution.
23

24

98. Given Defendants’ record of changing their procedure, obtaining

25 dubiously sourced drugs, and botching recent executions, Wood and the other

26 Condemned Plaintiffs sought to confirm exactly what drugs Defendants would use, how

27 Defendants would use them, and how the persons charged with administering them were

28

30

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 33 of 56

1 qualified to do so. Various individual members of the Coalition also sought to bring

2 greater transparency to Defendants’ planned execution.

3

99. On behalf of the public, on May 12, 2014, a reporter from the Arizona

4 Republic requested information from Defendants regarding communications between

5 Defendant Ryan and Robert Patton. Though he is now the Director of the Oklahoma

6 Department of Corrections, Patton was formerly the Division Director of Offender

7 Operations at the ADC, and was a defendant in previous litigation before this Court

8 challenging the Arizona lethal injection protocol. Defendants did not respond to this

9 request until August 15, 2014, several weeks after Wood’s execution had been carried

10 out.

11

100. To vindicate his own rights, Wood filed a motion for a preliminary

12 injunction to stay his execution. This Court denied his motion, but, on July 19, 2014, the

13 Court of Appeals for the Ninth Circuit reversed, and granted a “conditional preliminary

14 injunction, staying Wood’s execution until the State of Arizona has provided him with

15 (a) the name and provenance of the drugs to be used in the execution and (b) the

16 qualifications of the medical personnel, subject to the restriction that the information

17 provided will not give the means by which the specific individuals can be identified.”

18 Wood v. Ryan, ---F.3d----, No. 14-16310, 2014 WL 3563348, at *10 (9th Cir. July 19,

19 2014), vacated, 14A82, 2014 WL 3600362 (U.S. July 22, 2014).

20

101. Whereas in the case litigated by Schad and Jones, ADC did not appeal the

21 district court’s decision ordering ADC to disclose facts about the pentobarbital at issue

22 in their executions and, in fact, complied with that order, Defendants were so opposed to

23 revealing similar information about the midazolam and hydromorphone to be used in

24 Wood’s execution that they petitioned the United States Supreme Court to lift the stay.

25

102. In their petition, Defendants argued that Wood’s pleas for greater

26 transparency in Arizona’s execution process were unfounded because, in Defendants’

27 words, Wood “blithely ignores that nearly every detail about his execution is provided to

28 him and to the general public, including exactly what and how much lethal drugs will be

31

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1 used, how they will be administered, and the qualifications of those placing the IV lines 2 to administer them.”45

3

103. The Supreme Court lifted the stay, but Defendants did not keep their

4 promise. Wood’s execution went wrong in many ways, among them that he received

5 thirteen doses more than Defendants’ Procedures provided would be the maximum

6 administered. Defendants never disclosed to Wood ahead of his execution that they

7 contemplated this radical departure from their procedures, and affirmatively represented

8 to the courts that Wood had no reason to be concerned about the dosages he would

9 receive.

10

104. At the outset, witnesses were able to watch and listen via closed-circuit

11 television as Wood’s IVs were administered. After the IVs were set, the closed-circuit

12 television was turned off, the curtains to the chamber were opened, and the audio

13 allowing witnesses to hear was shut off. For the remainder of the execution, witnesses’

14 views were restricted to line-of-sight observation of Wood from a distance (but not of

15 the room in which the drugs were being mixed and injected). Moreover, because the

16 microphone was turned off, the only audio that witnesses were able to hear came when

17 members of Defendants’ execution team briefly reported certain updates to the witnesses

18 via a microphone in the same chamber as Wood. It was only during these brief updates

19 that witnesses and the media—and, by extension, the Arizona public—could hear the

20 sounds that accompanied the movements they had been observing.

21

22

23 45 Reply Brief of State of Arizona in support of Application for Stay, Ryan v. Wood, No. 14A82, at 2 (U.S. July 22, 2014) (emphasis added). Similarly, Judge Bybee, dissenting
24 from the Ninth Circuit’s grant of stay, asserted that both Wood and “[t]he public know[]

25

precisely how the State intends to end Wood’s life and can investigate [based on already available information] whether the drugs are suited to that purpose,” and, indeed,

26 “[a]nyone who reads the Protocol will know exactly how Arizona plans to carry out [his] execution.” Wood v. Ryan, --- F.3d ----, No. 14-16310, 2014 WL 3563348, at *22 (9th
27 Cir. July 19, 2014) (Bybee, J. dissenting), vacated, 14A82, 2014 WL 3600362 (U.S. July

28 22, 2014).

32

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1

105. As told above, Wood remained alive for 117 minutes after the drugs were

2 first administered. Defendants knew early on, however, that Wood’s execution was not

3 going as planned.

4

106. Twelve minutes into his execution, after having appeared to be sedated,

5 Wood rose upward against his restraints and gulped for air. He would eventually gasp 6 for air more than 640 times.46

7

107. Shortly after that, Defendants apparently determined that Wood should

8 have already succumbed to the first dose of the drugs, and should not have responded by

9 struggling to breathe. Thus, at the 18- and 24-minute marks, but without giving notice to

10 any observers, Defendants administered second and third doses of the midazolam-

11 hydromorphone combination. Neither these three administrations nor the subsequent

12 twelve administrations were visible to witnesses.

13

108. Moreover, Defendants administered these secondary and tertiary doses to

14 Wood without first performing a consciousness check.

15

109. Although witnesses did not know that Defendants secretly were

16 improvising with the amounts of drugs they were giving to Wood, it became clear to

17 everyone that something was wrong. Roughly an hour after the drugs began to be

18 administered, Wood’s counsel sought to stop Defendants from proceeding any further.

19 Because Defendants barred Wood’s counsel (though not everyone present) from

20 bringing cell phones to the execution or having cell phones near the execution chamber,

21 it took nine minutes before Wood’s counsel, accompanied by ADC personnel, was

22 provided with a phone to call co-counsel to begin the process of contacting this Court.

23 During this time, at least one additional dose of the drug combination was administered

24 to Wood.

25

26 46 Patrick McNamara, Tucson Killer’s Execution Takes Two Hours, ARIZ. DAILY STAR,
27 July 23, 2014, http://tucson.com/news/state-and-regional/3ac6d417-866e-5884-a09b28 7244a9c18b46.html.

33

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1

110. Once this Court was contacted and a hearing commenced, Defendants

2 falsely represented the dosages they had administered to Wood. At one point, just over

3 100 minutes into Wood’s ordeal, Defendants told this Court that only two injections of

4 the drugs had been administered when, by that time, twelve injections of 50 milligrams

5 of midazolam and 50 milligrams of hydromorphone had been administered. The labeling

6 instructions for midazolam state that doses of 1 to 2 milligrams should be administered

7 over the course of three minutes; Defendants ultimately administered 750 milligrams of

8 midazolam over 117 minutes—an average of more than 6 milligrams per minute.

9

111. Defendants also represented that Wood was “brain dead,” and thus beyond

10 resuscitation or experiencing pain. Not only were Defendants not equipped to make such

11 a claim, but the claim was inaccurate. Defendants did not use the medical equipment and

12 diagnostic techniques needed to diagnose brain death. The fact that Wood was visibly

13 gasping established the opposite, because if a person is drawing breaths without

14 assistance, that person is not brain dead.

15

112. Defendants also did not have readily available the drugs that could reverse

16 the effects of the drugs they had administered, in case the execution did not proceed as

17 anticipated.

18

113. In the aftermath of Wood’s execution, on July 31, 2014, reporters from the

19 Arizona Republic again asked Defendants for information about Wood’s execution and

20 Defendants’ lethal-injection procedures. Defendants, at the time of this filing, have still

21 not responded.

22

114. Defendant Brewer called for an immediate investigation into Wood’s

23 botched execution. That the Governor determined that an investigation is needed is

24 telling; it confirms that Defendants did not provide the public, courts, or counsel, either

25 before or during the execution, with the relevant facts concerning the planning for and

26 conduct of the execution. Defendants prevented the witnesses of Wood’s execution from

27 seeing and/or hearing much of what transpired during the execution, and further

28 prevented the public and press from learning facts leading up to and after the execution

34

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1 about how the Defendants planned to and did carry out the execution. In response,

2 however, all that Defendants have committed to doing is to conduct an internal

3 investigation to which the public currently has no access, and to submit the results of

4 their investigation to an outside consulting company retained by Defendants to prepare a

5 report.

6

115. Wood’s botched execution and the continuing secrecy surrounding it

7 should, like the botched executions of Eva Dugan and Donald Harding, mark a turning

8 point in Arizona’s executions and the information Defendants disclose before, during,

9 and after Arizona carries out their death sentences. Change is required and such change

10 should be ordered and supervised by this Court.

11

G. Arizona’s Unconstitutional Procedures Made Wood’s Failed Execution

Inevitable.

12

13

116. Arizona’s death-penalty statute and ADC’s regulations implementing that

14 statute created a substantial risk that Wood’s execution would cause him to suffer harm

15 and a lingering death. Without changes, there is a substantial likelihood that Condemned

16 Plaintiffs will immediately face the same irreparable risk of harm.

17

117. Arizona Revised Statutes § 13-757(A) provides that “[t]he penalty of death

18 shall be inflicted by an intravenous injection of a substance or substances in a lethal

19 quantity sufficient to cause death, under the supervision of the state department of

20 corrections.”

21

118. ADC has adopted Procedures (a copy of which is attached as Exhibit A),

22 that purport to implement that statute.

23

119. Under the Procedures, the ADC Director is vested with virtually unlimited

24 discretion. In the preamble, the Procedures state that they “shall be followed as written

25 unless deviation or adjustment is required, as determined by the Director of the

26 Arizona Department of Corrections.” The Procedures also state that they “do not create

27 any legally enforceable rights or obligations.”

28

35

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1

120. The Procedures thus purport to vest the Director with absolute and

2 unreviewable discretion in whether or not the Procedures are followed, and as the

3 execution of Wood and prior executions reveal, the Director takes full advantage of this

4 discretion to alter critical aspects of the Procedures at the last minute or even during

5 executions. Such discretion is, on its own, not consistent with the Constitution’s

6 protections for prisoner or the public or the press. Notwithstanding the 33-page

7 document that Defendants, in litigation, hold out as identifying “exactly” how they will

8 execute their prisoners, Defendants, in practice, do not hesitate to rely upon this

9 prefatory language to free the Director to exercise unfettered discretion to deviate from

10 any portion of the Procedures, at any time, and in any way, without giving notice to

11 counsel and the courts while doing so, and thus defeating any meaningful effort by the

12 public, the prisoners, or the courts to subject the State’s executions to meaningful

13 oversight. In Joseph Wood’s execution, the Director used this discretion to administer 13

14 injections more than the Procedures had prescribed. Without fundamental change, there

15 will be, in future executions, no way to know how or whether or when the Director will

16 “deviat[e from] or adjust[]” the Procedures again.

17

121. When it comes to administering untested doses and combinations of drugs

18 to prisoners, this degree of discretion effectively grants Defendants a license to

19 experiment on condemned prisoners.

20

122. Even without vesting excessive discretion in the Director, Defendants’

21 Procedures are plagued by flaws that render them unconstitutional. The Procedures

22 themselves, because they are rules made by the ADC, are exempt from Arizona’s

23 Administrative Procedures Act. ARIZ. REV. STAT. ANN. § 41-1005(A)(23). As a result,

24 they were not required to undergo the notice and comment protections that are required

25 for other State regulations and that ensure that State regulations afford due process to

26 those affected by them. Moreover, as the above history has demonstrated, Defendants’

27 discretionary changes to their Procedures have so far been shielded from meaningful

28 judicial scrutiny.

36

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1

123. The Procedures provide that the “source of the execution chemicals” is

2 confidential, despite Schad and Jones’s success in establishing that the source of the

3 drugs is not and need not be confidential, and despite the lack of any detrimental impact

4 from such disclosure.

5

124. The Procedures do not allow observers to witness the entire execution

6 visually or aurally. The observers do not see the prisoner being escorted into the

7 execution chamber. Observers do not witness the prisoner being strapped to the

8 execution gurney. While the IVs are being inserted behind closed curtains, witnesses can

9 hear the proceedings but must watch them only on a closed-circuit television screen.

10 After the IVs are inserted, the curtains open, but the television screens and audio feed

11 are turned off. Moreover, witnesses cannot observe Defendants’ conduct with regard to

12 administering the drugs, which takes place in a separate room—witnesses cannot see

13 Defendants handle the vials of drugs, nor observe when or how the drugs are injected

14 into the IV tubes.

15

125. The Procedures do not provide a mechanism for notifying the prisoner of

16 the qualifications and selection of the Special Operations and IV Team members to

17 administer the drugs selected for the execution, let alone within a meaningful time-frame

18 to allow for judicial review.

19

126. The Procedures do not provide for disclosure of the chain of custody and

20 storage conditions of the drugs procured for and to be used in the execution, thus

21 defeating any ability of the public to learn and prisoners to evaluate whether the drugs

22 have been continuously stored within, e.g., the temperature limits indicated on the drugs’

23 FDA-approved labeling, or whether the drugs will have passed their expiration date by

24 the time of the scheduled execution.

25

127. The Procedures currently give prisoners 20-days’ notice of the drugs

26 Defendants plan to use in prisoners’ executions, despite the fact that the State seeks a

27 warrant for prisoners’ executions weeks or months earlier. Twenty days is not enough

28

37

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 40 of 56

1 time to allow for meaningful challenge and review, especially given the multiple

2 problems Defendants have encountered in obtaining efficacious drugs for executions.

3

128. Although the Procedures discuss requirements for the use of compounded

4 pentobarbital, they have no similar provisions regarding the use of compounded sodium

5 thiopental, midazolam, hydromorphone, or other drugs.

6

129. The Procedures allow viewing curtains to be drawn if the prisoner is still

7 conscious after the first dose, thus preventing public evaluation of the State’s actions,

8 and whether the prisoner is or has become aware of the procedure and is substantially

9 likely to be experiencing pain.

10

130. The Procedures provide that: “If deemed appropriate, the Director may

11 instruct the Special Operations Team to administer an additional dose of the lethal

12 chemical(s) followed by the Heparin/Saline flush.” (Emphasis added). Defendants

13 violated this provision thirteen times during Wood’s execution. Moreover, the

14 Procedures do not adequately provide for situations when, as with Wood, two doses is

15 insufficient to bring about a prompt death.

16

131. The Procedures are insufficient because they do not require ADC to

17 maintain, possess, and know how to use the equipment, drugs, and procedures that

18 would be needed to reverse or ameliorate the effect of the administered drugs in the

19 event the patient is suffering from air hunger or other pain. Such methods are necessary,

20 particularly under ADC’s new midazolam-hydromorphone combination, because the use

21 of these drugs in untested, and high amounts have caused prisoners to suffer lingering

22 and gasping deaths, in Arizona and elsewhere. Because it is still unclear whether a state

23 can accurately determine how to administer the drugs lethally, reliably, and without a

24 risk of harm, contingency measures are necessary in case the Procedures’ predictions

25 fail. Currently, the only such contingency provision in the Procedures concerns the use

26 of a defibrillator in the event of a prisoner’s cardiac arrest.

27

132. The Procedures are inadequate because they do not allow real-time

28 evaluation of Defendants’ administration of the drugs. Because much of the execution

38

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 41 of 56

1 takes place out of sight or is obscured, witnesses do not have the ability to confirm that

2 Defendants have administered the correct and unexpired drugs in the execution;

3 witnesses cannot observe whether and when Defendants are administering a drug called

4 for in the Procedures; witnesses cannot observe which drug (or saline) Defendants have

5 selected for any given injection; and witnesses cannot observe how many dosages of

6 drugs Defendants have administered. Absent such real-time tracking, the press has no

7 way effectively to report to the public how Arizona is carrying out its executions, and

8 counsel for Condemned Plaintiffs has no way effectively to challenge Defendants’

9 representations about what it is doing to a prisoner during an execution, and whether an

10 execution should be abandoned because the departure from the Procedures and risk of

11 harm or indignity are sufficiently substantial to warrant such relief.

12

133. Given all of these past failures and departures from the Procedures, there is

13 a substantial likelihood of immediate irreparable injury resulting from Defendants’

14 violations of the Constitution.

15

Exhaustion of Administrative Remedies

16

134. Condemned Plaintiffs do not believe that exhaustion is necessary under the

17 Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, because this suit does not

18 challenge prison conditions, and because there are no available administrative remedies

19 that could address the challenged constitutional violations. Despite the inapplicability of

20 the PLRA, Condemned Plaintiffs have exhausted all the remedies available to them in an

21 effort to resolve these issues.

22 //

23 //

24 //

25

26

27

28

39

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 42 of 56

1

Claims for Relief

2 Claim One (by Coalition only): By deliberately concealing necessary information
3 from the public and the media, Defendants have violated the Coalition’s First Amendment right of access to governmental proceedings.
4 135. The Coalition incorporates by reference each and every statement and
5 allegation set forth throughout this Complaint as if fully rewritten here. The Coalition
6 does not, however, assert claims based on alleged violations of the Eighth or Fourteenth
7 Amendments.
8 136. The First Amendment, made applicable to the states by the Fourteenth
9 Amendment, guarantees designated members of the public and the press a qualified right
10 of access to government proceedings, including executions.
11 137. Defendants deprived the Coalition of its First Amendment rights by
12 preventing it from aurally and visually observing the full execution proceeding without
13 interruption, including observing the prisoner being escorted into the execution chamber,
14 witnessing the prisoner being strapped to the execution gurney, the amounts of drugs
15 actually used, the timing and method of their administration, and their effect upon the
16 prisoner—from the time the prisoner is escorted to the execution chamber until the
17 prisoner dies—and by failing to disclose, in advance of the execution, details about the
18 drugs used, the rationale for the selection of these drugs and their dosages, the chain of
19 custody in how the drugs were obtained and stored, the qualifications and training of the
20 persons administering them, Defendants’ expectation of the length of time the process
21 will take to render the prisoner unconscious and to die and the rationale for that
22 expectation, and Defendants’ ability to respond and preparation for responding to
23 complications. This obstruction, by extension, deprived the Arizona public of informed
24 and accurate media coverage of that critical event.
25 138. Defendants will continue to deprive the Coalition, and others similarly
26 situated, of their First Amendment rights in future executions if Defendants are not
27 required to disclose the information described above and to allow witnesses
28

40

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 43 of 56

1 meaningfully to observe the entire execution procedure, including the details listed

2 above, both in preparation for the execution and from the moment the condemned enters

3 the execution chamber until the time the condemned is declared dead.

4 Claim Two (by Condemned Plaintiffs only): By deliberately concealing necessary
5 information from Condemned Plaintiffs, Defendants have violated Condemned Plaintiffs’ First Amendment right to be informed about the manner in which
6 Defendants implement the most serious penalty available in the criminal justice
7 system.

8

139. Condemned Plaintiffs incorporate by reference each and every statement

9 and allegation set forth throughout this Complaint as if fully rewritten here.

10

140. Prisoners also have a First Amendment interest, no less powerful than that

11 of the public and the press, in being informed of the means by which the state intends to

12 carry out executions, especially where the prisoner has been condemned to death.

13

141. Defendants’ deliberate concealment of information that would enable

14 Condemned Plaintiffs to determine how Defendants intend to carry out their death

15 sentences, including by failing to disclose in advance of the execution details about the

16 drugs used, the rationale for the selection of these drugs and their dosages, the chain of

17 custody in how the drugs were obtained and stored, the qualifications and training of the

18 persons administering them, Defendants’ expectation of the length of time the process

19 will take to render the prisoner unconscious and to die and the rationale for that

20 expectation, and Defendants’ ability to respond and preparation for responding to

21 complications, deprives Condemned Plaintiffs of their First Amendment right of access

22 to governmental proceedings. Defendants’ further decision to prevent Condemned

23 Plaintiffs’ counsel and other witnesses from aurally and visually observing the full

24 execution proceeding without interruption, including the amounts of drugs actually used,

25 the timing and method of their administration, and their effect upon the prisoner, as well

26 as Defendants’ limitations on Condemned Plaintiffs’ counsel’s access to the courts

27

28

41

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 44 of 56

1 during the execution, deprives Condemned Plaintiffs of their First Amendment right of

2 access to governmental proceedings.

3

142. Defendants will continue to deprive Condemned Plaintiffs of their First

4 Amendment rights if Defendants are not required to provide timely access and disclosure

5 to prisoners scheduled for execution as described above.

6 Claim Three (by Condemned Plaintiffs only): By deliberately concealing necessary
7 information from Condemned Plaintiffs, Defendants have violated Condemned Plaintiffs’ First Amendment right to petition the government for redress of
8 grievances.

9

143. Condemned Plaintiffs incorporate by reference each and every statement

10 and allegation set forth throughout this Complaint as if fully rewritten here.

11

144. Defendants’ refusal to provide Condemned Plaintiffs with information

12 sufficient to enable them to determine how Defendants intend to execute them violates

13 Condemned Plaintiffs’ First Amendment right to petition the government for redress of

14 grievances.

15

145. The First Amendment right to petition the government for redress of

16 grievances includes the right of access to the courts.

17

146. The right of access to the courts is especially critical for prisoners, because

18 their access to other remedies is limited.

19

147. State action that denies a plaintiff the opportunity to litigate gives rise to a

20 claim that the state is violating the plaintiff’s right of access to the courts.

21

148. The right of access to the courts is an ancillary claim, which is necessary

22 for the vindication of underlying rights.

23

149. By deliberately concealing information about the specific drugs, expiration

24 dates, provenance, storage, dosages, administration technique, and other details about

25 how Defendants intend to execute Condemned Plaintiffs, Defendants have erected a

26 condition that frustrates Condemned Plaintiffs’ ability to litigate their claims relating to

27 the constitutionality of their executions. This frustrating condition deprives Condemned

28

42

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 45 of 56

1 Plaintiffs of their First Amendment right to petition the government for redress of

2 grievances. This frustrating condition also deprives Condemned Plaintiffs of their due-

3 process right of access to the courts, as well as their ability to challenge the

4 constitutionality of their executions under the Eighth Amendment.

5

150. Indeed, Defendants’ repeated mistakes in past executions establish that a

6 condemned prisoner needs much more detailed information, and much sooner, than

7 Defendants currently provide, in order effectively to assess whether there is a substantial

8 risk that the prisoner will suffer physical harm, a lingering death, or some other cruel

9 and unusual means of execution.

10

151. Defendants’ deliberate concealment of information that would enable

11 Condemned Plaintiffs to determine how Defendants intend to carry out their death

12 sentences, including information relating to lethal-injection drugs, the competence,

13 training, and authority of Defendants to handle controlled substances, and the

14 qualifications of the execution personnel, deprives Condemned Plaintiffs of their right

15 not to be deprived of their lives without due process of law.

16

152. Defendants’ deliberate concealment of information that would enable

17 Condemned Plaintiffs to determine how Defendants intend to carry out their death

18 sentences, including information relating to lethal-injection drugs, Defendants’ plans and

19 reasons for the dosages it intends to administer, the authority of Defendants to handle

20 controlled substances, and the qualifications of the execution personnel, deprives

21 Condemned Plaintiffs of their ability to determine whether Defendants are capable of

22 carrying out Condemned Plaintiffs’ executions in a lawful, constitutional manner.

23 Claim Four (by Condemned Plaintiffs only): Defendants’ execution Procedures as
24 written create a substantial and intolerable risk of harm, indignity, and/or a lingering death, in violation of the Eighth Amendment’s Cruel and Unusual
25 Punishments Clause.

26

153. Condemned Plaintiffs incorporate by reference each and every statement

27 and allegation set forth throughout this Complaint as if fully rewritten here.

28

43

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 46 of 56

1

154. Defendants have created, maintained, and implemented lethal-injection

2 protocols, procedures, practices, customs, and training and execution methods that they

3 intend to use to execute Condemned Plaintiffs. As designed and applied, Defendants’

4 lethal-injection execution Procedures are constitutionally flawed. Defendants have no

5 legitimate penological justification for adopting Procedures that create a substantial risk

6 of needlessly and gratuitously inflicting severe pain, indignity, and a lingering death on

7 Condemned Plaintiffs.

8

155. The excessive discretion vested in ADC to determine the means and

9 method of a prisoner’s death creates a substantial risk that Condemned Plaintiffs will

10 suffer severe pain, indignity, or a lingering death.

11

156. If Defendants execute Condemned Plaintiffs pursuant to the Procedures,

12 Defendants will violate Condemned Plaintiffs’ constitutional rights under the Eighth

13 Amendment of the United States Constitution.

14 Claim Five (by Condemned Plaintiffs only): Defendants’ use of midazolam and
15 hydromorphone creates a substantial of harm, indignity, and/or a lingering death, in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause.
16

17

157. Condemned Plaintiffs incorporate by reference each and every statement

18 and allegation set forth throughout this Complaint as if fully rewritten here.

19

158. Defendants have created, maintained, and implemented lethal-injection

20 protocols, procedures, practices, customs, and training and execution methods that they

21 intend to use to execute Condemned Plaintiffs. As designed and applied, Defendants’

22 lethal-injection execution protocol is constitutionally flawed. Defendants have no

23 legitimate penological justification for adopting a lethal-injection protocol that creates a

24 substantial risk of needlessly and gratuitously inflicting severe pain, indignity, and a

25 lingering death on Condemned Plaintiffs.

26

159. Defendants’ use of midazolam and hydromorphone—the combination of

27 which has resulted in a botched execution both times a state has attempted to use it—

28 creates a substantial risk that Condemned Plaintiffs will suffer severe pain, indignity, or

44

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 47 of 56

1 a lingering death, as evidenced by a series of prolonged executions that have used one or

2 both of these drugs.

3

160. If Defendants execute Condemned Plaintiffs pursuant to the Procedures,

4 Defendants will violate Condemned Plaintiffs’ constitutional rights under the Eighth

5 Amendment of the United States Constitution.

6 Claim Six (by Condemned Plaintiffs only): Defendants’ past experimentation and
7 improvisation with unprecedented methods and dosages of drugs amounts to a cruel and unusual punishment, in violation of the Eighth Amendment’s Cruel and
8 Unusual Punishments Clause and the Fourteenth Amendment’s Due Process
9 Clause.

10

161. Condemned Plaintiffs incorporate by reference each and every statement

11 and allegation set forth throughout this Complaint as if fully rewritten here.

12

162. Defendants have created, maintained, and implemented lethal-injection

13 protocols, procedures, practices, customs, and training and execution methods that they

14 intend to use to execute Condemned Plaintiffs. As designed and applied, Defendants’

15 lethal-injection execution Procedures are constitutionally flawed. Defendants have no

16 legitimate penological justification for adopting lethal-injection Procedures that create a

17 substantial risk of needlessly and gratuitously inflicting severe pain and a lingering death

18 on Condemned Plaintiffs.

19

163. The excessive discretion vested in ADC, Defendants’ proven failure to

20 adhere to any stable and reliable method of providing a reasonably prompt and pain-free

21 execution, and Defendants’ improvised decision to give Wood thirteen doses more than

22 was permitted under the procedures, demonstrate that each execution carried out by

23 Defendants constitutes an experiment conducted on prisoners to determine how they

24 react to drugs intended to kill them. This violates the Eighth and Fourteenth

25 Amendments’ guarantee of dignity even in punishment, and the right to be free from

26 unusual punishments.

27

164. If Defendants experiment on Condemned Plaintiffs pursuant to the

28 Procedures, Defendants will violate Condemned Plaintiffs’ rights under the Eighth

45

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 48 of 56

1 Amendment and their rights to substantive and procedural Due Process under the

2 Fourteenth Amendment of the United States Constitution.

3 Claim Seven (by Condemned Plaintiffs only): Defendants’ failure to timely disclose
4 the precise method of execution until days before the execution deprives Condemned Plaintiffs of their right to know and challenge their method of
5 execution, in violation the Fourteenth Amendment’s Due Process Clause.

6

165. Condemned Plaintiffs incorporate by reference each and every statement

7 and allegation set forth throughout this Complaint as if fully rewritten here.

8

166. Defendants’ Procedures arbitrarily, irrationally, and without a compelling

9 State interest, deny Condemned Plaintiffs their right to know how ADC intends to

10 execute them.

11

167. By deliberately concealing information about the specific drugs, expiration

12 dates, provenance, storage, dosages, administration technique, and other details about

13 how ADC intends to execute Condemned Plaintiffs, and by seeking warrants to execute

14 Condemned Plaintiffs before Defendants themselves know what drugs they will use and

15 how they will use them, Defendants have deprived Condemned Plaintiffs of their right to

16 notice and an opportunity to be heard, in violation of the Due Process Clause of the

17 Fourteenth Amendment. Condemned Plaintiffs have no meaningful opportunity to

18 challenge the method of execution or the drugs or dosages selected if they do not learn

19 of the method until only 20 days before their execution or if, as in Wood’s case, they and

20 the courts are given grossly inaccurate information as to the amount of drugs that will be

21 used.

22 Claim Eight (by Condemned Plaintiffs only): Defendants’ pattern of deviating from
23 their Procedures and exercising their discretion in inhumane ways increases the risk of being subjected to a lingering death, in violation the Fourteenth
24 Amendment’s Equal Protection Clause.

25

168. Condemned Plaintiffs incorporate by reference each and every statement

26 and allegation set forth throughout this Complaint as if fully rewritten here.

27

28

46

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 49 of 56

1

169. The Fourteenth Amendment to the United States Constitution requires that

2 similarly situated Condemned Plaintiffs be treated alike. Condemned Plaintiffs,

3 individually, are each a “class of one,” similarly situated relative to one another and to

4 any other prisoner facing execution in Arizona because all such individuals face

5 execution under the Procedures.

6

170. Codifying ad hoc Procedures that lead to disparate treatment across

7 executions without a principled basis for determining when deviations are warranted

8 violates the Equal Protection Clause and impairs Condemned Plaintiffs’ fundamental

9 rights, including the right to be free from cruel and unusual punishment.

10

171. Where disparate treatment burdens a fundamental right, strict scrutiny

11 applies, and the state action will be upheld only if the state can show that such action is

12 narrowly drawn to serve a compelling state interest.

13

172. Even absent a burden upon a fundamental right, the government still

14 violates the Equal Protection Clause if individuals are “intentionally treated differently

15 from others similarly situated and . . . there is no rational basis for the difference in

16 treatment.”

17

173. Defendants have created, maintained, and implemented lethal-injection

18 protocols, procedures, practices, customs, and training and execution methods that they

19 intend to use to execute Condemned Plaintiffs. As designed and applied, Defendants’

20 lethal-injection execution Procedures are constitutionally flawed. Defendants have no

21 legitimate penological justification, nor rational basis, nor compelling state interest in

22 permitting the Director to, at whim, administer any amount, of any drug, without notice,

23 to a prisoner who is being executed.

24

174. The Procedures provide no guidelines or standards for determining when

25 and under what circumstances such distinctions may be warranted. Clear standards must

26 exist, and deviations from those standards result in equal protection violations.

27 Defendants have adopted Procedures that codify unbridled discretion and arbitrary

28

47

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 50 of 56
1 treatment. Deviation is the standard, as demonstrated by Defendants’ administration of
2 Wood’s execution.
3 Claim Nine (by Condemned Plaintiffs only): Defendants’ failure to devise 4 Procedures for lethal injection that reliably result in a prompt and painless death
conflicts with the Arizona’s lethal injection law as construed by Defendants. 5
175. Condemned Plaintiffs incorporate by reference each and every statement 6
and allegation set forth throughout this Complaint as if fully rewritten here. 7
176. In prior litigation, Defendants have construed Arizona’s statute authorizing 8
execution by lethal injection as requiring a “humane,” “dignified” death that results in 9
“the least amount of discomfort” possible. Defendants have bound themselves to this 10
position and sworn to abide by these promises. 11
177. These promises create a property interest in the benefit conferred upon the 12
individual. Wolf v. McDonnell, 418 U.S. 539, 557 (1974). 13
178. Defendants have created, maintained, and implemented lethal-injection 14
protocols that fail to fulfill the statutory mandate of a “humane” execution. This deprives 15
Condemned Plaintiffs of their Fourteenth Amendment property interest in the benefit of 16
a “humane” death by lethal injection. 17
179. Defendants do not have Procedures that meet their own standard. By 18
adopting and employing Procedures that afford virtually no protection against a painful 19
or lingering death and that provide no recourse for a botched execution, if Defendants 20
execute Condemned Plaintiffs under their current lethal injection Procedures, 21
Defendants will violate Condemned Plaintiffs’ constitutional rights to Due Process under 22
the Fourteenth Amendment of the United States Constitution. 23
// 24
// 25
// 26
27
28
48

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 51 of 56

1

Prayer for Relief

2 Wherefore, the Coalition and Condemned Plaintiffs jointly pray for:

3

1. Temporary, preliminary, and permanent injunctive relief to enjoin the

4

Defendants, their officers, agents, servants, employees, and all persons acting in

5

concert with them from concealing execution-related, non-personally identifying

6

information that the Coalition and Condemned Plaintiffs require in order to

7

ensure their First Amendment right of access to governmental proceedings,

8

including but not limited to:

9

a. The manufacturer(s) and other suppliers of the lethal-injection and other

10

drugs that Defendants will or may use in Condemned Plaintiffs’

11

executions;

12

b. The lot numbers of the lethal-injection and other drugs that Defendants

13

will or may use in Condemned Plaintiffs’ executions;

14

c. The NDCs of the lethal-injection and other drugs that Defendants will or

15

may use in Condemned Plaintiffs’ executions;

16

d. The expiration dates of the lethal-injection and other drugs that Defendants

17

will or may use in Condemned Plaintiffs’ executions;

18

e. Documentation (not including personally identifying information)

19

establishing that those who will handle controlled substances in the

20

executions have the appropriate DEA authorization to do so;

21

f. Documentation sufficient to establish from whom the drugs were

22

purchased;

23

g. Documentation sufficient to establish where and how the drugs that have

24

been and/or are proposed to be used for executions have been or will be

25

transported and stored, at all stages from the point of purchase to their use

26

in an execution;

27

28

49

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 52 of 56

1

h. Documentation (not including personally identifying information)

2

establishing that those who will be responsible for inserting any IVs are

3

qualified to do so;

4

i. The precise dosage and administration process of the lethal-injection drugs

5

that Defendants will or may use in Condemned Plaintiffs’ executions;

6

j. The rationale for Defendants’ selection of the drugs, dosages, and process

7

it will use in Condemned Plaintiffs’ executions;

8

k. Defendants’ expectation of the length of time the process will take to

9

render the prisoner unconscious and to die, and the rationale for that

10

expectation;

11

l. The ability for witnesses to observe visually and aurally the entirety of an

12

prisoner’s execution, unfettered, from the time that the prisoner is brought

13

into the death chamber, and before any medical procedures are begun or

14

needles or intravenous lines administered, until death; and

15

m. Information detailing emergency contingency procedures and the

16

qualifications of personnel who are expected to intervene if medical

17

intervention is necessary;

18

2. An order granting Plaintiffs their reasonable attorneys’ fees under 42 U.S.C.

19

§ 1988 and the laws of the United States; and

20

3. Any such other relief as the Court deems just and proper.

21 The Condemned Plaintiffs additionally pray for:

22

4. An order declaring that Defendants’ current means, methods, practices,

23

procedures, and customs regarding execution by lethal injection violate the

24

First, Eighth, and Fourteenth Amendments to the United States Constitution;

25

5. Temporary, preliminary, and permanent injunctive relief barring Defendants

26

from executing Condemned Plaintiffs under the current or any future protocol,

27

so long as such execution would violate Condemned Plaintiffs’ federal

28

50

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 53 of 56

1

constitutional rights under the First, Eighth, and Fourteenth Amendments to

2

the United States Constitution;

3

6. Temporary, preliminary, and permanent injunctive relief to enjoin the

4

Defendants, their officers, agents, servants, employees, and all persons acting

5

in concert with them from concealing information that is not related to the

6

identification of persons participating in executions, and that is necessary to

7

ensure Condemned Plaintiffs’ First Amendment right to petition the

8

government for redress of grievances, including but not limited to:

9

a. The manufacturer(s) and other suppliers of the lethal-injection drugs that

10

Defendants will or may use in Condemned Plaintiffs’ executions;

11

b. The lot numbers of the lethal-injection drugs that Defendants will or may

12

use in Condemned Plaintiffs’ executions;

13

c. The NDCs of the lethal-injection drugs that Defendants will or may use in

14

Condemned Plaintiffs’ executions;

15

d. The expiration dates of the lethal-injection drugs that Defendants will or

16

may use in Condemned Plaintiffs’ executions;

17

e. Documentation (not including personally identifying information)

18

establishing that those who will handle controlled substances in the

19

executions have the appropriate DEA authorization to do so;

20

f. Documentation sufficient to establish from whom the drugs were

21

purchased;

22

g. Documentation sufficient to establish where and how the drugs that have

23

been and/or are proposed to be used for executions have been or will be

24

transported and stored, at all stages from the point of purchase to their use

25

in an execution;

26

h. Documentation (not including personally identifying information)

27

establishing that those who will be responsible for inserting any IVs are

28

qualified to do so;

51

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 54 of 56

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 // 27 // 28 //

i. The precise dosage and administration process of the lethal-injection drugs that Defendants will or may use in Condemned Plaintiffs’ executions;
j. Immediate access to a private telephone for Condemned Plaintiffs’ counsel during executions in the event that an immediate intervention by the Court is needed;
k. The rationale for Defendants’ selection of the dosages and process it will use in Condemned Plaintiffs’ executions;
l. Defendants’ expectation of the length of time the process will take to render the prisoner unconscious and to die, and the rationale for that expectation;
m. The ability for Condemned Plaintiffs’ counsel to observe visually and aurally the entirety of a prisoner’s execution, unfettered, from the time that the prisoner is brought into the death chamber, and before any medical procedures are begun or needles or intravenous lines administered, until death; and
n. Information detailing emergency contingency procedures and the qualifications of personnel who are expected to intervene if medical intervention is necessary;
7. Appropriate and necessary discovery and an evidentiary hearing to permit Condemned Plaintiffs to prove their constitutional claims;
8. Appointment of an independent monitor to assess Defendants’ creation of and adherence to a constitutional execution protocol;
9. An order granting Condemned Plaintiffs their reasonable attorneys’ fees under 42 U.S.C. § 1988 and the laws of the United States; and
10. Any such other relief as the Court deems just and proper.
52

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 55 of 56

1 Respectfully submitted this 18th day of September, 2014.

2

Jon M. Sands

3

Federal Public Defender

District of Arizona

4

Dale A. Baich

5

Robin C. Konrad

6

s/ Dale A. Baich

Counsel for Plaintiffs Charles Michael

7

Hedlund; Graham S. Henry; David

8

Gulbrandson; Todd Smith; and

Eldon Schurz

9

10

Mark E. Haddad (admitted pro hac vice) Alycia A. Degen (admitted pro hac vice)

11

Joshua E. Anderson (admitted pro hac vice)

Aimee G. Mackay (admitted pro hac vice)

12

Collin P. Wedel (admitted pro hac vice)

13

Lauren A. McCray (admitted pro hac vice)

SIDLEY AUSTIN LLP

14

15

s/ Mark E. Haddad Counsel for Plaintiffs First Amendment

16

Coalition of Arizona, Inc.; Charles Michael

Hedlund; Graham S. Henry; David

17

Gulbrandson; Todd Smith; and

18

Eldon Schurz

19

20

21

22

23

24

25

26

27

28

53

Case 2:14-cv-01447-NVW Document 51 Filed 09/18/14 Page 56 of 56

1

Certificate of Service

2

I hereby certify that on September 18, 2014, I electronically filed the foregoing

3 First Amended Complaint for Violations of 42 U.S.C. § 1983 and Equitable, Injunctive,

4 and Declaratory Relief with the Clerk’s Office by using the CM/ECF system. I certify

5 that all participants in the case are registered CM/ECF users and that service will be 6 accomplished by the CM/ECF system.

7

8

s/ Chelsea Hanson Legal Secretary

9 Capital Habeas Unit

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

54

Case 2:14-cv-01447-NVW Document 51-1 Filed 09/18/14 Page 1 of 34
Exhibit A

Case 2:14-cv-01447-NVW Document 51-1 Filed 09/18/14 Page 2 of 34

ARIZONA DEPARTMENT OF CORRECTIONS

CHAPTER: 700 OPERATIONAL SECURITY

OPR:

OPS

DEPARTMENT ORDER MANUAL

DEPARTMENT ORDER: 710 EXECUTION PROCEDURES

SUPERSEDES: DO 710 (01/25/12)
EFFECTIVE DATE: SEPTEMBER 21, 2012

REPLACEMENT PAGE EFFECTIVE DATE:
MARCH 26, 2014

PURPOSE RESPONSIBILITY PROCEDURES

TABLE OF CONTENTS

PAGE

710.01

COMPLEX AND DIRECTOR’S OFFICE RESPONSIBILITIES................................................ 2

710.02

EXECUTION TEAM MEMBERS .................................................................................... 4

710.03

COMMUTATION HEARING PROCEEDINGS ................................................................... 9

710.04

DESIGNATION OF WITNESSES BY DIRECTOR ............................................................ 10

710.05

STATE AND LOCAL LAW ENFORCEMENT BRIEFING; SITE CHECKS .............................. 11

710.06

THIRTY- FIVE DAYS PRIOR TO THE DAY OF EXECUTION – COMPLEX .......................... 11

710.07

THIRTY-FIVE DAYS PRIOR TO THE DAY OF EXECUTION – CENTRAL OFFICE................. 13

710.08

TWENTY-ONE DAYS PRIOR TO THE DAY OF EXECUTION – CENTRAL OFFICE ............... 14

710.09

FOURTEEN DAYS PRIOR TO THE DAY OF EXECUTION – CENTRAL OFFICE ................... 14

710.10

TWO DAYS PRIOR TO THE DAY OF EXECUTION ........................................................ 14

710.11

TWENTY-FOUR HOURS PRIOR TO THE DAY OF EXECUTION ....................................... 15

710.12

TWELVE HOURS PRIOR TO AND THROUGH THE EXECUTION ...................................... 15

710.13

POST-EXECUTION .................................................................................................. 19

710.14

PROCEDURES FOR NEWS MEDIA ............................................................................. 20

IMPLEMENTATION.............................................................................................................. 21

CROSS-REFERENCE INDEX .................................................................................................. 22

AUTHORITY ...................................................................................................................... 22

ATTACHMENTS

EXECUTION PROCEDURES

MARCH 26, 2014

710 - PAGE i

Case 2:14-cv-01447-NVW Document 51-1 Filed 09/18/14 Page 3 of 34
CHAPTER 700 – OPERATIONAL SECURITY DEPARTMENT ORDER: 710 – EXECUTION PROCEDURES
PURPOSE
This Department Order establishes procedures for planning and carrying out the execution of a person convicted of a capital offense and sentenced to death. These procedures shall be followed as written unless deviation or adjustment is required, as determined by the Director of the Arizona Department of Corrections (Department). This Department Order outlines internal procedures and does not create any legally enforceable rights or obligations.
RESPONSIBILITY
The Department ensures the execution of a person sentenced to death under State law by a court of competent authority and jurisdiction is carried out in keeping with statute, case law and professional practices.
The Department shall make every effort in the planning and preparation of an execution to ensure the execution process:
 Faithfully adheres to constitutional mandates against cruel and unusual punishment.  Is handled in a manner that minimizes its impact on the safety, security and operational integrity of the
prison and the community in which it occurs.  Accommodates the public's right to obtain certain information concerning the execution.  Reasonably addresses the privacy interests of persons as provided by law.  Provides contingency planning to identify and address unforeseen problems.  Allows for stays of execution, commutations and other exigencies up to the time that the sentence is
imposed.  Provides opportunity for citizens to exercise their First Amendment rights to demonstrate for or against
capital punishment in a lawful manner.  Ensures there is an appropriate response to unlawful civil disobedience, trespass and other violations of
the law by any person attempting to impact the execution or the operation of the prison.
The Department shall detain, seek the arrest and encourage prosecution of persons whose conduct includes:
 Violating prohibitions against filming, taping, broadcasting or otherwise electronically documenting the execution of the inmate.
 Trespassing and otherwise entering upon Department property without authorization.  Participating in unlawful demonstrations or unlawfully attempting to disrupt, prevent and otherwise
interfere with the execution.  Unlawfully threatening, intimidating and otherwise attempting to influence authorized persons involved
in the execution process.  These prohibitions apply to the inmate population as well as department personnel and members of the
general public engaging or attempting to engage in disruptive and other prohibited behaviors.
Participating staff shall adhere to the Department’s Code of Ethics and Guided Principles, evidencing:
 Appropriate levels of professionalism, restraint and courtesy when interacting with witnesses, demonstrators, attorneys, news media, state and local law enforcement and any other member of the public directly and indirectly involved with the imposition of the sentence of death.
 All assigned duties are performed proficiently and professionally.  Their ability to exercise the option to withdraw from the process by the prescribed means at any time.  Conduct that appropriately reflects the solemnity of the activities in which they elect to engage and the
duties they choose to perform.

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 Reserving public comment on any and all facets of the execution except as expressly provided in Department Order #201, Information Release.
 Any Department employee who learns of identifying information regarding any person who participates in or performs any function of an execution must keep that information confidential.

IMPORTANT GUIDELINES REGARDING CONFIDENTIALITY AND VOLUNTARINESS OF PARTICIPATION IN AN EXECUTION:
 The anonymity of any person, as defined in A.R.S. 1-215(28) and A.R.S. 13-105(30), who participates in or performs any ancillary function(s) in the execution, including the source of the execution chemicals, and any information contained in records that would identify those persons are, as required by statute, to remain confidential and are not subject to disclosure. A.R.S. 13-757 (C).
 All team members serve on a strictly voluntary basis. At any point before, during or after an execution any team member may decline to participate or participate further without additional notice and explanation or repercussion.
 The Division Director for Offender Operations shall ensure all team members understand and comply with the provisions contained herein.

PROCEDURES

710.01 1.1

COMPLEX AND DIRECTOR’S OFFICE RESPONSIBILITIES UPON RECEIPT OF WARRANT OF EXECUTION

Upon receipt of the Warrant of Execution from the Attorney General's Office:

1.1.1 General Counsel shall:

1.1.1.1

Notify the Director, Division Director for Offender Operations, the Wardens of ASPC-Florence and ASPC-Eyman or ASPC-Perryville, and the Media and Public Relations Office.

1.1.1.2

Forward the original Warrant of Execution to the Warden of ASPC-Florence;

1.1.1.3

Forward copies of the original Warrant of Execution to the Warden of ASPC-Eyman or ASPC-Perryville;

1.1.1.4

Notify the Victim Services Team Leader, who shall contact the victim(s) and inform them of the court’s issuance of the Warrant of Execution.

1.1.2 The Director shall:

1.1.2.1

Select the time of execution and provide notice to the Arizona Supreme Court and the parties at least 20 calendar days prior to the execution date. (Arizona Rules of Criminal Procedures, Rule 31.17(c)(3)).

1.1.2.2

Notify the inmate that if the offense was committed prior to November 23, 1992, he shall choose in writing either lethal injection or lethal gas. If the inmate fails to choose either lethal injection or lethal gas, the penalty of death shall be inflicted by lethal injection (A.R.S. 13-757 (B)).

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1.1.3

1.1.2.3

Have the authority, under exigent circumstances, to change the timeframes established in this Department Order.

The ASPC-Eyman or ASPC-Perryville Warden shall:

1.1.3.1

Direct the inmate to submit the Inmate Witness and Notification Information, Form 710-2, to the Warden no later than 14 days prior to the scheduled execution date.

1.1.3.1.1

Inform the inmate that two clergy and five other persons may be invited to be present at the execution.

1.1.3.1.2

Notify the inmate that minors are prohibited from witnessing the execution pursuant to A.R.S. 13758.

1.1.3.1.3

Notify the inmate that requests for Department or contract staff to attend the execution shall be denied.

1.1.3.1.4

Notify the inmate that requests for other inmates to attend the execution shall be denied.

1.1.3.2

Direct the inmate to review and update as necessary the Notification in Case of Accident, Serious Illness or Death and Disposition of Property, Form 711-1. The Warden shall direct the inmate to provide any changes no later than 14 days prior to the execution. If the inmate provides no instruction, the property and accounts shall be disposed in accordance with Department Order #711, Notification of Inmate Hospitalization or Death.

1.1.3.3

Advise the inmate that his/her body shall not be used for organ donation.

1.1.3.4

Summarize the options available with the inmate for release and disposition of their body after the autopsy is performed. The Warden shall direct the inmate to review the previously completed Disposition of Remains, Form 710-3, and update as necessary no later than 14 days prior to the execution. If the inmate provides no information or the information is insufficient or incorrect the deceased shall be disposed in accordance with Department Order #711, Notification of Inmate Hospitalization or Death.

1.1.3.5

Advise the inmate he may request a last meal by completing the Last Meal Request, Form 710-5, and returning it no later than 14 days prior to the execution. Reasonable effort shall be made to accommodate the request.

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710.02 1.1
1.2

EXECUTION TEAM MEMBERS

The Division Director for Offender Operations shall:

1.1.1

Establish a training schedule and identify dates for periodic on-site practice by the Housing Unit 9 Section Teams, to include 10 training scenarios within the 12 months preceding the scheduled execution.

1.1.2

Conduct a minimum of two training sessions with multiple scenarios 2 days prior to the scheduled execution. The IV Team members shall participate in at least one training session with multiple scenarios within one day prior to the scheduled execution.

1.1.2.1

All training sessions shall be documented and be included as part of a permanent record created by the ASPC-Florence Warden to be submitted to the Department's General Counsel for archive, post execution.

1.1.3

Ensure periodic testing of all of the equipment in Housing Unit 9 occurs, affirming electrical, plumbing, heating and air conditioning units are in working order and the gas chamber is maintained.

The Division Director for Offender Operations provides for the planning and overall direction of all pre-execution, execution and post-execution activities. The Division Director coordinates the activities of the Southern and Northern Regional Operations Directors (SROD and NROD) and the ASPC-Eyman or ASPC-Perryville and ASPC-Florence Wardens who activate the following teams and oversee their activities, specifically:

1.2.1 Command

1.2.1.1

Consists of a minimum of three team members:

1.2.1.1.1 Commander.

1.2.1.1.2 Recorder.

1.2.1.1.3 Telephone operator.

1.2.1.1.4 Others as necessary.

1.2.1.2

Team members are selected by the Division Director for Offender Operations with the documented approval of the Director.

1.2.1.3

Its team leader is selected by the Division Director for Offender Operations.

1.2.1.4

Primary function of Command is the overall coordination of execution procedures.

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1.2.2 1.2.3 1.2.4

Housing Unit 9 Section

1.2.2.1

Consists of a section leader and two teams:

1.2.2.1.1 Restraint Team.

1.2.2.1.2 Special Operations Team.

1.2.2.2

Team leaders are selected by the Division Director for Offender Operations with the documented approval of the Director.

1.2.2.3

The section leader is the ASPC-Florence Warden.

1.2.2.4

Primary function of the section leader is the overall coordination of activities of the Restraint Team and the Special Operations Team to ensure compliance with conditions of confinement and application of approved procedures.

Restraint Team

1.2.3.1

Consists of seven team members divided into two teams of three and one team leader.

1.2.3.2

Its team members and the team leader are selected by the Division Director for Offender Operations with the documented approval of the Director.

1.2.3.3

Primary function of the Restraint Team is to provide continuous observation of the inmate on the day of the execution and apply appropriate restraint procedures and inmate management prior to, during and after the execution.

Special Operations Team

1.2.4.1

Consists of a minimum of five team members:

1.2.4.1.1 Team Leader.

1.2.4.1.2 Recorder.

1.2.4.1.3 Three additional team members.

1.2.4.2

Its team members and team leader are selected by the Division Director for Offender Operations with the documented approval of the Director.

1.2.4.3

The Special Operations Team Leader shall designate functions of the other team members, including the selection of a member to observe the procedure and serve as the Recorder.

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1.2.5

1.2.4.4

Primary function of the Special Operations Team is to implement the protocols associated with the execution with its primary duty being the administration of the chemicals, and additionally mixing the chemicals under the direct supervision of the IV Team Leader.

Intravenous Team Members (IV Team)

1.2.5.1

The IV Team will consist of any two or more of the following: physician(s), physician assistant(s), nurse(s), emergency medical technician(s) (EMT’s), paramedic(s), military corpsman or other certified or licensed personnel including those trained in the United States Military. All team members shall be currently certified or licensed within the United States to place IV lines.

1.2.5.2

The IV Team members shall be selected by the Director. Selection of any team member shall include a review of the proposed team member’s qualifications, training, experience, and/or any professional license(s) and certification(s) they may hold. Licensing and criminal history reviews shall be conducted, by the Inspector General’s Office prior to assigning or retaining any IV Team member and upon the issuance of a Warrant of Execution.

1.2.5.3

The Director shall designate the IV Team Leader. The Division Director for Offender Operations shall ensure all team members thoroughly understand all provisions contained herein as written and by practice.

1.2.5.4

The IV Team shall be responsible for inserting either peripheral IV catheters or a central femoral line as determined by the Director acting upon the recommendation of the IV Team Leader. The IV Team Leader shall ensure all lines are functioning properly throughout the procedure, supervise the Special Operations team in the mixing of the chemicals, preparing the syringes, and monitoring the inmate (including the level of consciousness and establishing the time of death). The IV Team Leader shall supervise the administration of the chemicals. A central femoral venous line will not be used unless the person placing the line is currently certified or licensed within the United States to place a central femoral line.

1.2.5.5

IV Team members shall only be required to participate in the training sessions scheduled for one day prior to the actual execution.

1.2.5.6

Documentation of IV Team members’ qualifications, including training of the team members, shall be maintained by the Department Director or his designee.

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1.2.6 1.2.7 1.2.8 1.2.9

Maintenance Response Team (MRT)

1.2.6.1

Consists of three team members and a team leader, and reports to Command.

1.2.6.2

Team members are selected by the ASPC-Florence Warden.

1.2.6.3

Primary function of MRT is to test all Housing Unit 9 equipment utilized to impose the sentence of death and to ensure electrical, plumbing, heating and air conditioning units are in working order.

Critical Incident Response Team (CIRT)

1.2.7.1

Consists of three team members and a team leader, and reports to Command.

1.2.7.2

The leader is the Employee Relations Administrator or designee.

1.2.7.3

Team members are CIRT responders and selected by the Employee Relations Administrator.

1.2.7.4

Primary function of CIRT is to educate staff regarding possible psychological responses and effective coping mechanisms to affected staff at all levels in the Department prior to, during and after the execution. CIRT shall provide ongoing follow up contact to staff.

Traffic Control Team

1.2.8.1

Consists of eight team members and a team leader, and reports to Command.

1.2.8.2

Team members and the team leader are selected by the Division Director for Offender Operations.

1.2.8.3

Primary function is to confer with state and local law enforcement agencies, establish check points and parameters for traffic control and formulate inter-agency emergency response strategies. The team also coordinates the ingress/egress for Department and contract staff and other persons whose attendance is necessary at ASPC-Eyman or ASPC-Perryville and ASPC-Florence. The Team’s focus is the period of time starting twenty-four hours prior to the execution and concluding when normal activities resume after the execution.

Escort Team

1.2.9.1

Consists of eight team members and a team leader, and reports to Command.

1.2.9.2

Team members and the team leader are selected by the Division Director for Offender Operations.

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1.2.9.3

Primary function is to coordinate the movement of all preapproved witnesses on and off prison grounds and within its perimeter. One Escort Team is assigned to escort and assist preapproved official, victim, media, and inmate witnesses. Escort team members always remain with witnesses within the established perimeter.

1.2.10 Victim Services Team

1.2.10.1

Consists of two team members and reports to the Escort Team leader.

1.2.10.2 The team leader is the Victim Services Office Administrator.

1.2.10.3

Primary function is to ensure victims of the crime that resulted in the imposition of death are informed of the execution date and their opportunity to witness the execution. The team explains the execution process. If the victim is interested in attending, the team submits the victim's name(s) for consideration.

1.2.10.4

Day of the Execution - The team leader meets with the victim(s) in a predetermined staging area and accompanies them throughout the process, including a briefing by the Director. The Team provides support and advocacy as appropriate.

1.2.10.5

If the victim(s) is interested in speaking with the media after the execution, the victim(s) is escorted to the Press Room for brief media availability.

1.2.10.6

Post-Execution - The team leader ensures the victim(s) receives follow up phone calls and support.

1.2.11 Population Assessment

1.2.11.1 Southern Region Operations Director:

1.2.11.1.1

Is responsible for the coordination of monitoring and evaluation of inmate activity at ASPC-Eyman and ASPC-Florence.

1.2.11.1.2

Continuously monitors and assesses the inmate population for any activity related to the execution or its impact on the prison’s operation at ASPCEyman and ASPC-Florence.

1.2.11.2 ASPC-Perryville Warden:

1.2.11.2.1

Is responsible for the coordination of monitoring and evaluation of inmate activity at ASPCPerryville.

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1.3
710.03 1.1

1.2.11.2.2

Continuously monitors and assesses the inmate population for any activity related to the execution or its impact on the prison’s operation.

Designation of ADC Staff and Others Selected to Assist with the Execution

1.3.1

The ASPC-Eyman or ASPC-Perryville and ASPC-Florence Wardens shall review the current teams’ rosters and recommend retention and replacement of staff and alternates to the Division Director for Offender Operations.

1.3.2

The Division Director for Offender Operations shall evaluate the teams’ composition and the Wardens’ recommendations and forward final recommendations to the Director.

1.3.3

In the selection and retention of section leaders and Housing Unit 9 team members, the Division Director for Offender Operations shall consider:

1.3.3.1

No employee who was suspended or demoted in the past 12 months shall be considered. Any staff currently under investigation is also ineligible.

1.3.3.2

Special consideration may be given to staff with pertinent specialized training and qualifications.

1.3.3.3

Staff with less than two years employment with the Department shall not be considered.

1.3.3.4

No staff serving on any team shall be related to the inmate by blood or marriage or have any other legal relationship with the inmate, their family or the crime victim(s).

1.3.4

Staff participation in the execution process is strictly voluntary. No Department employee is required to attend or participate in an execution. Any staff volunteers may withdraw from performing their assigned duties specific to the execution at any time by advising their Team Leader, advising a Team Member or advising their immediate Chain of Command. All staff participating in the execution shall be required to sign a Notice of Execution Involvement, Form 710-8.

COMMUTATION HEARING PROCEEDINGS

The Arizona Board of Executive Clemency (BOEC) shall:

1.1.1

Contact the ASPC-Eyman or ASPC-Perryville Warden to arrange for the BOEC Executive Director or designee to meet with the inmate in person to advise the inmate that a commutation hearing may be held, and that the inmate may participate in the hearing in person or by submitting a written statement to the BOEC.

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710.04 1.1

1.1.2

Advise the Department of its plans to convene a Commutation Hearing and its date and time. Upon receipt of the notice, the ASPC-Eyman or ASPC-Perryville Warden shall arrange for a location in which the Commutation Hearing will be held.

1.1.2.1

If the BOEC Commutation Hearing is held at the prison, the Department shall:

1.1.2.1.1

Require those in attendance to adhere to dress code as outlined in Department Order #911, Inmate Visitation.

1.1.2.1.2

Comply with the open meeting laws as it applies to Board of Executive Clemency hearings pursuant to A.R.S. 38-431.08.

DESIGNATION OF WITNESSES BY DIRECTOR

The Director or designee shall be present during the execution.

1.1.1 The Director shall invite:

1.1.1.1

The Arizona Attorney General. A.R.S. 13-758.

1.1.1.2

Twelve or more reputable citizens, including up to five Arizonamarket media.

1.1.1.3

The five official media witnesses selected as representatives, from media-print, television/cable, radio, and the local market where the crime occurred. These official media witnesses shall also agree to serve as pool reporters.

1.1.1.4

Law Enforcement and prosecutors from the jurisdiction where the crime occurred.

1.1.1.5

Any crime victims and survivors of the crime for which the sentence of death will be imposed, once the Victim Services Team identifies those persons and provides to the Director a list of victim witnesses within 14 days prior to the scheduled execution.

1.1.2 Minors shall not be permitted to witness an execution. A.R.S. 13-758.

1.1.3

All witnesses are subject to a records check. Selection to participate is contingent upon security clearance and Witness Agreement to adhere to the provisions stipulated in the Official Witness Agreement and Official Witness/Pool Reporters Agreements, Forms 710-6 and 710-7. The Director shall retain full discretion as to the selection of and any changes in the witnesses selected for each scheduled execution.

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710.05 1.1 1.2
1.3 710.06
1.1

STATE AND LOCAL LAW ENFORCEMENT BRIEFING; SITE CHECKS

The Division Director for Offender Operations shall ensure state and local law enforcement is periodically briefed and adequately prepared for the execution.

All of the equipment necessary to the administration of the execution shall be available on site and in good working order including:

1.2.1 Transportation vehicles.

1.2.2

Communication devices with inter-operability capability and restricted frequencies.

1.2.3 Climate control.

1.2.4 Tool control.

1.2.5 Safety equipment.

1.2.6 Audio/visual equipment.

1.2.7 Utility infrastructure.

1.2.8 Key control/locking devices.

1.2.9 Medical emergency response capability.

The Division Director for Offender Operations shall take all necessary steps to timely rectify deficiencies.

THIRTY- FIVE DAYS PRIOR TO THE DAY OF EXECUTION – COMPLEX

The Warden or designee of ASPC-Eyman or ASPC-Perryville shall confirm in writing the following steps were completed:

1.1.1 Read the Warrant to the inmate.

1.1.2

Outline for the inmate how conditions of confinement will be modified over the next thirty-five days and briefly describe the relevant aspects of the execution process.

1.1.3

Offer the inmate the opportunity to contact their Attorney of Record by phone and to speak with a facility Chaplain.

1.1.4

Obtain the inmate's current weight and provide that information to the Division Director for Offender Operations and the Housing Unit 9 Section Leader.

1.1.5

Transfer the inmate to the single-person cell on Death Row Browning or the Lumley Unit that has been retrofitted expressly for the purpose of holding the inmate.

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1.1.5.1

Before transferring the inmate into the cell, the inmate shall be strip searched, screened on the BOSS chair and then issued a new set of clothes and shoes to wear.

1.1.5.2

The single-person cell shall be thoroughly searched prior to placing the inmate in the cell.

1.1.6

Place the inmate on 24-hour Continuous Observation and post staff to the inmate’s cell on an on-going basis to maintain visual contact with the inmate until such time as the inmate is transferred to Housing Unit 9 at ASPCFlorence.

1.1.7

Establish an Observation Record to chronicle staff’s observations of the inmate’s activities and behavior until the sentence of death is imposed.

1.2

Conditions of Confinement - The ASPC-Eyman or ASPC-Perryville Warden shall:

1.2.1

Ensure none of the inmate’s personal property is transferred with the inmate, except as provided in this section.

1.2.2

Have the inmate’s personal property inventoried in their presence before the transfer of cells occurs and then have it boxed, sealed and removed from the cell. Store the inmate’s property pending receipt of written instruction by the inmate regarding disposition of property or otherwise dispose of the property as outlined in section 710.01 of this Department Order.

1.2.3

Ensure all remaining property possessed by the inmate in the cell comply with indigent status items; any exceptions must be pre-approved in writing by the Division Director for Offender Operations.

1.2.4

Allow the inmate to keep in the cell one box each of legal and religious materials, a pencil and paper, and a book or periodical.

1.2.5 Issue the inmate a new mattress, pillow and bedding.

1.2.6

Provide the inmate limited hygiene supplies, including a towel and washcloth, and exchange these items on a daily basis.

1.2.7 Issue the inmate a clean set of clothing and bedding daily.

1.2.8

Ensure all inmate medications are unit-dosed and, when available issued in liquid form, and none of the inmate’s medication including over-the-counter medications be dispensed or maintained by the inmate as Keep-on-Person.

1.2.9

Ensure the inmate has access to a department television set that is secured outside of the cell, and does not have access to any other appliances.

1.2.10

Continue to provide outdoor exercise and showers, non-contact visits and phone calls per the current schedule for other death row inmates in Browning or the Lumley unit.

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710.07 1.1
1.2
1.3 1.4

THIRTY-FIVE DAYS PRIOR TO THE DAY OF EXECUTION – CENTRAL OFFICE

The Division Director for Offender Operations:

1.1.1

Identifies and assigns team leaders and members, with documented approval by the Director, and upon approval shall activate the teams.

1.1.2

Confirms preventive maintenance in Housing Unit 9 occurs and that an equipment inventory is completed, and appropriate and timely action is taken.

1.1.3

Directs the initiation of the Continuous Observation Log commencing on the 35th day prior to the day of the execution. The log shall follow the inmate from ASPC-Eyman or ASPC-Perryville to Housing Unit 9 at ASPC-Florence and be maintained until the execution occurs or a stay of execution is issued.

1.1.4

Activates the training schedule ensuring staff participating in the execution receives adequate training, written instruction and practice, all of which is documented.

The Assistant Director for Health Services Contract Monitoring Bureau:

1.2.1

Directs ADC’s Health Services staff or ADC’s contracted Health Services provider to conduct a medical records file review to identify any prescribed medication(s) and dosages the inmate is currently or was recently taking. ADC’s Health Services staff or ADC’s contracted Health Services provider shall modify prescribed medications as may be necessary.

1.2.2

Directs ADC’s Health Services staff or ADC’s contracted Health Services provider to dispense all inmate medications in unit doses and, when available in liquid form. No medication including over-the-counter medications shall be provided or maintained by the inmate as Keep-on-Person.

1.2.3

Ensures ADC’s Health Services staff or ADC’s contracted Health Services provider continuously monitors for significant changes in the inmate’s medical or mental health and reports findings immediately to the Department's General Counsel.

The Media and Public Relations Office:

1.3.1 Issues a news advisory announcing the date of the execution.

1.3.2

Facilitates up to one non-contact interview with the inmate by phone, per day, with Arizona media from the day the Warrant is issued until the day before the sentence of death is imposed excluding weekends and state and federal holidays. The inmate and Attorney of Record may select among these requests that are submitted to the Media and Public Relations Office and recommend the order in which they occur. The inmate may refuse any or all media requests for interviews.

The Office of Victim Services - Identifies and advises victims of the crime for which the inmate has been sentenced to death of the issuance of the Warrant of Execution and the scheduled date and time of the execution.

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710.08 1.1
710.09 1.1
1.2
1.3 710.10
1.1

TWENTY-ONE DAYS PRIOR TO THE DAY OF EXECUTION – CENTRAL OFFICE

The Media and Public Relations Office:

1.1.1

Forwards media-witness applications to the Inspector General for background investigation. The Inspector General shall advise the Director of any issues arising from such investigations.

1.1.2

Sends media-witness agreement forms (Official Witness Agreement, Form 7106 and as applicable, Official Witness/Pool Reporter Agreement, Form 710-7) to identified media-witnesses, and establishes a deadline for the return of all such forms.

1.1.3

All witnesses shall sign and timely submit an Official Witness Agreement, Form 710-6, prior to being cleared and added to the witness list.

1.1.3.1

All official witnesses who are also members of media/press and are selected to serve as pool reporters shall also sign and timely return the Official Witness/Pool Reporter Agreement, Form 710-7.

FOURTEEN DAYS PRIOR TO THE DAY OF EXECUTION – CENTRAL OFFICE

The Inspector General or designee:

1.1.1

Finalizes arrangements with a Medical Examiner Office for the disposition of the body, security for the Medical Examiner’s vehicle and the custodial transfer of the body.

1.1.2 Obtain a body bag and tag from the Medical Examiner’s Office.

General Counsel:

1.2.1

Finalizes a list of all witnesses including official, victim, inmate witnesses and media/pool reporters, through coordination with the Offices of Victim Services and Media and Public Relations, for the Director’s review and documented approval.

1.2.1.1

Upon documented approval the Director or designee shall prepare a written invitation to each chosen witness. (See Attachment A).

The Media and Public Relations Office - Issue a news advisory announcing the date and time of the execution.

TWO DAYS PRIOR TO THE DAY OF EXECUTION

The Division Director for Offender Operations:

1.1.1

Schedules and conducts on-site scenario training sessions, modifying practices as warranted.

1.1.2

Confirms adequate staffing and vehicles are in place for regular operations and the execution.

EXECUTION PROCEDURES

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CHAPTER 700 – OPERATIONAL SECURITY DEPARTMENT ORDER: 710 – EXECUTION PROCEDURES

1.2
710.11 1.1 1.2 1.3 1.4 1.5
1.6 710.12
1.1

The ASPC-Florence Warden:

1.2.1

Confirms staff assigned to the Maintenance Response Team (MRT) is scheduled and will be on-site eight hours prior to the time scheduled for the imposition of sentence.

1.2.2 Restricts access to Housing Unit 9 to those with expressly assigned duties.

1.2.3 Readies Housing Unit 9 for the transfer of the inmate.

1.2.4

Verifies execution inventory and equipment checks are completed and open issues resolved.

TWENTY-FOUR HOURS PRIOR TO THE DAY OF EXECUTION

On-site scenario exercises continue.

Final preparation of Housing Unit 9 is completed. Each room receives final evaluation specific to its functions including security, climate control, lighting, sound, sanitation, and that separation screens and appropriate restraints are at the ready.

Detailed staff briefings are provided.

The ASPC-Eyman or ASPC-Perryville Warden shall ensure the inmate receives the last meal by 1900 hours. Every reasonable effort to accommodate the last meal request will have been made. All eating utensils and remaining food and beverage shall be removed upon completion of the meal.

The ASPC-Eyman or ASPC-Perryville Warden shall ensure non-contact visits and phone calls are concluded by 2100 hours.

1.5.1

The inmate's telephone privileges shall be terminated at 2100 hours the day prior to the execution, excluding calls from the inmate's Attorney of Record and others as approved by the Division Director for Offender Operations.

1.5.2

The inmate's visitation privileges shall be terminated at 2100 hours the day prior to the execution. The inmate will be permitted two hours of in-person visitation with no more than two Attorneys of Record, concluding one hour prior to the scheduled execution.

The inmate is prepared for transfer to Housing Unit 9 by the prescribed means.

TWELVE HOURS PRIOR TO AND THROUGH THE EXECUTION

Restricting Access to Institution Property - During the final twelve hours prior to the execution, access to ASPC-Eyman or ASPC-Perryville and ASPC-Florence is limited to:

1.1.1 On-duty personnel.

1.1.2 On-duty contract workers.

1.1.3 Volunteers deemed necessary by the Wardens.

EXECUTION PROCEDURES

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CHAPTER 700 – OPERATIONAL SECURITY DEPARTMENT ORDER: 710 – EXECUTION PROCEDURES

1.1.4 Approved delivery vehicles.

1.1.5 Law enforcement personnel on business-related matters.

1.1.6

Restrictions to these facilities shall remain in effect until normal operations resume after the execution or a stay of execution is issued.

1.2

Transfer of the inmate from Browning or Lumley Unit to Housing Unit 9

1.2.1

The inmate shall be secured and transferred by the Execution Restraint Team per the prescribed means the night before the execution.

1.2.2

Housing Unit 9 staff shall take custody of the inmate and the Observation Log. Staff shall assume maintenance of the log until the execution is completed or a stay of execution is issued.

1.2.3 Upon the inmate’s arrival, the inmate may be offered a mild sedative.

1.2.4

No later than five hours prior to the execution, the inmate shall be offered a light meal. All eating utensils and remaining food shall be removed upon completion of the meal.

1.2.5

No later than four hours prior to the execution, the inmate may be offered a mild sedative.

1.2.6

These time frames may be adjusted as necessary in the event of a stay of execution or other exigencies.

1.3

Housing Unit 9 Conditions of Confinement

1.3.1

The inmate shall remain on Continuous Watch. Staff shall record observations and make entries in the Observation Record during the final four hours in hours, and minutes.

1.3.2

The inmate shall be issued one pair each of pants, boxer shorts and socks, and a shirt on the morning of the execution.

1.3.3

The cell shall be furnished with a mattress, pillow and pillowcase, one each top and bottom sheet, a blanket, a washcloth and towel, and toilet paper.

1.3.4

The inmate may have a pencil and paper, religious items, a book or periodical and indigent-sized hygiene supplies (liquid soap, toothpaste) and a toothbrush and comb. These items may be made available only for the duration of the use and shall be removed immediately thereafter. Any other requested property shall require approval by the Division Director for Offender Operations, and shall be documented.

1.4

Population Management - ASPC-Eyman or ASPC-Perryville and ASPC-Florence shall go on

lockdown status from between two to six hours prior to the time the execution is

scheduled to occur at the direction of Command. They shall remain on lock down

throughout the execution. After the conclusion of the execution, the prisons shall return to

regular operations at the direction of Command.

EXECUTION PROCEDURES

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CHAPTER 700 – OPERATIONAL SECURITY DEPARTMENT ORDER: 710 – EXECUTION PROCEDURES

1.5

Additional Operations Requirements

1.5.1

Witness Escort Teams shall process, transport and remain with pre-approved official witnesses, inmate witnesses, media witnesses and victim(s) witnesses through the conclusion of the execution and their return to designated staging areas per prescribed means.

1.5.1.1

Teams shall ensure each witness group is separated from the other witness groups at all times.

1.5.1.2

The Director or designee shall provide a brief overview of the execution for the official witnesses. The Director may advise witnesses that the curtains in the execution chamber may be drawn prior to the conclusion of the execution if necessary and then reopened when the execution resumes and that an IV Team member may enter into the chamber and physically manipulate the inmate to check consciousness.

1.5.2 Upon the direction of the Director to proceed:

1.5.2.1

The APSC-Florence Warden shall direct the Execution Restraint Team to prepare the inmate for escort into the execution chamber.

1.5.2.2

Prior to moving the inmate from the holding cell to the execution table, the Director shall confer with the Attorney General or designee and the Governor or designee to confirm there is no legal impediment to proceeding with the lawful execution.

1.5.2.3

When the inmate is secured on the execution table by the team and readied by qualified medical personnel, the Warden shall advise the Director.

1.5.2.4

The Director shall reconfirm with the Attorney General or designee and the Governor or designee that there is no legal impediment to proceeding. Upon oral confirmation that there is no legal impediment to proceeding with the execution, the Director may order the Warden to proceed with the execution.

1.5.2.4.1

If there is a legal impediment the Director shall instruct the ASPC-Florence Warden to stop, and to notify the inmate and witnesses that the execution has been stayed or delayed. The Warden shall also notify Command to notify the Media and Public Relations staff who shall advise the media in the Press Room.

EXECUTION PROCEDURES

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CHAPTER 700 – OPERATIONAL SECURITY DEPARTMENT ORDER: 710 – EXECUTION PROCEDURES

1.5.2.5

The Warden shall read aloud a summary of the Warrant of Execution. The Warden shall ask the inmate if he wishes to make a last statement that is reasonable in length and does not contain vulgar language or intentionally offensive statements directed at the witnesses. The microphone will remain on during the last statement. It will be turned off in the event the inmate uses vulgarity or makes intentionally offensive statements.

1.5.2.6

The Director shall instruct the disbursement of chemicals to begin by the prescribed means.

1.5.3 Pronouncement and Documentation of Death

1.5.3.1

The Director shall announce death when it has occurred.

1.5.3.2

The ASPC-Florence Warden shall complete and sign the return of the Death Warrant pursuant to A.R.S. 13-759. The Director shall file the document with the sentencing court and the Arizona Supreme Court within 48 hours.

1.5.3.3

A Medical Examiner shall take custody of the body and issue a Certificate of Death.

1.6

Stay of Execution - Upon receipt of notification that the court has issued a Stay of

Execution, the Director shall advise Command.

1.6.1 Upon receipt of notification, the Housing Unit 9 Section Leader shall:

1.6.1.1

Instruct the Special Operations to stand down.

1.6.1.2

Direct the Restraint Team to remove the inmate from the chamber and return to the Housing Unit 9 cell, pending movement back to Death Row at Browning or Lumley Unit as authorized by Command.

1.6.1.3

Advise the witnesses a Stay of Execution has been issued.

1.6.2 Command shall inform the following teams of the Stay of Execution:

1.6.2.1

Traffic Control Team Leader.

1.6.2.2

Population Assessment.

1.6.2.3

Critical Incident Response Team Leader.

1.6.2.4

Media Relations Director.

1.6.2.5

Victim Services Team Leader.

1.6.2.6

Escort Team leader.

EXECUTION PROCEDURES

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CHAPTER 700 – OPERATIONAL SECURITY DEPARTMENT ORDER: 710 – EXECUTION PROCEDURES

710.13 1.1
1.2 1.3 1.4

1.6.3

The Traffic Control Team Leader shall notify protestors of the issuance of the Stay of Execution.

1.6.4

The Escort Team shall commence escorting witness groups from Housing Unit 9 as set forth herein.

1.6.5

Upon Command’s instruction, the inmate shall be transported from Housing Unit 9 back to Death Row at Browning or Lumley Unit and their personal possessions returned.

POST-EXECUTION

Removing Witnesses from Housing Unit 9

1.1.1

After the pronouncement of death, witnesses shall be escorted in the prescribed order from the facility.

1.1.1.1

Each group of witnesses will continue to be kept separated from the other groups at all times.

1.1.1.2

Official witnesses who are media pool reporters will return to the Press Room to participate in the media briefing.

1.1.1.3

Victim witnesses speaking with the media will be escorted to the Press Room.

1.1.2

Media may remain on site in a designated location outside the secure perimeter for a limited time to complete live broadcasts.

Site Clean Up

1.2.1

Under the supervision of a person designated by the ASPC-Florence Warden, Housing Unit 9 shall be cleaned and secured.

1.2.2

Institutional staff trained in infectious diseases preventive practices will utilize appropriate precautions in cleaning Housing Unit 9.

Normal Operations

1.3.1

Command shall determine when the prisons resume normal operations after receiving assessments from the Wardens of ASPC-Florence and ASPC-Eyman or ASPC-Perryville.

1.3.2 Department personnel shall be deactivated at the direction of Command.

Execution Documentation

1.4.1

The ASPC-Florence Warden shall be responsible to gather all documents pertaining to the execution and forward to the Department's General Counsel for archive.

EXECUTION PROCEDURES

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CHAPTER 700 – OPERATIONAL SECURITY DEPARTMENT ORDER: 710 – EXECUTION PROCEDURES

710.14 1.1 1.2 1.3 1.4
1.5
1.6

1.4.2

Pursuant to A.R.S. 13-759 (B), the Director shall send written notification to the sentencing court and the Arizona Supreme Court stating the time, mode and manner in which the Warrant was carried out. (See Attachments B and C)

PROCEDURES FOR NEWS MEDIA

Reasonable efforts will be made to accommodate representatives of the news media before, during and after a scheduled execution however; the Department reserves the right to regulate media access to ensure the orderly and safe operations of its prisons.

The Media and Public Relations Office shall coordinate the release of information to news media outlets. All Department and contract staff are expressly prohibited from providing information not readily available in the public domain.

Update Prior to the Execution - Following activation of the Press Room, the Media Relations Director and the Media and Public Relations Officer shall provide the news media with regular briefings or updates.

Media Orientation and Releases - The Media Relations Director shall provide general information regarding the execution and about the inmate.

1.4.1

Media Representatives will be informed how the press pool will be established and advised that if they are selected as press pool witnesses, they shall be required to complete and sign Media Witness Press Pool Agreement, Form 7107, in addition the Official Witness Agreement, Form 710-6, prior to the execution.

1.4.2

Media Representatives will return to the Press Room after the execution to answer questions of all other media representatives concerning their observations during the execution, prior to filing or reporting their story.

Press Room Operations

1.5.1

Media representatives requesting to witness an execution must submit written requests to the Media and Public Relations Office no later than 28 days prior to the execution. Each request must include the name, social security number and birth date of media requesting access. Only those news organizations that have submitted written requests within the stated time frame shall be considered.

1.5.2

The Media and Public Relations Office shall finalize recommendations for selected media to perform official witness/pool reporter functions 14 days prior to the execution.

Briefing Packets and Updates

1.6.1 The Media Relations Office shall provide press briefing packets for reporters.

1.6.2

A brief summary of inmate’s activities during the final twenty-four hours, activities related to the execution and sequence of events, may be provided.

EXECUTION PROCEDURES

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CHAPTER 700 – OPERATIONAL SECURITY DEPARTMENT ORDER: 710 – EXECUTION PROCEDURES

1.7

News Media Selection

1.7.1

No more than five members of the Arizona media may be selected to witness the execution as official witnesses. Selected media will perform the additional duties of pool reporter:

1.7.1.1

Print.

1.7.1.2

Radio.

1.7.2 1.7.3

1.7.1.3

Television/Cable.

1.7.1.4

Local media representative in the market where the crime was committed.

Media is held to the same standards for conduct as are all other official witnesses.

Command may exclude any media witness at any time if the media witness fails to abide by the provisions of the Official Witness and Pool Reporter Agreements (Forms 710-6 and 710-7).

1.7.4

Media witnesses are not permitted to bring unauthorized items into Housing Unit 9. Unauthorized items include:

1.7.4.1 1.7.4.2 1.7.4.3

Electronic or mechanical recording devices. Still, moving picture or video tape camera. Tape recorders or similar devices.

1.7.4.4

Radio/television broadcasting devices.

1.7.5

Each pool reporter shall be provided a tablet of paper and a pencil to take notes from the time they complete security screening and board the bus until they are returned to the Press Room after the conclusion of the execution.

1.7.6 Official witnesses who are pool reporters shall attend a pre-execution briefing.

IMPLEMENTATION

The ASPC-Florence and ASPC-Perryville Wardens shall maintain Post Order #015, Death Watch Security Officer, delineating post-specific responsibilities. The ASPC-Florence Warden shall also maintain Post Order #015-A01, Housing Unit-9 Security Watch.

EXECUTION PROCEDURES

{Original Signature on File} ______________________________________
CHARLES L. RYAN DIRECTOR

SEPTEMBER 21, 2012

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CHAPTER 700 – OPERATIONAL SECURITY DEPARTMENT ORDER: 710 – EXECUTION PROCEDURES
ATTACHMENTS Attachment A - Letter of Invitation to Witness an Execution Attachment B - Return of Warrant Notification - Supreme Court Attachment C - Return of Warrant Notification - Superior Court Attachment D - Preparation and Administration of Chemicals
FORMS LIST 710-1, Method of Execution 710-2, Inmate Witness Information 710-3, Disposition of Remains 710-4, Authorized Witnesses for Execution Log (A, B and C) 710-5, Last Meal Request 710-6, Official Witness Agreement 710-7, Official Witness/Pool Reporter Agreement 710-8, Notice of Execution Involvement
CROSS-REFERENCE INDEX
Department Order #201, Information Release Department Order #207, Media Relations Department Order #711, Notification of Inmate Hospitalization or Death Department Order #911, Inmate Visitation
AUTHORITY
A.R.S. 13-757 (B), Methods of Infliction of Sentence of Death A.R.S. 13-757 (C), Identity of Executioners A.R.S. 13-758, Persons Present at Execution of Sentence of Death; Limitations A.R.S. 13-759 (B), Return Upon Death Warrant A.R.S. 13-4021 through 13-4026, Insanity or Pregnancy of Persons under Death Sentence Arizona Rules of Criminal Procedure, Rule 31.17(c)(3), Date and Time of Execution; Notification to Supreme Court A.R.S. 1-215 (28), Definitions A.R.S. 13-105 (30), Definitions

EXECUTION PROCEDURES

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ATTACHMENT A DEPARTMENT ORDER 710
SAMPLE
LETTER OF INVITATION TO WITNESS AN EXECUTION
Date Name Mailing address Mailing address
Dear ____________________
Thank you for expressing interesting in serving as a witness. Please be advised that you are selected to witness the execution of __________________________________ [name] ____________ [number], on _____________ [date] at ______ [time] subject to the conditions stipulated in this correspondence. There are three kinds of witnesses. They are 1) Official Witnesses including Official Witnesses who are members of the media and will serve as Pool Reporters, 2) the Inmate’s Witnesses and 3) the Victim(s) Witnesses. All witnesses are required to complete the Witness Agreement form and return it to the Media Relations Office of the Arizona Department of Corrections no later than ____________ [date] by fax, mail, hand delivery or as an e-mail attachment. Official Witnesses who are members of the media and will be serving as Pool Reporters are also required to complete the Official Witnesses/Pool Reporters Agreement form. This form must be returned as well to the Media Relations Office of the Arizona Department of Corrections no later than the Friday before the scheduled date of the execution, ____________ [date] by the same means. Failure to fully complete and return on time the required forms with receipt by the Department before 5 P.M. on ____________ [date], will result in your removal from the list of approved witnesses. For additional information and to confirm receipt of your materials, you are welcome to contact the Media Relations Office by phone at 602-542-3133, by fax at 602-542-2859 or e-mail at media@azcorrections.gov. Sincerely,
Media Relation Director Applicable Attachments: __Witness Agreement form __ Official Witnesses/Pool Reporters Agreement form
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ATTACHMENT B DEPARTMENT ORDER 710
SAMPLE
RETURN OF WARRANT NOTIFICATION Supreme Court
DATE:
The Honorable Chief Justice of the Supreme Court of Arizona 402 Arizona State Courts Building 1501 West Washington Street Phoenix, Arizona 85007-3329 RE: Return of Warrant of Execution
State vs. Supreme Court Number: County Number:
Chief Justice: This is to advise you that in accordance with the Warrant of Execution, Supreme Court Number, and pursuant to A.R.S. 13-759(B), the imposition of the sentence of death of _______________________________ was carried out at the Arizona State Prison Complex-Florence on _____________________, 20 _____, at __________ A.M./P.M. The mode and manner of the death was by lethal _________________. Sincerely,
Charles L. Ryan Director Arizona Department of Corrections
SEPTEMBER 21, 2012

Case 2:14-cv-01447-NVW Document 51-1 Filed 09/18/14 Page 27 of 34

ATTACHMENT C DEPARTMENT ORDER 710
DATE:

SAMPLE
RETURN OF WARRANT NOTIFICATION Superior Court

The Honorable Presiding Judge Superior Court of Arizona In County
, Arizona
RE: Return of Warrant of Execution
State vs.
Supreme Court Number:
County Number:

Judge

:

This is to advise you that in accordance with the Warrant of Execution, Supreme Court Number, and pursuant to A.R.S. 13-759(B), the imposition of the sentence of death of _______________________________ was carried out at the Arizona State Prison Complex-Florence on _____________________, 20 _____, at __________ A.M./P.M.

The mode and manner of the death was by lethal _________________.

Sincerely,

Charles L. Ryan Director Arizona Department of Corrections

SEPTEMBER 21, 2012

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ATTACHMENT D DEPARTMENT ORDER 710 Page 1 of 7
PREPARATION AND ADMINISTRATION OF CHEMICALS
A. Obtaining Chemicals and Equipment
1. Upon receipt of the Warrant of Execution, the Housing Unit 9 Section Leader shall:
I. Confirm the equipment for the procedure and ensure all equipment necessary to properly conduct the procedure is on site, immediately available for use and functioning properly.
II. Ensure all medical equipment, including a backup electrocardiograph is on site, immediately available for use and functioning properly.
III. Ensure that complete sets of chemicals are on site and immediately available for use.
IV. Ensure the chemicals are ordered, arrive as scheduled and are properly stored. The chemicals shall be stored in a secured, locked area that is temperature regulated and monitored to ensure compliance with manufacturer specifications, under the direct control of the Housing Unit 9 Section Leader.
B. Preparation of Chemicals
1. At the appropriate time, the Housing Unit 9 Section Leader shall transfer custody of the chemicals to the Special Operations Team to begin the chemical(s) and syringe preparation in the chemical room, under the direct supervision by the IV Team Leader.
2. The Special Operations Team Leader will assign a team member(s) to assist preparing each chemical and the corresponding syringe. The IV Team Leader will supervise the process. The IV Team Leader, with the assistance of the Special Operations Team members, shall prepare the designated chemical and syringes for a total of one complete set of chemicals. One full set of syringes is used in the implementation of the death sentence and an additional complete set of the necessary chemicals shall be obtained and kept available in the chemical room, but need not be drawn into syringes unless the primary dosages prove to be insufficient for successful completion of the execution.
3. The IV Team Leader, with the assistance of a Special Operations Team member, shall be responsible for preparing and labeling the assigned sterile syringes in a distinctive manner identifying the specific chemical contained in each syringe by i) assigned number, ii) chemical name, iii) chemical amount and iv) the designated color, as set forth in the chemical charts below. This information shall be preprinted on a label, with one label affixed to each syringe to ensure the label remains visible.
C. Chemical Charts; Choice of Protocol
1. Charts for all chemical protocols follow. The Director shall have the sole discretion as to which lethal chemical(s) will be used for the scheduled execution. This decision will be provided to the inmate in writing 20 calendar days prior to the scheduled execution date.
2. If compounded Pentobarbital is used it shall be obtained from a certified or licensed compounding pharmacist or compounding pharmacy in good standing with their licensing board. Licensing, certification, and criminal history reviews shall be conducted by the Inspector General’s Office prior to obtaining the compounded Pentobarbital. A qualitative analysis of the compounded Pentobarbital to be used in the execution shall be performed no more than 30 calendar days prior to the execution date. The decision to use compounded Pentobarbital will be provided to the inmate in writing 20 calendar days prior to the scheduled execution.
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ATTACHMENT D DEPARTMENT ORDER 710 Page 2 of 7
CHART A: ONE-DRUG PROTOCOL WITH PENTOBARBITAL

Syringe No.
1A 2A 3A 4A

CHEMICAL CHART
Label 60mL Heparin/Saline, BLACK 2.5gm Pentobarbital, GREEN 2.5gm Pentobarbital, GREEN 60mL Heparin/Saline, BLACK

 Syringes 2A, and 3A, will have a dose of 2.5 gm of Pentobarbital for a total of 5 grams. Each syringe containing Pentobarbital shall have a GREEN label which contains the name of chemical, chemical amount and the designated syringe number.
 Syringes 1A, and 4A, each contain 60 ml. of a Heparin/Saline solution, at a concentration of 10 units of Heparin per milliliter, and shall have a BLACK label which contains the name of the chemical, chemical amount and the designated syringe number.

CHART B: ONE-DRUG PROTOCOL WITH SODIUM PENTOTHAL

Syringe No. 1A 2A 3A 4A 5A 6A

CHEMICAL CHART
Label 60mL Heparin/Saline, BLACK 1.25gm Sodium Pentothal, GREEN 1.25gm Sodium Pentothal, GREEN 1.25gm Sodium Pentothal, GREEN 1.25gm Sodium Pentothal, GREEN 60mL Heparin/Saline, BLACK

 Syringes 2A, 3A, 4A, 5A, each contain 1.25 gm/50ml. of Sodium Pentothal / 1 in 50 ml. of sterile water in four 60 ml. syringes for a total dose of 5 grams of Sodium Pentothal. Each syringe containing Sodium Pentothal shall have a GREEN label which contains the name of chemical, chemical amount and the designated syringe number.
 Syringes 1A, and 6A, each contain 60 ml. of a Heparin/Saline solution, at a concentration of 10 units of Heparin per milliliter, and shall have a BLACK label which contains the name of the chemical, chemical amount and the designated syringe number.

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ATTACHMENT D DEPARTMENT ORDER 710 Page 3 of 7
CHART C: TWO-DRUG PROTOCOL WITH MIDAZOLAM AND HYDROMORPHONE

Syringe No. 1A 2A 3A

CHEMICAL CHART
Label 60mL Heparin/Saline, BLACK 50mg Midazolam and 50mg Hydromorphone, GREEN 60mL Heparin/Saline, BLACK

 Syringe 2A, will have a dose of 50mg of Midazolam and 50mg Hydromorphone. The syringe containing Midazolam and Hydromorphone shall have a GREEN label which contains the name of each chemical, chemical amounts and the designated syringe number.
 Syringes 1A, and 3A, each contain 60 ml. of a Heparin/Saline solution, at a concentration of 10 units of Heparin per milliliter, and shall have a BLACK label which contains the name of the chemical, chemical amount and the designated syringe number.
3. After the IV Team prepares all required syringes with the proper chemicals and labels as provided in the Chemical Chart, the IV Team Leader shall attach one complete set of the prepared and labeled syringes to the 2-Gang, 2-Way Manifold in the order in which the chemical are to be administered. The syringes will be attached to the 2-Gang, 2-Way Manifold in a manner to ensure there is no crowding, with each syringe resting in its corresponding place in the shadow board which is labeled with the name of the chemical, color, chemical amount and the designated syringe number.
4. The syringes shall be affixed in such a manner to ensure the syringe labels are clearly visible. Prior to attaching the syringes to the 2-Gang, 2-Way Manifold, the flow of each gauge on the manifold shall be checked by the IV Team Leader running the Heparin/Saline solution through the line to confirm there is no obstruction.
5. After all syringes are prepared and affixed to the 2-Gang, 2-Way Manifold in proper order, the Special Operations Team Leader shall confirm that all syringes are properly labeled and attached to the manifold in the order in which the chemicals are to be administered as designated by the Chemical Chart. Each chemical shall be administered in the predetermined order in which the syringes are affixed to the manifold.
6. The quantities and types of chemicals prepared and administered may not be changed in any manner without prior documented approval of the Director.
7. All prepared chemicals shall be utilized or properly disposed of in a timely manner after the time designated for the execution to occur.
8. The chemical amounts as set forth in the Chemical Chart are designated for the execution of persons weighing 500 pounds or less. The chemical amounts will be reviewed and may be revised as necessary for an inmate exceeding this body weight.
9. The Special Operations Team Recorder is responsible for completing the Correctional Service Log, Form 105-6. The Recorder shall document on the form the amount of each chemical administered and confirm that it was administered in the order set forth in the Chemical Chart. Any deviation from the written procedure shall be noted and explained on the form.
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ATTACHMENT D DEPARTMENT ORDER 710 Page 4 of 7
D. Movement and Monitoring of Inmate
1. Prior to moving the inmate from the holding cell to the execution table, the Director will confer with the Attorney General or designee and the Governor or designee to confirm there is no legal impediment to proceeding with the lawful execution and there are no motions pending before a court which may stay further proceedings.
2. The inmate may be offered a mild sedative based on the inmate’s need. The sedative shall be provided to the inmate no later than four hours prior to the execution, unless it is determined medically necessary.
3. At the designated time, the inmate will be brought into the execution room and secured on the table by the prescribed means with the inmate’s arms positioned at an angle away from the inmate’s side.
4. The inmate will be positioned to enable the IV Team or the Special Operations Team Leader and the Warden to directly observe the inmate and to monitor the inmate’s face with the aid of a high resolution color camera and a high resolution color monitor.
5. After the inmate has been secured to the execution table, the Restraint Team Leader shall personally check the restraints which secure the inmate to the table to ensure they are not so restrictive as to impede the inmate’s circulation, yet sufficient to prevent the inmate from manipulating the catheter and IV lines.
6. A microphone will be affixed to the inmate’s shirt to enable the IV Team, or the Special Operations Team Leader, to verbally communicate directly with the inmate and hear any utterances or noises made by the inmate throughout the procedure. The Special Operations Team Leader will confirm the microphone is functioning properly, and that the inmate can be heard in the chemical room.
7. The Restraint Team members will attach the leads from the electrocardiograph to the inmate’s chest once the inmate is secured. The IV Team Leader shall confirm that the electrocardiograph is functioning properly and that the proper graph paper is used. A backup electrocardiograph shall be on site and readily available if necessary. Prior to the day of and on the day of the execution both electrocardiograph instruments shall be checked to confirm they are functioning properly.
8. An IV Team member shall be assigned to monitor the EKG, and mark the EKG graph paper at the commencement and completion of the administration of the lethal chemical(s).
9. Throughout the procedure, the IV Team Leader shall monitor the inmate’s level of consciousness and electrocardiograph readings utilizing direct observation, audio equipment, camera and monitor as well as any other medically approved method(s) deemed necessary by the IV Team Leader. The IV Team Leader shall be responsible for monitoring the inmate’s level of consciousness.
10. Closed-circuit monitors will allow witnesses in designated witness room to observe the IV Team’s vein assessment and placement of IV catheters in the inmate. In addition, a microphone will be turned on during the IV Team’s assessment and placement of IV catheters.
E. Intravenous Lines
1. The Director acting upon the advice of the IV Team Leader shall determine the catheter sites. A femoral central line shall only be used if the person inserting the line is currently certified or licensed within the United States to insert a femoral central line. The IV Team members shall insert a primary IV catheter and a backup IV catheter.
MARCH 26, 2014

Case 2:14-cv-01447-NVW Document 51-1 Filed 09/18/14 Page 32 of 34
ATTACHMENT D DEPARTMENT ORDER 710 Page 5 of 7
2. The IV Team Leader shall ensure the catheters are properly secured and properly connected to the IV lines and out of reach of the inmate’s hands. A flow of Heparin/Saline shall be started in each line and administered at a slow rate to keep the lines open.
3. The primary IV catheter will be used to administer the lethal chemical(s) and the backup catheter will be reserved in the event of the failure of the first line. Any failure of a venous access line shall be immediately reported to the Director.
4. The IV catheter in use shall remain visible to the Warden throughout the procedure.
5. The Warden shall physically remain in the room with the inmate throughout the administration of the lethal chemical(s) in a position sufficient to clearly observe the inmate and the primary and backup IV sites for any potential problems and shall immediately notify the IV Team Leader and Director should any issue occur. Upon receipt of such notification, the Director may stop the proceedings and take all steps necessary in consultation with the IV Team Leader prior to proceeding further with the execution.
6. Should the use of the backup IV catheter be determined to be necessary, a set of backup chemicals should be administered in the backup IV.
F. Administration of Chemicals
1. At the time the execution is to commence and prior to administering the lethal chemical(s), the Director will reconfirm with the Attorney General or designee and the Governor or designee that there is no legal impediment to proceeding with the execution. Upon receipt of oral confirmation that there is no legal impediment, the Director will order the administration of the chemicals to begin.
2. Upon receipt of the Director’s order and under observation of the IV Team Leader, the Special Operations Team Leader will instruct the assigned Special Operations Team member(s) to begin dispensing the lethal chemical(s).
3. Upon direction from the Special Operations Team Leader, the assigned Special Operations Team member will visually and orally confirm the chemical name on the syringe and then administer the full dose of the lethal chemical(s) immediately followed by the Heparin/Saline flush.
4. When three minutes has elapsed since commencing the administration of the lethal chemical(s), the IV Team Leader, dressed in a manner to preserve their anonymity, will enter into the room where the Warden and inmate are located to physically confirm the inmate is unconscious by using all necessary medically appropriate methods. The IV Team Leader will also confirm that the IV line remains affixed and functioning properly.
5. If, after three minutes, the inmate remains conscious, the IV Team shall communicate this information to the Director, along with all IV Team input. The Director will determine how to proceed or, if necessary, to start the procedure over at a later time or stand down. The Director may direct the curtains to the witness viewing room be closed, and, if necessary, for witnesses to be removed from the facility.
6. If deemed appropriate, the Director may instruct the Special Operations Team to administer an additional dose of the lethal chemical(s) followed by the Heparin/Saline flush.
MARCH 26, 2014

Case 2:14-cv-01447-NVW Document 51-1 Filed 09/18/14 Page 33 of 34
ATTACHMENT D DEPARTMENT ORDER 710 Page 6 of 7
7. Upon administering the lethal chemical(s) and Heparin/Saline from a backup set, the IV Team shall confirm the inmate is unconscious by sight and sound, utilizing the audio equipment, camera and monitor. The IV Team Leader will again physically confirm the inmate is unconscious using proper medical procedures and verbally advise the Director of the same.
8. When all electrical activity of the heart has ceased as shown by the electrocardiograph, the IV Team Leader will confirm the inmate is deceased and the inmate’s death shall be announced by the Director.
9. The Special Operations Team Recorder shall document on the Correctional Services Log the start and end times of the administration of the lethal chemical(s).
10. Throughout the entire procedure, the IV Team members, the Special Operations Team members and the Warden shall continually monitor the inmate using all available means to ensure that the inmate remains unconscious and that there are no complications.
G. Post Execution Procedures
1. Upon the pronouncement of death, the Director shall notify the Governor or designee and the Attorney General or designee via telephone that the sentence has been carried out and the time that death occurred.
2. An IV Team member will clamp and cut the IV lines leaving them connected to the inmate for examination by a Medical Examiner.
3. A Criminal Investigations Unit Investigator and a Medical Examiner will take photos of the inmate’s body:
 While in restraints prior to being placed in the body bag,  Without restrains prior to being placed in the body bag,  Sealed in the body bag, and  A photo of the seal in place on the bag.
4. The inmate’s body will be placed on a Medical Examiner’s gurney and released into the custody of a Medical Examiner’s Office.
5. Once the inmate’s body is placed in a Medical Examiner’s transport vehicle, it will be escorted off the premises. The Examiner’s Office will take the inmate’s body to the medical examiner’s office designated by the county.
H. Documentation of Chemicals and Stay
1. In the event that a pending stay results in more than a two hour delay, the catheters shall be removed, if applicable, and the inmate shall be returned to the holding cell until further notice.
2. The Correctional Service Logs the list of identifiers and the EKG tape shall be submitted to the Department’s General Counsel for review and storage.
MARCH 26, 2014

Case 2:14-cv-01447-NVW Document 51-1 Filed 09/18/14 Page 34 of 34
ATTACHMENT D DEPARTMENT ORDER 710 Page 7 of 7
I. Contingency Procedure 1. An Automated External Defibulator (AED) will be readily available on site in the event that the inmate goes into cardiac arrest at any time prior to dispensing the chemicals; trained medical staff shall make every effort to revive the inmate should this occur. 2. Trained medical personnel and emergency transportation, neither of which is involved in the execution process, shall be available in proximity to respond to the inmate should any medical emergency arise at any time before the order to proceed with the execution is issued by the Director. 3. If at any point any team member determines that any part of the execution process is not going according to procedure, they shall advise the IV Team Leader who shall immediately notify the Director. The Director may consult with persons deemed appropriate and will determine to go forward with the procedure, start the procedure over at a later time within the 24-hour day, or stand down. 4. There shall be no deviation from the procedures as set forth herein, without prior consent from the Director.
J. Debrief and Policy Review 1. The IV and Special Operations Teams will participate in an informal debriefing immediately upon completion of the event. 2. Upon an assignment to a Team, team members shall review Department Order #710, Execution Procedures. 3. Periodically, and in the discretion of the Director, a review of Department Order #710, Execution Procedures along with this attachment may be reviewed to confirm it remains consistent with the law. General Counsel shall advise the Director immediately upon any change that may impact these procedures.
MARCH 26, 2014

 
 Case 2:14-cv-01447-NVW Document 67 Filed 11/21/14 Page 1 of 8

1 JON M. SANDS Federal Public Defender, District of Arizona
2 DALE A. BAICH (OH Bar No. 0025070) dale_baich@fd.org
3 ROBIN C. KONRAD (AL Bar No. N76K2194) robin_konrad@fd.org
4 850 West Adams Street, Suite 201 Phoenix, Arizona 85007
5 602.382.2816 | 602.889.3960 facsimile

6 Counsel for Condemned Plaintiffs

7

MARK E. HADDAD (CA Bar No. 205945) mhaddad@sidley.com

8

SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000

9

Los Angeles, California 90013 213.896.6000 | 213.896.6600 facsimile

10 Counsel for the Coalition and Condemned Plaintiffs

11 THOMAS C. HORNE Attorney General
12 (Firm State Bar No. 14000) JEFFREY A. ZICK (SBN 018712)
13 Assistant Attorney General Capital Litigation Section
14 1275 West Washington Phoenix, Arizona 85007-2997
15 602.542.4686 | CADocket@azag.gov

16 Counsel for Defendants [additional counsel listed on signature page]

17

UNITED STATES DISTRICT COURT

18

FOR THE DISTRICT OF ARIZONA

19 First Amendment Coalition of Arizona,

Case No. 2:14-cv-01447-NVW-JFM

Inc.; Charles Michael Hedlund; Graham S.

20 Henry; David Gulbrandson; Todd Smith; and Eldon Schurz,
21

JOINT STIPULATION FOR TEMPORARY STAY

Plaintiffs, 22

23

v.

24

Janice K. Brewer, Governor; Charles L. Ryan, Director of ADC; Ron Credio,

25 Warden, ASPC–Eyman; Greg Fizer, Warden, ASPC–Florence; and Does 1-10,

26 Unknown ADC Personnel, in their official

capacities as Agents of ADC,

27

Defendants. 28

Case 2:14-cv-01447-NVW Document 67 Filed 11/21/14 Page 2 of 8

1

Plaintiff First Amendment Coalition of Arizona, Inc. (“Coalition”) and Plaintiffs

2 Charles Michael Hedlund, Graham Henry, David Gulbrandson, Todd Smith, and Eldon

3 Schurz (collectively, “Condemned Plaintiffs,” and, with the Coalition, “Plaintiffs”), and

4 Defendants Janice K. Brewer, Governor; Charles L. Ryan, Director of ADC; Ron

5 Credio, Warden, ASPC–Eyman; Greg Fizer, Warden, ASPC–Florence; and Does 1-10,

6 Unknown ADC Personnel, in their official capacities as Agents of ADC, (collectively,

7 “Defendants”) hereby stipulate as follows:

8

WHEREAS, at the status conference held on October 29, 2014, the Court

9 instructed the parties to submit briefs regarding whether and on what terms proceedings

10 in this matter should be stayed;

11

WHEREAS, the Court also instructed the parties to meet and confer regarding

12 issues relating to a potential stay, and further instructed the parties to discuss how to

13 proceed with this litigation in a timely, non-urgent manner;

14

WHEREAS, on November 7, 2014, counsel for the parties met and conferred in

15 person in Phoenix, Arizona, to discuss a schedule for litigation in this matter and other

16 issues relating to the potential stay;

17

WHEREAS, the State of Arizona plans to release publicly in mid-November a

18 report (“Report”) regarding the execution of Joseph Wood, one of the original Plaintiffs

19 in this lawsuit;

20

WHEREAS, the Arizona Department of Corrections plans to review its

21 procedures for implementing the death penalty in light of the Report, and to release any

22 new set of procedures for implementing the death penalty in the coming months (the

23 “Amended Protocol”);

24

WHEREAS, Defendants, if they decide to adopt an Amended Protocol, shall

25 provide Plaintiffs with a draft copy of any Amended Protocol before it is made available

26 to the public, and within 14 days (during which time Plaintiffs’ counsel will discuss the

27

28

1

Case 2:14-cv-01447-NVW Document 67 Filed 11/21/14 Page 3 of 8

1 proposed changes with their clients), the parties shall meet and confer (telephonically, if

2 necessary) to address any agreed upon revisions;

3

WHEREAS, Defendants, if they decide to adopt an Amended Protocol, shall post

4 any Amended Protocol to the Arizona Department of Corrections’ website and provide

5 notice to Plaintiffs and the Court on the same day the Amended Protocol is posted to the

6 Arizona Department of Corrections’ website;

7

WHEREAS, the parties agree that staying this litigation under the terms set forth

8 herein until any Amended Protocol has been made available as described above would

9 be in the interests of judicial efficiency;

10

WHEREAS, the parties agree that this litigation should proceed in a timely, non-

11 expedited manner once the stay has been lifted;

12

WHEREAS, to facilitate a timely resolution of this litigation after the stay has

13 been lifted, Plaintiffs may amend the First Amended Complaint (ECF No. 51) to address

14 changes, if any, necessitated by the release of the Report and/or any Amended Protocol,

15 provided that Plaintiffs file any such amendment (or advise Defendants of Plaintiffs’

16 decision not to amend) within 21 days of service of any Amended Protocol;

17

WHEREAS, to facilitate a timely resolution of this litigation after the stay has

18 been lifted, Defendants have agreed to take appropriate steps, to the extent Defendants

19 have the capability, to preserve all documents and materials stored in any medium from

20 which information can be obtained (including but not limited to writings, drawings,

21 graphs, charts, photographs, sound recordings, images, and data compilations, e-mails,

22 text messages, chats, phone and text message logs, and other electronically stored

23 communications, handwritten and other paper documents, lists of staff and agents of

24 Defendants who participated in the execution, medical documents, drug labels, unused

25 execution drugs, and items listed in the Arizona Supreme Court’s order issued July 23,

26 2014, in State v. Wood, No. CR-91-03233-AP), related to the execution protocol

27 applicable to Wood’s execution and/or to the Amended Protocol, to the media’s access

28

2

Case 2:14-cv-01447-NVW Document 67 Filed 11/21/14 Page 4 of 8

1 to information regarding executions, and to the planning for, carrying out of, and

2 investigation into the Wood execution, and further agree, notwithstanding the stay, to

3 timely provide Plaintiffs with all documents or other material referenced in or relied

4 upon by the Report that have not already been provided to Plaintiffs, subject to redaction

5 where permitted by Fed R. Civ. P. 26(b)(5)(A), provided that any such redacted material

6 shall be specifically identified on a concurrently served privilege log that comports with

7 Rule 26(b)(5)(A)(ii);

8

WHEREAS, the parties further agree that it would be in the interests of judicial

9 economy and comity for Defendants not to seek an execution warrant from the Arizona

10 Supreme Court for any of the Condemned Plaintiffs or any other condemned prisoners

11 until after (a) this action has been resolved through settlement among the parties; or (b)

12 this Court has entered a final judgment on the merits; and

13

WHEREAS, the parties’ views currently differ regarding whether Defendants

14 should be able to seek an execution warrant after this Court has entered a final judgment

15 on the merits and during the pendency of any appeal of that judgment, and the parties

16 therefore reserve their respective rights to seek a judicial resolution of their differing

17 views after this Court enters a final judgment on the merits in this litigation.

18

IT IS THEREFORE STIPULATED AND AGREED that:

19

(1) This action, including briefing on Defendants’ pending motion to dismiss

20 (ECF No. 55), and briefing regarding a stay, should be stayed immediately;

21

(2) Defendants shall provide Plaintiffs with a draft copy of any Amended

22 Protocol before it is made available to the public, and the parties shall meet and confer

23 (telephonically, if necessary) within 14 days (during which time Plaintiffs’ counsel will

24 discuss the proposed changes with their clients) to address any agreed upon revisions;

25

(3) Defendants shall post to the Arizona Department of Corrections’ website

26 and provide notice of such posting to Plaintiffs and the Court on the same day the

27 Amended Protocol is posted to the Arizona Department of Corrections’ website;

28

3

Case 2:14-cv-01447-NVW Document 67 Filed 11/21/14 Page 5 of 8

1

(4) Plaintiffs may amend the First Amended Complaint (ECF No. 51) to

2 address changes, if any, necessitated by the release of the Report and/or Amended

3 Protocol, provided that Plaintiffs file any such amendment (or advise Defendants of

4 Plaintiffs’ decision not to amend) within 21 days after notice of the Amended Protocol is

5 provided pursuant to paragraph 3 above;

6

(5) The stay shall be lifted by further order of this Court in response to a

7 timely request by either party to this Court following the Department of Corrections’

8 public release of any Amended Protocol and provision of notice of the Amended

9 Protocol to counsel for Plaintiffs and the Court;

10

(6) Defendants will not move for an execution warrant for any of the

11 Condemned Plaintiffs or any other condemned prisoners until after (a) this action has

12 been resolved through settlement among the parties; or (b) this Court has entered a final

13 judgment on the merits;

14

(7) Defendants will take appropriate steps to preserve all documents and

15 materials as set forth above, and, notwithstanding the stay, will timely provide Plaintiffs

16 with all documents or materials referenced in or relied upon by the Report that have not

17 already been provided to Plaintiffs, subject to redaction where permitted by Fed R. Civ.

18 P. 26(b)(5)(A), provided that any such redacted material shall be specifically identified

19 on a concurrently served privilege log that comports with Rule 26(b)(5)(A)(ii); and

20

(8) The parties request the Court to enter the attached proposed stay order.

21

22

23

24

25

26

27

28

4

Case 2:14-cv-01447-NVW Document 67 Filed 11/21/14 Page 6 of 8

1 Dated: November 21, 2014 2 3 4 5 6 7 8 9
Dated: November 21, 2014 10 11 12 13 14 15 16 17 18 19 20 21 Dated: November 21, 2014 22 23 24 25 26 27 28

Jon M. Sands Federal Public Defender District of Arizona
s/ Dale A. Baich Dale A. Baich Robin C. Konrad
Counsel for Plaintiffs Charles Michael Hedlund; Graham S. Henry; David Gulbrandson; Todd Smith; and Eldon Schurz
SIDLEY AUSTIN LLP
s/ Mark E. Haddad Mark E. Haddad (CA Bar No. 205945) Alycia A. Degen (CA Bar No. 211350) Joshua E. Anderson (CA Bar No. 211320) Aimee G. Mackay (CA Bar No. 221690) Katherine A. Roberts (CA Bar No. 259486) Amanda V. Lopez (CA Bar No. 273602) Collin P. Wedel (CA Bar No. 278461) Lauren A. McCray (CA Bar No. 287408) Matt Light (CA Bar No. 294007)
Counsel for Plaintiffs First Amendment Coalition of Arizona, Inc.; Charles Michael Hedlund; Graham S. Henry; David Gulbrandson; Todd Smith; and Eldon Schurz
Thomas C. Horne Attorney General
Jeffrey A. Zick Chief Counsel
s/ Jeffrey A. Zick Jeffrey A. Zick Jeffrey L. Sparks Lacey Stover Gard Matthew Binford
5

Case 2:14-cv-01447-NVW Document 67 Filed 11/21/14 Page 7 of 8

1

John Pressley Todd Assistant Attorneys General

2

Capital Litigation Section

3

Attorneys for Defendants

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

Case 2:14-cv-01447-NVW Document 67 Filed 11/21/14 Page 8 of 8

 
 Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 1 of 60

1 JON M. SANDS Federal Public Defender, District of Arizona
2 DALE A. BAICH (OH Bar No. 0025070) dale_baich@fd.org
3 ROBIN C. KONRAD (AL Bar No. N76K2194) robin_konrad@fd.org
4 850 West Adams Street, Suite 201 Phoenix, Arizona 85007
5 602.382.2816 | 602.889.3960 facsimile

6 Counsel for Condemned Plaintiffs

7 MARK E. HADDAD (CA Bar No. 205945)

8

mhaddad@sidley.com JOSHUA E. ANDERSON (CA Bar No. 211320)

9

janderson@sidley.com ALYCIA A. DEGEN (CA Bar No. 211350)

10

adegen@sidley.com AIMEE G. MACKAY (CA Bar No. 221690)

11

amackay@sidley.com KATHERINE A. ROBERTS (CA Bar No. 259486)

12 Kate.roberts@sidley.com COLLIN P. WEDEL (CA Bar No. 278461)

13 cwedel@sidley.com

MATT LIGHT (CA Bar No. 294007)

14 mlight@sidley.com

SIDLEY AUSTIN LLP

15 555 West Fifth Street, Suite 4000

Los Angeles, California 90013

16 213.896.6000 | 213.896.6600 facsimile

17 Counsel for the Coalition and Condemned Plaintiffs

18

IN THE UNITED STATES DISTRICT COURT

19

FOR THE DISTRICT OF ARIZONA

20

First Amendment Coalition of Arizona, Case No: 2:14-cv-01447-NVW-JFM 21 Inc.; Charles Michael Hedlund; Graham

22 23

S. Henry; David Gulbrandson; Robert Poyson; Todd Smith; Eldon Schurz, and Roger Scott,
Plaintiffs,

SECOND AMENDED COMPLAINT FOR VIOLATIONS OF 42 U.S.C. § 1983 AND EQUITABLE,

24

v.

INJUNCTIVE, AND DECLARATORY

25

Charles L. Ryan, Director of ADC; James O’Neil, Warden, ASPC–Eyman;

RELIEF

26

Greg Fizer, Warden, ASPC–Florence; and Does 1-10, Unknown ADC

27 Personnel, in their official capacities as

Agents of ADC,

28 Defendants.

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 2 of 60

1

Table of Contents

2 Introduction ......................................................................................................................... 3
3 Jurisdiction and Venue........................................................................................................6
4

5 Parties to the Action............................................................................................................6

6 The Rights at Issue..............................................................................................................9

7 Relevant Facts...................................................................................................................12

8 A. Obstacles to the Constitutional Use of Lethal Injection. ........................................12

9 B. Arizona’s Long History of Deviating from Its Execution Plans. ...........................18
10 C. Wood’s Failed Execution........................................................................................31
11

12 D. Arizona’s Continued Refusal to Cabin Its Discretion and Provide Transparency. ..........................................................................................................37
13 1. Unbounded Discretion. .......................................................................................40
14

15

2. Concealment of Facts Critical to Due Process and the Public’s

Assessment of Arizona’s Death Penalty Regime. ..............................................41

16

3. Rejection of Safety Measures..............................................................................44 17

18 Exhaustion of Administrative Remedies ..........................................................................45

19 Claims for Relief...............................................................................................................46

20 Prayer for Relief................................................................................................................55

21 Jon M. Sands.....................................................................................................................59
22 District of Arizona ............................................................................................................59
23

24

25

26

27

28

2

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 3 of 60

1

1. This action is brought pursuant to 42 U.S.C. § 1983 by Plaintiff First

2 Amendment Coalition of Arizona, Inc. (“Coalition”) and Plaintiffs Charles Michael

3 Hedlund, Graham Henry, David Gulbrandson, Robert Poyson, Todd Smith, Eldon

4 Schurz and Roger Scott (collectively, “Condemned Plaintiffs,” and, with the Coalition,

5 “Plaintiffs”). The Coalition and Condemned Plaintiffs jointly seek equitable, injunctive,

6 and declaratory relief to require transparency with respect to the State of Arizona’s

7 execution process, and in particular, to redress past and prevent threatened violation by
8 Defendants of Plaintiffs’ First Amendment right of access to governmental proceedings.1
9 Chief among these violations is Defendants’ use of a paralytic agent that masks the
10 inefficacy of the purportedly sedative first drug and hides from public view the pain
11 caused by the third drug. The Condemned Plaintiffs (but not the Coalition) also seek to
12 vindicate their additional rights under state law and the United States Constitution,
13 including to stop and prevent violations and threatened violations by Defendants of the
14 Condemned Plaintiffs’ First Amendment right to petition the government for redress of
15 16 grievances, their Eighth Amendment rights to be free from chemical experimentation
17 and from suffering a cruel, unusual, undignified, or lingering death, and their Fourteenth 18 Amendment rights to due process and equal protection.2

19

Introduction

20

2. Defendants carry out executions with unfettered discretion to depart from

21 their written execution procedures in any manner, at any time, and without any advance

22 notice. The result has been a series of executions-by-experiment, including an

23 unprecedented two-hour execution in which Defendants administered 13 more doses

24 than permitted of midozalam and of hydromorphone to Joseph Rudolph Wood III with

25

26 1 The Coalition seeks relief for violations and threatened violations of only its First

27

Amendment rights, and does not assert claims for violations of the Eighth or Fourteenth Amendments.

28 2 Condemned Plaintiffs do not in this Complaint challenge their underlying capital convictions.

3

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 4 of 60

1 no advance or contemporaneous notice to any witness, counsel, or court. See generally

2 Lopez v. Brewer, 680 F.3d 1084, 1093-94 (9th Cir. 2012) (Pregerson, J., dissental)

3 (discussing series of mishaps and mistakes that have occurred during Arizona’s

4 deviations from its written execution procedures).

5

3. Compounding the unconstitutionality of their absolute discretion,

6 Defendants refuse to conduct their executions with the transparency the First Amendment

7 requires. Defendants argued to the United States Supreme Court that Wood’s pleas for

8 transparency were unfounded because “nearly every detail about his execution is

9 provided to him and to the general public, including exactly what and how much lethal

10 drugs will be used, how they will be administered, and the qualifications of those placing
11 the IV lines to administer them.”3 In reality, Wood’s execution was an experiment, 12
conducted ad hoc, in which Defendants injected Wood with 13 more than the maximum 13
number of permitted doses of each of the two drugs in the protocol, midazolam and 14

hydromorphone, thus administering 750 milligrams of each drug rather than the 50 15 16 milligrams that the State had promised to use.4

17

4. When Wood’s counsel sought the District Court’s intervention through a

18 telephonic hearing, Defendants falsely represented to the Court the dosages they had

19 3 Reply Brief of State of Arizona in support of Application for Stay at 2, Ryan v. Wood,

20 No. 14A82 (U.S. July 22, 2014) (emphases added). Similarly, Judge Bybee, dissenting from the Ninth Circuit Court of Appeals’ grant of stay, expressly relied on the State’s

21 assurances in asserting that both Wood and “[t]he public know[] precisely how the State

intends to end Wood’s life and can investigate [based on already available information]

22 whether the drugs are suited to that purpose,” and, indeed, “[a]nyone who reads the

protocol will know exactly how Arizona plans to carry out [his] execution.” Wood v.

23 Ryan, 759 F.3d 1076, 1100 (9th Cir. 2014) (Bybee, J., dissenting), vacated, 135 S. Ct. 21

(2014) (mem.).

24 4 Fernanda Santos, Executed Arizona Inmate Got 15 Times Standard Dose, Lawyers Say,

25

N.Y. TIMES, Aug. 1, 2014, http://nyti.ms/1ohRODF. The result of Defendants’ improvisational and hidden-from-view execution was that Wood lingered alive for

26 almost two hours after being first injected with what Defendants represented were lethal doses of the two drugs, gasping for air more than 640 times in manner that journalist

27 witnesses described as “like a fish on shore gulping for air.” Laurie Roberts, Arizona

Needs a Timeout After Botched Execution, ARIZ. REPUBLIC July 23, 2014, 6:34 PM,

28 http://www.azcentral.com/story/laurieroberts/2014/07/23/woods-execution-

botched/13073777.

4

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 5 of 60

1 administered to Wood. Specifically, at 3:35 p.m. on the day of the execution (103

2 minutes after the drugs began to flow), Defendants told the Court that Wood had received

3 a “[a] second dose of drugs.” By 3:33 p.m., however, Wood had in fact received not just
4 his second, but also his third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh,
5 and twelfth injections of the drugs; he would later receive three more undisclosed
6 injections during the telephonic hearing. Yet no one, other than the State, knew this at the 7 time of the hearing, because Defendants cloak their execution process. Thus, no witness 8 present at the execution was able to observe Defendants’ repeated injections of the drugs, 9
none could know how many injections he had received, and none, including Wood’s 10
counsel, could contradict Defendants’ false representations to the Court. 11
5. Defendants’ revised protocol abandons the combination of midazolam and 12
hydromorphone, but replaces it with yet another combination that Arizona has never 13
previously used. This three-drug combination begins with midazolam (ostensibly to 14
render the prisoner insensate to pain), then adds a drug to paralyze the prisoner, and 15 16 concludes with a painful drug that stops the prisoner’s heart. The paralytic agent serves 17 as a chemical curtain, masking whether midazolam is in fact effective in preventing the 18 prisoner from suffering the intense pain of the heart-stopping drug, and furthermore
19 creates its own suffering through slow suffocation. The press, the prisoners, and the
20 people of Arizona have a right to know whether Arizona’s execution process subjects
21 prisoners to intense physical pain, and the use of a paralytic agent is just as effective in

22 preventing disclosure of that fact as if the execution occurred without any public witness

23 at all.

24

6. Given Defendants’ past broken promises to this Court, the U.S. Court of

25 Appeals for the Ninth Circuit, and the U.S. Supreme Court, significant injunctive relief is

26 essential to ensure that Defendants adhere to adequate written procedures.

27

28

5

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 6 of 60

1

Jurisdiction and Venue

2

7. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question),

3 28 U.S.C. § 1343 (civil-rights violations), 28 U.S.C. § 2201 (declaratory relief), and 28

4 U.S.C. § 2202 (injunctive relief). Plaintiffs invoke this Court’s jurisdiction pursuant to

5 the First, Eighth, and Fourteenth Amendments to the United States Constitution, and 42

6 U.S.C. § 1983.

7

8. Venue is proper pursuant to 28 U.S.C. § 1391(b). Condemned Plaintiffs are

8 currently incarcerated at the Arizona State Prison Complex (“ASPC”)–Eyman, Browning

9 Unit, 4374 East Butte Avenue, Florence, Arizona, located in this District. Additionally,

10 the Coalition resides in this District.
11 9. All executions conducted by Defendants occur at the Central Unit at
12 ASPC–Florence, which is in this District. Thus, events giving rise to this Complaint have
13 occurred and/or will occur in this District.
14
Parties to the Action 15

16

10. Plaintiff First Amendment Coalition of Arizona, Inc. (“Coalition”), is a

17 non-profit corporation made up of organizations dedicated to advancing free speech,

18 accountable government, and public participation in civic affairs. Founded in 1981, the

19 Coalition is located in Phoenix, Arizona. Members of the Coalition include the Arizona

20 Broadcasters Association; the Arizona Newspapers Association; the Arizona-New

21 Mexico Cable Telecommunication Association; the Arizona Press Club; the Society of

22 Professional Journalists, Valley of the Sun Chapter; and individual news media

23 companies and reporters. The Coalition asserts a claim under only the First Amendment

24 to vindicate the rights of access of the press and the public to government proceedings

25 and information; the Coalition does not join the separate First, Eighth, and Fourteenth

26 Amendment claims advanced by the Condemned Plaintiffs.

27

11. Plaintiff Charles Michael Hedlund is a United States citizen and a resident

28 of the State of Arizona. He is currently subject to a sentence of death imposed by the

6

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 7 of 60

1 Superior Court of Maricopa County. Hedlund is incarcerated at ASPC–Eyman, Browning

2 Unit, in Florence, Arizona.

3

12. Plaintiff Graham S. Henry is a United States citizen and a resident of the

4 State of Arizona. He is currently subject to a sentence of death imposed by the Superior

5 Court of Mohave County. Henry is incarcerated at ASPC–Eyman, Browning Unit, in

6 Florence, Arizona.

7

13. Plaintiff David Gulbrandson is a United States citizen and a resident of the

8 State of Arizona. He is currently subject to a sentence of death imposed by the Superior

9 Court of Maricopa County. Gulbrandson is incarcerated at ASPC–Eyman, Browning

10 Unit, in Florence, Arizona.
11 14. Plaintiff Todd Smith is a United States citizen and a resident of the State of
12 Arizona. He is currently subject to a sentence of death imposed by the Superior Court of
13 Coconino County. Smith is incarcerated at ASPC–Eyman, Browning Unit, in Florence,
14
Arizona. 15

16

15. Plaintiff Robert Poyson is a United States citizen and a resident of the State

17 of Arizona. He is currently subject to a sentence of death imposed by the Superior Court

18 of Mohave County. Poyson is incarcerated at ASPC–Eyman, Browning Unit, in Florence,

19 Arizona.

20

16. Plaintiff Eldon Schurz is a United States citizen and a resident of the State

21 of Arizona. He is currently subject to a sentence of death imposed by the Superior Court

22 of Maricopa County. Schurz is incarcerated at ASPC–Eyman, Browning Unit, in

23 Florence, Arizona.

24

17. Plaintiff Roger Scott is a United States citizen and a resident of the State of

25 Arizona. He is currently subject to a sentence of death imposed by the Superior Court of

26 Maricopa County. Scott is incarcerated at ASPC–Eyman, Browning Unit, in Florence,

27 Arizona. 28

7

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 8 of 60

1

18. Defendant Charles L. Ryan is the Director of ADC and is being sued in his

2 official capacity for equitable, injunctive, and declaratory relief.

3

19. Defendant James O’Neil is the Warden of ASPC–Eyman, where

4 Condemned Plaintiffs are incarcerated, and is being sued in his official capacity for

5 equitable, injunctive, and declaratory relief.

6

20. Defendant Greg Fizer is the Warden of ASPC–Florence, where Condemned

7 Plaintiffs will be executed, and is being sued in his official capacity for equitable,
8 injunctive, and declaratory relief.
9 21. Defendants John and Jane Does are unknown employees, staff, contractors,
10 or agents of ADC or the State of Arizona who are ADC’s officers, successors in office,
11 agents, contractors, staff, and employees, along with those acting in concert with them,
12 who have participated or will participate in Condemned Plaintiffs’ executions in
13 capacities involving, inter alia, setting IV lines, handling drugs that are classified as
14 controlled substances, and developing and implementing ADC’s execution procedures—
15 16 including the protocols governing the preparation and administration of drugs chosen for
17 executing people. Plaintiffs are not aware of the true identities of the John and Jane Does,
18 but allege that when Plaintiffs discover their identities, Plaintiffs will amend this 19 Complaint accordingly.5

20

22. At all times herein mentioned, each of the Defendants was or will be the

21 agent, servant, representative, officer, director, partner or employee of the other

22 Defendants and, in doing the things herein alleged, was or will be acting within the scope

23 and course of his/her/its authority as such agent, servant, representative, officer, director,

24 partner or employee, and with the permission and consent of each Defendant.

25

26
27 5 Plaintiffs refer to Defendants variably as “Defendants,” “the State,” and/or “ADC” where appropriate. Plaintiffs note, however, that their use of any of these phrases should
28 not be interpreted as limiting the scope of their claims, which are brought against each and all of the Defendants.

8

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 9 of 60

1

The Rights at Issue

2

23. Executions carry out a public verdict that exacts retribution on the public’s

3 behalf. It is imperative—and mandated by the First Amendment—that members of the

4 press have access to the preparation for and implementation of executions.

5

24. Press coverage of executions is crucial to provide the public with the

6 information needed to evaluate whether and how their elected officials are adhering to the

7 Constitution as they carry out “a horrendous brutality on our behalf.” Wood v. Ryan, 759
8 F.3d 1076, 1103 (9th Cir. 2014) (Kozinski, C.J., dissental), vacated, 135 S. Ct. 21 (2014)
9 (mem.); see Cal. First Amendment Coal. v. Woodford, 299 F.3d 868, 876 (9th Cir. 2002)
10 (“To determine whether lethal injection executions are fairly and humanely administered,
11 or whether they ever can be, citizens must have reliable information about the . . .
12 [‘]procedures,’ which are invasive, possibly painful and may give rise to serious
13 complications. This information is best gathered first-hand or from the media, which
14 serves as the public’s surrogate.”). Media access to the details of executions is
15 16 particularly important because those few journalists allowed to witness an execution
17 typically report to other media organizations what they observe.

18

25. The media historically has had access not just to the event of an execution

19 itself, but also to the state’s pre-execution planning, the execution methods the state

20 intends to use, the qualifications of the persons involved, and potential contingency

21 procedures.6 Knowing how the state plans to carry out its “precise execution-day routine”

22 is crucial because, “by knowing what happens in a ‘textbook’ execution . . . reporters are 23 not as likely to be surprised or traumatized, and will know if something goes wrong.”7

24

25

26

6 E.g., STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 158-61 (2002) (describing ability of spectators at executions to inspect the gallows, test the pulleys,

27

play with the spring, examine the dangling corpse, and keep pieces of the rope as souvenirs).

28 7 Cynthia Barnett, Covering Executions, AM. JOURNALISM. REV. (May 1995), available at http://ajrarchive.org/article.asp?id=1265.

9

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 10 of 60

1

26. Prisoners also have First Amendment rights regarding information about

2 their impending executions. The secrecy with which Arizona conducts its executions

3 impairs those rights.

4

27. In addition, condemned prisoners have unique rights tied to their impending

5 executions. The Eighth Amendment to the Constitution, applicable to the States through

6 the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.”

7 Punishments are “cruel when they involve torture or a lingering death.” Baze v. Rees, 553
8 U.S. 35, 46 (2008) (quoting In re Kemmler, 136 U.S. 436, 447 (1890)). They are also
9 cruel and unusual when they involve gratuitous mutilation of the body. For more than a
10 century, the States and the American public have sought to ensure the “most humane and
11 practical method” for carrying into effect the sentence of death. See, e.g., Malloy v. South
12 Carolina, 237 U.S. 180, 185 (1915); STUART BANNER, THE DEATH PENALTY: AN
13 AMERICAN HISTORY 192-93, 296-97 (2002) (describing the evolution of executions from
14 hanging, to firing squad, to electrocution, to lethal gas, to lethal injection). See generally
15 16 AUSTIN SARAT, GRUESOME SPECTACLES: BOTCHED EXECUTIONS AND AMERICA’S
17 DEATH PENALTY (2014). A condemned prisoner is entitled to a humane death that does
18 not cause “needless suffering,” prolonged lingering, or deliberate infliction of pain. See

19 Farmer v. Brennan, 511 U.S. 825, 846 & n.9 (1994). A condemned person cannot be

20 subjected to a method of execution that is “sure or very likely to cause serious illness and

21 needless suffering.” Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015) (quoting Baze, 553

22 U.S. at 50).

23

28. In addition to (and subsumed within) a condemned prisoner’s Eighth

24 Amendment right to be from the risk of harm or a lingering death, dozens of treaties,

25 laws, and the interests in life and liberty protected by the Fourteenth Amendment protect

26 a prisoner’s right to dignity and to be free from non-consensual medical experiments.8

27 28 8 See, e.g., 42 U.S.C. § 3515b; 45 C.F.R. Part 46; 40 C.F.R. Part 26; G.A. Res. 217 (III)
A, Universal Declaration of Human Rights (Dec. 10, 1948); G.A. Res. 2220 (XXI) A,

10

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 11 of 60

1 See Beardslee v. Woodford, 395 F.3d 1064, 1070 (9th Cir. 2005) (“[T]he Eighth

2 Amendment prohibits punishments that . . . do not accord with ‘the dignity of man . . . .”

3 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976))).

4

29. Further, the Due Process and Equal Protection Clauses of the Fourteenth

5 Amendment protect a prisoner’s right to a state’s consistent and nonarbitrary application

6 of and adherence to its own announced procedures where those procedures concern a

7 fundamental interest. See, e.g., Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 68
8 (2009); Bush v. Gore, 531 U.S. 98, 103 (2000); Perry v. Brown, 671 F.3d 1052, 1082-85
9 (9th Cir. 2012) (explaining that a state cannot arbitrarily or selectively withdraw
10 procedures concerning liberty interests once it has provided them, even if not
11 constitutionally mandated a priori), vacated and remanded on other grounds sub nom.
12 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Myers v. Ylst, 897 F.2d 417, 421 (9th
13 Cir. 1990).
14 30. Finally, the Condemned Plaintiffs also have a right under the Fourteenth
15 16 Amendment to bodily integrity, which encompasses the right to be free from harmful and
17 unwarranted administrations of drugs without a compelling state interest for so doing.
18 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849 (1992) (“It is settled now . . .

19 that the Constitution places limits on a State’s right to interfere with a person’s . . . bodily

20 integrity.”); Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990); Washington

21 v. Harper, 494 U.S. 210, 229 (1990) (“The forcible injection of medication into a

22 nonconsenting person’s body represents a substantial interference with that person’s

23 liberty”); Rochin v. California, 342 U.S. 165, 173 (1952).

24

25

International Covenant on Civil and Political Rights (Dec. 16, 1966); G.A. Res. 39/46, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

26 Punishment (Dec. 10, 1984); G.A. Res. 3452, Declaration on the Protection of All Persons From Being Subjected to Torture and Other Cruel, Inhuman or Degrading

27 Treatment or Punishment (Dec. 9, 1975); World Conference on Human Rights, Vienna

Declaration and Programme of Action, U.N. Doc. A/CONF. 157/23 (June 25, 1993);

28 Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949,

6 U.S.T. 3316, 75 U.N.T.S. 135; THE NUREMBURG CODE (1947).

11

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 12 of 60

1

Relevant Facts

2

A. Obstacles to the Constitutional Use of Lethal Injection.

3 31. When the Supreme Court decided Baze in 2008, a majority of States used
4 the same lethal injection formula of sodium thiopental, pancuronium bromide, and
5 potassium chloride.
6 32. Since Baze, many States have encountered difficulty obtaining sodium
7 thiopental or pentobarbital which, as barbiturates, can reliably induce a coma-like state
8 of deep unconsciousness and, in sufficient doses, cause death. Manufacturers of sodium
9
10 thiopental and pentobarbital have refused to make their products available for 11 executions.9 This is in part because, as then-Chief Judge Kozinski noted, lethal injection
12 involves “[s]ubverting medicines meant to heal the human body to the opposite purpose
13 . . . [resulting in] an enterprise doomed to failure.”10

14

33. As a result, some states have experimented with different untested drug

15 combinations to execute prisoners. States have also turned to compounding

16 pharmacies, whose products are not always reliable,11 and to illegal methods12 to obtain

17 drugs for executions.

18

9 See Deborah W. Denno, Lethal Injection Chaos Post-Baze, 102 GEO. L.J. 1331, 1360-

19 66 (2014); id. at 1361 (“The shortage of sodium thiopental led prison officials to seek

20

out questionable alternative sources of the drug throughout the world, ranging from England to Pakistan.”); Makiko Kitamura & Adi Narayan, Europe Pushes to Keep

21

Lethal Injection Drugs From U.S. Prisons, BLOOMBERG BUSINESS (Feb. 7, 2013), http://www.bloomberg.com/bw/articles/2013-02-07/europe-pushes-to-keep-lethal-

22

injection-drugs-from-u-dot-s-dot-prisons (reporting announcement by Danish pentobarbital manufacturer H. Lundbeck A/S that it “would require customers to buy

23

[pentobarbital] through a single wholesaler and to sign a form confirming they won’t resell it, aren’t a prison, and know Lundbeck opposes executions”).

24 10 Wood v. Ryan, 759 F.3d 1076, 1102 (9th Cir. 2014) (Kozinski, C.J., dissental), vacated, 135 S. Ct. 21 (2014) (mem.).
25 11 Missouri and Texas, for instance, have turned to compounding pharmacies to create 26 analogues of branded drugs. Reliance on compounding pharmacies is risky, however,
because regulations governing such pharmacies are lax and vary from state to state, and 27 instances of contamination abound; American Medical Association guidelines even warn
doctors that prescribing compounded medications can lead to malpractice liability. See 28 Denno, supra note 9, at 1366-68. Unsafe practices by compounding pharmacies have
caused numerous public health crises over the years. A Continuing Investigation into the

12

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 13 of 60

1

34. The resort to experimental combinations and procedures, and to

2 compounding and/or illegal means of obtaining drugs for execution has resulted in a

3 disturbing series of executions.

4

35. One experiment has been to substitute midazolam, a benzodiazepine, for

5 the barbiturate previously used as the first drug in a three-drug combination. Midazolam

6 (also sold under the trade name Hypnovel™ and Versed™) is a short-acting, water-

7 soluble benzodiazepine used most commonly as a premedication (i.e., in advance of

8 anesthesia) for sedation. The FDA-approved intravenous dose for an adult patient is 1

9 milligram to 2.5 milligrams to induce sedation. Labeling instructions caution that high

10

11 Fungal Meningitis Outbreak and Whether it Could Have Been Prevented Before the

Subcomm. on Oversight & Investigations of the H. Comm. on Energy & Commerce,

12 113th Cong. 2 (2013) (statement of Margaret A. Hamburg, M.D., Comm’r, FDA)

[hereinafter Hamburg Statement] (reporting multiple incidences over the past twenty 13 years where compounded drugs have caused deaths and serious injuries). In 2012,

14

injectable steroids produced by the New England Compounding Center (NECC) led to a tragic fungal meningitis outbreak across twenty states, infecting more than 800

15

individuals and resulting in 64 deaths. Kurt Eichenwald, Killer Pharmacy: Inside a Medical Mass Murder Case, NEWSWEEK (Apr. 16, 2015, 7:07 AM),

16

http://www.newsweek.com/2015/04/24/inside-one-most-murderous-corporate-crimesus-history-322665.html. An FDA inspection report of NECC facilities following the

17

outbreak noted several alarming observations, including yellow and greenish residue lining on surfaces of equipment used in producing sterile drug products, “dark, hair-like

18

discoloration” along the edges of a “Clean Room” used to formulate and fill sterile preparations, and multiple vials of sterile injectable drugs containing “greenish black

19

foreign matter” and “white filamentous material.” FDA, FORM FDA 483 ISSUED TO BARRY J. CADDEN OF NEW ENGLAND COMPOUNDING PHARMACY INC. 1, 7-8 (Oct. 26,

20 2012),

available

at

http://www.fda.gov/downloads/AboutFDA/CentersOffices/OfficeofGlobalRegulatoryOp

21 erationsandPolicy/ORA/ORAElectronicReadingRoom/UCM325980.pdf. A subsequent

FDA investigation of 55 compounding pharmacies found that more than 75% of those

22 inspected had “serious issues,” such as “lack of appropriate air filtration systems,

insufficient microbiological testing, and other practices that create risk of

23 contamination.” Hamburg Statement at 5.

24

12 Michael Kiefer, ARIZ. REPUBLIC,

Arizona Oct.

Again Tries 22,

to

Import 2015,

Illegal Execution 9:27

Drug, AM,

25

http://www.azcentral.com/story/news/arizona/investigations/2015/10/22/74406580 (detailing Arizona’s second failed attempt to illegally import execution drugs); see also

26 Ariane De Vogue, DOJ Tells Arizona It Illegally Obtained Death Penalty Drug, ABC

NEWS, May 25, 2011, http://abcnews.go.com/Politics/Controversial-arizona-execution-

27 set/story?id=13679827 (reporting on the U.S. Department of Justice’s request that

Arizona turn over its stores of illegally imported sodium thiopental mere hours before

28 Donald Beaty’s scheduled execution, belying the state’s claims throughout the litigation

leading up the litigation that it had obtained its drugs legally).

13

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 14 of 60

1 doses (e.g., more than 1 milligram) must be titrated slowly in order to be effective.

2 Specifically, the FDA-approved label counsels that doses of 1-to-2 milligrams be

3 administered over the course of three minutes. To be effective, midazolam must be

4 stored at temperatures between 68 and 77 degrees Fahrenheit. It typically has a shelf life

5 of three years from manufacture.

6

36. Hydromorphone (also sold under the trade name Dilaudid™) is a potent

7 opioid drug, derived from morphine. The FDA-approved starting intravenous dosage for

8 medicinal use is 0.2 to 1 milligram. To be effective, hydromorphone must also be stored

9 at temperatures between 68 and 77 degrees Fahrenheit.

10

37. To Condemned Plaintiffs’ knowledge and belief, these drugs have never

11 been tested on humans or non-human animals at anywhere near the levels used by

12 Arizona to execute Joseph Wood.13

13

38. On January 16, 2014, the State of Ohio executed Dennis McGuire using a

14 combination of 10 milligrams of midazolam and 40 milligrams of hydromorphone—the

15 same drugs used by Defendants in Wood’s execution, albeit in much smaller amounts.

16 This was the first time in the United States that a two-drug formula of midazolam and

17 hydromorphone was used to execute a prisoner.

18

39. Documents obtained through discovery in other litigation show that, in

19 advance of McGuire’s execution, Ohio officials exchanged emails with various medical

20 professionals about how the combination of midazolam and hydromorphone would

21 work. These emails and other documents revealed that Ohio was warned that these drugs

22 could cause a prisoner to “gasp” and “hyperventilate” as he died, and that using these

23 drugs to execute a person could end in “disaster,” “a terrible, arduous, tormenting

24 execution that is also an ugly visual and shameful spectacle,” in part because, before

25 13 See Ashby Jones, Lethal-Injection Drug Is Scrutinized, WALL ST. J., June 1, 2014, 26 8:25 PM, http://online.wsj.com/articles/lethal-injection-drug-is-scrutinized-1401668717
(“Anesthesiologists say they typically administer midazolam to a patient only a few 27 milligrams at a time and therefore know little about the effects of much larger doses . . . .
‘It’s uncharted territory’ said David Waisel, an anesthesiologist at Boston Children’s 28 Hospital who has testified on behalf of death-row inmates. ‘States literally have no idea
what they’re doing to these people.’”).

14

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 15 of 60

1 losing consciousness, the patient likely would be “subjected to the intoxicating effects of 2 these drugs, which include hallucinations.”14 Ohio officials expressed their concern

3 about going forward with something that might become “a distasteful and disgusting

4 spectacle” that “would create the appearance, at least, of suffering, which would upset 5 witnesses and inspire litigation.”15

6

40. Those concerns materialized at McGuire’s execution. Those who

7 witnessed the 26-minute execution reported that McGuire struggled and gasped loudly

8 for air “like a fish lying along the shore puffing for that one gasp of air that would allow 9 it to breathe.”16 After reviewing how McGuire’s execution could have gone so badly, the

10 State of Ohio announced that it would increase the dosages of hydromorphone and 11 midazolam to 50 milligrams each in its next execution.17 Subsequently, a federal court

12 ordered all executions in the State of Ohio stayed for a year pending review of the 13 State’s lethal-injection protocol.18 Further executions in the State of Ohio are now 14 postponed until at least 2017.19

15

41. On April 29, 2014, the State of Oklahoma executed Clayton Lockett.

16 Officials took 51 minutes to place an IV line, eventually believing they had properly

17 inserted the IV in a vein in Lockett’s groin, after unsuccessfully attempting to place the

18

19

20 14 Ben Crair, Exclusive Emails Show Ohio’s Doubts About Lethal Injection, NEW REPUBLIC, Aug. 17, 2014, http://www.newrepublic.com/article/119068/exclusive-
21 emails-reveal-states-worries-about-problematic-execution.
22 15 Id. 16 Lawrence Hummer, I Witnessed Ohio’s Execution of Dennis McGuire. What I Saw
23 Was Inhumane, GUARDIAN (Jan. 22, 2014, 1:51 PM), http://www.theguardian.com/commentisfree/2014/jan/22/ohio-mcguire-execution-
24 untested-lethal-injection-inhumane.

25 17 Josh Sweigart, Ohio Increases Drug Dosage for Executions, Dayton Daily News (Apr. 28, 2014, 6:45 PM), http://www.daytondailynews.com/news/news/crime-law/ohio-

26 increases-drug-dosage-for-executions/nfj9T/.

27

18 See Order, In re: Ohio Execution Protocol Litig., No. 2:11-cv-1016 (S.D. Ohio Aug. 8, 2014), ECF No. 494.

28 19 See Press Release, Ohio Dep’t of Rehab. & Corr., Execution Dates Revised (Oct. 19, 2015), http://www.drc.ohio.gov/Public/press/press439.htm.

15

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 16 of 60

1 IV in his jugular vein and other locations.20 Oklahoma used an untested three-drug

2 formula that relied on an initial injection of 100 milligrams of midazolam intended to

3 render the prisoner unconscious, after which time the state planned to administer

4 vecuronium bromide (a paralytic) and then potassium chloride (to induce cardiac

5 arrest).21

6

42. The 43-minute execution did not go as planned. More than 20 minutes

7 after the drugs had been administered, Lockett was still conscious, and he struggled to

8 speak. He was reported as saying “Man,” “I’m not,” and “something’s wrong.”

9 Witnesses also reported that Lockett, at points, was “twitching” and “convulsing” so

10 violently that “it looked like his whole upper body was trying to lift off the gurney.”22

11 Officials then drew the blinds and discovered that femoral catheter that was placed by

12 the physician-executioner had, at some point during the execution, failed. Some of the

13 drugs eventually massed in Lockett’s tissue, creating a swelling under his skin “smaller

14 than a tennis ball, but larger than a golf ball.”23 Because the insertion point had been

15 obscured from the view of both the witnesses and the physicians, no one had previously

16 noticed the swelling. The curtains were then closed. The physician-executioner then

17 tried to insert the IV into Lockett’s left femoral vein, but penetrated Lockett’s femoral

18 artery instead. After all of this, the physician-executioner reported that Lockett’s heart

19 was still beating. At that point, the governor of Oklahoma called off the execution, 43

20 minutes after it had begun.24 Ten minutes later, Lockett died.

21

43. On July 23, 2014, Arizona executed Joseph Wood after reportedly

22 injecting him with 75 times the amount of midazolam used in McGuire’s botched

23

24

20 Erik Eckholm & John Schwartz, Timeline Describes Frantic Scene at Oklahoma Execution, N.Y. TIMES, May 1, 2014, http://nyti.ms/1ktZUJa.

25 21 Jones, supra note 13.

26 22 Josh Levs, Ed Payne & Greg Botelho, Oklahoma’s Botched Lethal Injection Marks New Front in Battle over Executions, CNN (last updated Sept. 8, 2014),
27 http://www.cnn.com/2014/04/30/us/oklahoma-botched-execution/.

28 23 OKLA. DEP’T OF PUB. SAFETY, THE EXECUTION OF CLAYTON D. LOCKETT 18 (2014). 24 Id. at 18-19.

16

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 17 of 60

1 execution, and 7.5 times the amount of midazolam used in Lockett’s botched execution.

2 This was only the second execution carried out in the United States using a combination

3 of midazolam and hydromorphone. Arizona proceeded with the execution even though

4 the press had disclosed the documents from Ohio that documented that medical

5 professionals were concerned with using those two drugs for executions.25

6

44. On January 15, 2015, Oklahoma executed Charles Warner. His last words

7 were that his “body [wa]s on fire.”26 Despite having represented to Warner’s counsel

8 and, later, to the United States Supreme Court, that Warner was executed with a

9 combination of midazolam, rocuronium bromide, and potassium chloride, Oklahoma’s

10 representations were later found to be false. Rather than using potassium chloride, it was

11 later revealed, the state somehow instead used potassium acetate. That inexplicable

12 mistake—which, not without irony, occurred during litigation about Oklahoma’s claims

13 of secrecy over the source and identity of the drugs it uses in executions—became

14 apparent only after Oklahoma attempted to execute another prisoner, Richard Glossip,

15 on September 30, 2015, again using potassium acetate. After the state realized that it had

16 the wrong drug, mere minutes before Glossip’s execution was to begin, it stayed

17 indefinitely his execution along with all others in Oklahoma pending the outcome of an

18 investigation into how Oklahoma acquired the wrong drug.27 Several prison officials are

19 now the subjects of a grand jury investigation.28

20 25 See, e.g., Sweigart, supra note 17 (reporting in April 2014—three months before

21 Wood’s execution—that the combination of midazolam and hydromorphone posed

severe risks if used for executions).

22 26 ‘My Body is on Fire’: Oklahoma Proceeds with Executions Using Controversial

23

Method, RT (Jan. 16, 2015, 5:50 PM), https://www.rt.com/usa/223431-oklahomaexecution-onfire-warner/.

24 27 Eyder Peralta, Oklahoma Used the Wrong Drug to Execute Charles Warner, NPR (Oct. 8, 2015, 2:40 PM), http://www.npr.org/sections/thetwo-
25 way/2015/10/08/446862121/oklahoma-used-the-wrong-drug-to-execute-charles-warner.

26 28 One of those officials is Robert Patton, who was the Director of the Oklahoma Department of Corrections during the time of the Lockett, Warner, and attempted
27 Glossip’s execution; Patton announced his resignation in December 2015. See Graham Lee Brewer, Oklahoma Dep’t of Corr. director resigns, OKLAHOMAN, Dec. 4, 2015,
28 http://newsok.com/article/5464745. Patton was formerly the Division Director of Offender Operations at the ADC, and was a defendant in previous litigation before

17

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 18 of 60

1

B. Arizona’s Long History of Deviating from Its Execution Plans.

2

45. Long before Joseph Wood was taken to the execution chamber, Arizona

3 had failed repeatedly to execute other condemned prisoners in a constitutional manner,

4 no matter the method used.

5

46. On February 21, 1930, Arizona executed Eva Dugan, the first (and last)

6 woman to be executed in the State. At her execution by hanging, the snap of the rope

7 decapitated her, sending her severed head into the crowd of witnesses, five of whom

8 fainted as a result. In part because of Dugan’s horrific execution, Arizona abandoned

9 hanging as its preferred method of execution.29

10

47. Arizona switched its execution method to the gas chamber, which it used

11 until the ugly execution of Donald Harding, on April 6, 1992. Harding’s death by

12 asphyxiation in the gas chamber took 11 minutes, much of which time he spent cursing

13 and screaming epithets at the state attorney general.30 One reporter who witnessed the

14 “ugly event,” during which Harding turned red and purple while writhing in pain,

15 remarked that “animals [are put to] sleep more humanely.”31 Conflicting press accounts

16 reported that the scene was so disturbing that the attorney general became physically ill

17 from watching it.32

18

19 challenging the Arizona lethal injection protocol. See infra ¶ 93; see also Nolan Clay &

Rick Green, Embattled Oklahoma Corrections Department Director Testifies Before

20 Multicounty

Grand

Jury,

OKLAHOMAN,

Oct.

21,

2015,

21

http://newsok.com/article/5455039. 29 See Wood v. Ryan, 759 F.3d 1076, 1083 (9th Cir. 2014) (“Public outcry over a

22 reportedly botched hanging in Arizona led to debate over methods of execution and the

eventual adoption in that state of the gas chamber.”), vacated, 135 S. Ct. 21 (2014)

23 (mem.); AUSTIN SARAT, GRUESOME SPECTACLES: BOTCHED EXECUTIONS AND

AMERICA’S DEATH PENALTY 54-60 (2014).

24 30 Gruesome Death in Gas Chamber Pushes Arizona Toward Injections, N.Y. TIMES

25

(Apr. 25, 1992), http://www.nytimes.com/1992/04/25/us/gruesome-death-in-gaschamber-pushes-arizona-toward-injections.html.

26 31 SARAT, supra note 29, at 112 n.168.

27 32 See Elizabeth Weil, It’s Not Whether to Kill, but How, N.Y. TIMES, Nov. 4, 2007, http://www.nytimes.com/2007/11/04/weekinreview/04weil.html?pagewanted=all&_r=0
28 (“One 1992 lethal gas execution in Arizona caused an attorney general to throw up and a warden to threaten to quit if he had to execute by that method again.”).

18

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 19 of 60

1

48. In response to Donald Harding’s execution, Arizona voters, by a margin of

2 77% to 23%, approved adopting lethal injection as Arizona’s method of execution. At

3 first, Arizona adopted the three-drug protocol used in other states and later approved by

4 the Supreme Court in Baze: sodium thiopental, a fast-acting barbiturate that, in very

5 large doses, will act as anesthesia; pancuronium bromide, a paralytic agent that paralyzes

6 voluntary muscles; and potassium chloride, a drug that at lethal doses causes cardiac

7 arrest.

8

49. Arizona used the same Baze three-drug protocol to execute 21 prisoners

9 between 1993 and 2000. In at least one execution, the prisoner was punctured eight

10 times in his arms and punctured in his foot. In another execution, the prisoner had five

11 puncture marks on his arms and there was evidence of surgical cutdown on his foot. In

12 yet another execution, the prisoner’s head was seen to jerk back and forth several times

13 after the lethal drugs were administered.

14

50. Then, from 2000 to 2007, it executed no prisoners. This was due primarily

15 to the pending federal litigation involving the constitutionality of Arizona’s death

16 sentencing scheme. See generally Ring v. Arizona, 536 U.S. 584 (2002) (finding

17 unconstitutional Arizona’s law that aggravating factors are determined by a judge rather

18 than a jury); Schriro v. Summerlin, 542 U.S. 348 (2004) (reversing Ninth Circuit

19 decision and holding that Ring was not retroactive). After this moratorium, on May 22,

20 2007, Arizona executed Robert Comer, a prisoner who waived his appeals.

21

51. On July 13, 2007, Arizona then sought a warrant of execution for Jeffrey

22 Landrigan. While the State’s motion for a warrant was pending, several prisoners filed a

23 civil complaint against the State challenging Arizona’s lethal-injection procedures under

24 the Eighth Amendment. See Complaint, Dickens v. Brewer, No. 07-cv-1770-NVW (D.

25 Ariz. Sept. 14, 2007), ECF No. 1.

26

52. On September 25, 2007, the Arizona Supreme Court issued a warrant of

27 execution for Landrigan, see State v. Landrigan, No. CR-90-0323-AP (Ariz. Sept. 25,

28 2007); that same day, the United States Supreme Court granted certiorari in Baze. On

19

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 20 of 60

1 October 11, the Arizona Supreme Court stayed Landrigan’s execution in light of the

2 grant of certiorari in Baze. Landrigan, No. CR-90-0323-AP (Ariz. Oct. 11, 2007).

3 Arizona then amended its execution procedures twice in the next month, while the civil

4 litigation in Dickens was ongoing. After discovery, the State agreed to “fix” all of the

5 concerns raised by the plaintiffs (except for plaintiffs’ request that the State switch from

6 a three-drug to a one-drug protocol) by amending its written protocol. Based on the

7 State’s promises in its briefing and at oral argument, this Court granted summary

8 judgment on July 1, 2009. Order, Dickens v. Brewer, No. 07-cv-1770-NVW (D. Ariz.

9 July 1, 2009), ECF No. 138. In so doing, this Court warned that “to the extent

10 [Defendants] deviate from [their promises], they’re taking great risks.” See Transcript of

11 Oral Argument at 22:19-20, Dickens, No. 07-cv-1770-NVW, ECF No. 136.

12

53. Arizona again sought a warrant to execute Landrigan. At the time of its

13 renewed request for a death warrant, in April 2010, Defendants’ written procedures still

14 prescribed a three-drug lethal-injection combination, using sodium thiopental as the first

15 chemical.

16

54. While Arizona’s efforts to obtain a warrant for his execution were under

17 way, Landrigan learned of a nationwide shortage of sodium thiopental, a fact that he

18 presented to the Arizona Supreme Court. In response to an order from the Arizona

19 Supreme Court, Defendants promised the court that they had a sufficient quantity of

20 drugs to execute Landrigan.

21

55. Defendants refused, however, to disclose how they had obtained their

22 sodium thiopental. At oral argument before the Arizona Supreme Court, Arizona’s

23 counsel would admit only that it was not manufactured by Hospira—which, at the time,

24 was the only FDA-sanctioned domestic manufacturer of sodium thiopental.

25

56. This led to a federal lawsuit seeking information about the source of

26 Arizona’s execution drugs. See Landrigan v. Brewer, No. 2:10-cv-2246-ROS (D. Ariz.

27 Oct. 21, 2010). The district court granted Landrigan a temporary stay of execution to

28 allow him to proceed with his challenge to the use of non-FDA-sanctioned sodium

20

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 21 of 60

1 thiopental from an unidentified source, Order Granting Motion for a Temporary

2 Restraining Order, No. 2:10-cv-2246-ROS, ECF. No. 21, and the Court of Appeals for

3 the Ninth Circuit affirmed. Landrigan v. Brewer, 625 F.3d 1144 (9th Cir. 2010). The

4 Supreme Court, however, in a 5-4 order, vacated the stay, and Landrigan was executed

5 on October 26, 2010. Brewer v. Landrigan, 562 U.S. 996 (2010) (mem.). He was

6 pronounced dead approximately 11 minutes after the first drug was injected, and

7 approximately four minutes after the potassium chloride was injected. After Landrigan

8 was declared dead, the State continued to inject additional doses of the backup chemicals

9 into his body until the physician-executioner advised Defendant Ryan that, if they

10 continued with the injections, Landrigan’s inferior vena cava could rupture.

11

57. The press later discovered and reported that Arizona obtained the sodium

12 thiopental used to execute Landrigan from “a pharmaceutical company operating out of 13 a west London driving school.”33

14

58. Shortly after Landrigan’s execution, on December 10, 2010, the Court of

15 Appeals for the Ninth Circuit heard oral argument in Dickens v. Brewer, 631 F.3d 1139

16 (9th Cir. 2011). Among other things, the Dickens litigation concerned Defendants’

17 repeated errors in carrying out executions, and their refusal to follow their own written

18 protocol for executions. Chief among these errors was Arizona’s decision to hire and

19 give responsibility for carrying out the execution to a medical team member who later

20 testified that he knowingly “improvised” the doses of lethal-injection drugs and never

21 adhered to any protocol. Dickens, 631 F.3d at 1147. Another of Arizona’s medical team

22 members had had his nursing license suspended and had a lengthy arrest record. Id.

23

59. During oral argument, Defendants argued that the problems identified by

24 plaintiffs had been fixed, and contended that it was “purely speculative” to say

25

26

27 33 Owen Bowcott, London Firm Supplied Drugs for US Executions, GUARDIAN (Jan. 6, 28 2011, 12:45 PM), http://www.theguardian.com/world/2011/jan/06/london-firm-supplied-
drugs-us-executions.

21

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 22 of 60

1 Defendants would not follow their procedures. Defendants assured the Court of Appeals

2 that they had “every incentive” to follow their protocol as written.34

3

60. On February 9, 2011, based on Arizona’s promises to adhere to its new

4 procedures, the Ninth Circuit Court of Appeals in Dickens affirmed this Court’s

5 rejection of plaintiffs’ claims. The Court noted that Arizona’s past problems with its

6 execution regime apparently had been fixed and that, based on Defendants’ promises to

7 adhere to their new, Baze-compliant protocol, “[t]he notion that Arizona might adopt and

8 use a new, unconstitutional protocol can only be dismissed as rank speculation.”

9 Dickens, 631 F.3d at 1150.

10

61. On March 29, 2011, Arizona executed Eric King. He was pronounced dead

11 approximately 17 minutes after the first drug (sodium thiopental) began to flow. After

12 the three-drug formula was administered, King was then given an additional dose of

13 potassium chloride, followed by an additional dose of sodium thiopental. No valid

14 explanation was provided for injecting these additional doses.

15

62. Donald Beaty’s execution was then scheduled for May 25, 2011. On May

16 24, 2011—eighteen hours before Beaty’s execution was to begin, Defendants provided

17 notice that, in accordance with federal concerns regarding the legality of the State’s

18 acquisition of its drugs, Defendants would not be using sodium thiopental, which they

19 had illegally acquired and used in two prior executions (Landrigan and King). Instead,

20 Defendants advised Beaty that they would replace sodium thiopental with pentobarbital.

21 That evening, Beaty filed a motion with the Arizona Supreme Court asking it to vacate

22 the warrant or stay the execution. On May 25, 2011, the Arizona Supreme Court allowed

23 his execution to go forward based on “the State’s avowal that the only change in the

24 execution protocol is to substitute pentobarbital for sodium thiopental.” Order, State v.

25 Beaty, No. CR-85-0211-AP/PC (Ariz. May 25, 2011). But see id. at 2-3 (Hurwitz, J.,

26 34 During oral argument, the Court of Appeals ordered Defendants to submit the final 27 written protocol that was at issue; Defendants subsequently filed a notice stating that the
protocol they intended to follow consisted of the challenged protocol along with all of 28 the unwritten amendments to it to which Defendants had agreed during the course of
litigation.

22

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 23 of 60

1 dissenting) (noting that although he doubted that Beaty could demonstrate harm from

2 pentobarbital, he would nevertheless stay the execution because “the application now

3 before us was created by the State’s last-minute decision to substitute one barbiturate for

4 another, and we have been compelled to address this issue literally overnight.”). Beaty

5 was pronounced dead approximately 11 minutes after the first drug began to flow.

6

63. On June 30, 2011, Defendants executed Richard Bible using the same

7 pentobarbital-based three-drug combination used in Beaty’s execution. He was

8 pronounced dead approximately 6 minutes after the first drug began to flow.

9

64. On July 16, 2011, three days before Thomas West was scheduled to be

10 executed, West and other plaintiffs filed a complaint alleging that Defendants’

11 unwillingness to follow their written protocol, as well as Defendants’ application of their

12 protocol, violated the Eighth Amendment. Complaint, West v. Brewer, No. 2:11-cv-

13 01409-NVW (D. Ariz. July 16, 2011), ECF No. 1. The plaintiffs alleged that Defendants

14 failed to conduct required trainings, failed to obtain drugs legally from a safe and

15 reputable source, and failed to administer drugs through peripheral instead of femoral

16 lines—all in violation of the State’s own written protocol. Also on July 16, West filed a

17 motion for a TRO or preliminary injunction.

18

65. This Court denied West’s motion for an injunction, and the Court of

19 Appeals for the Ninth Circuit affirmed. West v. Brewer, 652 F.3d 1060 (9th Cir. 2011).

20 In its order, the panel specifically relied upon representations made by Defendants

21 through counsel. Of note, ADC’s counsel represented that the written lethal-injection

22 protocol adopted in Dickens “had been followed in the past and, more importantly, will

23 be followed in West’s execution.” Id. at 1060. The court also relied upon counsel’s

24 representations that the drugs as specified in the protocol were available and in ADC’s

25 possession and that ADC would follow the IV insertion locations as outlined in the

26 protocol. Id. at 1060-61. After his further appeals failed, West was executed on July 19,

27 2011. He was pronounced dead approximately 8 minutes after the first drug began to

28

23

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 24 of 60

1 flow. West was the last of five prisoners that Arizona executed using a three-drug

2 combination.

3

66. Despite West’s execution, the civil case he had spearheaded proceeded.

4 After discovery, eighteen depositions, and a three-day bench trial—which demonstrated

5 that ADC had repeatedly deviated from its protocol in past executions and had imported

6 sodium thiopental in violation of federal law—this Court denied plaintiffs the relief they

7 sought, see West v. Brewer, No. CV-11-1409-PHX-NVW, 2011 WL 6724628 (D. Ariz.

8 Dec. 21, 2011). One month later, on January 25, 2012, ADC changed its protocol again.

9

67. Like the prior protocols, the January 2012 protocol provided the ADC

10 Director with unfettered discretion to determine the manner in which a prisoner would

11 be executed, and expanded that discretion by allowing the Director to choose any one of

12 four different drug protocols. The Director had to inform the prisoner only seven days

13 before the execution which drug protocol would be used. The January 2012 protocol also

14 removed safeguards related to screening and training of individuals placing IV lines, and

15 removed the requirement that the peripheral veins be the default method of access. It

16 also removed the requirement of a backup line and removed the ability for a prisoner to

17 have a legal visit on the morning of an execution.

18

68. The abrupt and substantial January 2012 change in lethal-injection

19 procedures prompted another lawsuit by prisoners scheduled for execution. See

20 Complaint, Towery v. Brewer, No. 12-cv-00245 (D. Ariz. Feb. 6, 2012), ECF No. 1. The

21 plaintiffs identified three main problems with the January 2012 procedures: (1) the

22 procedures removed safeguards critical to a constitutionally acceptable means of

23 execution under Baze; (2) they treated similarly situated condemned prisoners differently

24 with no rational or compelling basis; and (3) they interfered with condemned prisoners’

25 right of access to the court by denying in-person legal visits on the day of a scheduled

26 execution.

27

28

24

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 25 of 60

1

69. On February 23, 2012, this Court denied plaintiffs’ motion for a

2 preliminary injunction. The plaintiffs appealed, and the Court of Appeals for the Ninth

3 Circuit set argument for 4:00 p.m. on February 27, 2012.

4

70. At 10:35 a.m. on February 27, 2012—five hours before oral argument was

5 set to begin—ADC notified plaintiffs of its intent to change its intended method of

6 execution by administering a one-drug protocol (specifically, one injection of a five-

7 gram dose of pentobarbital). ADC explained that it had overlooked, until the very

8 morning of oral argument and two days before the execution itself, that the pancuronium

9 bromide it had planned to inject in the prisoner had expired six weeks prior to the event.

10 ADC did not explain how it had overlooked the expiration of its drug when it had sought

11 execution warrants for two upcoming executions more than a month earlier. Nor did it

12 explain why it did not comply with the written terms of its protocol, which required

13 ADC officials to ensure that the chemicals were ordered and available at the time that a

14 warrant of execution is issued.

15

71. During oral argument on February 27, 2012, the Court of Appeals asked

16 how ADC would carry out the impending executions, because the procedures were

17 unclear. Defendants made several promises about how the protocol would be changed to

18 ensure that team members were duly qualified, that IV lines would be properly placed,

19 and that prisoners would have access to counsel on the morning of their executions.

20

72. On February 28, 2012, the Court of Appeals issued an opinion affirming

21 the denial of relief, based not on ADC’s written procedures but rather on the avowals

22 made by Defendants’ counsel during oral argument. See Towery v. Brewer, 672 F.3d 650

23 (9th Cir. 2012) (per curiam). In its decision, the court expressed its exasperation with

24 Defendants’ repeated failures to follow their execution procedures. With respect to

25 Defendants’ last-minute “discovery” of the expired pancuronium bromide, the Court

26 complained that, “[h]ow such a discovery escaped the State for the past six weeks is

27 beyond us, and gives us pause as to the regularity and reliability of Arizona’s protocols.”

28

25

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 26 of 60

1 Id. at 653. The court also took issue with Arizona’s repeated deviations from its

2 procedures and string of broken promises:

3 Over time, the State of Arizona, however, has insisted on

4

amending its execution protocol on an ad hoc basis—through

5

add-on practices, trial court representations and acknowledgments, and last minute written amendments—

6

leaving the courts with a rolling protocol that forces us to

7

engage with serious constitutional questions and complicated factual issues in the waning hours before executions. This

8

approach cannot continue.

9

. . . . We are mindful of the admonition requiring us to refrain

10

from micro-managing each individual execution, but the

admonition has a breaking point. . . . Unless permanent

11

changes are made in the manner in which Arizona amends

12

its protocols, Arizona’s ongoing conduct may require us to

monitor every execution on an ad hoc basis, because the

13

State cannot be trusted to fulfill its otherwise lawful duty

14

to execute inmates sentenced to death.

15 Id. (emphases added) (internal quotation marks and citation omitted).

16

73. On February 29, 2012, Robert Moorman was executed with five grams of

17 pentobarbital. He was pronounced dead approximately 10 minutes after the

18 administration of pentobarbital.

19

74. On March 8, 2012, Towery’s execution went forward. It took 59 minutes

20 to set the IV lines, one minute shy of Baze’s upper limit on an unconstitutionally lengthy

21 attempt to place an IV line. ADC did not allow witnesses to view the insertion of the

22 lines.

23

75. ADC told Towery that it would shut off the microphone during his last

24 statement if he said anything disparaging about ADC. Therefore, prior to his execution,

25 Towery and his attorney devised a code so that Towery could communicate any

26 problems when the IV lines were inserted. While Towery was speaking his last words,

27 he indicated—through code—that he was hurt repeatedly during the insertion of the lines

28

26

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 27 of 60

1 and that the team made many attempts to set the IV lines, and also that he had been

2 prevented from speaking with his counsel.

3

76. Towery was executed with five grams of pentobarbital. Towery was

4 pronounced dead 9 minutes after the administration of pentobarbital. See Lopez v.

5 Brewer, 680 F.3d 1084, 1091 (9th Cir. 2012) (Berzon, J., concurring in part and

6 dissenting in part) (“[Arizona’s] secrecy restrictions and refusals of public and attorney

7 access, taken together, leave condemned prisoners, their attorneys, the district court, and

8 this court with precious little indication of whether past executions have actually been

9 conducted in a constitutional manner. The condemned clients, without access to their

10 attorneys, are left to communicate with them in elaborate codes during their last

11 statements, while we are left to parse cryptic execution logs and autopsy reports in an

12 effort to determine whether an inmate suffered pain, and if so, how much.”); id. at 1095-

13 96 (Reinhardt, J., dissental) (explaining the “chilling” details of ADC’s treatment of

14 Towery and concluding that, “if a skilled lawyer were instructing the state on how best

15 to avoid any meaningful review of the constitutionality of its execution procedures, he

16 would be hard pressed to improve on the unconscionable regime that the state has

17 adopted”).

18

77. A private autopsy was performed on Towery on March 16. The autopsy

19 revealed that Towery was punctured at least eleven times—three or more times on each

20 arm (at the antecubital fossa), one or more on the right hand, and at least four in the

21 femoral region.

22

78. On April 25, 2012, Thomas Kemp was executed as scheduled, but not as

23 planned. As Judge Pregerson later recounted, “[s]oon after receiving the lethal injection

24 in his central femoral line, Kemp’s right arm and torso began shaking ‘violently.’ . . . [In

25 addition, a]n autopsy report revealed that despite Kemp’s good veins that were quite

26 prominent, Kemp had ‘at least three or more’ punctures, including ‘at least one puncture

27 in the right femoral area and at least two punctures over the left upper extremity.’”

28 Lopez, 680 F.3d at 1093-94 (Pregerson, J., dissental). Kemp was executed with five

27

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 28 of 60

1 grams of pentobarbital. Kemp was pronounced dead 7 minutes after the administration

2 of pentobarbital.

3

79. The next prisoner scheduled for death, Samuel Lopez, filed a motion for a

4 preliminary injunction to stay his execution on May 1, 2012. The district court denied

5 the motion. On appeal, the Court of Appeals affirmed, but warned Arizona yet again that

6 its constant deviations from its procedures could not continue. “Although we uphold the

7 district court’s decision, we caution, yet again, that Arizona’s ad hoc approach risks

8 going beyond Baze’s safe harbor.” Id. at 1075.

9

80. In her separate opinion concurring in part and dissenting in part, Judge

10 Berzon described some of the ways in which ADC had deviated from the promises it had

11 made just months earlier regarding the qualifications of the IV Team and the prisoners’

12 access to counsel. Id. at 1080 (Berzon, J., concurring in part and dissenting in part). In

13 her view, ADC’s “approach to devising, announcing, and recording the execution

14 procedures it uses effectively denied Lopez of his procedural due process right to have

15 his Eighth Amendment challenge heard at a meaningful time [and] in a meaningful

16 manner.” Id. at 1079.

17

81. Lopez petitioned for rehearing en banc, which the Court of Appeals

18 denied. In a dissent from rehearing en banc, Judge Reinhardt, joined by six other judges,

19 expressed the judges’ frustration with Arizona, noting that, after Kemp’s and Towery’s

20 botched executions, it was apparent that “the State of Arizona has subjected prisoners

21 whose lives it takes—and has subjected this court—to a mockery of the constitutional

22 requirement of due process.” Id. at 1094 (Reinhardt, J., dissental); see also id. at 1093-94

23 (Pregerson, J., dissental).

24

82. On June 27, 2012, Arizona executed Lopez. For the first time, witnesses

25 were able to observe the insertion of the IV lines through a closed-circuit monitor. Lopez

26 was executed with five grams of pentobarbital. He was pronounced dead approximately

27 29 minutes after the administration of pentobarbital.

28

28

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 29 of 60

1

83. On August 8, 2012, Arizona executed Daniel Cook. Again, witnesses were

2 able to observe the insertion of the IV lines through a closed-circuit monitor. Cook was

3 executed with five grams of pentobarbital. He was pronounced dead approximately 37

4 minutes after the administration of pentobarbital.

5

84. On September 21, 2012, Arizona published new lethal-injection

6 procedures.

7

85. On December 5, 2012, Arizona executed Richard Stokley. Again,

8 witnesses were able to partially observe the insertion of the IV lines through a closed-

9 circuit monitor. It took 50 minutes to set the IV and it was set in the femoral vein.

10 Stokley was executed with five grams of pentobarbital. He was pronounced dead

11 approximately 19 minutes after the administration of pentobarbital.

12

86. The next prisoners scheduled to be executed were Edward Schad and

13 Robert Jones. They filed a motion for a temporary restraining order aimed at obtaining

14 the identity and sourcing of the pentobarbital Arizona planned to use for their

15 executions. Lundbeck, the only legally authorized manufacturer of pentobarbital, had

16 announced in July 2011 that it would no longer sell or make available to prisons any

17 pentobarbital.35 Akorn, another drug company, took over Lundbeck’s distribution of

18 pentobarbital, but it, too, continued Lundbeck’s restrictions. Thus, Schad and Jones

19 asserted that they had a First Amendment right to know how and where Arizona had

20 obtained sufficient quantities of non-expired pentobarbital for their executions,

21 scheduled for more than a year after all sales to prisons had stopped.

22

87. The district court agreed with Schad and Jones, and held that the plaintiffs

23 established a “First Amendment right to access information regarding the manufacturer

24 of the lethal-injection drugs, the National Drug Code of the drugs, the lot numbers of the

25
26 35 Kitamura & Narayan, supra note 9 (reporting announcement by pentobarbital manufacturer Lundbeck that it “would require customers to buy [pentobarbital] through
27 a single wholesaler and to sign a form confirming they won’t resell it, aren’t a prison, and know Lundbeck opposes executions”); see also Press Release, H. Lundbeck A/S,
28 Lundbeck divests several products in the US as part of long-term business strategy (Dec. 22, 2011), http://investor.lundbeck.com/releasedetail.cfm?ReleaseID=635094.

29

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 30 of 60

1 drugs, and the expiration date of the drugs.” Order at 1, Schad v. Brewer, No. 2:13-cv-

2 2001-ROS (D. Ariz. Oct. 4, 2013), ECF No. 23. The court ordered ADC to provide such

3 information no later than 12:00 p.m., on October 5. ADC did not appeal the decision.

4 Instead, it complied with the court’s order and disclosed that the pentobarbital to be used

5 in Schad’s and Jones’s executions was manufactured by Lundbeck.

6

88. On October 9, 2013, Schad was executed as scheduled. Witnesses were

7 able to observe the insertion of the IV lines through a closed-circuit monitor. Schad was

8 executed with five grams of pentobarbital. He was pronounced dead approximately 9

9 minutes after the administration of pentobarbital.

10

89. On October 23, 2013, Arizona executed Robert Jones. It took nearly 50

11 minutes for the IV lines to be set and it was set in the femoral vein. Jones was executed

12 with five grams of pentobarbital. He was pronounced dead approximately 17 minutes

13 after the administration of the pentobarbital. Jones’s execution was the last of eight

14 executions in which ADC used a one-drug protocol of pentobarbital.

15

90. On March 26, 2014, Defendants adopted new Procedures, which provided

16 for, among others, a new execution drug combination—one dose of 50 milligrams each

17 of midazolam and hydromorphone. The next prisoner to be executed, and the only

18 prisoner executed under those procedures, was Joseph Wood.

19

91. Since West, Arizona’s last nine executions have gone as follows:

20

Prisoner
21 Name

Date

Drug

Time to Die After Injecting
Drug(s)

Difficulty setting IV

Strong Physical Reaction

22 Robert

Feb. 29, 5 grams

10 min.

Moorman 2012

pentobarbital

23 Robert

Mar. 8, 5 grams

9 min.

Nearly hour-long

24 Towery 2012

pentobarbital

attempt to place IV successfully;

25

punctured artery; at

least 11 punctures; set

26

femoral line

Thomas
27 Kemp

Apr. 25, 5 grams

7 min.

2012

pentobarbital

Multiple punctures from botched IV

Violent seizures

28

attempts; set femoral line

30

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 31 of 60

1

Prisoner
2 Name

Date

Drug

Time to Die After Injecting
Drug(s)

Difficulty setting IV

Strong Physical Reaction

3

Samuel Lopez

June 27, 5 grams

29 min.

2012

pentobarbital

4 Daniel

Aug. 8, 5 grams

37 min.

Several attempts in the

5 Cook

2012

pentobarbital

right arm; set line that failed

6 Richard
Stokely
7
8
9 Edward 10 Schad

Dec. 5, 2012
Oct. 9, 2013

5 grams

19 min.

pentobarbital

5 grams

9 min.

pentobarbital

Set right arm on first attempt; three unsuccessful attempts on left arm; set femoral line; 50 total minutes to set IVs

11

Robert Jones

Oct. 23, 5 grams

17 min.

2013

pentobarbital

At least 3-4 attempts to set IV; nearly 50

12

minutes for IV lines to

be set in femoral vein

13 Joseph
Wood
14
15

July 23, 2014

750 mg midazolam; 750 mg hydromorpho ne

117 min.

Loud, prolonged gasping

16

C. Wood’s Failed Execution.

17

92. Prior to Wood’s execution, Wood and other condemned prisoners filed suit

18 to confirm exactly what drugs Defendants would use, how Defendants would use them,

19 and how the persons charged with administering them were qualified to do so.

20

93. On behalf of the public, on May 12, 2014, a reporter from the Arizona

21 Republic requested information from Defendants regarding communications between

22 Defendant Ryan and Robert Patton, then the Division Director of Offender Operations at

23 the ADC. Defendants did not respond to this request until August 15, 2014, several

24 weeks after Wood’s execution had been carried out.

25

94. Wood filed a motion for a preliminary injunction to stay his execution.

26 This Court denied his motion, but, on July 19, 2014, the Court of Appeals for the Ninth

27 Circuit reversed, and granted a “conditional preliminary injunction, staying Wood’s

28 execution until the State of Arizona has provided him with (a) the name and provenance

31

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 32 of 60

1 of the drugs to be used in the execution and (b) the qualifications of the medical

2 personnel, subject to the restriction that the information provided will not give the means

3 by which the specific individuals can be identified.” Wood v. Ryan, 759 F.3d 1076, 1088

4 (9th Cir. 2014), vacated, 135 S. Ct. 21 (2014) (mem.).

5

95. In the case litigated by Schad and Jones, ADC did not appeal the district

6 court’s decision ordering ADC to disclose facts about the pentobarbital at issue in their

7 executions and complied with that order. With Wood’s execution, however, Defendants

8 opposed revealing similar information about the midazolam and hydromorphone to be

9 used in Wood’s execution and petitioned the United States Supreme Court to lift the

10 stay.

11

96. In their petition, Defendants argued that Wood’s pleas for greater

12 transparency in Arizona’s execution process were unfounded because, in Defendants’

13 words, Wood “blithely ignores that nearly every detail about his execution is provided to

14 him and to the general public, including exactly what and how much lethal drugs will be

15 used, how they will be administered, and the qualifications of those placing the IV lines

16 to administer them.”36

17

97. The Supreme Court lifted the stay, but Defendants did not keep their

18 promise. Wood’s execution went wrong in many ways, chief among them that he

19 received thirteen doses more than the initial dose plus one backup dose set forth in

20 Defendants’ Procedures. Defendants never disclosed to Wood ahead of his execution

21 that they contemplated this radical departure from their procedures; rather, they

22 affirmatively represented to the courts that Wood had no reason to be concerned about

23 the dosages he would receive.

24

98. At the outset, witnesses were able to watch and listen via closed-circuit

25 television as Wood’s IVs were inserted. After the IVs were set, the closed-circuit

26 television was turned off, and the audio feed was turned off, but the curtains over the

27 28 36 Reply Brief of State of Arizona in support of Application for Stay, Ryan v. Wood, No.
14A82, at 2 (U.S. July 22, 2014).

32

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 33 of 60

1 window to the chamber were opened. For the remainder of the execution, witnesses’

2 views were restricted to line-of-sight observation of Wood in the execution chamber,

3 (but not of the room in which the drugs were being mixed and injected).

4

99. Because the microphone was turned off, the only audio that witnesses were

5 able to hear came when members of Defendants’ execution team briefly reported certain

6 updates to the witnesses via a microphone in the same chamber as Wood. It was only

7 during these brief updates that witnesses and the media—and, by extension, the Arizona

8 public—could hear the sounds that accompanied the movements they had been

9 observing.

10

100. Wood remained alive for 117 minutes after the drugs were first

11 administered. Defendants knew early on, however, that Wood’s execution was not going

12 as planned.

13

101. Twelve minutes into his execution, after having appeared to be sedated,

14 Wood rose upward against his restraints and gulped for air. He would eventually gasp

15 for air more than 640 times.37

16

102. Within minutes of Wood’s arousal, Defendants chose to depart from the

17 execution protocol without informing Wood’s counsel, the public, or the court. At the

18 18- and 24-minute marks, but without giving notice to any observers, Defendants

19 administered second and third doses of the midazolam-hydromorphone combination.

20 Neither the administration of the second and third doses, nor the subsequent twelve

21 doses, were visible to witnesses.

22

103. Defendants administered these secondary and tertiary doses to Wood

23 without first performing a consciousness check, as provided under the terms of the

24 written protocol.

25

104. Witnesses did not know that Defendants secretly were improvising with

26 the amounts of drugs they were injecting into Wood. It was obvious, however, that long

27 37 Patrick McNamara, Tucson Killer’s Execution Takes Two Hours, ARIZ. DAILY STAR 28 (July 23, 2014, 10:00 PM), http://tucson.com/news/state-and-regional/3ac6d417-866e-
5884-a09b-7244a9c18b46.html.

33

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 34 of 60

1 after the execution had begun, Wood was still alive. Roughly an hour after Defendants

2 had begun injecting the drugs, Wood’s counsel sought to stop Defendants from

3 proceeding any further. Because Defendants barred Wood’s counsel (though not

4 everyone present) from bringing cell phones to the execution or having cell phones near

5 the execution chamber, it took nine minutes before Wood’s counsel, accompanied by

6 ADC personnel, was provided with a phone to call co-counsel to begin the process of

7 contacting this Court. During this time, Defendants injected Wood with at least one

8 additional dose of midazolam and of hydromorphone.

9

105. Once this Court was contacted and a hearing commenced, Defendants

10 falsely represented the dosages they had administered to Wood. At one point, just over

11 100 minutes into Wood’s ordeal, Defendants told this Court that they had only injected

12 Wood twice when, by that time, they had actually injected him twelve times with each

13 drug.

14

106. The labeling instructions for midazolam state that doses of 1 to 2

15 milligrams should be administered over the course of three minutes. Defendants

16 ultimately administered Wood 750 milligrams of midazolam over 117 minutes—an

17 average of more than 6 milligrams per minute.

18

107. Defendants represented to the court, during the telephonic hearing in the

19 course of the execution, that Wood was “brain dead,” and thus beyond resuscitation or

20 experiencing pain. Defendants did not have available, or use, the medical equipment and

21 diagnostic techniques needed to diagnose brain death. In reality, Wood was not brain

22 dead, because if a person is drawing breaths without assistance, that person is not brain

23 dead, and Wood was visibly gasping.

24

108. Defendants also did not have on hand any of the drugs that could reverse

25 the effects of the drugs they had administered in case the execution did not proceed as

26 anticipated. Such drugs are well known and readily available to Defendants.

27

109. The reports of journalists who witnessed Wood’s execution describe

28 suffering and a lingering death beyond what the Constitution permits:

34

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 35 of 60

1

 “like a fish on shore gulping for air”;38

2



“gulp[ing] like a fish on land”;39

3

 “death by apnea”;40

4

 “a snoring, sucking, similar to when a swimming-pool filter starts

5

taking in air, a louder noise than I can imitate”;41 and

6

 “I saw a man who was supposed to be dead, coughing—or choking,

7

possibly even gasping for air.”42

8

110. Other news reports similarly describe Wood’s execution as one of agony:

9



“snoring, gasping and gurgling”;43

10

 “gasping and struggling to breathe”;44

11

 “in grotesque agony, choking his way to death”;45

12

 “another unexpectedly prolonged execution using disputed lethal

13

injection drugs”;46 and

14

15 38 Roberts, supra note 4.

16

39 Michael Kiefer, Reporter Describes Arizona Execution: 2 Hours, 640 Gasps, ARIZ.

REPUBLIC

(Nov.

6,

2014,

10:01

AM

),

17

http://www.azcentral.com/story/news/arizona/politics/2014/07/24/arizona-executionjoseph-wood-eyewitness/13083637/.

18 40 Id.

19 41 Id.

42 Mauricio Marin, Witness to a 2-hour Arizona Execution: Joseph Wood’s Final 117

20 Minutes,

GUARDIAN

(July

24,

2014,

7:35

AM),

21

http://www.theguardian.com/commentisfree/2014/jul/24/witness-arizona-executionjoseph-wood-died.

22 43 Editorial, Problems with Execution Drugs Must Be Solved, KNOXVILLE NEWS

SENTINEL

(July

28,

2014,

3:00

AM),

23 http://www.knoxnews.com/opinion/editorials/editorial-problems-with-execution-drugs-

must-be-solved_43109448.

24 44 Charles P. Pierce, It’s Time to End Our State-Sponsored Barbarism, ESQUIRE (July

25

24,

2014,

5:15

AM),

Another_Execution_Horror_Story.

http://www.esquire.com/blogs/politics/

26 45 James Poulos, Dysfunction and the Death Penalty, ORANGE CNTY. REGISTER (Aug. 9,

27

2014, 7:00 punishment.html.

AM),

http://www.ocregister.com/articles/death-631022-penalty-

28 46 Erik Eckholm, Arizona Takes Nearly 2 Hours to Execute Inmate, N.Y. TIMES, July 23, 2014, at A1.

35

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 36 of 60

1

 “[like] catch[ing] a fish and throw[ing] it on the shore, the way the

2

fish opens and closes its mouth.”47

3

111. Senator John McCain, a survivor of barbaric treatment during the Vietnam

4 War, initially described Wood’s execution as “torture.”48 Then-Governor Jan Brewer

5 issued a statement noting her “concern” about “the length of time it took for the

6 administered drug protocol” to kill Wood. Although she expressed her confidence in

7 ADC, Governor Brewer directed the ADC immediately to begin an investigation in light 8 of her concerns.49

9

112. That the Governor determined that an investigation was needed confirms

10 that Defendants did not, at any time, provide the media, the public, Wood’s counsel, or

11 the court with relevant facts concerning the planning for of the execution. Defendants

12 also prevented the witnesses of Wood’s execution from seeing, hearing, or learning

13 much of what transpired during the execution.

14

113. In the aftermath of Wood’s execution, on July 31, 2014, reporters from the

15 Arizona Republic again asked Defendants for information about Wood’s execution and

16 Defendants’ lethal-injection procedures. Defendants did not adequately respond.

17 Another public records request was sent to the Arizona Department of Corrections, on

18 June 2, 2015, and ADC spokesman Andrew Wilder responded to the reporter to confirm

19

20 47 Megan McCracken & Jennifer Moreno, Botched Executions Can’t Be New Norm,

21

CNN (Sept. 8, 2014, 7:14 AM), http://www.cnn.com/2014/07/26/opinion/mccrackenmoreno-botched-executions.

22 48 Burgess Everett, McCain: Arizona Execution ‘Torture’, POLITICO (July 24, 2014, 4:59

PM),

http://www.politico.com/story/2014/07/john-mccain-arizona-execution-

23 109350.html.

24

49 Id.; see also Press Release, Ariz. Dep’t of Corr., Independent Review Process for

Wood

Execution

Underway

(Aug.

1,

2014),

25

https://corrections.az.gov/article/independent-review-process-wood-executionunderway; Press Release, Ariz. Dep’t of Corr., Department of Corrections Statement on

26 Review

of

July

23

Execution

(July

24,

2012),

https://corrections.az.gov/article/department-corrections-statement-review-july-23-

27 execution; Press Release, Ariz. Dep’t of Corr., Convicted Murderer Joseph Wood

Executed (July 23, 2014), https://corrections.az.gov/article/convicted-murderer-joseph-

28 wood-executed. The company chosen for the review issued a report on December 15,

2014.

36

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 37 of 60

1 the request had been received. After the department failed to timely produce the

2 requested records, Republic reporter Michael Kiefer followed up with Wilder on June

3 12, 2015, and Wilder said the ADC “would be in touch.” That was the last Kiefer heard

4 from him. On October 21, 2015, Kiefer sent the identical request to the Arizona

5 Attorney General and was told the information sought had already been

6 released. However, the state never provided Kiefer with a copy of the requested

7 documents. Rather, the documents’ limited “release” was made only as part of discovery

8 in other litigation. The ADC has failed to respond to any further questions about the

9 requested documents or the state’s amended lethal injection protocol

10

114. Like the executions of Eva Dugan and Donald Harding, Wood’s execution

11 should mark a turning point. Arizona’s written execution procedures should not keep the

12 lethal injection process cloaked in secrecy, and defendants should follow the written

13 protocol.

14

D. Arizona’s Continued Refusal to Cabin Its Discretion and Provide

15

Transparency.

16

115. In the wake of Wood’s execution, Plaintiffs filed their First Amended

17 Complaint (“FAC”), on September 18, 2014, alleging a series of constitutional violations

18 flowing from Defendants’ pattern of botched executions, clandestine execution

19 processes, and repeated and arbitrary deviations from their written procedures.

20

116. On October 9, 2014, Defendants filed a motion to dismiss only four of

21 Plaintiffs’ nine claims.

22

117. On October 29, 2014, before ruling on the motion to dismiss, this Court

23 held a status conference hearing, during which this Court expressed concern about

24 Defendants’ pattern of broken promises, crisis litigation, and deviations from their

25 written procedures. At the end of the hearing, this Court ordered the parties to meet and

26 confer to implement ways to remedy the problems that have long plagued Arizona’s

27 death penalty regime, and litigation respecting that regime.

28

37

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 38 of 60

1

118. Consequently, the parties stipulated to stay this litigation until Defendants

2 published revised execution procedures. The parties further agreed that Defendants

3 would solicit Plaintiffs’ input on the new proposed procedures before publishing them.

4

119. On December 22, 2014, ADC announced in a press release the completion

5 of the investigation ordered by the Governor. The investigative report fails to address

6 who made the decision to deviate from the protocol and administer to Wood an

7 additional thirteen doses of midazolam/hydromorphone, and how the decision was made.

8 The press release indicated that ADC should “develop contingencies if a similar delay

9 occurs in the future.”

10

120. Not until September 23, 2015, nearly ten months after this Court stayed

11 this litigation, did Defendants finally transmit a draft of their revised procedures to

12 Plaintiffs. The revised procedures identify four separate drug protocols, none of which

13 involves a combination of midazolam and hydromorphone. The procedures also commit

14 to provide prisoners with qualitative information about the use of any compounded

15 pentobarbital, and agree to give notice at the time a warrant is sought of the chemicals

16 that Defendants would use for an execution.

17

121. On October 6, 2015, Plaintiffs transmitted to Defendants a set of proposed

18 modifications to Defendants’ revised procedures.

19

122. On October 8, 2015, pursuant to the parties’ stipulation, counsel for

20 Plaintiffs and Defendants met in person to confer about the revised procedures and

21 Plaintiffs’ proposed changes thereto.

22

123. During that meet-and-confer, Defendants did not identify which of the four

23 drug protocols they planned to use.

24

124. Nor did Defendants identify any expiration dates for midazolam or other

25 drugs in their possession.

26

125. Defendants also did not mention that, in July 2015, while the stay was in

27 place, they attempted to purchase and to unlawfully import 1,000 vials of sodium

28 thiopental, at a cost of $26,700, from an unlicensed seller in India. The FDA seized the

38

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 39 of 60

1 shipment upon arrival because, under Federal law, non-FDA-approved sodium

2 thiopental may not be imported into the United States. The press first reported 3 Defendants’ importation on October 22, 2015.50

4

126. As a result of the meet-and-confer discussion, Defendants published their

5 new Procedures, on October 23, 2015. Defendants accepted only a handful of Plaintiffs’

6 material proposals. Among them, Defendants agreed to provide a condemned prisoner’s

7 counsel with a workspace at the prison on the day of an execution and a telephone to be

8 used during an execution in the event that Court intervention is again needed.

9 Defendants also agreed to provide a qualitative report for any compounded chemical

10 used in an execution, rather than just pentobarbital. And Defendants agreed to allow

11 witnesses to observe the prisoner entering the execution chamber.

12

127. Defendants’ new Procedures continue to lack, however, elements falling

13 into three broad categories that are critical to the constitutionally permissible

14 administration of the death penalty in Arizona: namely, (1) cabining Defendants’

15 unbounded discretion, (2) providing the public and the prisoners with the transparency

16 required under the First, Eighth, and Fourteenth Amendments, and (3) ensuring that the

17 executions are humane and comport with the Eighth Amendment.

18

19

20 50 See Chris McDaniel & Chris Geidner, Arizona, Texas Purchased Execution Drugs

21

Illegally Overseas, But FDA Halts The Import, BUZZFEED NEWS (Oct. 22, 2015), http://www.buzzfeed.com/chrismcdaniel/arizona-texas-purchased-execution-drugs-

22

illegally#.mrxzamj9Q (reporting that Arizona Corrections Department contracted with Harris Pharma, a purported pharmaceutical manufacturer and distributor located in India,

23

to illegally import 1,000 vials of sodium thiopental from India, which the FDA seized at the airport); Tasneem Nashrulla, Chris McDaniel & Chris Geidner, Three States Bought

24

Illegal Execution Drugs From Supplier In India, BUZZFEED NEWS (Oct. 23, 2015), http://www.buzzfeed.com/tasneemnashrulla/three-states-bought-illegal-execution-drugs-

25

from-supplier-in#.smWva8A7RW (noting that Arizona paid Chris Harris of Harris Pharma $26,000 for 1,000 vials of sodium thiopental); Chris McDaniel & Tasneem

26 Nashrulla, This Is The Man In India Who Is Selling States Illegally Imported Execution

Drugs, BuzzFeed News (Oct. 20, 2015), http://www.buzzfeed.com/chrismcdaniel/this-

27 is-the-man-in-india-who-is-selling-states-illegally-imp#.qxvyzQM81

(describing

communications between four death penalty states and Chris Harris, the same drug

28 salesman in India who arranged Arizona’s illegal importation of sodium thiopental,

regarding the states’ purchase of sodium thiopental).

39

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 40 of 60

1

1. Unbounded Discretion.

2

128. Defendants’ new Procedures continue to grant them absolute and

3 unreviewable discretion to change the Procedures in any way, and at any time they

4 “determine[]” that “deviation or adjustment is required.” Defendants expressly

5 confirmed at the meet-and-confer with Plaintiffs that they believe their discretion

6 includes: (a) the discretion to use chemicals, combinations, and/or dosages not reflected

7 in the written Procedures, including the same combination of midazolam and

8 hydromorphone administered to Wood; (b) the discretion to change the chemicals to be

9 used, at any time and in any way, even after the death warrant has been sought and

10 obtained, and without notice to the prisoner; (c) the discretion to change any of the

11 purported timeframes that would otherwise protect the constitutional rights of

12 condemned prisoners, the public, and the press; and (d) the discretion to close the blinds

13 and/or otherwise obstruct the witnesses’ ability to view and hear the execution at any

14 time.

15

129. Defendants will continue to take advantage of this unfettered discretion to

16 alter critical aspects of the new Procedures at the last minute or even during executions.

17 Such discretion renders any other protection in the new Procedures meaningless.

18

130. Defendants’ unbounded discretion, on its own, violates the Constitution’s

19 protections for prisoners, the public, and the press. Notwithstanding the 35-page

20 document that Defendants, in litigation, have held out as identifying “exactly” how they

21 will execute their prisoners, Defendants, in practice, exercise unfettered discretion to

22 deviate from any portion of the Procedures, at any time, and in any way, without giving

23 notice to counsel and the courts while doing so, and thus defeating any meaningful effort

24 by the public, the prisoners, or the courts to subject the State’s executions to meaningful

25 oversight. Indeed, among the first words of the Procedures, in the section entitled

26 “Purpose,” the Procedures state that they “shall be followed as written unless deviation

27 or adjustment is required, as determined by the Director of the Arizona Department of

28

40

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 41 of 60

1 Corrections (Department). This Department Order outlines internal procedures and does

2 not create any legally enforceable rights or obligations.”

3

131. The Procedures also purport to retain the discretion “to change the

4 timeframes established” by the Procedures whenever there are (undefined) “exigent

5 circumstances.” In Landrigan’s execution, Defendants used this discretion to administer

6 drugs into Landrigan’s body after he was pronounced deceased. In King’s execution,

7 Defendants used this discretion to administer an additional dose of potassium chloride

8 despite failing to first conduct a consciousness check or administer additional sodium

9 thiopental. In Beaty’s execution, Defendants used this discretion to change the intended

10 drug merely 18 hours before the execution. For Moorman’s and Towery’s executions,

11 Defendants used this discretion to change the intended drug mere days before their

12 executions, and five hours before oral argument in the Court of Appeals. In Wood’s

13 execution, Defendants used this discretion to administer 13 injections more than the 14 Procedures had prescribed as a maximum.51 Without fundamental change, Defendants

15 will be free in future executions to “deviat[e from] or adjust[]” the Procedures again.

16

2. Concealment of Facts Critical to Due Process and the Public’s

Assessment of Arizona’s Death Penalty Regime.

17

132. Defendants’ Procedures also continue to shroud in secrecy much of their

18 execution processes

19

133. The Procedures themselves, because they are rules made by the ADC, are

20 exempt from Arizona’s Administrative Procedures Act. ARIZ. REV. STAT. ANN. § 41-

21 1005(A)(23). As a result, they were not required to undergo the notice and comment

22 protections that are required for other State regulations and that ensure that State

23 regulations afford due process to those affected by them. Moreover, as the above history

24 has demonstrated, Defendants’ discretionary changes to their Procedures have so far

25

26 51 The Procedures provide that: “If deemed appropriate, the Director may instruct the 27 Special Operations Team to administer an additional dose of the lethal chemical(s).”
ARIZ. DEP’T OF CORR., DEPARTMENT ORDER MANUAL, EXECUTION PROCEDURES, 28 attachment D, at 7 (Oct. 23, 2015) (emphasis added), available at
https://corrections.az.gov/sites/default/files/policies/700/0710_-_effective_10-23-15.pdf.

41

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 42 of 60

1 been shielded from meaningful judicial scrutiny.52 See, e.g., State v. Cook, 281 P.3d

2 1053, 1058 (Ariz. Ct. App. 2012) (noting that although ADC “has not yet violated the

3 Arizona Constitution’s separation of powers doctrine[,]” the court “underscore[s],

4 however, the concern [it has] regarding the Department’s past practice of altering the

5 protocol on a last-minute basis. If the Department were to continue the practice in such a

6 way as to unreasonably limit or hamper the courts from exercising meaningful judicial

7 review of its actions, then, depending on the facts, we might be presented with a

8 separation of powers violation.”).

9

134. Most critically, the new Procedures and the new Protocol C (a combination

10 of midazolam, a paralytic, and potassium chloride) hide critical information from the

11 public, the prisoners, and the press behind a pharmaceutical cloak.

12

135. Midazolam belongs to a class of drugs called benzodiazepines. Midazolam

13 has no pain-relieving effects, and it is not used as a sole agent to maintain

14 unconsciousness in painful procedures. Because of midazolam’s mechanism of action,

15 there is a point at which additional doses of midazolam cease to affect the central

16 nervous system (the brain and spinal cord). Midazolam, at any dose, will not reliably

17 keep a person insensate during the administration of painful stimuli.

18

136. Sodium thiopental and pentobarbital belong to a class of drugs called

19 barbiturates. The mechanism of action for barbiturates is different than that

20 for benzodiazepines. Unlike benzodiazepines, barbiturates can keep a person insensate

21 to painful stimuli and, in high doses, will cause death.

22

137. Defendants have now adopted and stated their intention to use a three-

23 drug protocol to execute the condemned plaintiffs that depends upon midazolam to

24 render them insensate to pain, upon a paralytic to prevent them from moving or

25 vocalizing, and upon potassium chloride to stop their hearts.

26 52 In contrast, California recently released a new set of proposed execution procedures, 27 which it submitted for public notice and comment. See Maura Dolan & Paige St. John,
California Proposes New Single-Drug Method for Executions, L.A. TIMES (Nov. 6, 28 2015, 1:45 PM), http://www.latimes.com/politics/la-me-pol-ca-execution-protocol-
20151105-story.html.

42

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 43 of 60

1

138. There is no valid governmental interest served by using the paralytic in an

2 execution. The paralytic’s suppression of breathing does not hasten the death

3 subsequently caused by the potassium, nor does it protect against the condemned

4 prisoner’s pain. If midazolam, despite its ceiling effect, actually were effective at

5 maintaining unconsciousness despite painful stimuli, then the paralytic would be a

6 gratuitous and arbitrary administration of an unwarranted chemical, amounting to an

7 assault and a battery of the prisoner; if midazolam is not effective, on the other hand,

8 then the paralytic serves a pernicious purpose—to mask the burning pain caused by a

9 lethal dose of potassium chloride, and the sensation of suffocation caused by the

10 paralytic itself. The paralytic prevents a prisoner from alerting observers, through sound

11 or movement, that he is experiencing pain and suffering.

12

139. Arizona’s public, and the Condemned Plaintiffs, have a right to know

13 whether midazolam reliably keeps prisoners unconscious and insensate to the pain of

14 potassium chloride. Defendants could not constitutionally carry out a painful execution

15 behind closed curtains; they similarly ought not be permitted to carry out a painful

16 execution behind a chemical curtain

17

140. The Procedures also do not allow any observers—not even counsel or just

18 one member of the press—to witness the entire execution visually or aurally. While the

19 IVs are being inserted behind closed curtains, witnesses can hear the proceedings but

20 must watch them only on a closed-circuit television screen. After the IVs are inserted,

21 the curtains open, but the television screens and audio feed are turned off. The

22 Procedures allow viewing curtains to be drawn at any point Defendants choose, thus

23 preventing public evaluation of the State’s actions, its real-time deviations from the

24 Procedures, and whether the prisoner is or has become aware of the procedure and is

25 substantially likely to be experiencing pain

26

141. Especially troubling, the Procedures do not allow real-time evaluation of

27 Defendants’ administration of the drugs, which takes place in a separate room. Because

28 much of the execution takes place out of sight or is obscured, witnesses do not have the

43

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 44 of 60

1 ability to confirm that Defendants have administered the correct53 and unexpired drugs

2 in the execution; witnesses cannot observe whether and when Defendants are

3 administering a drug called for in the Procedures; witnesses cannot observe which drug

4 (or saline) Defendants have selected for any given injection; and witnesses cannot

5 observe how many doses of drugs Defendants have administered. Absent such real-time

6 tracking, the press has no way effectively to report to the public how Arizona is carrying

7 out its executions and whether Arizona is following its written protocol, and counsel for

8 Condemned Plaintiffs has no way effectively to challenge Defendants’ representations

9 about what they are doing to a prisoner during an execution, and whether an execution

10 should be abandoned because the State has departed from the Procedures and the risks of

11 harm or indignity warrant such relief.

12

142. Before the execution takes place, moreover, the Procedures do not provide

13 a mechanism for notifying the prisoner of the qualifications and selection of the Special

14 Operations and IV Team members to administer the drugs selected for the execution, let

15 alone within a meaningful time-frame to allow for judicial review. Nor do the

16 Procedures provide for disclosure of the chain of custody and storage conditions of the

17 drugs procured for and to be used in the execution, thus defeating any ability of the

18 public to learn and prisoners to evaluate whether the drugs have been continuously

19 stored within, e.g., the temperature limits indicated on the drugs’ FDA-approved

20 labeling, or whether the drugs will have passed their expiration date by the time of the

21 scheduled execution.

22

3. Rejection of Safety Measures

23

143. Defendants’ Procedures also reflect a rejection of proposals from Plaintiffs

24 to make the State’s executions more humane. Those include requiring that any member

25 of the IV team possess certification or licensure that would at least meet the minimal

26
27 53 The Procedures provide that the “source of the execution chemicals” is confidential, ARIZ. DEP’T OF CORR., supra note 51, at 2, despite Schad and Jones’s success in
28 establishing that the source of the drugs is not and need not be confidential, and despite the lack of any detrimental impact from such disclosure.

44

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 45 of 60

1 qualifications necessary for IV insertion recommended by the Arizona State Board of

2 Nursing; and requiring that any member of the IV team charged with inserting a central

3 femoral line have experience with successfully inserting a central venous catheter under

4 clinical supervision.

5

144. The Procedures also do not require ADC to maintain, possess, and know

6 how to use the equipment, drugs, and procedures that would be needed to reverse or

7 ameliorate the effect of the administered drugs in the event the patient is suffering from

8 air hunger or pain caused by the potassium chloride, despite the ready availability of

9 drugs to reverse the effects of the drugs called for in Defendants’ Procedures.

10

* * *

11

145. In light of Defendants’ past failures and departures from the Procedures,

12 there is a substantial likelihood of immediate irreparable injury resulting from

13 Defendants’ violations of the Constitution. Change is required, and such change should

14 be ordered and supervised by this Court.

15

Exhaustion of Administrative Remedies

16

146. Condemned Plaintiffs do not believe that exhaustion is necessary under the

17 Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, because this suit does not

18 challenge prison conditions, and because there are no available administrative remedies

19 that could address the challenged constitutional violations. Despite the inapplicability of

20 the PLRA, Condemned Plaintiffs have exhausted all the remedies available to them in an

21 effort to resolve these issues.

22

23

24

25

26

27

28

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1

Claims for Relief

2 Claim One (by all Plaintiffs): By deliberately concealing the effects of midazolam

3

and potassium chloride behind a chemical curtain created by the paralytic, Defendants have violated Plaintiffs’ First Amendment right of access to

4 governmental proceedings, and have violated the Condemned Plaintiffs’ rights to be

5

free from severe harm, experimentation, and unnecessary body mutilation under the Eighth Amendment’s Cruel and Unusual Punishments Clause and the

6 Fourteenth Amendment’s Due Process Clause.

7

147. Plaintiffs incorporate by reference each and every statement and allegation

8 set forth throughout this Complaint as if fully rewritten here.

9

148. The First Amendment, made applicable to the states by the Fourteenth

10 Amendment, guarantees designated members of the public and the press a qualified right

11 of access to government proceedings, including executions.

12

149. The First Amendment also protects the right to petition the government for

13 redress of grievances including the right of access to the courts. That right of access to

14 the courts is especially critical for prisoners, because their access to other remedies is

15 limited. State action that denies a plaintiff the opportunity to litigate gives rise to a claim

16 that the state is violating the plaintiff’s right of access to the courts.

17

150. Defendants intend to use a three-drug protocol to execute the Condemned

18 Plaintiffs, using midazolam as the first drug, a paralytic as the second, and potassium

19 chloride as the third.

20

151. Defendants’ use of midazolam in a three-drug protocol cannot reliably

21 ensure that Petitioner will remain in a state in which he will be unable to experience pain

22 caused by the potassium chloride. Consequently, Defendants’ intended and imminent

23 use of the paralytic in the Condemned Plaintiffs’ executions will violate the Condemned

24 Plaintiffs’ rights under the Eighth and Fourteenth Amendment to be free from severe

25 pain, experimentation, and the gratuitous invasion of the body.

26

152. There is no governmental interest served by using a paralytic. The

27 paralytic drug, as used in the state’s protocol, does not serve the statutory function of

28 causing death, nor does it protect against the prisoner’s experience of pain. If midazolam

46

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 47 of 60

1 is not effective at maintaining unconsciousness despite painful stimuli, then the paralytic

2 only masks the immense pain caused by the potassium chloride; if midazolam is

3 effective, on the other hand, then the paralytic is, at best, a gratuitous and arbitrary

4 administration of an unwarranted and harmful chemical that has its own, non-visible

5 torturous effects.

6

153. Critically, through Defendants’ use of a paralytic as the second drug in

7 their midazolam-based protocol, Defendants deprive and have a policy of depriving

8 Plaintiffs of their First Amendment rights by preventing them from observing

9 midazolam’s efficacy at maintaining unconsciousness and the pain and suffering caused

10 by the administration of the paralytic itself and the third drug, potassium chloride, and, if

11 warranted, to challenge the constitutionality of that pain.

12

154. Obstructing the press and other witnesses from observing the reality of the

13 condemned prisoner’s experience of sequential injections of midazolam and potassium

14 chloride necessarily deprives the Arizona public of informed and accurate media

15 coverage of that critical event, and serves as a content-based restriction on important

16 expression. As such, Defendants’ use of the paralytic is subject to strict scrutiny, in

17 which the burden is on Defendants to show that it is narrowly tailored to bring about a

18 compelling interest. There is no compelling, nor legitimate, nor even rational reason for

19 this deprivation.

20

155. Defendants in future executions will continue to deprive Plaintiffs and

21 others similarly situated of their First Amendment rights, and will violate the

22 Condemned Plaintiffs’ Eighth and Fourteenth Amendment rights if Defendants are not

23 required to cease using the paralytic.

24 Claim Two (by Condemned Plaintiffs only): Defendants use of the paralytic, which

25

is at best superfluous and at worst masking immense pain, invades Condemned Plaintiffs’ liberty interests in bodily integrity protected by the Due Process Clause of

26 the Fourteenth Amendment.

27

156. Condemned Plaintiffs incorporate by reference each and every statement

28 and allegation set forth throughout this Complaint as if fully rewritten here.

47

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1

157. The Condemned Plaintiffs have a right under the Fourteenth Amendment

2 to be free from harmful and unwarranted administrations of drugs without a compelling

3 state interest for so doing. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849

4 (1992) (“It is settled now . . . that the Constitution places limits on a State’s right to

5 interfere with a person’s . . . bodily integrity.”); Cruzan v. Dir., Mo. Dep’t of Health, 497

6 U.S. 261, 278 (1990); Washington v. Harper, 494 U.S. 210, 229 (1990) (“The forcible

7 injection of medication into a nonconsenting person’s body represents a substantial

8 interference with that person’s liberty”); Rochin v. California, 342 U.S. 165, 173 (1952).

9

158. As set forth above, Defendants have made clear their intent to use a three-

10 drug protocol based on midazolam, a paralytic, and potassium chloride to execute the

11 Condemned Plaintiffs. Condemned Plaintiffs’ execution under that protocol is imminent.

12

159. As set forth above, the paralytic is at best entirely superfluous, and at

13 worst, masks immense pain. Defendants’ execution of Condemned Plaintiffs using a

14 drug protocol with midazolam as the first drug that involves a paralytic will be invasive,

15 offensive, disfiguring, and/or torturous.

16

160. Defendants have no rational basis, much less a compelling interest, for

17 executing Condemned Plaintiffs in this manner.

18 Claim Three (by Coalition only): By deliberately concealing necessary information

19

from the public and the media, Defendants have violated the Coalition’s First Amendment right of access to governmental proceedings.

20

21

161. The Coalition incorporates by reference each and every statement and

22 allegation set forth throughout this Complaint as if fully rewritten here. The Coalition

23 does not, however, assert claims based on alleged violations of the Eighth or Fourteenth

24 Amendments.

25

162. Defendants deprived the Coalition of its First Amendment rights by

26 preventing it from aurally and visually observing the full execution proceeding without

27 interruption, including observing the provenance and amounts of drugs actually used, the

28 timing and method of their administration, and their effect upon the prisoner—from the

48

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 49 of 60

1 time the prisoner is escorted to the execution chamber until the prisoner dies—and by

2 failing to disclose, in advance of the execution, details about the drugs used, the

3 rationale for the selection of these drugs and their dosages, the chain of custody in how

4 the drugs were obtained and stored, the qualifications and training of the persons

5 administering them, and Defendants’ ability to respond and preparation for responding

6 to complications. This obstruction, by extension, deprived the Arizona public of

7 informed and accurate media coverage of a critical event that is carried out in on the

8 public’s behalf.

9

163. Defendants will continue to deprive the Coalition, and others similarly

10 situated, of their First Amendment rights in future executions if Defendants are not

11 required to disclose the information described above and to allow witnesses

12 meaningfully to observe the entire execution procedure, including the details listed

13 above, both in preparation for the execution and from the moment the condemned

14 prisoner enters the execution chamber until the time the condemned prisoner is declared

15 dead.

16 Claim Four (by Condemned Plaintiffs only): By deliberately concealing necessary

17

information from Condemned Plaintiffs, Defendants have violated Condemned Plaintiffs’ First Amendment right to be informed about the manner in which

18 Defendants implement the most serious penalty available in the criminal justice

system. 19

20

164. Condemned Plaintiffs incorporate by reference each and every statement

21 and allegation set forth throughout this Complaint as if fully rewritten here.

22

165. Prisoners also have a First Amendment interest, no less powerful than that

23 of the public and the press, in being informed of the means by which the state intends to

24 carry out executions, especially where the prisoner has been condemned to death.

25

166. Defendants’ deliberate concealment of information that would enable

26 Condemned Plaintiffs to determine how Defendants intend to carry out their death

27 sentences, including by failing to disclose in advance of the execution details about the

28 drugs used, the rationale for the selection of these drugs and their dosages, the chain of

49

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 50 of 60

1 custody in how the drugs were obtained and stored, the qualifications and training of the

2 persons administering them, and Defendants’ ability to respond and preparation for

3 responding to complications, deprives Condemned Plaintiffs of their First Amendment

4 right of access to governmental proceedings. Defendants’ further decision to prevent

5 Condemned Plaintiffs’ counsel and other witnesses from aurally and visually observing

6 the full execution proceeding without interruption, including the provenance and

7 amounts of drugs actually used, the timing and method of their administration, and their

8 effect upon the prisoner, deprives Condemned Plaintiffs of their First Amendment right

9 of access to governmental proceedings.

10

167. Defendants will continue to deprive Condemned Plaintiffs of their First

11 Amendment rights if Defendants are not required to provide timely access and disclosure

12 to prisoners scheduled for execution as described above.

13 Claim Five (by Condemned Plaintiffs only): By deliberately concealing necessary

14

information from Condemned Plaintiffs regarding the violation of the Eighth Amendment, Defendants have violated Condemned Plaintiffs’ First Amendment

15 right to petition the government for redress of grievances.

16

168. Condemned Plaintiffs incorporate by reference each and every statement

17 and allegation set forth throughout this Complaint as if fully rewritten here.

18

169. Defendants’ refusal to adhere to the Procedures as written and to provide

19 Condemned Plaintiffs with information sufficient to enable them to determine how

20 Defendants intend to execute them violates Condemned Plaintiffs’ First Amendment

21 right to petition the government for redress of grievances.

22

170. The First Amendment right to petition the government for redress of

23 grievances includes the right of access to the courts.

24

171. The right of access to the courts is especially critical for prisoners, because

25 their access to other remedies is limited.

26

172. State action that denies a plaintiff the opportunity to litigate gives rise to a

27 claim that the state is violating the plaintiff’s right of access to the courts.

28

50

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 51 of 60

1

173. The right of access to the courts is an ancillary claim, which is necessary

2 for the vindication of underlying rights.

3

174. By deliberately concealing information about the efficacy of midazolam

4 and the pain caused by an execution (through use of the paralytic), the specific drugs,

5 expiration dates, provenance, storage, dosages, administration technique, and other

6 details about how Defendants intend to execute Condemned Plaintiffs, and by retaining

7 absolute discretion to change at any time and without notice how Condemned Plaintiffs

8 will die, Defendants have erected a condition that frustrates Condemned Plaintiffs’

9 ability to litigate their claims relating to the constitutionality of their executions. This

10 frustrating condition deprives Condemned Plaintiffs of their First Amendment right to

11 petition the government for redress of grievances. This frustrating condition also

12 deprives Condemned Plaintiffs of their due-process right of access to the courts, as well

13 as their ability to challenge the constitutionality of their executions under the Eighth

14 Amendment and Fourteenth Amendment.

15

175. Indeed, Defendants’ repeated mistakes in past executions establish that a

16 condemned prisoner needs much more detailed information, and much sooner, than

17 Defendants currently provide—and needs to be able to depend on the fact that such

18 information will not change during litigation or before his execution—in order to

19 effectively assess whether there is a substantial risk that the prisoner will suffer physical

20 harm, a lingering death, or some other cruel and unusual means of execution.

21

176. Defendants’ deliberate concealment of information that would enable

22 Condemned Plaintiffs to determine how Defendants intend to carry out their death

23 sentences, including information relating to lethal-injection drugs, Defendants’ plans and

24 reasons for the dosages they intend to administer, the competence, training, and

25 authority of Defendants to handle controlled substances, and the qualifications of the

26 execution personnel, deprives Condemned Plaintiffs of their right not to be deprived of

27 their lives without due process of law, and their ability to determine whether Defendants

28

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Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 52 of 60

1 are capable of carrying out Condemned Plaintiffs’ executions in a lawful, constitutional

2 manner.

3 Claim Six (by Condemned Plaintiffs only): Defendants’ past experimentation and

4

improvisation with unprecedented methods and dosages of drugs amounts to a cruel and unusual punishment, in violation of the Eighth Amendment’s Cruel and

5 Unusual Punishments Clause and the Fourteenth Amendment’s Due Process

Clause. 6

177. Condemned Plaintiffs incorporate by reference each and every statement 7

and allegation set forth throughout this Complaint as if fully rewritten here. 8

178. Defendants have created, maintained, and implemented lethal-injection 9

protocols, procedures, practices, customs, and training and execution methods that they 10

intend to use to execute Condemned Plaintiffs. As designed and applied, Defendants’ 11

lethal-injection execution Procedures are constitutionally flawed. Defendants have no 12

legitimate penological justification for adopting lethal-injection Procedures that make it 13

sure or very likely that Defendants will needlessly and gratuitously inflict severe pain 14

and a lingering death on Condemned Plaintiffs. 15

179. The excessive discretion vested in ADC, Defendants’ proven failure to 16

adhere to any stable and reliable method of execution, and Defendants’ improvised 17

decision to give Wood thirteen doses more than was permitted under the Procedures, 18

demonstrate that each execution carried out by Defendants constitutes an experiment 19

conducted on prisoners to determine how they react to drugs intended to kill them. This 20

violates the Eighth and Fourteenth Amendments’ guarantee of dignity even in 21

punishment, and the right to be free from unusual punishments. 22

180. Defendants’ freedom to experiment on Condemned Plaintiffs pursuant to 23

the Procedures violates Condemned Plaintiffs’ rights under the Eighth Amendment and 24

their rights to substantive and procedural Due Process under the Fourteenth Amendment 25

of the United States Constitution. 26

27

28

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Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 53 of 60

1 Claim Seven (by Condemned Plaintiffs only): Defendants’ refusal to abide by the
2 notice provisions in their Procedures deprives Condemned Plaintiffs of their right to know and challenge their method of execution, in violation the Fourteenth
3 Amendment’s Due Process Clause.

4

181. Condemned Plaintiffs incorporate by reference each and every statement

5 and allegation set forth throughout this Complaint as if fully rewritten here.

6

182. Defendants’ Procedures arbitrarily, irrationally, and without a compelling

7 State interest, deny Condemned Plaintiffs their right to know how ADC intends to

8 execute them.

9

183. By deliberately concealing information about the specific drugs, expiration

10 dates, provenance, storage, dosages, administration technique, and other details about

11 how ADC intends to execute Condemned Plaintiffs, and by refusing to agree to be

12 bound by the notice provisions in their Procedures, Defendants have deprived

13 Condemned Plaintiffs of their right to notice and an opportunity to be heard, in violation

14 of the Due Process Clause of the Fourteenth Amendment. Condemned Plaintiffs have no

15 meaningful opportunity to challenge the method of execution or the drugs or dosages

16 selected if, as in Wood’s case, they and the courts are given grossly inaccurate,

17 undependable, or likely-to-change information as to the amount or type of drugs that will

18 be used.

19 Claim Eight (by Condemned Plaintiffs only): Defendants’ pattern of deviating from

20

their Procedures and exercising thei discretion in inhumane ways increases the risk of being subjected to an unusual or lingering death, in violation the Fourteenth

21 Amendment’s Equal Protection Clause.

22

184. Condemned Plaintiffs incorporate by reference each and every statement

23 and allegation set forth throughout this Complaint as if fully rewritten here.

24

185. The Fourteenth Amendment to the United States Constitution requires that

25 similarly situated persons be treated alike, and further requires that a state’s practices

26 and procedures concerning fundamental rights be administered in a nonarbitrary fashion.

27

28

53

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 54 of 60

1

186. Condemned Plaintiffs, individually, are each a “class of one,” similarly

2 situated relative to one another and to any other prisoner facing execution in Arizona

3 because all such individuals face execution under the Procedures.

4

187. Defendants’ Procedures concern prisoners’ fundamental rights, including

5 the right to be free from cruel and unusual punishment.

6

188. Defendants’ unfettered discretion to follow or not follow their Procedures

7 at will and without a principled basis for determining when deviations are warranted

8 means that Defendants have (and will) apply their Procedures to Condemned Prisoners

9 in an arbitrary fashion, leading to disparate treatment across executions.

10

189. Where disparate treatment burdens a fundamental right, strict scrutiny

11 applies, and the state action will be upheld only if the state can show that such action is

12 narrowly drawn to serve a compelling state interest.

13

190. Further, where a state has purported to provide procedures governing the

14 administration of a process affecting fundamental rights, the state cannot arbitrarily or

15 selectively deviate from those procedures once it has provided them, even if not

16 constitutionally mandated a priori.

17

191. Defendants have created, maintained, and implemented lethal-injection

18 protocols, procedures, practices, customs, and training and execution methods that they

19 intend to use to execute Condemned Plaintiffs. As designed and applied, Defendants’

20 lethal-injection execution Procedures are constitutionally flawed. Defendants have no

21 legitimate penological justification, nor rational basis, nor compelling state interest in

22 permitting Defendants to, at whim, administer any amount, of any drug, without notice,

23 to a prisoner who is being executed.

24

192. The Procedures provide no guidelines or standards for determining when

25 and under what circumstances such distinctions may be warranted. Clear standards must

26 exist, and arbitrary deviations from those standards result in equal protection violations.

27 Defendants have adopted Procedures that codify unbridled discretion and arbitrary

28

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Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 55 of 60

1 treatment. Deviation is the standard, as demonstrated by Defendants’ administration of

2 Wood’s execution.

3

Prayer for Relief

4 Wherefore, the Coalition and Condemned Plaintiffs jointly pray for:

5 1. Temporary, preliminary, and permanent injunctive relief to enjoin the

6

Defendants, their officers, agents, servants, employees, and all persons acting in

7

concert with them from concealing execution-related, non-personally identifying

8

information that the Coalition and Condemned Plaintiffs require in order to

9

ensure their First Amendment right of access to governmental proceedings,

10

including but not limited to:

11

a. The efficacy of midazolam and the pain caused by potassium chloride,

12

which Defendants conceal through use of a paralytic;

13

b. The manufacturer(s) and other suppliers of the lethal-injection and other

14

drugs that Defendants will or may use in Condemned Plaintiffs’

15

executions;

16

c. The lot numbers of the lethal-injection and other drugs that Defendants

17

will or may use in Condemned Plaintiffs’ executions;

18

d. The National Drug Codes (“NDCs”) of the lethal-injection and other drugs

19

that Defendants will or may use in Condemned Plaintiffs’ executions;

20

e. The expiration dates of the lethal-injection and other drugs that Defendants

21

will or may use in Condemned Plaintiffs’ executions;

22

f. Documentation (not including personally identifying information)

23

establishing that each person who will handle controlled substances in the

24

executions have the appropriate DEA authorization to do so;

25

g. Documentation sufficient to establish from whom the drugs were

26

purchased;

27

h. Documentation sufficient to establish what efforts Defendants made,

28

including unsuccessful efforts, to obtain drugs for use in executions;

55

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 56 of 60

1

i. Documentation sufficient to establish where and how the drugs that have

2

been and/or are proposed to be used for executions have been or will be

3

transported and stored, at all stages from the point of purchase to their use

4

in an execution;

5

j. Documentation (not including personally identifying information)

6

establishing that those who will be responsible for inserting any IVs are

7

qualified to do so;

8

k. The precise dosage and administration process of the lethal-injection drugs

9

that Defendants will or may use in Condemned Plaintiffs’ executions;

10

l. The rationale for Defendants’ selection of the drugs, dosages, and process

11

it will use in Condemned Plaintiffs’ executions;

12

m. The ability for witnesses to observe visually and aurally the entirety of an

13

prisoner’s execution, unfettered, from the time that the prisoner is brought

14

into the death chamber, and before any procedures are begun or needles or

15

intravenous lines administered, until death; and

16

n. Information detailing emergency contingency procedures and the

17

qualifications of personnel who are expected to intervene if medical

18

intervention is necessary;

19

2. An order granting Plaintiffs their reasonable attorneys’ fees under 42 U.S.C.

20

§ 1988 and the laws of the United States; and

21

3. Any such other relief as the Court deems just and proper.

22 The Condemned Plaintiffs additionally pray for:

23

4. An order declaring that Defendants’ current means, methods, practices,

24

procedures, and customs regarding execution by lethal injection violate the

25

First, Eighth, and Fourteenth Amendments to the United States Constitution;

26

5. Temporary, preliminary, and permanent injunctive relief barring Defendants

27

from executing Condemned Plaintiffs under the current or any future protocol,

28

so long as such execution would violate Condemned Plaintiffs’ federal

56

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 57 of 60

1

constitutional rights under the First, Eighth, and Fourteenth Amendments to

2

the United States Constitution;

3

6. Temporary, preliminary, and permanent injunctive relief to enjoin the

4

Defendants, their officers, agents, servants, employees, and all persons acting

5

in concert with them from concealing information that is not related to the

6

identification of persons participating in executions, and that is necessary to

7

ensure Condemned Plaintiffs’ First Amendment right to petition the

8

government for redress of grievances, including but not limited to:

9

a. The efficacy of midazolam and the pain caused by potassium chloride,

10

which Defendants conceal through use of a paralytic

11

b. The manufacturer(s) and other suppliers of the lethal-injection drugs that

12

Defendants will or may use in Condemned Plaintiffs’ executions;

13

c. The lot numbers of the lethal-injection drugs that Defendants will or may

14

use in Condemned Plaintiffs’ executions;

15

d. The NDCs of the lethal-injection drugs that Defendants will or may use in

16

Condemned Plaintiffs’ executions;

17

e. The expiration dates of the lethal-injection drugs that Defendants will or

18

may use in Condemned Plaintiffs’ executions;

19

f. Documentation (not including personally identifying information)

20

establishing that each person who will handle controlled substances in the

21

executions have the appropriate DEA authorization to do so;

22

g. Documentation sufficient to establish from whom the drugs were

23

purchased;

24

h. Documentation sufficient to establish what efforts Defendants made,

25

including unsuccessful efforts, to obtain drugs for use in executions;

26

i. Documentation sufficient to establish where and how the drugs that have

27

been and/or are proposed to be used for executions have been or will be

28

57

Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 58 of 60

1

transported and stored, at all stages from the point of purchase to their use

2

in an execution;

3

j. Documentation (not including personally identifying information)

4

establishing that those who will be responsible for inserting any IVs are

5

qualified to do so;

6

k. The precise dosage and administration process of the lethal-injection drugs

7

that Defendants will or may use in Condemned Plaintiffs’ executions;

8

l. The rationale for Defendants’ selection of the dosages and process it will

9

use in Condemned Plaintiffs’ executions;

10

m. The ability for Condemned Plaintiffs’ counsel to observe visually and

11

aurally the entirety of a prisoner’s execution, unfettered, from the time that

12

the prisoner is brought into the death chamber, and before any procedures

13

are begun or needles or intravenous lines administered, until death; and

14

n. Information detailing emergency contingency procedures and the

15

qualifications of personnel who are expected to intervene if medical

16

intervention is necessary;

17

7. Appropriate and necessary discovery and an evidentiary hearing to permit

18

Condemned Plaintiffs to prove their constitutional claims;

19

8. Appointment of an independent monitor to assess Defendants’ creation of and

20

adherence to a constitutional execution protocol;

21

9. An order granting Condemned Plaintiffs their reasonable attorneys’ fees under

22

42 U.S.C. § 1988 and the laws of the United States; and

23

10. Any such other relief as the Court deems just and proper.

24

25

26

27

28

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Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 59 of 60

1 Respectfully submitted this 26th day of January, 2016.

2 Jon M. Sands

3

Federal Public Defender

4

District of Arizona Dale A. Baich

5

Robin C. Konrad

6

s/ Dale A. Baich

7

Counsel for Plaintiffs Charles Michael

Hedlund; Graham S. Henry; David

8

Gulbrandson; Robert Poyson; Todd Smith;

9

Eldon Schurz, and Roger Scott

10

Mark E. Haddad (admitted pro hac vice)

11

Joshua E. Anderson (admitted pro hac vice)

Alycia A. Degen (admitted pro hac vice)

12

Aimee G. Mackay (admitted pro hac vice)

13

Katherine A. Roberts (admitted pro hac vice)

Collin P. Wedel (admitted pro hac vice)

14

Matt Light (admitted pro hac vice)

15

SIDLEY AUSTIN LLP

16

s/ Mark E. Haddad

17

Counsel for Plaintiffs First Amendment Coalition of Arizona, Inc.; Charles Michael

18

Hedlund; Graham S. Henry; David

19

Gulbrandson; Robert Poyson; Todd Smith; Eldon Schurz; and Roger Scott

20

21

22

23

24

25

26

27

28

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Case 2:14-cv-01447-NVW Document 94 Filed 01/26/16 Page 60 of 60

1

Certificate of Service

2

I hereby certify that on January 26, 2016, I electronically filed the foregoing

3 Second Amended Complaint for Violations of 42 U.S.C. § 1983 and Equitable,

4 Injunctive, and Declaratory Relief with the Clerk’s Office by using the CM/ECF system.

5 I certify that all participants in the case are registered CM/ECF users and that service

6 will be accomplished by the CM/ECF system.

7

8

9 s/ Chelsea Pitman
10 Legal Assistant 11 Capital Habeas Unit

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

60

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 First Amendment Coalition of Arizona, Inc.; No. CV-14-01447-PHX-NVW Charles Michael Hedlund; Graham S. Henry;
10 David Gulbrandson; Robert Poyson; Todd ORDER Smith; Eldon Schurz; and Roger Scott,
11 Plaintiffs,
12 v.
13
Charles L. Ryan, Director of ADC; James 14 O’Neil, Warden, ASPC – Eyman; Greg
Fizer, Warden, ASPC – Florence; and Does 15 1-10, Unknown ADC Personnel, in their 16 official capacities as Agents of ADC,

17

Defendants.

18

19

20

This action challenges Arizona’s way of executing death row inmates. Before the

21 court is Defendants’ motion to dismiss Plaintiffs’ second amended complaint, argued on

22 April 7, 2016. (Doc. 98.) The motion will be granted in part and denied in part.

23

Plaintiffs are seven Arizona death row inmates and the First Amendment Coalition

24 of Arizona, Inc., a non-profit corporation made of news organizations dedicated to free

25 speech, accountable government, and public participation in civic affairs. (Doc. 97, ¶

26 10.) The second amended complaint raises eight claims under 42 U.S.C. § 1983. (Doc.

27 97.) Plaintiffs challenge Arizona’s execution process and its “lack of transparency,”

28 including the use of a paralytic agent in the three-drug lethal injection protocol, on First

1 Amendment, Eighth Amendment, due process, and equal protection grounds. (Id. at 3.)

2 The defendants are the Director of the Arizona Department of Corrections and two

3 wardens. They will be referred to as “the Department” or “the State,” the entities

4 answerable for their actions. They move to dismiss the complaint pursuant to Rule

5 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which

6 relief can be granted.

7

8 I. LEGAL STANDARD

9

A motion to dismiss is a challenge to the legal sufficiency of the plaintiff’s

10 pleadings. Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal

11 theory” or “the absence of sufficient facts alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint need 12
include “only enough facts to state a claim to relief that is plausible on its face.” Bell 13
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 14
On such a motion, all allegations of material fact are assumed to be true and 15
construed in the light most favorable to the non-moving party. Cousins v. Lockyer, 568 16
F.3d 1063, 1067 (9th Cir. 2009). However, that does not apply to legal conclusions or 17
conclusory factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare 18
recitals of the elements of a cause of action, supported by mere conclusory statements, do
19 not suffice.” Id. “A claim has facial plausibility when the plaintiff pleads factual content
20 that allows the court to draw the reasonable inference that the defendant is liable for the

21 misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability

22 requirement,’ but it asks for more than a sheer possibility that a defendant has acted

23 unlawfully.” Id. The details of the complaint must permit the court to infer more than a

24 mere possibility of conduct for which the law gives a remedy. Id. If the plaintiff’s

25 pleadings fall short of this standard, dismissal is warranted.

26

27 II. BACKGROUND

28

Arizona law requires execution by lethal injection for capital crimes committed

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1 after 2000, A.R.S. § 13-757(A), which “shall be administered under such procedures and

2 supervision as prescribed by law.” Ariz. Const. art. XXII § 22. In fact, nothing in the

3 Arizona Revised Statutes or the Arizona Code of Regulations states any other substantive

4 standards or procedural requirements for executions. The Department states its protocols

5 in a Departmental Order which, though generally written in mandatory language, allows

6 the Department to deviate anytime in any way it thinks necessary.

7

A. Arizona’s Current Execution Procedures

8

The execution procedures of the Arizona Department of Corrections are set forth

9 in Department Order 710, which became effective on October 23, 2015. (Doc. 98, Ex.

10 A.) Department Order 710 allows four lethal injection protocols: two one-drug protocols

11 using pentobarbital or sodium pentothal (Protocols A and B) and two three-drug

12 protocols, one using midazolam as a sedative (Protocol C) and one using sodium

13 pentothal (Protocol D). Protocols C and D both use a paralytic as the second drug, to be

14 administered before the final drug, potassium chloride. At issue in this litigation is

15 Protocol C, which consists of (1) 500 mg of midazolam, (2) 100 mg of vecuronium

16 bromide, rocuronium bromide, or pancuronium bromide, and (3) 240 mEq of potassium

17 chloride.

18

In three-drug lethal injection protocols such as Protocol C, the first drug is

19 intended to produce a state of unconsciousness such that the prisoner is insensate to pain

20 that would be caused by the later drugs. See Glossip v. Gross, 135 S. Ct. 2726, 2741

21 (2015). The second drug “is a paralytic agent that inhibits all muscular-skeletal

22 movements and, by paralyzing the diaphragm, stops respiration.” Baze v. Rees, 553 U.S.

23 35, 44 (2008). The third drug “interferes with the electrical signals that stimulate the

24 contractions of the heart, inducing cardiac arrest.” Id. “It is uncontested that, failing a

25 proper dose of [the first drug] that would render the prisoner unconscious, there is a

26 substantial, constitutionally unacceptable risk of suffocation from the administration of

27 pancuronium bromide and pain from the injection of potassium chloride.” Id. at 53.

28

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1

Midazolam is a sedative in the benzodiazepine family of drugs. (Doc. 97, ¶ 135.)

2 Arizona, along with other states, included midazolam in its lethal injection protocol when

3 the barbiturates sodium thiopental and pentobarbital became unavailable. (Id., ¶¶ 32–38.)

4

B. Recent Changes to and Deviations from Arizona’s Execution

5

Procedures

6

Although Department Order 710 establishes execution procedures, the first

7 paragraph retains discretion to deviate from the procedures whenever deemed necessary.

8 The clause states:

9

These procedures shall be followed as written unless deviation or

adjustment is required, as determined by the Director of the Arizona

10

Department of Corrections (Department). This Department Order outlines

11

internal procedures and does not create any legally enforceable rights or

obligations.

12

13 (Doc. 98, Ex. A at 002.) This clause was not included in the version of Department

14 Order 710 effective November 5, 2004, Dickens v. Brewer, 07-CV-01770-NVW, Doc.

15 108-1 at 26, but similar provisions have been included since at least 2008, id. at 2.

16

In recent history, the Department has deviated from its published execution

17 procedures in ways ranging from minor to fundamental. It has successfully defended

18 litigation in district court based on the Protocol as written but then deviated before the

19 execution. It has changed its Protocol at oral argument in the court of appeals, showing

20 the litigation in district court was hypothetical, to get a favorable ruling from which to

21 negotiate with the court of appeals about what it really will do. It has deviated in the

22 course of an execution without explanation.

23

In 2007, the State sought a warrant of execution for Jeffrey Landrigan. (Doc. 97,

24 ¶¶ 50–51.) While the application for the warrant was pending, several inmates filed a

25 complaint challenging the lethal injection procedures then in effect. Dickens v. Brewer,

26 07-CV-01770-NVW. During that litigation, the Department amended its protocol twice

27 after conducting discovery. (Doc. 97, ¶ 52.) The Department agreed to amend its

28 protocol to address the concerns plaintiffs raised. The court ultimately granted summary

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1 judgment for the Department, finding that when considering the Department’s averments

2 and promises in its briefing and oral argument, the protocol was substantially similar to

3 that upheld in Baze. (Id.)

4

The State again sought a warrant of execution for Landrigan. (Id., ¶ 53.) The

5 Department’s protocol still prescribed a three-drug combination with sodium thiopental

6 as the first chemical. (Id.) By this time, however, the vendors relucted and a nationwide

7 shortage of sodium thiopental developed. The Department refused to disclose the

8 provenance of the drug it intended to use except to confirm that it was not manufactured

9 by Hospira, the only FDA-approved domestic manufacturer. (Id., ¶¶ 54–55.) The district

10 court granted a temporary stay of execution to allow Landrigan to challenge the use of

11 non-FDA-approved sodium thiopental, Landrigan v. Brewer, 10-CV-2246-ROS, Doc. 21,

12 and the Ninth Circuit affirmed. (Doc. 97, ¶ 56.) The Supreme Court then vacated the

13 stay, and Landrigan was executed. (Id.) After Landrigan was declared dead, the

14 Department continued to inject additional doses of backup chemicals into his body until

15 the physician-executioner warned that further injections could rupture his vena cava.

16 (Id.)

17

Following Landrigan’s execution, the Ninth Circuit heard oral argument in

18 Dickens. 631 F.3d 1139 (9th Cir. 2011). The record included testimony that a medical

19 team member responsible for carrying out executions “knowingly ‘improvised’ the doses

20 of lethal injection drugs, adhered to no set protocol, and kept no records of procedures.”

21 Id. at 1147. During oral argument, however, the Department contended that any

22 deficiencies in its protocol had been cured and that it was purely speculative to believe

23 that they would not follow their procedures in the future. (Doc. 97, ¶ 59.)

24

Eric King’s execution took place in March 2011. (Id., ¶ 61.) After the three-drug

25 combination was administered, however, King was injected with an additional dose of

26 both potassium chloride and sodium thiopental. (Id.) No consciousness check was

27 performed before the additional dosages were administered. (Id., ¶ 131.)

28

Donald Beaty’s execution was set for May 25, 2011. (Id., ¶ 62.) Eighteen hours

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1 before it was to begin, the Department notified Beaty that it would substitute sodium

2 thiopental with pentobarbital. (Id.) The Arizona Supreme Court permitted the execution

3 to proceed, based on the State’s avowal that the only change was the drug substitution.

4 (Id.) Justice Hurwitz dissented, observing that Beaty’s application was occasioned “by

5 the State’s last-minute decision to substitute one barbiturate for another, and we have

6 been compelled to address this issue literally overnight.” (Id.)

7

The State executed Richard Bible in June 2011 and scheduled Thomas West’s

8 execution for July 19, 2011. (Id., ¶¶ 63–64.) Three days before West’s execution,

9 several inmates filed a lawsuit charging that the Department would not follow its written

10 protocol. West v. Brewer, 11-CV-1409-NVW. Specifically, the plaintiffs alleged that the

11 Department failed to conduct required trainings, failed to obtain drugs from a safe and

12 reputable source, and failed to administer drugs through peripheral instead of femoral

13 lines. (Doc. 97, ¶ 64.) The court denied the request to enjoin West’s execution. The

14 Ninth Circuit affirmed, relying specifically on counsel’s representations that the protocol

15 adopted during the Dickens litigation would be followed. (Id., ¶ 65.) West was executed,

16 but the litigation filed on his behalf (among others) proceeded. After discovery and trial,

17 the court denied relief. (Id., ¶ 66.)

18

One month later, the Department adopted a new lethal injection protocol, which

19 spurred another lawsuit by inmates scheduled for execution. Towery v. Brewer, 12-CV-

20 00245-NVW. Questions were raised regarding the qualifications of execution team

21 members, placement of IV lines, and inmates’ access to counsel on the morning of their

22 execution. (Doc. 97, ¶ 68.) The Court denied relief and the inmates appealed. (Id.,

23 ¶ 69.) The Ninth Circuit scheduled oral argument for 4:00 p.m. on February 27, 2012.

24 (Id.) Five hours before oral argument, the Department notified the plaintiffs that it

25 intended to change the method of execution to one dose of pentobarbital because the

26 pancuronium bromide it intended to use had expired six weeks before. (Id., ¶ 70.)

27

During oral argument, the Department shifted course and made several

28 representations on how the protocol would be changed to ensure team members were

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1 qualified and that IV lines were properly placed. (Id., ¶ 71.) The Department also agreed

2 to allow inmates access to counsel on the morning of their executions. (Id.) The Ninth

3 Circuit affirmed the denial of relief based on the representations of counsel during oral

4 argument. (Id., ¶ 72.) Robert Towery was executed on March 8, 2012. (Id., ¶ 74.) A private autopsy
5 revealed that he was punctured at least eleven times in an attempt to locate a vein. (Id., ¶
6 77.) Towery also communicated by code to his attorneys while he was speaking his last
7 words. (Id., ¶ 75.) He indicated that the execution team made numerous attempts to set
8 the IV lines and that he had been prevented from speaking with counsel. (Id.)

9 On April 25, 2012, Thomas Kemp was executed. (Id., ¶ 78.) Despite the

10 prominence of good veins, he was punctured at least three times, including once in the

11 femoral area and at least twice over the left upper extremity. (Id.)

12

A few days after Kemp’s execution, Samuel Lopez filed a motion for preliminary

13 injunction to stay his May 1, 2012 execution. (Id., ¶ 79.) The district court denied relief.

14 (Id.) The Ninth Circuit affirmed but warned the Department that its constant deviation

15 from its established procedures could not continue. (Id.)

16

On March 26, 2014, the Department adopted a new protocol, which included the

17 combination of 50 mg of midazolam and 50 mg of hydromorphone. (Id., ¶ 90.) The next

18 prisoner to be executed under this protocol was Joseph Wood. (Id.) Wood and other

19 inmates scheduled for execution filed this action. The district court denied a motion to

20 stay Wood’s execution, but the Ninth Circuit conditionally stayed the execution until the

21 Department disclosed the name and provenance of the drugs to be used and the

22 qualifications of the medical personnel. (Id., ¶ 94.) The Supreme Court reversed and

23 vacated the conditional stay. (Id., ¶ 97.)

24

Wood’s execution commenced on July 23, 2014, at 1:52 p.m. (Doc. 26 at 1.)

25 Twelve minutes into his execution, after first appearing sedated, Wood “rose upwards

26 against his restraints and gulped for air.” (Doc. 97, ¶ 101.) At the 18- and 24-minute

27 marks, the Department administered second and third doses of the midazolam-

28 hydromorphone combination, without performing a consciousness check as provided

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1 under the written protocol. (Id., ¶¶ 102–03.) By approximately 100 minutes after the

2 execution began, the Department had injected Wood 12 times with each drug. (Id., ¶

3 105.) Finally, after nearly two hours and a total of 15 injections, Wood was pronounced

4 dead. (Id., ¶ 100.)

5

On September 18, 2014, the inmates filed their first amended complaint, which the

6 First Amendment Coalition joined as an additional plaintiff. (Doc. 53.) The parties

7 stipulated to stay the action until the Department published their revised execution

8 procedures. (Docs. 67, 68.) The new procedures were published on October 23, 2015.

9 (Doc. 73.) On motion of the Department, the court lifted the stay on December 20, 2015,

10 as to Protocol C, the only one for which the Department has the drugs. (Doc. 85.) On 11 January 12, 2016, the Court lifted the stay in its entirety. (Doc 89.) The Department 12 agreed not to seek warrants of execution until the completion of this litigation as to the 13 form of execution the State seeks to use, and it was so ordered. (Id.) Plaintiffs filed their 14 second amended complaint on January 29, 2016. (Doc. 97.) This motion to dismiss 15 followed.

16

17 III. DISCUSSION

18

The Supreme Court has emphasized that “because it is settled that capital

19 punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional]
20 means of carrying it out.’” Glossip, 135 S. Ct. at 2732–33 (quoting Baze, 553 U.S. at
47). The court views the claims and the motion to dismiss with this principle in mind. 21
The pharmaceutical manufacturers’ withdrawal of the best drugs from use in executions 22
does not end capital punishment. 23
A. Eighth Amendment: Midazolam and Paralytic (Claim 1) 24

25

In Claim 1, the inmates allege that Protocol C, with its use of midazolam followed

26 by a paralytic, violates their Eighth Amendment rights. They allege that “midazolam . . .

27 cannot reliably ensure that Petitioner [sic] will remain in a state in which he will be

28 unable to experience pain caused by the potassium chloride.” (Doc. 97, ¶ 151.) They

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1 allege that midazolam “has no pain-relieving effects, and it is not used as a sole agent to

2 maintain unconsciousness in painful procedures.” (Id., ¶ 135.) They further allege that

3 midazolam has a ceiling effect, “a point at which additional doses of midazolam cease to

4 affect the central nervous system (the brain and spinal cord),” and that midazolam, “at

5 any dose, will not reliably keep a person insensate during the administration of painful

6 stimuli.” (Id.) In contrast to midazolam, “[s]odium thiopental and pentobarbital belong

7 to a class of drugs called barbiturates. The mechanism of action for barbiturates is

8 different than that for benzodiazepines. Unlike benzodiazepines, barbiturates can keep a

9 person insensate to painful stimuli and, in high doses, will cause death.” (Id., ¶ 136.)

10

The inmates allege, therefore, that use of the paralytic, which causes pain on its

11 own “through slow suffocation” (id., ¶ 5) and masks pain resulting from the potassium

12 chloride, violates their “rights under the Eighth and Fourteenth Amendments to be free

13 from severe pain, experimentation, and the gratuitous invasion of the body.” (Id., ¶ 151.)

14

The relevant law is set forth in Baze and Glossip. To succeed on an Eighth

15 Amendment method-of-execution claim, a prisoner must make two showings. First, he

16 must establish that the method presents a risk that is “sure or very likely to cause serious

17 illness and needless suffering, and give rise to sufficiently imminent dangers.” Baze, 553

18 U.S. at 50 (quotations omitted). “[T]here must be a substantial risk of serious harm, an

19 objectively intolerable risk of harm that prevents prison officials from pleading that they

20 were subjectively blameless for purposes of the Eighth Amendment.” Id. (quotations

21 omitted).

22

Second, the prisoner “must identify an alternative that is ‘feasible, readily

23 implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’”

24 Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 52). The prisoner must do more

25 than “show[] a slightly or marginally safer alternative.” Id. (quoting Baze, 553 U.S. at

26 51).

27

The inmates argue that midazolam fails to maintain unconsciousness and it is

28 “sure or very likely” that the paralytic will “cause serious illness and needless suffering.”

- 9 -

1 If, on the other hand, midazolam does achieve sedation and prevent the experience of

2 pain, then use of the paralytic is, in their view, “gratuitous, violative of bodily integrity,

3 and ‘unusual.’” (Doc. 102 at 3.)

4

As a feasible alternative, the inmates cite removal of the paralytic from the

5 protocol, which will “eliminat[e] the substantial likelihood of awareness of suffocation-

6 through-paralysis.” (Id. at 4.) They also suggest that alternatives to midazolam, such as

7 pentobarbital, are readily available. (Id., n.4.)

8

The Department contends that the decisions in Glossip and Baze foreclose relief

9 on this ground. In Glossip, the Supreme Court considered a lethal injection protocol

10 identical to Protocol C. The Court found that the district court, which held a three-day

11 evidentiary hearing on the petitioners’ motion for a preliminary injunction, “did not

12 commit clear error when it found that midazolam is highly likely to render a person

13 unable to feel pain during an execution.” 135 S. Ct. at 2739.

14

In Baze, the Court addressed a three-drug protocol involving the use of sodium

15 thiopental as the first drug, followed by the paralytic and potassium chloride. The Court

16 rejected the petitioners’ argument that the second drug, pancuronium bromide, “serves no

17 therapeutic purpose while suppressing muscle movements that could reveal an inadequate

18 administration of the first drug.” 553 U.S. at 57. The Court found that that use of the

19 paralytic “does not offend the Eighth Amendment,” explaining that the paralytic serves

20 two purposes: (1) it “prevents involuntary physical movements during unconsciousness

21 that may accompany the injection of potassium chloride,” thereby serving the state’s

22 “interest in preserving the dignity of the procedure, especially where convulsions or

23 seizures could be misperceived as signs of consciousness or distress,” and (2) “stops

24 respiration, hastening death.” Id. at 57–58.

25

The inmates counter that the holdings in Glossip and Baze are not dispositive.

26 They note that Glossip did not consider a challenge to the paralytic, while Baze

27 considered the paralytic in the context of a different sedative—sodium thiopental, a

28 barbiturate, which the petitioners conceded would “eliminate any meaningful risk” of

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1 pain from injection of the subsequent drugs. Baze, 553 U.S. at 49. Noting the posture in

2 which the case reached the Supreme Court, the inmates also contend that Glossip “did not

3 enshrine one court’s findings after an emergency injunction hearing as scientific fact

4 beyond challenge, let alone endorse midazolam’s constitutionality in all cases.” (Doc.

5 102 at 3–4.)

6

The inmates’ arguments are well taken. Neither Baze nor Glossip is dispositive of

7 their Eighth Amendment claims. The inmates challenge Protocol C, alleging that

8 midazolam is not reliable as a sedative, which means the paralytic will mask the inmate’s

9 pain. In Baze, by contrast, there was no dispute that the first drug, sodium thiopental,

10 would render the inmate insensate to pain caused by the paralytic and the potassium

11 chloride. 553 U.S. at 49.

12

Glossip does not foreclose relief. Glossip held only that the district court did not

13 clearly err in denying a preliminary injunction based on the evidence before it. Here, the

14 inmates indicate they will present substantial new evidence challenging midazolam’s

15 efficacy as a sedative. (Doc. 102 at 4.) Glossip underscores that this is a fact-based

16 inquiry, and the inmates are entitled to present evidence in support of the allegations. See

17 Glossip, 135 S. Ct. at 2740 (explaining that “an inmate challenging a protocol bears the

18 burden to show, based on evidence presented to the court, that there is a substantial risk

19 of severe pain”) (emphasis added).

20

The inmates have stated an Eighth Amendment claim that is plausible on its face.

21 Assuming the alleged material facts as true and construing them in the light most

22 favorable to the inmates, Claim 1 adequately alleges that Protocol C, by calling for a

23 paralytic after an ineffective sedative, is very likely to cause serious illness and needless

24 suffering. Baze, 553 U.S. at 50. The inmates have also adequately alleged that removing

25 the paralytic from the three-drug protocol is a feasible, readily implemented alternative

26 that would significantly reduce a substantial risk of severe pain. Id. at 52. They also

27 allege that alternatives to midazolam, such as pentobarbital, are readily available. (Doc.

28 102 at 4 n.4.)

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1

B. Failure to Follow the Department’s Protocols

2

The inmates challenge the Department’s recurring and substantial deviations from

3 its execution protocols as both cruel and unusual punishment and denial of procedural

4 due process.

5

1. Eighth Amendment (Claim 6)

6

The inmates allege that the Department’s “excessive discretion” and “proven

7 failure to adhere to any stable and reliable method of execution” violate the Eighth

8 Amendment. (Doc. 97, ¶ 179.) They argue that “Defendants’ past experimentation and

9 improvisation with unprecedented methods and dosages of drugs amount to cruel and

10 unusual punishment.” (Id. at 52.)

11

In support of this claim, the inmates cite the discretionary clause in Arizona’s

12 current execution protocol allowing for “deviation or adjustment” where “required, as

13 determined by the Director.” (Doc. 97, ¶ 130 (quoting Doc. 98, Ex. A at 002).) The

14 inmates also cite the Department’s deviations from the protocol and “broken promises” in

15 previous executions, most prominently Wood’s. (Id., ¶¶ 72, 131.)

16

In Arthur v. Thomas, 674 F.3d 1257, 1263 (11th Cir. 2012), the Eleventh Circuit

17 held that “[s]ignificant deviations from a protocol that protects inmates from cruel and

18 unusual punishment can violate the Eighth Amendment.” See also Cooey v. Kasich, 801

19 F. Supp. 2d 623, 653–54 (S.D. Ohio 2011) (explaining that core deviations in protocol

20 burden inmate’s fundamental right to be free from cruel and unusual punishment). This

is because “[s]ubjecting individuals to a risk of future harm—not simply actually 21

inflicting pain—can qualify as cruel and unusual punishment.” Arthur, 674 F.3d at 1263 22
(quoting Baze, 553 U.S. at 49). In Arthur, the prisoner alleged that in a previous 23
execution the execution team failed to perform the required consciousness check after 24
injection of the first drug. 674 F.3d at 1263. The court deemed it “plausible” that a 25
similar failure could occur in the prisoner’s own pending execution, in part “because the 26
protocol is not certain and could be unexpectedly changed for his execution.” Id.
27

28

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1

This cause of action is narrower than perhaps the inmates hope. It cannot be cruel

2 and unusual punishment for the Department to fail to plan ahead for every minor

3 contingency. If the inmates are challenging the Department’s ability to exercise

4 discretion even for minor, routine contingencies, that challenge fails. But the inmates’

5 principal challenge is to the Department’s failure to commit to, and its deviation from,

6 central aspects of the execution process once adopted. Those unlimited major deviations

7 and claims of right to deviate threaten serious pain.

8

The inmates allege here that the required consciousness check was not performed

9 during Wood’s execution and that there have been numerous other deviations from the

10 written protocol during recent executions, including the multiple dosages administered to

11 Wood. (Doc. 97, ¶¶ 103, 131.) In the inmates’ view, such deviations affect “critical

12 aspects” of the execution process. (Id., ¶ 129.) They claim the Department will continue

13 to deviate from its protocol because the discretionary clause permits it. (Id., ¶¶ 129–30.)

14

This claim is plausible in light of the broad language of the discretionary clause

15 and the Department’s pattern and practice of making major changes at any time, even

16 after litigation is concluded in the district court. Sometimes the Department just fails to

17 comply with its announced protocols without changing them. The Department’s history

18 of last minute deviations from critical aspects of its announced execution process is the

19 gist of this Eighth Amendment claim. The fact that the Department has discretion over

20 execution procedures may not, by itself, create a risk of serious pain. The inmates’

21 allegations are tied to the unique facts in Arizona. These allegations, presumed true at

22 this stage, support the inmates’ fear that the Department’s prior conduct was not just an

23 “isolated mishap,” Baze, 553 U.S. at 35, but rather creates a substantial risk of serious

24 harm in their own upcoming executions.

25

2. Procedural Due Process (Claim 7)

26

The inmates also claim that the Director’s unfettered discretion and pattern of

27 deviating from the execution protocol violate their procedural due process rights under

28 the Fourteenth Amendment. (Doc. 97, ¶¶ 182–83; Doc. 102 at 14–15.) This claim

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1 overlaps with their Eighth Amendment claim, but it ultimately aims to vindicate the

2 inmates’ ability to protect their Eighth Amendment rights.

3

A case can be made for a procedural due process right to know ahead of time the

4 critical aspects of the intended execution. The Eighth Amendment protects inmates from

5 execution methods that pose a substantial risk of serious pain if another available method

6 would significantly reduce the risk. For this protection to have effect, inmates must be

7 able to challenge critical aspects of their own execution. The “right to be heard before

8 being condemned to suffer grievous loss of any kind . . . is a principle basic to our

9 society.” Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter,

10 J., concurring). The only meaningful time that an inmate can challenge the method of his

11 own execution is before he is executed. “There is no redo.” Lopez v. Brewer, 680 F.3d

12 1084, 1092 (Berzon, J., concurring in part and dissenting in part from denial of rehearing

13 en banc).

14

There is, however, no right, substantive or procedural, to have every question

15 about executions answered ahead of time. For example, in Jones v. Commissioner,

16 Georgia Department of Corrections, 811 F.3d 1288, 1293 (11th Cir.), cert. denied sub

17 nom. Jones v. Bryson, 136 S. Ct. 998 (2016), the plaintiff sought the identity of the

18 manufacturer of the drugs Georgia intended to use to execute him, contrary to Georgia’s

19 secrecy statute prohibiting such disclosure. Plaintiff contended this prohibition violated

20 his due process rights. Noting that no other circuit had recognized such a right to

21 manufacturer identity, the Eleventh Circuit denied relief. Id.

22

Similarly, in Trottie v. Livingston, 766 F.3d 450, 452 (5th Cir.), cert. denied, 135

23 S. Ct. 41 (2014), the State of Texas disclosed the type, amount, and expiration date of the

24 drug to be used, and the fact that independent laboratory testing confirmed the potency

25 and purity of the drug; it also confirmed that the execution would be carried out in

26 conformity with its prior thirty-three executions. Id. The court found that the inmate’s

27 speculation “that there are unknowns regarding the drug to be used which may add an

28 unacceptable risk of pain and suffering” was insufficient to warrant general discovery

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1 into the process. Id.

2

At issue here is not a general due process right to information about critical

3 aspects of the execution; the State has already volunteered that information. The question

4 is whether an inmate’s due process rights are violated when a state provides information

5 about an execution protocol but then carries out the execution in a manner that

6 fundamentally differs from that protocol. This practice has different fairness and due

7 process dimensions than the oft-rejected claim to general discovery based on speculative

8 concerns.

9

A pre-execution challenge to an execution method is meaningful only if the inmate

10 knows what he is challenging. An inmate cannot be expected to raise challenges to the

11 electric chair, for example, if he is told he will face a firing squad. Basic fairness should

12 not allow a state to evade Eighth Amendment scrutiny by misdirecting an inmate into

13 challenging an execution protocol that will not, in fact, be used. A death row inmate has

14 a due process interest in notice of critical changes to his method of execution in time to

15 raise applicable Eighth Amendment challenges.

16

The strength of the inmate’s due process interest depends on the magnitude of the

17 change at issue and the imminence of the execution. Fundamental changes to an

18 execution process are more likely to have far-reaching or unintended consequences and,

19 thus, more likely to trigger new Eighth Amendment concerns. Similarly, last-minute

20 changes afford less opportunity for critical investigation and therefore present a greater

21 risk of introducing preventable harm.

22

Against the inmate’s interest in predictability must be weighed the State’s interest

23 in flexibility. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (weighing individual’s

24 interest in additional procedures against government’s contrary interest). The strength of

25 the State’s interest depends on the circumstances. The State has a strong interest in being

26 able to change inherently variable aspects of the execution process, such as the placement

27 of an IV line, immediately before or during an execution. Ordinary medical

28 contingencies may demand it. The State may also have a strong interest in being able to

- 15 -

1 change major aspects of the process, such as the type of drugs used, in advance of an

2 execution. Market forces or medical advances may warrant it.

3

In some cases, the State’s change to an inmate’s execution method may be so

4 significant, so near the date of execution, and so unsupported by state interests, that it

5 denies the inmate the process he is due in order to raise an Eighth Amendment challenge.

6

The inmates claim this is such a case. They allege that the Department has made

7 significant changes in the execution process at the last minute, with no meaningful

8 opportunity to be heard, resulting in a constitutionally intolerable risk of pain. They

9 anticipate a similar fate because the discretionary clause in the State’s current protocol

10 allows for similar deviations. This discretion is not limited to any particular aspects of,

11 or stages in, the execution process.

12

The inmates’ claim is plausible in light of the breadth of the discretionary clause

13 and the recent instability of important aspects of Arizona’s execution procedures. Indeed,

14 the Ninth Circuit foreshadowed this claim, putting the State on notice that “[u]nless

15 permanent changes are made in the manner in which Arizona amends its protocols,

16 Arizona’s ongoing conduct may require [the court] to monitor every execution on an ad

17 hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to

18 execute inmates sentenced to death.” Towery v. Brewer, 672 F.3d 650, 653 (9th Cir.

19 2012). Judge Reinhardt, in his dissent from the denial of rehearing en banc in Lopez v.

20 Brewer, noted, “Over and over again, judges of this court have told the state that its

21 cavalier defiance of due process must end.” 680 F.3d at 1095 (Reinhardt, J., dissenting).

22

Thus, against the backdrop of the Department’s failure to follow its own written

23 protocol, Jones, Trottie, and other cases offer no guidance. Contrary to the Department’s

24 contention, the allegations here are more than “mere speculation.” (Doc. 98 at 15.) As

25 observed during the Lopez and Towery litigation, the Department has failed in material

26 ways to follow its written protocol in many of the executions in the last nine years. This

27 history, coupled with the unlimited discretion retained by the Director, gives rise to a

28 plausible claim that the Department’s ad hoc application of its execution protocol violates

- 16 -

1 the inmates’ right to procedural due process under the Fourteenth Amendment.

2 Defendants’ motion to dismiss Claim 7 is denied.

3

C. First Amendment (Claims 1, 3, 4, and 5)

4

Plaintiffs’ First Amendment arguments take several forms. In Claim 1, the

5 inmates and the Coalition allege that the Department’s use of a paralytic violates their

6 First Amendment rights “by preventing them from observing midazolam’s efficacy at

7 maintaining unconsciousness and the pain and suffering caused by the administration of

8 the paralytic itself and the third drug, potassium chloride, and, if warranted, to challenge

9 the constitutionality of that pain.” (Doc. 97, ¶ 153.) They also allege that use of the

10 paralytic prevents the press and public from “observing the reality” of the prisoner’s

11 experience of the injections of midazolam and potassium chloride, and serves as a

12 “content-based restriction on important expression.” (Id., ¶ 154.)

13

In Claim 3, the Coalition alleges that the Department unconstitutionally prevents

14 them from aurally and visually observing the full execution proceeding, including the

15 provenance and amounts of drugs used, the timing and method of their administration,

16 their effect upon the prisoner, the details about the drugs, the rationale for the selection of

17 the drugs and dosages, the chain of custody of the drugs, and the qualifications of the

18 people administering them. (Id., ¶¶ 162–63.) In Claim 4, the inmates allege that lack of

19 access to this information violates their right to be informed of the method of execution.

20 (Id., ¶¶ 165–67.)

21

In Claim 5, the inmates allege that the Department’s failure to adhere to the

22 written protocol and failure to provide information concerning the drugs violates their

23 right to access to the courts and to petition the government for redress of grievances. (Id.,

24 ¶¶ 169–176.)

25

1. California First Amendment Coalition

26

“Neither the First Amendment nor the Fourteenth Amendment mandates a right of

27 access to government information or sources of information within the government’s

28 control.” Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (plurality opinion). The

- 17 -

1 Supreme Court “has never intimated a First Amendment guarantee of a right of access to

2 all sources of information within government control.” Id. at 9; see McBurney v. Young,

3 133 S. Ct. 1709, 1718 (2013) (“This Court has repeatedly made clear that there is no

4 constitutional right to obtain all the information provided by FOIA laws.”).

5

There is, however, a First Amendment right of public access to governmental

6 proceedings. See California First Amendment Coalition v. Woodford, 299 F.3d 868, 873

7 (9th Cir. 2002) (“It is well-settled that the First Amendment guarantees the public—and

8 the press—a qualified right of access to governmental proceedings.”); Press–Enterprise

9 Co. v. Superior Court, 478 U.S. 1, 8–14 (1986). Whether the public has a First

10 Amendment right of access to particular governmental proceedings is informed by two

11 considerations: (1) “whether the place and process have historically been open to the

12 press and general public” and (2) “whether public access plays a significant positive role

13 in the functioning of the particular process in question.” Press-Enterprise, 478 U.S. at 8–

14 9.

15

In California First Amendment Coalition v. Woodford, the Ninth Circuit

16 considered a regulation that prohibited witnesses from viewing the execution until after

17 the inmate had entered the chamber, the IV had been inserted, and the execution team

18 members had left the chamber. 299 F.3d at 871. The court found the regulation was an

19 “exaggerated, unreasonable response to prison officials’ legitimate concerns about the

20 safety of prison staff and thereby unconstitutionally restricts the public’s First

21 Amendment right to view executions from the moment the condemned is escorted into

22 the execution chamber.” Id. at 870–71. The court explained that the regulation “prevents

23 the public from having any first-hand knowledge of the events that take place behind the

24 curtain.” Id. at 883. For example, witnesses could “not observe the condemned inmate’s

25 demeanor as he enters the execution chamber, has intravenous lines inserted into his body

26 and realizes that the saline solution has begun to flow” or “the manner of the guards as

27 they restrain the prisoner.” Id. “Because witnesses cannot see first-hand the manner in

28 which the intravenous lines are injected, they will not be privy to any complications that

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1 may arise during this initial, invasive procedure.” Id.

2

The Ninth Circuit applied Press-Enterprise to executions and held the press and

3 the public have a First Amendment right to view execution proceedings from the moment

4 the condemned enters the execution chamber to the time he is pronounced dead. Id. at

5 885–86. The court first found that “historical tradition strongly supports the public’s

6 First Amendment right to view the condemned as the guards escort him into the chamber,

7 strap him to the gurney and insert the intravenous lines.” Id. at 876.

8

With respect to the functional role of public access to executions, the court

9 reasoned:

10

To determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable

11

information about the “initial procedures,” which are invasive, possibly

12

painful and may give rise to serious complications. This information is best gathered first-hand or from the media, which serves as the public’s

13

surrogate. . . . Accordingly, the same functional concerns that drove the

14

Court to recognize the public’s right of access to criminal trial proceedings compel us to hold that the public has a First Amendment right to view the

15

condemned as he enters the execution chamber, is forcibly restrained and

fitted with the apparatus of death. 16

17 Id. at 876–77 (citations omitted); see Associated Press v. Otter, 682 F.3d 821, 822–26

18 (9th Cir. 2012) (holding that media corporations were likely to prevail on the merits of

19 their claim that Idaho violated the First Amendment by denying their right to witness all

20 stages of executions, including the prisoner’s entry into the execution chamber and

21 insertion of IV lines).

22

2. Right to Know the Efficacy of Midazolam (Claim 1)

23

The plaintiff inmates and the Coalition argue that their First Amendment rights are

24 violated because the paralytic acts as a “chemical screen” that hides the effects of the

25 lethal injection drugs. (Doc. 102 at 6.) In support of this claim, they rely exclusively on

26 California First Amendment Coalition. As described below, however, that case

27 established only a public right to view the execution, including the injection of the drugs.

28

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1

3. Right to Know Other Details of the Execution (Claims 3 and 4)

2 The plaintiff inmates and the Coalition allege the Department violates their First

3 Amendment right of access to governmental proceedings by concealment of facts such as

4 the source, quality, and amounts of drugs used in executions, and the timing, method, and

5 effect of the administration of the drugs. These allegations are insufficient to state a

6 plausible First Amendment claim.

7

Department Order 710 satisfies California First Amendment Coalition by allowing

8 the public “to view the condemned as he enters the execution chamber, is forcibly

9 restrained and fitted with the apparatus of death.” 299 F.3d at 876. Witnesses are able to

10 observe the prisoner entering the execution chamber. (See Doc. 97, ¶ 126.) The protocol

11 provides, “At the designated time, the overhead microphone will be turned on and the

12 inmate will be brought into the execution room . . . . [C]losed-circuit monitors will allow

13 witnesses in the designated witness room to observe this process.” (Doc. 98, Ex. A at

14 030.) “[C]losed-circuit monitors will allow witnesses in the designated witness room to

15 observe the IV Team’s vein assessment and placement of IV catheters in the inmate.”

16 (Id. at 031.) Accordingly, witnesses can see the prisoner’s demeanor, the manner of the

17 guards, and the way in which the IVs are inserted. California First Amendment

18 Coalition, 299 F.3d at 883.

19

Plaintiffs allege that the execution chamber curtain is closed during this process,

20 and opened only after the IVs are inserted, at which point the monitors and microphone

21 are turned off. (Doc. 97, ¶ 140.) Even if true, these facts do not render the procedures

22 deficient under California First Amendment Coalition, because witnesses are able to view

23 the entire execution, either through closed circuit monitors or when the execution

24 chamber curtain is opened.

25

California First Amendment Coalition did not address a right of access to

26 information about lethal injection drugs, the development of lethal injection protocols,

27 the qualification of the execution team, the effects of the paralytic, or any of the other

28 information Plaintiffs seek. No precedent extends California First Amendment Coalition

- 20 -

1 to information preceding the inmate’s entrance into the execution chamber. Indeed, no

2 other Circuit has followed California First Amendment Coalition even as far as it does

3 go.

4

This court previously denied a preliminary injunction based on Plaintiff Wood’s

5 claim of a First Amendment right of access to information about the lethal injection drugs

6 and execution team personnel. (Doc. 21.) The Ninth Circuit reversed, enjoining Wood’s

7 execution, but the United States Supreme Court vacated the injunction without dissent.

8 Wood v. Ryan, 759 F.3d 1076, 1088 (9th Cir.), vacated, 135 S. Ct. 21 (2014).

9

Other circuits and lower courts have rejected the First Amendment claim made

10 here. In Wellons v. Comm’r, Georgia Dept. of Corrections, 754 F.3d 1260 (11th Cir.

11 2014), the Eleventh Circuit considered an inmate’s claim that the state’s failure to

12 provide information about his execution violated his First Amendment right of access to

13 governmental proceedings. The court denied the claim, explaining:

14

Neither the Fifth, Fourteenth, or First Amendments afford Wellons the

broad right “to know where, how, and by whom the lethal injection drugs

15

will be manufactured,” as well as “the qualifications of the person or

16

persons who will manufacture the drugs, and who will place the catheters.”

. . . Wellons has not established a substantial likelihood of success on the

17

merits of his claim that the dearth of information regarding the nature of the

18

pentobarbital that will be used in his execution and the expertise of those who will carry it out violates the First Amendment or his right to due

19

process.

20 Id. at 1267 (quotation omitted)

21

In Zink v. Lombardi, 783 F.3d 1089, 1112 (8th Cir. 2015), the Eighth Circuit

22 rejected the prisoners’ claim of a First Amendment right to information concerning the

23 source of compounded pentobarbital. The court first noted that it had never “ruled that an

24 execution constitutes the kind of criminal proceeding to which the public enjoys a

25 qualified right of access under the First Amendment.” Id. The court then explained that

26 even if Press-Enterprise did apply to executions, as the Ninth Circuit held in California

27 First Amendment Coalition, the prisoners still failed to state a First Amendment claim:

28

- 21 -

1

In sum, the prisoners fail to state a claim of a qualified right of public

2

access to information regarding the source of the compounded

pentobarbital to be used in their executions because they do not plausibly

3

allege a history of openness to the general public. The complaint likewise

4

provides no basis to conclude that public access to detailed information about execution protocols plays a significant positive role in the functioning

5

of the process in question, given that the practical effect of public

6

disclosure would likely be frustration of the State’s ability to carry out lawful sentences.

7 Id. at 1113.
8 The California First Amendment Coalition measure of First Amendment right is
9 “whether the public has a First Amendment right to view executions.” 299 F.3d at 873
10 (emphasis added). “The public and press historically have been allowed to watch the
11 condemned inmate enter the execution place, be attached to the execution device and then
12 die.” Id. at 876. There is no allegation here that the press and general public have
13 historically had greater visual or aural access to executions than that provided by
14 Department Order 710, or access to information concerning the provenance of the drugs

15 or the qualifications of the execution team members. See Zink, 783 F.3d at 1112 (citing

16 Wood, 759 F.3d at 1093–95 (Bybee, J., dissenting)); Oklahoma Observer v. Patton, 73

17 F.Supp.3d 1318, 1328 (W.D. Okla. 2014).

18

The public’s First Amendment right to view court proceedings does not reach back

19 to sitting in on the police’s, the prosecutor’s, or the judge’s preparation for the

20 proceeding. Nor does it reach behind an execution to learn everything about the

21 execution to come. If an inmate has rights to such information, they come out of the

22 Eighth Amendment, perhaps as aided by procedural due process in an appropriate case,

23 not the First Amendment. The press has no such right, not without the Court making new

24 law that extends beyond historical practice and legal authority.

25

4. Failure to Follow Protocols and Inmate’s Right of Access to

26

the Courts (Claim 5)

27

The inmates allege that the Department, by concealing information about the

28 execution drugs, violates their right of access to the courts and their ability to challenge

- 22 -

1 the constitutionality of their executions. Courts have consistently rejected these claims of

2 right of access to the courts. See Wellons, 754 F.3d at 1264, 1267; Phillips v. DeWine, 92

3 F. Supp. 3d 702, 715 (S.D. Ohio 2015) (dismissing right to petition and right of access

4 claims); Schad v. Brewer, No. CV-13-2001-PHX-ROS, 2013 WL 5551668, at *9 (D.

5 Ariz. Oct. 7, 2013) (rejecting argument that “Defendants’ concealment of the drug

6 information violates their right to due process and meaningful access to the courts by

7 preventing them from discovering whether they have a colorable claim that their

8 executions will be carried out in violation of the Eighth Amendment”). “The right of

9 access to the courts does not include a right to discover causes of action or to litigate

10 effectively once in court.” Schad, 2013 WL 5551668, at *9 (citing Lewis v. Casey, 518

11 U.S. 343, 354 (1996)).

12

Plaintiffs’ First Amendment claims lack a cognizable legal theory and do not

13 allege facts sufficient under a cognizable legal theory. Balistreri, 901 F.2d at 699. The

14 Department’s motion to dismiss these claims is granted.

15

D. Substantive Due Process: Paralytic as Arbitrary and Not Medically

Appropriate (Claim 2)

16

17

The inmates allege that the Department’s use of a paralytic invades their liberty

18 interest in bodily integrity under the Due Process Clause of the Fourteenth Amendment.

19 (Doc. 97, ¶¶ 157–60.) They assert that the “paralytic is at best entirely superfluous, and

20 at worst, masks immense pain”; that a three-drug protocol using the paralytic “will be

invasive, offensive, disfiguring, and/or torturous”; and that “Defendants have no rational 21

basis” for using such a protocol. (Id., ¶¶ 159, 160.) They argue that because the paralytic 22
“serves no legitimate purpose,” its use is “arbitrary” and “shocks the conscience.” (Doc. 23
102 at 8.) 24

25

First, as already noted, the Supreme Court in Baze found that the paralytic, which

26 was used in the three-drug execution protocol of at least 30 states, 553 U.S. at 44, serves

27 two legitimate purposes, maintaining the dignity of the procedure and hastening death.

28 Id. at 57–58. Administration of a paralytic as the second drug after an effective agent of

- 23 -

1 unconsciousness in a three-drug lethal injection protocol is not so arbitrary that it shocks

2 the conscience. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (“[O]nly the

3 most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’”)

4 (quoting Collins v. Harker Heights, 503 U.S. 115, 129 (1992)).

5

Next, in support of this substantive due process claim, the inmates rely on

6 Washington v. Harper, 494 U.S. 210 (1990), and Johnson v. Meltzer, 134 F.3d 1393,

7 1397 (9th Cir. 1998). Harper held that there is “a significant liberty interest in avoiding

8 the unwanted administration of antipsychotic drugs under the Due Process Clause of the

9 Fourteenth Amendment.” 494 U.S. at 221–22. Johnson explained that Harper and

10 Riggins v. Nevada, 504 U.S. 127 (1992), another “‘substantive due process’ case[]

11 involving the nonconsensual administration of medication,” stand for the proposition that

12 “due process requires that if a doctor gives a drug to an inmate without his consent, the

13 drug must be medically appropriate.” 134 F.3d at 1397.

14

These cases are inapposite. In Chavez v. Florida SP Warden, 742 F.3d 1267, 1269

15 n.2 (11th Cir. 2014), the Eleventh Circuit rejected the prisoner’s argument that the

16 forcible administration of the paralytic vecuronium bromide violated his due process

17 rights because it served no medical purpose in the execution process. Affirming the

18 district court, the court of appeals explained that “the liberty interest in avoiding

19 involuntary medical treatment . . . does not apply in the context of capital punishment

20 ‘because by its nature, the execution process is not a medical procedure, and by design, it

21 is not medically appropriate for the condemned,’ and ‘[u]sing drugs for the purpose of

22 carrying out the death penalty does not constitute medical treatment.’” Id. (quoting

23 Chavez v. Palmer, No. 3:14-cv-110-J-39JBT, 2014 WL 521067, at *22 (M.D. Fla. Feb.

24 10, 2014)); see Howell v. State, 133 So.3d 511, 523 (Fla. 2014) (rejecting due process

25 challenge to forced administration of paralytic).

26

The inmates cite no authority extending Harper and Riggins beyond the context of

27 forced medical treatment. “A condemned inmate does not have a liberty interest in

28 avoiding the use of execution drugs.” Chavez v. Palmer, 2014 WL 521067, at *22.

- 24 -

1 Claim 2 is not supported by a cognizable legal theory, Balistreri, 901 F.2d at 699, and

2 will be dismissed.

3 E. Class of One Equal Protection Violation (Claim 8)
4

5

In Claim 8, the inmates allege that the Department’s “pattern of deviating from

6 their Procedures and exercising their discretion in inhumane ways increases the risk of

7 being subjected to an unusual or lingering death, in violation of the Fourteenth

8 Amendment’s Equal Protection Clause.” (Doc. 97 at 53.) They allege that this

9 “disparate treatment burdens a fundamental right.” (Id., ¶ 189.) The inmates also allege

10 that each of them is a “class of one.” (Id., ¶ 186.)

11

As the threshold matter, there is no “fundamental right” to burden here except the

12 Eighth Amendment right to be free of cruel and unusual punishment. The Eighth

13 Amendment is adequate to measure and remedy their true rights.

14

The Supreme Court has “recognized successful equal protection claims brought by

15 a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated

16 differently from others similarly situated and that there is no rational basis for the

17 difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

18 curiam). “[T]he plaintiff in a ‘class of one’ case does not allege that the defendants

19 discriminate against a group with whom she shares characteristics, but rather that the

20 defendants simply harbor animus against her in particular and therefore treated her

21 arbitrarily.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). In

22 Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 601 (2008), the Court narrowed the

23 scope of “class of one” claims, recognizing that not all state actions resulting in disparate

24 treatment raise equal protection concerns.

25

The inmates misapprehend the class-of-one doctrine under the Equal Protection

26 Clause. In Towery and Lopez, the Ninth Circuit specifically rejected equal protection

27 claims in Arizona execution cases. In Towery, the court found that the class-of-one

28 doctrine does not apply to forms of state action which by their nature involve

- 25 -

1 discretionary decision-making. 672 F.3d at 660. The court explained that “the existence

2 of discretion, standing alone, cannot be an Equal Protection violation. At the very least,

3 there must be some respect in which the discretion is being exercised so that the

4 complaining individual is being treated less favorably than others generally are.” Id. at

5 661. “Treating one similarly situated prisoner differently from another with regard to

6 punishment does not inherently impact the right to be free of cruel and unusual

7 punishment.” Id. at 660; see Lopez, 680 F.3d at 1076. The court noted that an equal

8 protection violation could be demonstrated only if the plaintiffs “were able to show an

9 actual pattern of treating prisoners differently in ways that did affect the risk of pain to

10 which they would be subjected, and therefore the risk of being subjected to cruel and

11 unusual punishment.” Towery, 672 F.3d at 660.

12

The inmates here do not allege a “pattern of generally exercising the discretion in

13 a particular manner while treating one individual differently and detrimentally.” Id. at

14 660–61. Instead, they allege the Department has engaged in a pattern, not of treating one

15 inmate differently from others generally, but of treating all inmates differently from all

16 others, or close to it. Under the inmates’ theory, no one is treated appropriately. This is

17 not a cognizable violation of the Equal Protection Clause.

18

The inmates have not stated a plausible equal protection claim. Claim 8 is

19 dismissed.

20

21

IT IS THEREFORE ORDERED that Defendants’ motion to dismiss (Doc. 98)

22 is granted with prejudice as to the following claims in Plaintiffs’ Second Amended

23 Complaint:

24

Claim 1 (in part): First Amendment right to know efficacy of midazolam.

25

Claim 2: Substantive due process claim against use of paralytic.

26

Claims 3 and 4: First Amendment claims to information about the execution.

27

Claim 5: First Amendment right of access to courts.

28

Claim 8: Class of one equal protection violation.

- 26 -

1

IT IS FURTHER ORDERED that Defendants’ motion to dismiss (Doc. 98) is

2 denied as to the following claims in Plaintiffs’ Second Amended Complaint:

3

Claim 1 (in part): Eighth Amendment claim as to midazolam and paralytic.

4

Claim 6: Eighth Amendment claim for failure to follow protocol.

5

Claim 7: Procedural due process claim for failure to follow protocol.

6

IT IS FURTHER ORDERED that Plaintiff First Amendment Coalition of

7 Arizona, Inc., is dismissed from this action with prejudice, as any amendment would be

8 futile.

9

IT IS FURTHER ORDERED that Plaintiffs’ unopposed request for judicial

10 notice of the 1992 General Election Arizona Publicity Pamphlet (Doc. 100) is granted.

11

IT IS FURTHER ORDERED:

12

(1) that Defendants shall file an answer to Plaintiffs’ Second Amended Complaint

13 no later than Friday, May 27, 2016.

14

(2) that initial disclosures shall be served no later than Wednesday, June 8, 2016.

15

(3) that the parties shall file a joint proposed Discovery Plan pursuant to Federal

16 Rule of Civil Procedure 26(f) no later than Friday, June 24, 2016.

17

(4) that a Scheduling Conference pursuant to Federal Rule of Civil Procedure 16

18 is set for Wednesday, June 29, 2016, at 1:30 p.m. in Courtroom 504, Sandra Day

19 O’Connor U.S. Courthouse, 401 West Washington Street, Phoenix, Arizona 85003.

20

Dated this 18th day of May, 2016.

21

22

23

Neil V. Wake

24

United States District Judge

25

26

27

28

- 27 -

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 First Amendment Coalition of Arizona, Inc.; No. CV-14-01447-PHX-NVW

Charles Michael Hedlund; Graham S. Henry;

10 David Gulbrandson; Robert Poyson; Todd

Smith; Eldon Schurz; and Roger Scott,

ORDER

11

Plaintiffs,

12

v.

13

Charles L. Ryan, Director of ADC; James 14 O’Neil, Warden, ASPC – Eyman; Greg

Fizer, Warden, ASPC – Florence; and Does 15 1-10, Unknown ADC Personnel, in their

16 official capacities as Agents of ADC,

17

Defendants.

18

19

20

Before the Court is the Plaintiffs’ Motion for Entry of Final Judgment as to Claims

21 3 and 4. (Doc. 125.) On May 18, 2016, the Court partially granted Defendants’ Motion

to Dismiss the Second Amended Complaint, dismissing several of Plaintiffs’ claims, 22

including Claims 3 and 4, which alleged First Amendment violations. (Doc. 117.) 23

Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, Plaintiffs ask the Court to 24

enter judgment on those claims. As set forth herein, the motion is denied. 25
APPLICABLE LAW 26
When more than one claim for relief is presented in an action, or when multiple 27
parties are involved, entry of final judgment as to one or more but fewer than all of the 28
claims or parties is appropriate “only if the court expressly determines that there is no just

1 reason for delay.” Fed. R. Civ. P. 54(b). “Judgments under Rule 54(b) must be reserved

2 for the unusual case in which the costs and risks of multiplying the number of

3 proceedings and of overcrowding the appellate docket are outbalanced by the pressing

4 needs of the litigants for an early and separate judgment as to some claims or parties.”

5 Frank Briscoe Co. v. Morrison–Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985); see

6 also Gausvik v. Perez, 392 F.3d 1006, 1009 n. 2 (9th Cir.2004) (“in the interest of judicial

7 economy Rule 54(b) should be used sparingly”). The Ninth Circuit has emphasized that

8 “[w]e cannot afford the luxury of reviewing the same set of facts in a routine case more

9 than once without a seriously important reason.” Wood v. GCC Bend, LLC, 422 F.3d

10 873, 882 (9th Cir. 2005).

11

“The burden is on the party endeavoring to obtain Rule 54(b) certification to

12 demonstrate that the case warrants certification.” Braswell Shipyards, Inc. v. Beazer E.,

13 Inc., 2 F.3d 1331, 1335 (4th Cir. 1993) (citation omitted). The court must first determine

14 that it has rendered a “final judgment,” that is, a judgment that is “an ultimate disposition

15 of an individual claim entered in the course of a multiple claims action.” Curtiss–Wright

16 Corp. v. General Electric Co., 446 U.S. 1, 8 (1980) (quotation omitted); see Wood v.
17 GCC Bend, LLC, 422 F.3d 873, 878 (9th Cir. 2005). The ruling in the order of May 18,
18 2016, disposes of all claims by a party and therefore, if reduced to a separate document
19 and certified as final, that separate document would be a final, appealable judgment.
20 Rule 58(a). The court must then determine whether there is any just reason for delay. Curtiss-
21 Wright, 446 U.S. at 8. In making that determination, the court “must take into account
22 judicial administrative interests as well as the equities involved . . . to assure that
23 application of the Rule effectively ‘preserves the historic federal policy against piecemeal
24 appeals.’” Id. (citation omitted) Courts can also consider “such factors as whether the
25 claims under review were separable from the others remaining to be adjudicated and
26 whether the nature of the claims already determined was such that no appellate court
27 would have to decide the same issues more than once even if there were subsequent
28 appeals.” Id. Similar legal and factual issues between the parties’ claims “will weigh

- 2 -

1 heavily against entry of judgment under the rule, and in such cases a Rule 54(b) order

2 will be proper only where necessary to avoid a harsh and unjust result.” Gregorian v.

3 Izvestia, 871 F.2d 1515, 1519 (9th Cir. 1989) (citation omitted).

4

ANALYSIS

5

Defendants contend that Claims 3 and 4 overlap significantly with the remaining

6 claims in the Second Amended Complaint. Specifically, they argue that “Plaintiffs have

7 tightly woven Defendants’ purported concealment of information—the conduct

8 challenged in Claims 3 and 4—into Claims 1, 6, and 7.” (Doc. 131 at 6.) The Court

9 agrees that the factual allegations in Claims 3 and 4 are interrelated with those supporting

10 Claims 6 and 7.1

11

Claims 6 and 7 allege Eighth Amendment and due process violations based on

12 Defendants’ failure to follow, and discretion to deviate from, the written execution

13 protocol. In Claims 3 and 4, the First Amendment Coalition and the Inmates,

14 respectively, alleged that Defendants violated their First Amendments rights by

15 concealing facts such as the source, quality, and amounts of drugs used in executions, and

16 the timing, method, and effect of the administration of the drugs.

17

As Defendants note, the Second Amended Complaint contains a single set of

18 “Relevant Facts” that applies to all the claims. See Jewel v. Nat’l Sec. Agency, 810 F.3d

19 622, 629 (9th Cir. 2015) (finding Rule 54(b) order not appropriate where “the complaint

20 present[s] one section entitled ‘Factual Allegations Related to All Counts.’”). The

“Relevant Facts” includes a section entitled “Arizona’s Continued Refusal to Cabin Its 21
Discretion and Provide Transparency.” (Doc. 97 at 37.) 22
There is a factual overlap between the dismissed First Amendment claims and 23
Claims 6 and 7. In both sets of claims, Plaintiffs allege that Defendants have deliberately 24

25 1

Claim 1 consists of an Eighth Amendment challenge to the lethal injection

26 protocol that used midazolam and a paralytic. Defendants have removed midazolam from

27

their protocols and have moved to dismiss Claim 1 as moot. (Doc. 135.) Briefing on that issue is ongoing. The Court previously dismissed Plaintiff’s argument that the use of a

28 paralytic in combination with midazolam violated their First Amendment rights. (Doc.

117 at 19.)

- 3 -

1 concealed information and prevented access to the execution proceedings. (See, e.g., Doc.

2 97, ¶¶ 162, 183.) For example, in Claim 3, the Coalition alleged that Defendant violated

3 its First Amendment rights by preventing it from:

4

observing the provenance and amounts of drugs actually used, the timing

5

and method of their administration, and their effect upon the prisoner—

from the time the prisoner is escorted to the execution chamber until the

6

prisoner dies—and by failing to disclose, in advance of the execution,

details about the drugs used, the rationale for the selection of these drugs

7

and their dosages, the chain of custody in how the drugs were obtained and

stored, the qualifications and training of the persons administering them,

8

and Defendants’ ability to respond and preparation for responding to

complications. . . .

9

(Id., ¶ 162.) In Claim 7, the Inmates allege that Defendants have violated their due 10
process rights “[b]y deliberately concealing information about the specific drugs, 11
expiration dates, provenance, storage, dosages, administration technique, and other 12
details about how ADC intends to execute Condemned Plaintiffs.” (Id., ¶ 183.) 13
Plaintiffs argue that the First Amendment claims are legally distinguishable from
14 the Eighth Amendment and due process claims. (Doc. 125 at 4.) For purposes of Rule

15 54(b), however, “‘The word ‘claim’ . . . refers to a set of facts giving rise to legal rights in

16 the claimant.’” Purdy Mobile Homes v. Champion Home Bldrs., 594 F.2d 1313, 1316

17 (9th Cir. 1979) (quoting CMAX, Inc. v. Drewry, 295 F.2d 695, 697 (9th Cir. 1961)).

18

The dismissed claims therefore share “common and intersecting facts” with

19 pending claims. Jewel, 810 F.3d at 629. This “weigh[s] heavily against entry of

20 judgment.” Gregorian, 871 F.2d at 1519. Plaintiffs have not made the required showing

21 that a Rule 54(b) order is “necessary to avoid a harsh and unjust result.” Id.

22

Plaintiffs contend that “the equities in favor of Rule 54(b) certification.” (Doc.

23 125 at 5.) They argue that because the Coalition has no remaining claims pending, there

24 is no reason to delay the appeal. (Id.) Plaintiffs also assert that they will be prejudiced if

25 the appeal is postponed because, even if they ultimately prevail on their First Amendment

26 claims, executions might take place before the appeal is completed. (Id.) “In such a case,

27 the harm to Plaintiffs from having been deprived access to information about each

28 execution will be irreversible.” (Id.)

- 4 -

1

Plaintiffs’ arguments are not persuasive. First, while the Coalition has no

2 remaining claims, the Inmates are a party to the dismissed Claim 4 and to Claims 6 and 7.

3 See Jewel, 810 F.3d at 630 (citing Spiegel v. Trustees of Tufts College, 843 F.2d 38, 44

4 (1st Cir. 1988) (“It will be a rare case where Rule 54(b) can appropriately be applied

5 when the contestants on appeal remain, simultaneously, contestants below.”)).

6

Next, the Coalition’s desire to proceed with the appeal immediately is not a

7 sufficient basis for granting judgment on Claims 3 and 4. See Spiegel, 843 F.2d at 42

8 (explaining that “entry of judgment under the rule should not be indulged as a matter of

9 routine or as a magnanimous accommodation to lawyers or litigants”). Similarly,

10 Plaintiffs’ speculation about the possible outcome of their appeal on the First Amendment

11 claims is not grounds for certification. “To entertain an early appeal just because reversal

12 of a ruling made by the district court might transpire and might expedite a particular

13 appellant's case would defoliate Rule 54(b)’s protective copse.” Id. at 46.

14

Finally, because of the overlap between the operative facts supporting the

15 dismissed claims and the pending claims, applying Rule 54(b) would lead to multiple

16 appeals and piecemeal litigation. See Wood , 422 F.3d at 880 (9th Cir. 2005); see also
17 Jordan v. Pugh, 425 F.3d 820, 827 (10th Cir. 2005) (explaining that claims are not
18 separable if “the claim that is contended to be separate so overlaps the claim or claims
19 that have been retained for trial that if the latter were to give rise to a separate appeal at
20 the end of the case the [appeals] court would have to go over the same ground that it had covered in the first appeal.”) (quotation omitted); Ebrahimi v. City of Huntsville Bd. of
21 Educ., 114 F.3d 162, 167 (11th Cir. 1997) (“The present case illustrates the wisdom of
22 this principle because if we were to decide this appeal, we undoubtedly would be
23 required to relearn the same set of facts if and when the case returned to us on appeal
24 from the district court’s final judgment”).
25 The facts concerning Arizona’s alleged refusal to limit its discretion and provide
26 transparency apply to all the claims, including the dismissed First Amendment claims and
27 the remaining Eighth Amendment and due process claims. As discussed above, these
28 facts concern the provenance, dosages, and other details about the execution drugs, the

- 5 -

1 timing and method of their administration, their effect upon the prisoner, and the

2 qualifications and training of the persons administering them. (See Doc. 97, ¶¶ 162, 183.)

3 If the Court granted Plaintiffs’ motion, the Ninth Circuit would inevitably hear later

4 appeals based “on the same set of facts.” Wood, 422 F.3d at 879; see Jewel, 810 F.3d at

5 628.

6

CONCLUSION

7

Plaintiffs have not met their burden of showing that the circumstances of the case

8 merit Rule 54(b) judgment. The factual overlap between the dismissed claims and the

9 pending claims weighs heavily against entry of judgment. Plaintiffs have not

10 demonstrated that entry of judgment is necessary to avoid a harsh and unjust result.

11

Accordingly

12

IT IS ORDERED denying Plaintiffs’ Motion for Entry of Final Judgment as to

13 Claims 3 and 4. (Doc. 125.)

14

Dated this 10th day of August, 2016.

15

16

17

Neil V. Wake

18

Senior United States District Judge

19

20

21

22

23

24

25

26

27

28

- 6 -

 
 Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 1 of 6

1 JON M. SANDS Federal Public Defender, District of Arizona
2 DALE A. BAICH (OH Bar No. 0025070) dale_baich@fd.org
3 JESSICA L. FELKER (IL Bar No. 6296357) Jessica_felker@fd.org
4 850 West Adams Street, Suite 201 Phoenix, Arizona 85007
5 602.382.2816 | 602.889.3960 facsimile

6 Counsel for Condemned Plaintiffs

7

MARK E. HADDAD (CA Bar No. 205945) mhaddad@sidley.com

8

SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000

9

Los Angeles, California 90013 213.896.6000 | 213.896.6600 facsimile

10 Counsel for the Coalition and Condemned Plaintiffs

11 MARK BRNOVICH Attorney General
12 (Firm State Bar No. 14000) JEFFREY L. SPARKS (SBN 027536)
13 Assistant Attorney General Capital Litigation Section
14 1275 West Washington Phoenix, Arizona 85007-2997
15 602.542.4686 | CADocket@azag.gov

16 Counsel for Defendants [additional counsel listed on signature page]

17

UNITED STATES DISTRICT COURT

18

FOR THE DISTRICT OF ARIZONA

19

First Amendment Coalition of Arizona, Inc.; Case No. 2:14-cv-01447-NVW-JFM Charles Michael Hedlund; Graham S.

20 21

Henry; David Gulbrandson; Robert Poyson; STIPULATED SETTLEMENT

Todd Smith; Eldon Schurz; and Roger Scott,

AGREEMENT AND [PROPOSED] ORDER FOR DISMISSAL OF CLAIM

22

Plaintiffs,

ONE

23

v.

24 Charles L. Ryan, Director of ADC; James

25

O’Neil, Warden, ASPC–Eyman; Greg Fizer, Warden, ASPC–Florence; and Does 1-10,

26

Unknown ADC Personnel, in their official capacities as Agents of ADC,

27 Defendants.

28

Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 2 of 6

1

Plaintiffs Charles Michael Hedlund, Graham S. Henry, David Gulbrandson,

2 Robert Poyson, Todd Smith, Eldon Schurz, and Roger Scott (collectively, “Plaintiffs,”),

3 and Defendants Charles L. Ryan, Director of the Arizona Department of Corrections

4 (“ADC”); James O’Neil, Warden, ASPC–Eyman; and Greg Fizer, Warden, ASPC–

5 Florence (collectively, “Defendants”), hereby stipulate and agree as follows:

6

WHEREAS, Claim One of Plaintiffs’ Second Amendment Complaint (“Claim

7 One”) challenges ADC’s intended use of lethal injection drug Protocol C that consists of

8 midazolam, which belongs to a class of drugs called benzodiazepines, followed by a

9 paralytic (vecuronium bromide, rocuronium bromide, or pancuronium bromide), and

10 potassium chloride under the Eighth Amendment;

11

WHEREAS, Defendants contend that ADC’s previous supplier of midazolam no

12 longer provides the drug for use in lethal injection executions and that ADC’s supply of

13 midazolam expired on May 31, 2016;

14

WHEREAS, ADC has removed Protocol C, the three-drug combination

15 beginning with midazolam that Plaintiffs’ challenge in Claim One, from Department

16 Order 710;

17

WHEREAS, Defendants hereby represent, covenant, and agree, and Plaintiffs

18 and Defendants (collectively, the “parties”) intend, that ADC will never again use

19 midazolam, or any other benzodiazepine, as part of a drug protocol in a lethal injection

20 execution;

21

WHEREAS, Plaintiffs contend that they have incurred in excess of $2,080,000 in

22 attorneys’ fees and costs in litigating this action;

23

WHEREAS, the parties agree that, because of the above-described

24 circumstances, resolution of Claim One—without further litigation, without any

25 admission of liability, and without any final adjudication of any issue of fact or law—is

26 appropriate and will avoid prolonged and complicated litigation between the parties;

27

28

1

Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 3 of 6

1

WHEREAS, the parties intend this stipulated settlement agreement to be

2 enforceable by, and for the benefit of, not only the Plaintiffs but also all current and

3 future prisoners sentenced to death in the State of Arizona (“Condemned Prisoner

4 Beneficiaries”), who are express and intended third-party beneficiaries of this stipulated

5 settlement agreement and who are entitled to all rights and benefits provided to Plaintiffs

6 herein, and who, upon any showing that ADC intends to use midazolam, or any other

7 benzodiazepine, in an execution or in an execution protocol, may continue this action as

8 substituted plaintiffs pursuant to Rule 25(c) of the Federal Rules of Civil Procedure;

9

WHEREAS, the parties intend this stipulated settlement agreement to bind

10 Defendants, ADC, and any of Defendants’ successors in their official capacities as

11 representatives of ADC, who, in the event that any Plaintiff or Condemned Prisoner

12 Beneficiary moves to reopen this proceeding under Rule 60(b)(6) of the Federal Rules of

13 Civil Procedure, will be deemed to have been automatically substituted as defendants in

14 this action pursuant to Rule 25(d) of the Federal Rules of Civil Procedure;

15

WHEREAS, the parties intend and agree that, upon any breach of this stipulated

16 settlement agreement, (a) any Plaintiff or Condemned Prisoner Beneficiary has standing

17 and the right to move to reopen this proceeding under Rule 60(b)(6) of the Federal Rules

18 of Civil Procedure, and (b) an order shall issue permanently enjoining ADC from using

19 midazolam, or any other benzodiazepine, in an execution or in an execution protocol;

20

WHEREAS, in the event that any Plaintiff or Condemned Prisoner Beneficiary

21 moves to reopen this proceeding under Rule 60(b)(6) of the Federal Rules of Civil

22 Procedure, the parties agree that Defendants, ADC, and/or any of Defendants’

23 successors in their official capacities as representatives of ADC waive all objections to

24 this Court’s reopening of this proceeding, including on the basis of timing, ripeness,

25 mootness, or the standing of the moving parties;

26

WHEREAS, in the event that this stipulated settlement agreement is breached

27 through ADC’s use or intent to use a benzodiazepine in an execution or in an execution

28

2

Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 4 of 6

1 protocol, and any Plaintiff’s or Condemned Prisoner Beneficiary’s motion to reopen this

2 proceeding under Rule 60(b)(6) of the Federal Rules of Civil Procedure is not granted

3 for reasons related to the moving parties’ standing or the Court’s jurisdiction,

4 Defendants consent to the entry of an order in a separate action by a Plaintiff or a

5 Condemned Prisoner Beneficiary for breach of this agreement that permanently enjoins

6 ADC from using midazolam, or any other benzodiazepine, in an execution or in an

7 execution protocol.

8

IT IS THEREFORE STIPULATED AND AGREED that:

9

(1) Claim One of Plaintiffs’ Second Amended Complaint is dismissed,

10 without prejudice.

11

(2) Upon any showing by any Plaintiff or Condemned Prisoner Beneficiary

12 that ADC intends to use midazolam, or any other benzodiazepine, in an execution or in

13 an execution protocol, Claim One shall be reinstated and reopened pursuant to Rule

14 60(b)(6) of the Federal Rules of Civil Procedure, and, based on the agreement and

15 consent of the parties granted herein, an injunction shall issue in this action or in a

16 separate action for breach of the parties’ stipulated settlement agreement permanently

17 enjoining ADC from using midazolam, or any other benzodiazepine, in an execution or

18 in an execution protocol.

19

(3) Plaintiffs agree not to seek their attorneys’ fees and costs incurred in

20 litigating Claim One unless Defendants or ADC breach this stipulated settlement

21 agreement, in which case Plaintiffs shall be entitled to seek an award of their reasonable

22 attorneys’ fees and costs incurred in litigating Claim One, in an amount to be determined

23 by the Court, either in this action or in a separate action for breach of the parties’

24 stipulated settlement agreement. In that circumstance, Plaintiffs shall also be entitled to

25 seek to collect their reasonable attorneys’ fees and costs incurred in moving to enforce

26 this stipulated settlement agreement.

27

28

3

Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 5 of 6

1 Dated: December 19, 2016 2 3 4 5 6

Sidley Austin LLP
s/ Mark E. Haddad Mark E. Haddad Attorneys for Plaintiffs Charles Michael Hedlund; Graham S. Henry; David Gulbrandson; Robert Poyson; Todd Smith; Eldon Schurz; and Roger Scott

7 Dated: December 19, 2016

Office of the Arizona Attorney General

8

s/ Jeffrey L. Sparks

9

Jeffrey L. Sparks

David Weinzweig

10

Lacey Stover Gard

11

John Pressley Todd

12

Attorneys for Defendants

13

14

15

16
I, Mark Haddad, hereby attest that 17 counsel for Defendants, Jeffrey L. Sparks, 18 authorized the use of his signature on, and
concurred in the filing of, this document, 19 on December 19, 2016.
20
s/ Mark E. Haddad 21 Mark E. Haddad
22

23

24

* * *

25

26

27

28

4

Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 6 of 6

1

ORDER

2 IT IS SO ORDERED.

3

4

DATED this ___ day of ______, 2016.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

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23

24

25

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28

5

Neil V. Wake United States District Judge

 
 Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 1 of 11

1 JON M. SANDS Federal Public Defender, District of Arizona
2 DALE A. BAICH (OH Bar No. 0025070) dale_baich@fd.org
3 JESSICA L. FELKER (IL Bar No. 6296357) Jessica_felker@fd.org
4 850 West Adams Street, Suite 201 Phoenix, Arizona 85007
5 602.382.2816 | 602.889.3960 facsimile

6 Counsel for Condemned Plaintiffs

7

MARK E. HADDAD (CA Bar No. 205945) mhaddad@sidley.com

8

SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000

9

Los Angeles, California 90013 213.896.6000 | 213.896.6600 facsimile

10 Counsel for the Coalition and Condemned Plaintiffs

11 MARK BRNOVICH Attorney General
12 (Firm State Bar No. 14000) JEFFREY L. SPARKS (SBN 027536)
13 Assistant Attorney General Capital Litigation Section
14 1275 West Washington Phoenix, Arizona 85007-2997
15 602.542.4686 | CADocket@azag.gov

16 Counsel for Defendants [additional counsel listed on signature page]

17

UNITED STATES DISTRICT COURT

18

FOR THE DISTRICT OF ARIZONA

19

First Amendment Coalition of Arizona, Inc.; Case No. 2:14-cv-01447-NVW-JFM Charles Michael Hedlund; Graham S.

20 21

Henry; David Gulbrandson; Robert Poyson; STIPULATED SETTLEMENT

Todd Smith; Eldon Schurz; and Roger Scott,

AGREEMENT AND [PROPOSED] ORDER FOR DISMISSAL OF

22

Plaintiffs,

CLAIMS SIX AND SEVEN

23

v.

24 Charles L. Ryan, Director of ADC; James

25

O’Neil, Warden, ASPC–Eyman; Greg Fizer, Warden, ASPC–Florence; and Does 1-10,

26

Unknown ADC Personnel, in their official capacities as Agents of ADC,

27 Defendants.

28

Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 2 of 11

1

Plaintiffs Charles Michael Hedlund, Graham S. Henry, David Gulbrandson, Robert

2 Poyson, Todd Smith, Eldon Schurz, and Roger Scott (collectively, “Plaintiffs”), and

3 Defendants Charles L. Ryan, Director of the Arizona Department of Corrections (“ADC”);

4 James O’Neil, Warden, ASPC–Eyman; and Greg Fizer, Warden, ASPC–Florence

5 (collectively, “Defendants”), hereby stipulate and agree as follows:

6

WHEREAS, on December 22, 2016, this Court entered an Order for Dismissal of

7 Claim One (ECF No. 155) based on the December 19, 2016 Stipulated Settlement

8 Agreement (ECF No. 152) between Plaintiffs and Defendants (collectively, the “parties”);

9

WHEREAS, Claim Six and Claim Seven of Plaintiffs’ Second Amended

10 Complaint (“SAC”) (ECF No. 94) and Plaintiffs’ Supplemental Complaint (ECF No. 163)

11 challenge the ADC’s reservations of excessive discretion in its execution procedures, and

12 Defendants’ past and proposed future exercises of that discretion, including through “last-

13 minute deviations from critical aspects of its announced execution process,” May 18,

14 2016, Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss SAC at

15 13 (ECF No. 117), as violative of the Eighth and Fourteenth Amendments;

16

WHEREAS, Defendants intend to resolve the deficiencies Plaintiffs allege

17 through their permanent repudiation of certain provisions contained in past versions of the

18 ADC’s execution procedures, as set forth herein, and through the adoption of a new set of

19 execution procedures reflecting those changes;

20

WHEREAS, Defendants’ execution procedures have, in the past, stated that “[t]his

21 Department Order outlines internal procedures and does not create any legally enforceable

22 rights or obligations,” e.g., Ariz. Dep’t of Corr., Dep’t Order 710, at p.1 (Jan. 11, 2017);

23

WHEREAS, Defendants hereby represent, covenant, and agree, and the parties

24 intend, that Defendants and the ADC will remove from the ADC’s current execution

25 procedures the sentence—“[t]his Department Order outlines internal procedures and does

26 not create any legally enforceable rights or obligations”—and that Defendants and the

27

28

1

Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 3 of 11

1 ADC will never again include such language or substantially similar language in any

2 future version of the ADC’s execution procedures (together, “Covenant No. 1”);

3

WHEREAS, Defendants’ execution procedures have, in the past, granted the

4 Director of the ADC (the “ADC Director”) the discretion to change any of the timeframes

5 set forth in the execution procedures based on the ADC Director’s determination that there

6 has been an “unexpected or otherwise unforeseen contingency,” e.g. Ariz. Dep’t of Corr.,

7 Dep’t Order 710 ¶ 1.1.2.3 (Jan. 11, 2017);

8

WHEREAS, Defendants hereby represent, covenant, and agree, and the parties

9 intend, that the ADC Director shall henceforth have the authority to change timeframes

10 relating to the execution process only when those timeframes correspond to minor or

11 routine contingencies not central to the execution process; that timeframes that are central

12 to the execution process include, but are not limited to, those relating to execution

13 chemicals and dosages, consciousness checks, and access of the press and counsel to the

14 execution itself; and that Defendants and the ADC will never again include provisions in

15 any version of the ADC’s execution procedures that purport to expand the ADC Director’s

16 discretion to deviate from timeframes set forth in the execution procedures beyond those

17 relating to minor or routine contingencies not central to the execution process (together,

18 “Covenant No. 2”);

19

WHEREAS, Defendants’ execution procedures have, in the past, granted the ADC

20 Director the discretion to change the quantities or types of chemicals to be used in an

21 execution at any time that he determines such a change to be necessary, even after a

22 warrant of execution has been sought, e.g., Ariz. Dep’t of Corr., Dep’t Order 710, Att. D

23 ¶ C.6 (Jan. 11, 2017);

24

WHEREAS, Defendants hereby represent, covenant, and agree, and the parties

25 intend, that the ADC Director shall henceforth have the authority to change the quantities

26 or types of chemicals to be used in an execution after a warrant of execution has been

27 sought only if the Director, the ADC, Defendants, and/or their counsel, (1) notify the

28

2

Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 4 of 11

1 condemned prisoner and his/her counsel of the intended change, (2) withdraw the existing

2 warrant of execution, and (3) apply for a new warrant of execution; and that Defendants

3 and the ADC will never again include provisions in any version of the ADC’s execution

4 procedures that permit the ADC Director or the ADC to change the quantities or types of

5 chemicals to be used in an execution after a warrant of execution has been sought without

6 also withdrawing and applying through counsel for a new warrant of execution (together,

7 “Covenant No. 3”);

8

WHEREAS, Defendants’ execution procedures, in the past, have not expressly

9 limited the ADC Director’s discretion regarding the use of quantities and types of

10 chemicals to only those quantities and types of chemicals set forth in the ADC’s execution

11 procedures;

12

WHEREAS, Defendants hereby represent, covenant, and agree, and the parties

13 intend, that the ADC Director’s discretion to choose the quantities and types of chemicals

14 for an execution shall be limited to the quantities and types of chemicals set forth expressly

15 in the then-current execution procedures; that the quantities or types of chemicals that may

16 be used in an execution may be modified only through the formal publication of an

17 amended set of execution procedures; and that any future version of execution procedures

18 will expressly reflect this limitation of discretion (together, “Covenant No. 4”);

19

WHEREAS, Defendants’ execution procedures, in the past, have required that, if

20 any compounded chemical is to be used in an execution, the ADC shall obtain it from only

21 a “certified or licensed” compounding pharmacist or compounding pharmacy, but the

22 ADC’s most recent version of its execution procedures has removed that limitation in lieu

23 of a requirement that the ADC provide a “qualitative analysis of any compounded or non-

24 compounded chemical to be used in the execution . . . within ten calendar days after the

25 state seeks a Warrant of Execution,” compare Ariz. Dep’t of Corr., Dep’t Order 710, Att.

26 D ¶ C.2 (Oct. 23, 2015), with Ariz. Dep’t of Corr., Dep’t Order 710, Att. D ¶ C.2 (Jan. 11,

27 2017);

28

3

Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 5 of 11

1

WHEREAS, Defendants hereby represent, covenant, and agree, and the parties

2 intend, that the ADC shall provide, upon request and within ten (10) calendar days after

3 the State of Arizona seeks a warrant of execution, a quantitative analysis of any

4 compounded or non-compounded chemical to be used in an execution that reveals, at a

5 minimum, the identity and concentration of the compounded or non-compounded

6 chemical; that ADC will only use chemicals in an execution that have an expiration or

7 beyond-use date that is after the date that an execution is to be carried out; that, if the

8 chemical’s expiration or beyond-use date states only a month and year (e.g., “May 2017”),

9 ADC will not use that chemical after the last day of the month specified; and that all future

10 versions of the ADC’s execution procedures shall include these requirements (together,

11 “Covenant No. 5”);

12

WHEREAS, Defendants’ execution procedures have, in the past, permitted the use

13 of a three-drug lethal-injection protocol using: (1) a barbiturate or a benzodiazepine as the

14 first drug, (2) a paralytic such as vecuronium bromide, pancuronium bromide, or

15 rocuronium bromide (collectively, “Paralytic”) as the second drug, and (3) potassium

16 chloride as the third drug; e.g., Ariz. Dep’t of Corr., Dep’t Order 710, Att. D ¶ C.2 at Chart

17 C (Jan. 11, 2017);

18

WHEREAS, Defendants hereby represent, covenant, and agree, and the parties

19 intend, that Defendants and the ADC will never again use a Paralytic in an execution; and

20 that Defendants and the ADC consequently will remove their current three-drug lethal-

21 injection protocol from the current and any future version of the ADC’s execution

22 procedures (together, “Covenant No. 6”);

23

WHEREAS, Defendants’ execution procedures have, in the past, provided for

24 prisoners or their agents to purchase and/or supply chemicals for use in the prisoner’s own

25 execution, e.g., Ariz. Dep’t of Corr., Dep’t Order 710, Att. D ¶ C.1 (Jan. 11, 2017);

26

WHEREAS, Defendants hereby represent, covenant, and agree, and the parties

27 intend, that Defendants and the ADC shall remove from the ADC’s execution procedures

28

4

Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 6 of 11

1 any provision that purports to permit prisoners or their agents to purchase and/or supply

2 chemicals for use in the prisoner’s own execution, and that Defendants and the ADC will

3 never again include any such provision or any substantially similar provision in any future

4 version of the ADC’s execution procedures (together, “Covenant No. 7”);

5

WHEREAS, the parties agree that the version of Department Order 710 published

6 on June 13, 2017 fully satisfies Covenant Nos. 1 through 7;

7

WHEREAS, Plaintiffs contend that they have incurred in excess of $2,350,000 in

8 attorneys’ fees and costs in litigating this action since its inception, and have incurred in

9 excess of $280,000 in attorneys’ fees and costs in litigating this action since this Court’s

10 December 22, 2016, Order dismissing Claim One without prejudice (ECF No. 155);

11

WHEREAS, the parties agree that, because of the above-described circumstances,

12 resolution of Claim Six and Claim Seven—without further litigation, without any

13 admission of liability, and without any final adjudication of any issue of fact or law—is

14 appropriate and will avoid prolonged and complicated litigation between the parties;

15

WHEREAS, the parties intend this Stipulated Settlement Agreement to be

16 enforceable by, and for the benefit of, not only the Plaintiffs but also all current and future

17 prisoners sentenced to death in the State of Arizona (“Condemned Prisoner

18 Beneficiaries”), who are express and intended third-party beneficiaries of this Stipulated

19 Settlement Agreement and who are entitled to all rights and benefits provided to Plaintiffs

20 herein, and who, upon any showing that any of the Defendants, any of the Defendants’

21 successors in their official capacities as representatives of the ADC (“Defendants’

22 Successors”), or the ADC has violated or intends to violate any of Covenant Nos. 1

23 through 7 may continue this action as substituted plaintiffs pursuant to Rule 25(c) of the

24 Federal Rules of Civil Procedure;

25

WHEREAS, the parties intend this Stipulated Settlement Agreement to bind

26 Defendants, the ADC, and Defendants’ Successors, who, in the event that any Plaintiff or

27 Condemned Prisoner Beneficiary moves to reopen this proceeding under Rule 60(b)(6) of

28

5

Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 7 of 11

1 the Federal Rules of Civil Procedure, will be deemed to have been automatically

2 substituted as defendants in this action pursuant to Rule 25(d) of the Federal Rules of Civil

3 Procedure;

4

WHEREAS, the parties intend and agree that, upon any breach of this Stipulated

5 Settlement Agreement, (a) any Plaintiff or Condemned Prisoner Beneficiary has standing

6 and the right to move to reopen this proceeding under Rule 60(b)(6) of the Federal Rules

7 of Civil Procedure, and (b) an order shall immediately issue permanently enjoining the

8 ADC from violating Covenant Nos. 1-7;

9

WHEREAS, in the event that any Plaintiff or Condemned Prisoner Beneficiary

10 moves to reopen this proceeding under Rule 60(b)(6) of the Federal Rules of Civil

11 Procedure, the parties agree that the Defendants, the ADC, and Defendants’ Successors

12 waive all objections to this Court’s reopening of this proceeding, including on the basis of

13 timing, ripeness, mootness, or the standing of the moving parties;

14

WHEREAS, in the event that this Stipulated Settlement Agreement is breached

15 through an actual or intended violation of any of Covenant Nos. 1 through 7 by

16 Defendants, Defendants’ Successors, or the ADC, and any Plaintiff’s or Condemned

17 Prisoner Beneficiary’s motion to reopen this proceeding under Rule 60(b)(6) of the

18 Federal Rules of Civil Procedure is not granted for reasons related to the moving parties’

19 standing or the Court’s jurisdiction, Defendants, Defendants’ Successors, and the ADC

20 consent to the entry of an order in a separate action by a Plaintiff or a Condemned Prisoner

21 Beneficiary for breach of this agreement that permanently enjoins Defendants,

22 Defendants’ Successors, and the ADC from engaging in any conduct that violates any of

23 Covenant Nos. 1 through 7.

24

IT IS THEREFORE STIPULATED AND AGREED that:

25

(1) Claims Six and Seven of Plaintiffs’ Second Amended Complaint and

26 Supplemental Complaint are dismissed, without prejudice.

27

(2) The parties do not hereby intend to settle, and Plaintiffs instead expressly

28

6

Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 8 of 11

1 reserve their right to appeal, other claims that were dismissed by the Court’s May 18,

2 2016, Order, including Claims 3, 4, and 5, which challenge various aspects of the ADC’s

3 execution procedures on First Amendment grounds.

4

(3) Upon any showing by any Plaintiff or Condemned Prisoner Beneficiary that

5 any of the Defendants, any of the Defendants’ Successors, or the ADC intend to engage

6 in or have actually engaged in any of the following conduct (together, the “Prohibited

7 Conduct”):

8

(a) adopt language in any future version of the ADC’s execution

9

procedures that purports to disclaim the creation of rights or obligations;

10

(b) grant the ADC and/or the ADC Director the discretion to deviate

11

from timeframes set forth in the ADC’s execution procedures regarding issues that

12

are central to the execution process, which include but are not limited to those

13

relating to execution chemicals and dosages, consciousness checks, and access of

14

the press and counsel to the execution itself;

15

(c) change the quantities or types of chemicals to be used in an execution

16

after a warrant of execution has been sought without first notifying the condemned

17

prisoner and his/her counsel of the intended change, withdrawing the existing

18

warrant of execution, and applying for a new warrant of execution;

19

(d) select for use in an execution any quantity or type of chemical that is

20

not expressly permitted by the then-current, published execution procedures;

21

(e) fail to provide upon request, within ten (10) calendar days after the

22

State of Arizona seeks a warrant of execution, a quantitative analysis of any

23

compounded or non-compounded chemical to be used in an execution that reveals,

24

at a minimum, the identity and concentration of the compounded or non-

25

compounded chemicals;

26

(f) use or select for use in an execution any chemicals that have an

27

expiration or beyond-use date that is before the date that an execution is to be

28

7

Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 9 of 11

1

carried out; or use or select for use in an execution any chemicals that have an

2

expiration or beyond-use date listed only as a month and year that is before the

3

month in which the execution is to be carried out;

4

(g) adopt or use any lethal-injection protocol that uses a paralytic

5

(including but not limited to vecuronium bromide, pancuronium bromide, and

6

rocuronium bromide); or

7

(h) adopt any provision in any future version of the ADC’s execution

8

procedures that purports to permit prisoners or their agents to purchase and/or

9

supply chemicals for use in the prisoner’s own execution; then

10 Claims Six and Seven shall be reinstated and reopened pursuant to Rule 60(b)(6) of the

11 Federal Rules of Civil Procedure, and, based on the agreement and consent of the parties

12 granted herein, an injunction shall immediately issue in this action or in a separate action

13 for breach of this Stipulated Settlement Agreement permanently enjoining Defendants,

14 Defendants’ Successors, and the ADC from engaging in any of the Prohibited Conduct.

15

(4) Plaintiffs agree not to seek their attorneys’ fees and costs incurred in

16 litigating Claims Six and Seven unless Defendants, Defendants’ Successors, or the ADC

17 breach this Stipulated Settlement Agreement, in which case Plaintiffs shall be entitled to

18 an award, either in this action or in a separate action for breach of this Stipulated

19 Settlement Agreement, of their reasonable attorneys’ fees and costs incurred in litigating

20 this action from its inception through the effective date of this Stipulated Settlement

21 Agreement, as determined by the Court after briefing by the parties. In that circumstance,

22 ///

23 ///

24 ///

25 ///

26 ///

27

28

8

Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 10 of 11

1 Plaintiffs shall also be entitled to seek to collect their reasonable attorneys’ fees and costs

2 incurred in moving to enforce this Stipulated Settlement Agreement.

3

IT IS SO STIPULATED.

4

5

6 Dated: June 21, 2017

Sidley Austin LLP

7

s/ Mark E. Haddad

8

Mark E. Haddad

9

Attorneys for Plaintiffs

10

11 Dated: June 21, 2017

Office of the Arizona Attorney General

12

s/ Jeffrey L. Sparks

13

Jeffrey L. Sparks

14

Attorneys for Defendants

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

Case 2:14-cv-01447-NVW Document 186 Filed 06/21/17 Page 11 of 11

1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 21, 2017, I electronically filed the foregoing

3 Stipulated Settlement Agreement and [Proposed] Order for Dismissal of

4 Claims Six and Seven by using the CM/ECF system. I certify that all participants

5 in the case are registered CM/ECF users and that service will be accomplished by

6 the CM/ECF system.

7

8

/s/ Barbara Cunningham

9

Barbara Cunningham

Legal Secretary 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

 
 Case: 14-16310, 07/19/2014, ID: 9175004, DktEntry: 29-1, Page 1 of 29
FILED

FOR PUBLICATION UNITED STATES COURT OF APPEALS

JUL 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH RUDOLPH WOOD, III,
Plaintiff - Appellant,
v.
CHARLES L. RYAN, Director of the Arizona Department of Corrections; RON CREDIO, Warden, ASPC-Eyman; LANCE R. HETMER, Warden, ASPCFlorence; 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.

No. 14-16310 D.C. No. 2:14-cv-01447-NVWJFM
OPINION

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
Before: THOMAS, GOULD, and BYBEE, Circuit Judges.
Opinion by Judge Sidney R. Thomas
THOMAS, Circuit Judge:

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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. 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,
2

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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
3

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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. § 13757. 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,
4

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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 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-
5

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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 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
6

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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 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
7

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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).
B
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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
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.”).
9

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proceedings.” Cal. First Amendment Coal., 299 F.3d at 873. Underlying this 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) (“PressEnterprise 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
10

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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 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 courtappointed 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
11

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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 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
12

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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
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death. As a result, the Press-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
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.
14

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in question.’” Cal. First Amendment Coal., 299 F.3d at 875 (quoting PressEnterprise II, 478 U.S. at 8–9) (alteration in original).
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
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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 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
3 See, e.g., Chris Woodyard, Enough Rope: The Hangman’s Rope in the Press, Haunted Ohio (Jan. 19, 2013), http://hauntedohiobooks.com/news/enoughrope-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).
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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 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
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=82QEAAAAI BAJ&pg=2642,267124.
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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
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
5 Greg Abbott, Keep Execution Drug Supplier Secret, Austin AmericanStatesman, May 29, 2014, http://www.mystatesman.com/news/news/ greg-abbott-keep-execution-drug-supplier-secret/nf9bQ/?icmp=statesman_internall ink_textlink.
6 Julia O’Donoghue, Make Louisiana Execution Drug Suppliers Secret, State Prison Boss Asks Legislature, New Orleans Times-Picayune, May 14, 2014, http://www.nola.com/politics/index.ssf/2014/05/louisiana_execution_drugs.html.
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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 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
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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
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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 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
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.
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-injections-n40171.
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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 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
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-combin ation-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.
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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.
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
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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
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going to the merits of his First Amendment claim, we conclude he has also established irreparable injury.
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
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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.
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
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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.
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
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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 specific individuals can be identified. Once he has received that information, the injunction shall be discharged without more and the execution may proceed.
REVERSED.
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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. 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.
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FILED

Wood v. Ryan, No. 14-16310 (San Francisco - July 18, 2014) BYBEE, Circuit Judge, dissenting:

JUL 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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 stop a lawful execution until the State yielded the

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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 corrections’ agencies. This created a public safety issue as
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.
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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-
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-injectio n-protocol.
3 A warrant of execution was issued on May 28, 2014. 3

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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 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
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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 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,
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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 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
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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 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).
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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) (“PressEnterprise 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, PressEnterprise 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. at 603–11, 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.
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1982). We have limited the right of access to “documents filed therein” to documents that transcribe or memorialize official 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 PressEnterprise 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.” PressEnterprise 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
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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.
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
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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 controlledsubstances 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 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;
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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 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
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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.
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Wood does not cite a single case in which an appellate court has found a right of access to the type of information at 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’
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 14

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addresses? See 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
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 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 14. 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.
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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 “complimentary considerations”: (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. 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 twodrug 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
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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 15–18, 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 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
7 See Pinal County Historical Soc. & Museum, Our Exhibits, www.pinalcountyhistoricalmuseum.org/exhibits.htm (last visited July 19, 2014).
8 See Made Hangman’s Ropes, The Gazette Times, July 16, 1911, at 13. 17

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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 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
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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 Hiding Beneath the Hood, 75 Fordham L. Rev. 2791, 2829 (2007) (acknowledging that “[h]istorically, executioners have
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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
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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 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
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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.
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
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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 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
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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 method of execution in the event that the drugs necessary to perform a lethal injection become
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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
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-idUSBREA 4M03520140523.
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-injectio n-protocol.
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than federal courts.11
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 the moment this information is released.”
Maj. Op. at 22. 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
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. 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.
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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 19–20. 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 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
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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 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
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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 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
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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. § 13757(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
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experienced professionals. 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
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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.
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.
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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 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
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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.
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 atlarge—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
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for a preliminary injunction. I would affirm the district court’s judgment. I respectfully dissent.
35

 
 KeyCite Yellow Flag - Negative Treatment Distinguished by Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., Cal.App. 5 Dist., September 24, 2019
938 F.3d 1069 United States Court of Appeals, Ninth Circuit.
FIRST AMENDMENT COALITION OF ARIZONA, INC.; Charles Michael Hedlund; Graham S. Henry;
David Gulbrandson; Robert Allen Poyson; Todd Smith; Eldon M. Schurz; Roger Scott, Plaintiffs-Appellants, v.
Charles L. RYAN, Director of the Arizona Department of Corrections; Unknown Parties, named as: John Does - unknown ADC Personnel,
in their official capacities as Employees, Contractors, and/or Agents of the Arizona Department of Corrections; Greg Fizer, Warden,
ASPC-Florence, Defendants-Appellees.
No. 17-16330 |
Argued and Submitted September 12, 2018 San Francisco, California |
Filed September 17, 2019
Synopsis Background: Arizona death-row inmates and non-profit advocacy organization brought § 1983 action against state prison officials, challenging Arizona’s execution procedures, alleging that they violated the First Amendment by restricting the ability of execution witnesses to hear the sounds of the entire execution process, failing to disclose the source and quality of the lethal-injection drugs used in the inmates’ executions, and failing to disclose specific qualifications of the execution team members who would insert intravenous lines into the inmates. The United States District Court for the District
of Arizona, Neil V. Wake, Senior District Judge, 188 F.Supp.3d 940, dismissed the action, in part.
Holdings: The Court of Appeals, Watford, Circuit Judge, held that:
[1] the First Amendment right of access to governmental proceedings encompasses the right to hear the sounds of the entire execution;

[2] Arizona’s alleged restrictions witnesses’ ability to hear sounds of execution impermissibly burdened the First Amendment right of access to governmental proceedings; [3] right of access to governmental proceedings did not entitle inmates to information regarding the lethal-injection drugs or the execution team members’ qualifications; and [4] Arizona’s restrictions did not implicate inmates’ First Amendment right of access to the courts.
Affirmed in part, reversed in part, and remanded. Berzon, Circuit Judge, filed opinion concurring in part, and dissenting in part. Procedural Posture(s): On Appeal; Motion to Dismiss for Failure to State a Claim.
West Headnotes (19)
[1] Constitutional Law Government Meetings and Proceedings
The First Amendment right of access to governmental proceedings guarantees the public and the press a measure of access to governmental proceedings, to ensure that public discussion of governmental affairs is informed. U.S. Const. Amend. 1.
[2] Constitutional Law Prisoners and pretrial detainees
The First Amendment right of access to the courts guarantees prisoners a meaningful opportunity to bring legal challenges to their sentences and the conditions of their confinement. U.S. Const. Amend. 1.
1

[3] Constitutional Law Sentencing and punishment
The First Amendment right of access to governmental proceedings encompasses the right of execution witnesses to hear the sounds of the entire execution. U.S. Const. Amend. 1.
1 Cases that cite this headnote
[4] Constitutional Law Sentencing and punishment
Sentencing and Punishment Proceedings at execution
Arizona’s alleged restrictions on the ability of the press and other execution witnesses to hear the sounds of the entire execution process impermissibly burdened the First Amendment right of access to governmental proceedings; there was allegedly no valid rational connection between the restrictions and any cognizable, legitimate penological interest. U.S. Const. Amend. 1.
[5] Constitutional Law Sentencing and punishment
The public has a First Amendment right of access to view executions in their entirety. U.S. Const. Amend. 1.

positive role in the functioning of the particular process in question. U.S. Const. Amend. 1.
[7] Sentencing and Punishment Proceedings at execution
A deferential standard of review applies to a constitutional challenge to a prison’s execution procedures.
[8] Constitutional Law Access to Proceedings;  Closure
In analyzing whether Arizona’s restrictions on the ability of execution witnesses to hear the sounds of the entire execution process violate the First Amendment right of access to governmental proceedings, a court considers: (1) whether there is a valid, rational connection between the restrictions and the legitimate governmental interest put forward to justify it, (2) whether there are alternative means of exercising the right that remain open to prison inmates, (3) what impact accommodation of the right of access will have on guards and other inmates, and on the allocation of prison resources generally, and (4) whether there are obvious, easy alternatives that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests. U.S. Const. Amend. 1.

[6] Constitutional Law Government Meetings and Proceedings
A court uses the following two-part test in analyzing whether a First Amendment right of access to governmental proceedings exists: (1) whether the place and process have historically been open to the press and general public, and (2) whether public access plays a significant

[9] Constitutional Law Access to Proceedings;  Closure
Sentencing and Punishment Mode of execution
Sentencing and Punishment Proceedings at execution
The First Amendment right of access to governmental proceedings did not entitle
2

death-row inmates to information regarding the source and quality of the lethal-injection drugs used in executions or information about the qualifications of the execution team members. U.S. Const. Amend. 1.

sources of information within the government’s control. U.S. Const. Amend. 1.
1 Cases that cite this headnote

[10] Constitutional Law Government Meetings and Proceedings
The First Amendment right of access to governmental proceedings refers to the right of the public to attend and observe those proceedings. U.S. Const. Amend. 1.
1 Cases that cite this headnote
[11] Constitutional Law Access to Proceedings;  Closure
The public has a First Amendment right to attend criminal trials. U.S. Const. Amend. 1.

[14] Constitutional Law Sentencing and punishment
The First Amendment right of access to governmental proceedings does not entitle the public to all information that is inextricably intertwined with executions. U.S. Const. Amend. 1.
[15] Constitutional Law Government Meetings and Proceedings
The First Amendment right of access to governmental proceedings 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. U.S. Const. Amend. 1.

[12] Constitutional Law Government Meetings and Proceedings
In situations in which other interests justify the closure of a governmental proceeding, the public has a First Amendment right to access a transcript of the proceeding within a reasonable time. U.S. Const. Amend. 1.
[13] Constitutional Law Government Meetings and Proceedings
The First Amendment right of access to government proceedings does not mandate a right of access to government information or

[16] Constitutional Law Access to Proceedings;  Closure
Prisons Access to Courts and Public Officials
Sentencing and Punishment Proceedings at execution
Arizona’s alleged restrictions on the ability to hear the sound of executions, and alleged restrictions on the disclosure of information on the source and quality of lethal-injection drugs and the qualifications of execution team members did not implicate death-row inmates’ First Amendment right of access to the courts. U.S. Const. Amend. 1.
3

[17] Constitutional Law Prisoners and pretrial detainees
The First Amendment right of access to courts may be violated by the denial of adequate law libraries and other legal assistance to prisoners, which prevents them from challenging their sentences and the conditions of their confinement. U.S. Const. Amend. 1.

Dominic E. Draye (argued), Solicitor General; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding, D.C. No. 2:14-cv-01447-NVW
Before: Marsha S. Berzon, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge Berzon

[18] Constitutional Law Prisoners and pretrial detainees
Active interference with a prisoner’s right to litigate, such as seizing and withholding the prisoner’s legal files, violates the prisoner’s First Amendment right of access to the courts. U.S. Const. Amend. 1.
[19] Constitutional Law Prisoners and pretrial detainees
The First Amendment right of access to the courts does not include the right of prisoners to discover grievances, and to litigate effectively once in court. U.S. Const. Amend. 1.

OPINION
WATFORD, Circuit Judge:
*1072 The plaintiffs in this case are seven Arizona death-row inmates and the First Amendment Coalition of Arizona, a non-profit organization that seeks to advance free speech, accountable government, and civic participation. They brought this action against officials of the Arizona Department of Corrections (ADC) to challenge aspects of the Arizona execution process. We are asked to decide whether the plaintiffs have pleaded facts that plausibly state claims that the ADC officials have violated the plaintiffs’ First Amendment rights by: (1) restricting the ability of execution witnesses to hear the sounds of the entire execution process; (2) failing to disclose the source and quality of the lethal-injection drugs that will be used in the inmates’ executions; and (3) failing to disclose specific qualifications of the execution team members who will insert intravenous lines into the inmates.

Attorneys and Law Firms
*1071 Collin P. Wedel (argued), Joshua E. Anderson, Alycia A. Degen, and Katherine A. Roberts, Sidley Austin LLP, Los Angeles, California; Jon M. Sands, Federal Public Defender; Dale A. Baich and Jessica L. Felker, Assistant Federal Public Defenders; Office of the Federal Public Defender, Phoenix, Arizona; for Plaintiffs-Appellants.

I
**2 Since the Supreme Court upheld the constitutionality of a three-drug protocol in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), the State of Arizona has executed 14 prisoners by lethal injection. During that time, the State has faced a series of legal challenges to its execution process. A number of those
4

challenges have involved whether its executions expose prisoners to needless pain in violation of the Eighth Amendment. Although we have rejected the challenge each time, we have expressed serious concerns about the suffering caused by Arizona’s lethal-injection process. For instance, we noted that the execution of Robert Towery was “perilously close” to falling outside of the
constitutional safe harbor created by Baze, given the length of time it took to place Towery’s intravenous lines.
Lopez v. Brewer, 680 F.3d 1068, 1075 (9th Cir. 2012).
Members of our court have noted serious due process concerns with Arizona’s execution procedures as well. These concerns have largely involved the shroud of secrecy surrounding Arizona’s execution proceedings and the State’s pattern of deviating from its lethal-injection protocols at the last minute. See Lopez v. Brewer, 680 F.3d 1084, 1094–95 (9th Cir. 2012) (Reinhardt, J., dissenting from denial of rehearing en banc). For example, Arizona informed the court that it intended to use a one-drug protocol instead of a three-drug protocol less than 48 hours before Towery’s execution. See Towery v. Brewer, 672 F.3d 650, 652–53 (9th Cir. 2012). Then, when carrying out Towery’s execution, the State restricted public and attorney observation, prohibited Towery from describing the pain he experienced, and limited the notes recorded in the official execution log.
See Lopez, 680 F.3d at 1082–83 (Berzon, J., concurring in part and dissenting in part). These practices have constrained the ability of death-row inmates to challenge the constitutionality of Arizona’s execution process, raising procedural due process concerns. See
id. at 1083–84. This lack of information has also hampered judicial review and public evaluation of the process.
In 2014, six death-row inmates filed this 42 U.S.C. § 1983 action against various ADC officials in response to the problems described above. The inmates asserted, among other things, that they have a First Amendment right to detailed information regarding the drugs to be used in their executions and the qualifications of
execution team members. See *1073 Wood v. Ryan, 759 F.3d 1076, 1079 (9th Cir.), vacated, 573 U.S. 976, 135 S.Ct. 21, 189 L.Ed.2d 873 (2014). Joseph Wood, one of the original plaintiffs in this action, filed a motion for a preliminary injunction seeking a stay of his impending execution until he obtained the requested information. Our court concluded that Wood had raised serious questions as to whether he was entitled to the requested information under the First Amendment and granted a
conditional stay. Id. at 1080–86, 1088. The Supreme Court summarily vacated that decision.

Arizona executed Wood a day after the stay was vacated. Wood’s execution was botched in several ways. According to the allegations in the plaintiffs’ complaint, Wood rose up and gasped for air about 12 minutes into his execution, after first appearing to be sedated. He continued to struggle to breathe until he died, nearly two hours after the drugs were first administered. During that time, Wood was administered 15 doses of lethal-injection drugs, even though Arizona’s protocol calls for only two. The execution team also failed to perform consciousness checks before each injection, as they were required to do. According to journalists who attended the execution, Wood appeared to be in agony throughout the process.
After Wood’s execution, the First Amendment Coalition joined the inmates in filing the First Amended Complaint. The parties agreed to stay the litigation until the ADC published a set of revised execution procedures. The district court lifted the stay after the new procedures were published, at which point the plaintiffs filed the operative Second Amended Complaint.
**3 As relevant to this appeal, the plaintiffs challenge three of Arizona’s practices under the First Amendment. We explain these practices in some detail below. The plaintiffs also asserted various Eighth Amendment, due process, and equal protection claims. Those claims have been dismissed or settled by the parties.
First, the plaintiffs claim that Arizona unconstitutionally restricts the ability of execution witnesses to hear the sounds of the entire execution process. Under Arizona’s current procedures, witnesses observe the execution in a designated witness room adjacent to the execution room. Although this room has windows looking into the execution room, those windows are covered by curtains during the preliminary steps of the execution. Witnesses view the prisoner through closed-circuit monitors as he is secured on the table in the execution room, makes his last statement, and has intravenous lines inserted. During the initial procedures, the witnesses can listen to the sounds in the execution room through speakers connected to an overhead microphone.
After the intravenous lines are inserted, execution team members turn off the closed-circuit monitors and open the curtains to the execution room. They also turn off the overhead microphone. At that point, the witnesses can still view the execution, but they can no longer hear the sounds from the execution room, other than in brief moments when execution team members turn on the execution-room microphone to give updates about the prisoner’s level of consciousness. In their complaint, the plaintiffs seek an injunction that would allow witnesses to
5

hear the sounds of the entire execution proceeding, from the time that the prisoner is brought into the execution room to the time of death.
Second, the plaintiffs claim that ADC officials have violated their First Amendment rights by failing to disclose certain information regarding the source and quality of the lethal-injection drugs that will be used in the inmates’ executions. Arizona’s procedures require the Department of Corrections to disclose some information *1074 about the drug protocol to be used in an execution. That information includes the chemical composition and dosages of the drugs, as well as the procedures for administering them. The procedures also require officials to ensure that the drugs are not expired and are properly stored. In their complaint, the plaintiffs request additional information regarding the manufacturers, sellers, lot numbers, National Drug Codes, and expiration dates of the drugs.
Third, the plaintiffs claim that ADC officials are violating the First Amendment by failing to disclose the qualifications of each execution team member who will insert intravenous lines into the inmates. Arizona’s procedures require such individuals to be “currently certified or licensed within the United States” to place intravenous lines. The procedures specify that the individual may be a physician, physician assistant, nurse, emergency medical technician, paramedic, military corpsman, or any other certified or licensed personnel. The plaintiffs argue that more specific information regarding each team member’s qualifications is necessary because under the current procedures, an amateur with an online certificate would be authorized to insert the intravenous lines. The plaintiffs thus seek documentation from the ADC to establish that the execution team members who will insert intravenous lines are qualified to do so.
**4 [1]The plaintiffs advance two theories under the First Amendment to challenge the practices described above. They first challenge Arizona’s practices as violating their First Amendment right of access to governmental proceedings. That right guarantees the public and the press a measure of access to governmental proceedings, to ensure that public discussion of governmental affairs is
informed. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604–05, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). Under this theory, the plaintiffs contend, ADC officials are violating the First Amendment by limiting access to the sounds of the execution process and by concealing information regarding execution drugs and personnel, thereby depriving the public of information necessary to have an informed debate about capital punishment in Arizona.

[2]The plaintiffs also assert a separate claim under the First Amendment predicated on violation of the inmates’ right of access to the courts. That right guarantees prisoners a meaningful opportunity to bring legal challenges to their sentences and the conditions of their confinement. See
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). According to the complaint, ADC officials are violating the inmates’ First Amendment rights by limiting their access to important information about the execution process, thus hindering their ability to challenge the constitutionality of their executions.
The district court dismissed the plaintiffs’ First Amendment claims under Federal Rule of Civil Procedure 12(b)(6). The court held that the right of access to governmental proceedings does not encompass either the right to hear the sounds of the execution process or the right to obtain the requested information regarding execution drugs and personnel. The district court’s decision turned largely on its reading of California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), which held that the right of access to governmental proceedings includes the right to view executions in their entirety. Id. at 873–77. The district court construed the holding of that case as limited to the right to view executions, not the right to hear the sounds of executions or the right to obtain information regarding execution drugs and personnel. The court also concluded that the plaintiffs had not plausibly alleged a historical tradition or the functional *1075 importance of access to execution sounds and information, as required by the relevant First Amendment test.
The district court rejected the plaintiffs’ other First Amendment theory as well. The court explained that the First Amendment right of access to the courts does not include the right to discover grievances. In the court’s view, the inmates are requesting access to execution sounds and information about execution drugs and personnel in order to discover whether they can assert a colorable Eighth Amendment claim. The court concluded as a matter of law that the inmates are not entitled to such information under the First Amendment right of access to the courts.
II
We turn first to the claim that ADC officials have violated the plaintiffs’ right of access to governmental
6

proceedings.
A
[3] [4]We conclude that the First Amendment right of access to governmental proceedings encompasses a right to hear the sounds of executions in their entirety. We also conclude that on the facts alleged, Arizona’s restrictions on press and public access to the sounds of executions impermissibly burden that right. We thus reverse the district court’s decision as to this restriction.
1
[5] [6]Our conclusion follows directly from the holding and reasoning of Woodford. In that case, we considered a California regulation that prevented witnesses from observing the initial steps of the execution process, during which the prisoner is brought into the execution chamber, secured to the gurney, and has the intravenous lines inserted. See Woodford, 299 F.3d at 871. We held that the public has a First Amendment right to view executions in their entirety. See id. at 877. In reaching that conclusion, we applied the two-part test for analyzing whether a First Amendment right of access to governmental proceedings exists: (1) “whether the place and process have historically been open to the press and general public,” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) ( Press-Enterprise II). We determined that public viewing of executions in their entirety is rooted in historical tradition and that public observation plays a significant role in the functioning of capital punishment. See Woodford, 299 F.3d at 875–77. We therefore ruled that the public has a qualified First Amendment right to view executions in their entirety.
**5 We first consider here whether the plaintiffs in this case have alleged facts that state a plausible claim that the ADC has violated their First Amendment right to hear the sounds of executions in their entirety. As in Woodford, we apply the Press-Enterprise II test to determine

whether such a First Amendment right of access exists.
The historical tradition of public access described in
Woodford includes the ability to hear the sounds of executions. In the Second Amended Complaint, the plaintiffs cite historical examples in which the public and the press were able to attend hangings with no barriers between the prisoners and witnesses. These allegations
echo our reasoning in Woodford. We explained there that executions have historically been open to the press
and the general public. See id. at 875–76. The crowds that gathered to watch those executions could, no doubt, hear the sounds of the entire execution process, even if not with perfect clarity.
*1076 The defendants argue that, even if that was the case, the plaintiffs are seeking an amplified sound broadcast from the execution room, which is not rooted in historical tradition. But that mischaracterizes the nature of the plaintiffs’ request. Arizona has chosen to have witnesses view the events through a soundproof window. The plaintiffs are asking for the microphone in the execution room to be left on during the entire execution process not because they want amplified audio, but because they want witnesses to be able to hear the sounds as they would if they were viewing the execution directly rather than through a soundproof window.
The plaintiffs have also plausibly alleged that such access would play a significant role in the proper functioning of capital punishment. They allege that allowing witnesses to hear the sounds of the entire execution process will ensure informed and accurate media coverage of the event, which in turn will help the public determine whether executions in Arizona are being carried out in a humane and lawful manner. To support this allegation, they cite historical examples in which media coverage of executions has sparked public debate about the appropriate method of execution in Arizona.
The defendants argue that leaving the microphone on during the entire process will provide no additional benefit to the functioning of capital punishment in Arizona. They point out that journalists were able to report on the choking and coughing sounds that Joseph Wood made during his execution under the State’s current procedures. However, although reporters could hear those sounds during the brief moments when Wood’s execution team provided updates, they could not hear anything else in the nearly two hours it took for Wood to die. Lifting Arizona’s restriction on the witnesses’ ability to hear would ensure more comprehensive coverage of executions in the State.
7

As we explained in Woodford, the plaintiffs have alleged a legally cognizable theory. Execution witnesses need to be able to observe and report on the entire process so that the public can determine whether lethal injections are fairly and humanely administered. See id. at 876. Barring witnesses from hearing sounds after the insertion of intravenous lines means that the public will not have full information regarding the administration of lethal-injection drugs and the prisoner’s experience as he dies.
2
**6 Although we hold that, on the facts alleged, the public and the press have a constitutional right to hear the sounds of the entire execution process, that does not end our inquiry. In Woodford, after we held that the public has a qualified First Amendment right to view executions, we went on to analyze whether California’s restriction on such observation impermissibly burdened that right. See
id. at 885. We concluded that it did.
First, we determined that a deferential standard of review is appropriate in this context because executions take place inside prisons, and corrections officials must have broad discretion to carry out the complex task of prison administration. See id. at 877–79. We thus analyzed whether California’s regulation was “reasonably related to legitimate penological objectives, or whether it represent[ed] an exaggerated response to those concerns.”
Id. at 878 (quoting Turner v. Safley, 482 U.S. 78, 87, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). We explained that there needed to be a “closer fit” between the regulation and any legitimate penological objectives because the California regulation at issue did not leave room for case-by-case discretion. See *1077 id. at 879. The restriction categorically banned witnesses from viewing the initial procedures of executions, regardless of whether there were any specific security concerns.
We then considered the four factors relevant to the inquiry: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it,” (2) “whether there are alternative means of exercising the right that remain open to prison inmates,” (3) what “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the

allocation of prison resources generally,” and (4) whether there are “obvious, easy alternatives ... that fully accommodate[ ] the prisoner’s rights at de minimis cost to
valid penological interests.” Turner, 482 U.S. at 89–91, 107 S.Ct. 2254 (internal quotation marks omitted). We concluded that the California viewing restriction was not reasonably related to a legitimate penological interest
and thus was unconstitutional. See Woodford, 299 F.3d at 879–85.
[7] [8]The same deferential standard of review applies here
as well. As in Woodford, we are dealing with a regulation regarding executions that will take place inside
a prison. See id. at 877–79. We consider the four relevant factors to determine whether Arizona’s restrictions on access to the sounds of executions are reasonably related to legitimate penological objectives.
As Woodford instructed, we require a “closer fit” between the restriction and any legitimate penological interests because the regulation does not allow for
case-by-case discretion. See id. at 879. That is, Arizona imposes a categorical ban on hearing the sounds of executions after the intravenous lines are inserted, regardless of whether there are any specific security risks.
The plaintiffs have alleged facts that state a plausible claim that Arizona has unconstitutionally restricted the ability of witnesses to hear the sounds of executions, even under the deferential standard of review applied in
Woodford. The defendants attempt to justify the restrictions by arguing that they have a legitimate penological interest in ensuring that execution team members are not publicly identified or attacked. But, according to the factual allegations in the plaintiffs’ complaint, witnesses can hear sounds from the execution room as the execution team brings the prisoner into the room, secures him to the table, and inserts the intravenous lines. Thus, to the extent that execution team members could be identified by the sound of their voices, witnesses can already hear their voices during the initial stages of the execution. The defendants also argue that allowing witnesses to hear the sounds of the entire execution process could increase the risk of litigation and cause execution team members to second-guess their actions. We reject this argument because Arizona does not have a legitimate penological interest in hampering efforts to ensure the constitutionality of its executions. The plaintiffs have thus plausibly alleged that there is no valid, rational connection between the regulation and cognizable
governmental interests. See Turner, 482 U.S. at 89–90, 107 S.Ct. 2254.
**7 The plaintiffs have also plausibly alleged that, with
8

Arizona’s restrictions in place, there are no alternative means for the public to exercise the right to hear the sounds of executions in their entirety. See id. at 90, 107 S.Ct. 2254. As we explained in Woodford, the public has a right to independent eyewitness accounts of the entire execution process. See Woodford, 299 F.3d at 883–84. Reports of executions by the same prison officials who carry them out are not adequate substitutes. See id. at 883.
*1078 Finally, the plaintiffs have plausibly alleged that there is an available, low-cost alternative to fully accommodate the First Amendment right: leaving the microphone in the execution room on throughout the entire process. See Turner, 482 U.S. at 90–91, 107 S.Ct. 2254. This accommodation would not have a significant impact on guards, other inmates, or the allocation of prison resources. See id. at 90, 107 S.Ct. 2254. According to the plaintiffs’ allegations and Arizona’s own records, a microphone is already set up to carry sounds from the execution room to the witness room during the initial stages of the execution process. Leaving the microphone on for the rest of the process would involve at most only a de minimis cost.
B
[9]The plaintiffs also assert that the First Amendment right of access to governmental proceedings entitles them to information regarding the manufacturers, sellers, lot numbers, National Drug Codes, and expiration dates of lethal-injection drugs, as well as documentation regarding the qualifications of certain execution team members. We agree with the district court that neither the public nor the press has a First Amendment right of access to this information.
[10] [11] [12]As the Supreme Court originally conceptualized it, the First Amendment right of access to governmental proceedings refers to the right of the public to attend and observe those proceedings. In the initial cases recognizing the right, the Court held that the public has the right to attend criminal trials, see Globe Newspaper Co., 457 U.S. at 606, 102 S.Ct. 2613; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (plurality opinion), the jury-selection process, see Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 512, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)

( Press-Enterprise I), and preliminary hearings, see
Press-Enterprise II, 478 U.S. at 13, 106 S.Ct. 2735. In situations in which other interests justify the closure of a proceeding, the Court held that the public has a right to access a transcript of the proceeding within a reasonable
time. See Press-Enterprise II, 478 U.S. at 13, 106 S.Ct.
2735; Press-Enterprise I, 464 U.S. at 512, 104 S.Ct. 819. Our court has since extended the right of access to various documents filed in criminal proceedings. For example, we have held that the public has the right to
access plea agreements, see Oregonian Publishing Co. v. United States District Court, 920 F.2d 1462, 1465–66 (9th Cir. 1990), documents filed in pretrial proceedings,
see Associated Press v. United States District Court, 705 F.2d 1143, 1145 (9th Cir. 1983), and documents filed
in post-conviction proceedings, see CBS, Inc. v. United States District Court, 765 F.2d 823, 825 (9th Cir. 1985).
The plaintiffs analogize information regarding execution drugs and personnel to the documents described above. They argue that the information is just as important to understanding executions as the documents at issue in our prior cases are to understanding criminal proceedings, and that the public therefore has a right of access to the information sought here. The plaintiffs correctly point out
that we held that such a right likely exists in Wood, 759 F.3d at 1082–86, but that decision was summarily vacated by the Supreme Court.
**8 We conclude that the requested information differs from the requested documents in precedential cases in material ways and that the public does not have a right of access to the information at issue here. As explained above, the Supreme Court has held that the public has a right of access to transcripts of various criminal
proceedings. See, e.g., Press-Enterprise II, 478 U.S. at 13, 106 S.Ct. 2735 (preliminary *1079 hearing);
Press-Enterprise I, 464 U.S. at 512, 104 S.Ct. 819 (jury-selection process). Information regarding execution drugs and personnel bears no resemblance to a transcript. It does not provide a descriptive account of the execution process, as a transcript would. The reason for providing the public with access to a transcript also does not apply here. The Supreme Court has explained that a transcript may serve as a substitute for holding an open governmental proceeding when other interests justify the
closure of that proceeding. See Press-Enterprise I, 464 U.S. at 512, 104 S.Ct. 819. There is no need for a transcript in this context, since the public already has a
right to attend and observe executions. See Woodford,
9

299 F.3d at 877.
Information regarding execution drugs and personnel also differs from other documents to which the public has a right of access. We have held that the public has the right to access documents filed in certain judicial proceedings.
See, e.g., Oregonian Publishing Co., 920 F.2d at 1465–66 (plea agreement and related documents);
CBS, Inc., 765 F.2d at 825 (documents filed in
post-conviction proceedings); Associated Press, 705 F.2d at 1145 (documents filed in pretrial proceedings). Those documents are part of the official judicial record.
See CBS, Inc., 765 F.2d at 826. We have never held that the right of access extends to documents beyond those in the record just because they may shed light on a criminal proceeding. For example, we have never held that the First Amendment gives the public a right to access judicial conference notes or to all documents in the prosecutor’s possession, and the Supreme Court has suggested that the First Amendment does not provide for
such a right. See Pell v. Procunier, 417 U.S. 817, 833–34, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).
[13]Unlike the documents to which the public has a right of access, the requested information is not part of any official record of the execution proceeding. It is simply information in the government’s possession that would enhance the understanding of executions. But, as the Supreme Court has stated, the First Amendment does not “mandate[ ] a right of access to government information or sources of information within the government’s
control.” Houchins v. KQED, Inc., 438 U.S. 1, 15, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (plurality opinion).
We also reject the plaintiffs’ argument that the holding of Woodford—that the public has a right to view executions in their entirety—directly resolves this issue. According to the plaintiffs, in analogous medical settings, witnesses would be able to view drug labels and the nametags of medical personnel, which would allow them to observe information regarding the source of drugs and the qualifications of medical personnel. The plaintiffs argue that knowing the source of the drugs would, in turn, provide information about the quality of the drugs. The plaintiffs thus contend that the right to view executions in their entirety includes the right to access the requested information regarding execution drugs and personnel.
[14] [15] Woodford’s holding does not extend that far. There, we held that the public and the press have the right to view executions in their entirety, “including those ‘initial procedures’ that are inextricably intertwined with the process of putting the condemned inmate to death.”

Woodford, 299 F.3d at 877. We did not hold that there is a First Amendment right to examine executions in minute detail, such that witnesses could see the drug labels and the nametags of execution team members. Nor did we hold that the public is entitled to all information that is “inextricably intertwined” with executions.
Woodford did not change the default rule that the right of *1080 access “does not extend to every piece of information that conceivably relates to a governmental proceeding, even if the governmental proceeding is itself
open to the public.” Wood, 759 F.3d at 1092 (Bybee, J., dissenting).
**9 Other courts have reached the same conclusion. The
Sixth Circuit concluded that the Press-Enterprise II test does not apply in this context, and held that the public does not have a First Amendment right of access to information regarding the identities of execution team members or the identities of entities that transport, manufacture, compound, or supply lethal-injection drugs. See Phillips v. DeWine, 841 F.3d 405, 417–20 (6th Cir. 2016). Similarly, the Eighth Circuit has held that the public does not have a First Amendment right to know the identities of the entities that supply and compound
lethal-injection drugs. See Zink v. Lombardi, 783 F.3d 1089, 1111–13 (8th Cir. 2015). And the Eleventh Circuit has held that the public does not have a right to know the qualifications of execution team members or the source of lethal-injection drugs. See Wellons v. Commissioner, 754 F.3d 1260, 1266–67 (11th Cir. 2014).
Given Arizona’s checkered past with executions, we are troubled by the lack of detailed information regarding execution drugs and personnel. Such information would undoubtedly aid the public and death-row inmates in monitoring the constitutionality of Arizona’s execution proceedings. However, as the Supreme Court has held, the First Amendment does not mandate the disclosure of “all the information provided by [freedom of information]
laws.” McBurney v. Young, 569 U.S. 221, 232, 133 S.Ct. 1709, 185 L.Ed.2d 758 (2013). Thus, although the inmates may be able to assert a procedural due process
right to obtain the information they seek, see Lopez, 680 F.3d at 1083–84 (Berzon, J., concurring in part and dissenting in part), neither the inmates nor the First Amendment Coalition possesses such a right under the First Amendment.
Because the First Amendment right of access to governmental proceedings does not entitle the plaintiffs to information regarding execution drugs and personnel as a matter of law, the district court did not abuse its discretion by dismissing with prejudice those aspects of the
10

plaintiffs’ claim relating to such information.

REMANDED. The parties shall bear their own costs.

III
[16]We turn next to the plaintiffs’ claim that Arizona’s restrictions violate the inmates’ First Amendment right of access to the courts. We agree with the district court that this claim fails as a matter of law.

[17] [18]We have held that there are two types of claims that

can be raised in this context. See

Silva v. Di

Vittorio, 658 F.3d 1090, 1102–04 (9th Cir. 2011),

overruled on other grounds by Coleman v. Tollefson, ––– U.S. ––––, 135 S. Ct. 1759, 191 L.Ed.2d 803 (2015). The first category of claims involves the denial of adequate law libraries and other legal assistance to prisoners, which prevents them from challenging their sentences and the conditions of their confinement. See

Hebbe, 627 F.3d at 342–43. The second category of claims involves active interference with a prisoner’s right to litigate, such as seizing and withholding the prisoner’s

legal files. See

Silva, 658 F.3d at 1102–04. Neither

of those rights is implicated here, for the plaintiffs do not

contend that Arizona officials have limited the inmates’

ability to litigate in any way.

[19]The Supreme Court has explained that the First Amendment right of access to the courts does not include the right of prisoners to “discover grievances[ ] and to
litigate effectively once in court.” *1081 Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (emphasis omitted). That is what the inmates seek here. According to the Second Amended Complaint, the inmates are seeking access to execution sounds and information regarding execution drugs and personnel in order to discover whether they have a colorable claim that their executions will be carried out in violation of the Eighth and Fourteenth Amendments. The First Amendment right of access to the courts does not entitle the inmates to such information. See Phillips, 841 F.3d at
420; Zink, 783 F.3d at 1108; Wellons, 754 F.3d at 1267.

**10 Because the inmates’ right-of-access-to-the-courts claim fails as a matter of law, the district court did not abuse its discretion by dismissing this claim without leave to amend.

AFFIRMED in part, REVERSED in part, and

BERZON, Circuit Judge, concurring in part and dissenting in part:
I join Parts I and II of the Court’s opinion but dissent in part as to Part III.
For one of the initial plaintiffs in this case, any intervention we might now order may be entirely too late. The botched execution of Joseph Wood took one hundred and seventeen minutes. This Court had stayed Wood’s execution, holding that, until Arizona provided the “name and provenance of the drugs to be used” and “the qualifications of the ... personnel” to be enlisted, his
execution threatened irreparable harm. Wood v. Ryan, 759 F.3d 1076, 1088 (9th Cir.), vacated 573 U.S. 976, 135 S.Ct. 21, 189 L.Ed.2d 873 (2014).1 The State, we held, could not execute Wood as long as it continued to conceal “reliable information” about execution procedures which are “invasive, possibly painful, and may give rise to
serious complications.” Id. at 1085 (quoting Cal. First Amendment Coal. v. Woodford, 299 F.3d 868, 876 (9th Cir.2002)). But despite Arizona’s assurances that “nearly every detail” of its execution protocol had been made public, Wood’s execution in fact deviated from that protocol in significant ways, culminating in the injection of thirteen more doses of lethal drugs than the protocol authorized. And despite the serious possibility that
Wood’s execution inflicted “needless suffering,” Baze v. Rees, 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), Arizona has ensured that it remains unclear what went so tragically wrong—and why its assurances proved unreliable.
In seeking to prevent his likely-unconstitutional execution, Wood relied upon an eerily similar case: Towery v. Brewer, 672 F.3d 650, 661 (9th Cir. 2012). Robert Towery’s execution had also deviated from Arizona’s purported protocol, resulting in an hour-long ordeal as personnel struggled to set IV lines, doubtless producing
considerable pain. See Lopez v. Brewer, 680 F.3d
1068, 1073–75 (9th Cir. 2012). In Lopez, this Court noted the tension between Arizona’s “touting of the public nature of the execution” and its “shrouding” of crucial details of the execution process “in a cloak of
secrecy.” Id. at 1075. I separately argued that the “impenetrable roadblocks” erected by Arizona to
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obtaining such information denied death-row inmates their procedural due process right to have Eighth Amendment challenges heard at a meaningful time and in
a meaningful manner, Id. at 1082 (Berzon, J., concurring in part and dissenting in part). Despite these admonitions, Arizona has continued to conceal the precise conditions of Towery’s death.
*1082 These deviations in protocol are not isolated. In other executions, Arizona has obtained its lethal injection drugs illegally or administered them in unauthorized dosages. And on at least one occasion, the State issued a warrant of execution without compliance with provisions of its protocol which required it to ensure that that the drugs it planned to use had not expired, discovering its oversight only two days before the execution.
**11 Arizona is now deploying a range of strategies to obstruct any effort to understand the difficulties which plague its executions. First, it grants those who carry out its executions broad discretion to eliminate the access it ordinarily allows. Its protocol authorizes Arizona Department of Corrections (“ADC”) officials to cut the microphone if the condemned, in making his final statement, makes any utterance which officials deem “vulgar[ ]” or “intentionally offensive.” The threatened use of this discretion forced Towery to develop a code for communicating with his counsel from the execution chamber, a code by which he may have indicated that the
execution procedures were causing him pain. Lopez, 680 F.3d at 1082 (Berzon, J., concurring in part and dissenting in part). The potential use of such a code in future executions is not a reassuring prospect, for ADC officials also retain discretion to close the window curtains of the execution chamber or to remove witnesses from the facility if they deem either course of action “merit[ed]” by a “legitimate penological objective.”
Moreover, Arizona now withholds information concerning the source and quality of its lethal-injection drugs. ADC officials had previously provided this information, pursuant to a court order which they declined to appeal. The officials justify this change by invoking an interest in maintaining confidentiality for the sources of Arizona’s lethal-injection drugs. But they offer no evidence that their previous compliance with the court order encumbered their administration of subsequent
executions. Wood, 759 F.3d at 1086. Even assuming the legitimacy of the State’s interest, that interest does not explain Arizona’s choice to withhold the same sorts of information provided for previous executions, which would not compromise confidentiality. Disclosure of the drugs’ expiration dates, for example, would not reveal the identities of their manufacturers. Given the poor fit

between the changes Arizona has made to its execution procedures and the reasons it has offered to justify them, we can only wonder, at this stage, as to Arizona’s true objectives.

The remaining plaintiffs in this case now challenge as forbidden by the First Amendment the shroud of secrecy that Arizona maintains around its executions. While I join Parts I and II of the Court’s opinion, I write separately to call attention to the inmates’ plausible allegations that Arizona, through its deliberate concealment of information about its execution process, has violated their First Amendment right of access to the courts. I also write to reiterate my view that Arizona’s approach to devising, announcing, and recording its execution procedures denies condemned inmates their right under the Fourteenth Amendment to procedural due process of law.

1. As the majority notes, this Court has recognized two types of access-to-courts claims: “those involving prisoners’ right to affirmative assistance” and “those involving prisoners’ rights to litigate without active

interference.”

Silva v. Di Vittorio, 658 F.3d 1090,

1102 (9th Cir. 2011) (emphases in original), overruled on

other grounds by Coleman v. Tollefson, ––– U.S. ––––, 135 S. Ct. 1759, 191 L.Ed.2d 803 (2015). I agree with the majority that the inmates *1083 have not alleged facts that would give rise to a cause of action of the former type. As a First Amendment matter, they have no affirmative entitlement to information regarding the source, quality, storage conditions, or expiration dates of Arizona’s lethal-injection drugs or the qualifications of its execution-team members.

But I part ways with the majority when it comes to the latter type of claim. The inmates have plausibly alleged that Arizona has concealed information in a deliberate effort to limit their ability to litigate the conditions under which they will be put to death. If that is true, then Arizona has actively interfered with rights protected by the First Amendment.

The aforementioned distinction is not of the Ninth
Circuit’s making. In Casey v. Lewis, the Supreme Court made clear that the right of access to courts does not compel the state affirmatively to “enable the prisoner to discover grievances, and to litigate effectively once in
court,” 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), even as it acknowledged that the right is implicated where the state “hinder[s]” a prisoner’s
“efforts to pursue a legal claim,” id. at 351, 116 S.Ct. 2174. Other circuits have similarly recognized that access to the courts must be free from “undue interference,”

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Snyder v. Nolen, 380 F.3d 279, 291 (7th Cir. 2004), in that the state “may not erect barriers that impede the
right,” John L. v. Adams, 969 F.2d 228, 235 (6th Cir. 1992). Cases involving this aspect of the right turn on the intention with which the state acts. The proscribed intention of interference might be pursued in any number of ways.

**12 ADC officials urge that the inmates’ access-to-courts claims fail as a matter of law because the inmates do not allege that they are “physically unable” to file Eighth Amendment claims, “only that they are unable to obtain the information needed to discover” a potential
violation. Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011). But the problem here is not that the inmates are unable to obtain any particular information; it is rather that the State is alleged to have concealed such information in a deliberate attempt to “hinder[ ]” their
litigation efforts. Casey, 518 U.S. at 351, 116 S.Ct. 2174.

We have never limited our “active interference” jurisprudence to interference with an inmate’s ability

(physical or otherwise) to file a claim. See

Silva,

658 F.3d at 1102–03. Nor has the Supreme Court

embraced such a limitation. In Christopher v. Harbury, plaintiff Jennifer Harbury alleged a deprivation of her right of access to the courts where government officials intentionally deceived her by concealing information that her husband was being detained and tortured by foreign military officers who were paid agents of the Central

Intelligence Agency. 536 U.S. 403, 405–08, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). If not for the government’s deception, Harbury argued, she “could have brought a lawsuit that might have saved her husband’s

life.” Id. at 405, 122 S.Ct. 2179. The Court rejected Harbury’s argument, but not on the ground that the right of access to the courts cannot be violated by deliberate government concealment of information. Rather, Harbury’s right-of-access claim failed because she had not identified an underlying cause of action that had been compromised as a result of the government’s deception, nor had she sought any relief that would otherwise be

unavailable in a subsequent lawsuit. Id. at 415, 418–22, 122 S.Ct. 2179. Had she alleged a “nonfrivolous” underlying claim with which the government had interfered (one whose “arguable nature” offered “more than hope”) and a remedy for the government’s interference, her case could not have been dismissed.

Id. at 416, 122 S.Ct. 2179 (internal quotation marks omitted).

*1084 The inmates here, by contrast, have identified an underlying claim with which Arizona has allegedly interfered: that their impending executions threaten a serious “risk of severe pain,” in violation of the Eighth
Amendment. Baze, 553 U.S. at 61, 128 S.Ct. 1520. Given plaintiffs’ detailed allegations concerning the widespread difficulties involved in obtaining lethal-injection drugs, the considerable dangers posed by using drugs obtained from illegal sources or at unauthorized dosages, and Arizona’s troubling history of deviating from its own lethal-injection drug protocols, including by obtaining its drugs illegally, administering them at unauthorized dosages, and failing to ensure appropriately that their expiration dates had not lapsed, the underlying claim is assuredly not frivolous. See
Harbury, 536 U.S. at 416, 122 S.Ct. 2179. Indeed, given that deviations in protocol marked the executions of Robert Towery and Joseph Wood—executions which, for all that the State has permitted us to know, may well have
inflicted more pain than Baze allows—the “arguable
nature” of these claims offers “more than hope.” Id. at 416, 122 S.Ct. 2179.
The inmates have also sought an appropriate remedy: the demolition of those barriers which Arizona has erected in a deliberate attempt to interfere with their efforts to access the courts. The inmates have alleged, in copious detail, that Arizona has structured its protocol so as to maximize ADC officials’ discretion to deviate from standard procedure, and that officials have repeatedly exercised this discretion on a last-minute basis, making meaningful judicial review near impossible. Moreover, the inmates allege that Arizona’s previous use of a paralytic as part of its lethal-injection protocol may, by design, have served only to mask the pain suffered by those whom Arizona puts to death, preventing those still awaiting execution from sparing themselves similar pain. As Judge Reinhardt observed: “[I]f a skilled lawyer were instructing the state on how best to avoid any meaningful review of the constitutionality of its execution procedures, he would be hard pressed to improve on the unconscionable regime that the state has adopted.” Lopez v. Brewer, 680 F.3d 1084, 1095–96 (9th Cir. 2012) (Reinhardt, J., dissenting from denial of rehearing en banc) (emphasis in original). Indeed, ADC officials themselves advance an interest in curtailing “the risk of litigation” as a legitimate purpose for adopting at least some of their policies. Against this backdrop, the inmates’ assertion that Arizona has “deliberately conceal[ed]” critical information about its execution process, actively interfering with their access to the courts, is more than plausible.
**13 Additional First Amendment issues may be raised by the State’s admission that its concealment of the
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sources of its lethal-injection drugs is motivated by an interest in suppressing lawful protest directed at the drugs’ manufacturers. But we need not reach such issues today. Arizona’s alleged interference with the inmates’ efforts to access the courts is sufficient.

To be sure, the inquiry into motivational subtleties which the “active interference” standard demands is not easily

undertaken at the pleading stage. See

Silva, 658

F.3d at 1103–04. The inmates have plausibly alleged

Arizona’s deliberate concealment of a range of

information through barriers which take a variety of forms.

On the merits, only those barriers proven to have been

erected in a deliberate attempt to interfere with litigation

efforts could violate the First Amendment. But the

inmates must be permitted to make that showing. Today’s

opinion denies them that opportunity.

2. Were a procedural due process challenge before us, we could avoid such a *1085 searching inquiry into Arizona’s intentions. We would ask whether Arizona’s execution process deprives condemned inmates “the opportunity to be heard at a meaningful time and in a meaningful manner,” regardless of what might motivate
the deprivation. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). That the inmates are unable to litigate meaningfully their liberty interest in avoiding an unconstitutionally painful execution would be enough.
See Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003).

barrier by barrier, parsing Arizona’s reasons for adopting each one, we would ask whether the barriers, taken together, amount to a procedural due process violation.
This approach would also afford Arizona greater flexibility in correcting the constitutional deficiencies of its execution protocols. In Lopez, I wrote that Arizona might rectify its due process violations in any number of ways, “including (1) providing a detailed written protocol that restricts the Director’s discretion and is actually followed in executions; (2) keeping and making available detailed accounts of the actual execution processes, including any evidence of the impact on the pain perception by those executed; (3) providing either for public access or for more limited access by counsel to the pre-execution proceedings.” 680 F.3d at 1084 (Berzon, J., concurring in part and dissenting in part). It is disappointing that Arizona has continued to decline that invitation. Its adoption of any one of these suggestions would give the condemned inmates much of what they seek.
It may well be too late for Joseph Wood and Robert Towery to vindicate their First Amendment rights of court access or their rights to due process of law. If nothing changes, it might soon be too late for some remaining plaintiffs, as well.
All Citations
938 F.3d 1069, 2019 WL 4419676, 19 Cal. Daily Op. Serv. 9289, 2019 Daily Journal D.A.R. 8989

Relying upon procedural due process would offer the additional advantage of directing litigation efforts at the totality of the execution process. Rather than proceeding

Footnotes

1

The Supreme Court vacated our stay of Wood’s execution, so the Wood opinion is not precedential. I cite to the

opinion as part of the historical record of Wood’s execution.

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