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First Amendment Coalition of Arizona, Inc. v. Ryan

United States Court of Appeals, Ninth Circuit

September 17, 2019

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.

          Argued and Submitted September 12, 2018 San Francisco, California

          Appeal from the United States District Court No. 2:14-cv-01447-NVW for the District of Arizona Neil V. Wake, District Judge, Presiding

          Collin P. Wedel (argued), Joshua E. Anderson, Alycia A. Degen, and Katherine A. Roberts, Sidley Austin LLP, Los Angeles, California; Jon M. Sands, Federal Public Defender; Dale A. Baich and Jessica L. Felker, Assistant Federal Public Defenders; Office of the Federal Public Defender, Phoenix, Arizona; for Plaintiffs-Appellants.

          Dominic E. Draye (argued), Solicitor General; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendants-Appellees.

          Before: Marsha S. Berzon, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.

         SUMMARY[*]

         First Amendment/Death Penalty/42 U.S.C. § 1983

         The panel affirmed in part and reversed in part the district court's dismissal of plaintiffs' second amended complaint in an action brought by Arizona death-row inmates and the First Amendment Coalition of Arizona, challenging Arizona's revised execution procedures under the First Amendment.

         Plaintiffs challenged three of Arizona's practices. First, the plaintiffs claimed that Arizona unconstitutionally restricted the ability of execution witnesses to hear the sounds of the entire execution process. Second, the plaintiffs claimed that Arizona Department of Corrections ("ADC") officials violated their First Amendment rights by failing to disclose certain information regarding the source and quality of the lethal-injection drugs to be used in the inmates' execution. Third, the plaintiffs claimed that ADC officials were violating the First Amendment by failing to disclose the qualifications of each execution team member who will insert intravenous lines into the inmates.

         Concerning plaintiffs' claim that ADC officials violated their First Amendment right of access to governmental proceedings, the panel held that the right encompassed a right to hear the sounds of executions in their entirety. The panel further held that on the facts alleged, Arizona's restrictions on press and public access to the sounds of executions impermissibly burdened that right. The panel reversed the district court's decision as to this restriction. The panel also held that because the First Amendment right of access to governmental proceedings did not entitle the plaintiffs to information regarding execution drugs and personnel as a matter of law, the district court did not abuse its discretion by dismissing with prejudice those aspects of the plaintiffs' claim relating to such information.

         Concerning plaintiffs' claim that Arizona's restrictions violated the inmates' First Amendment right of access to the courts, the panel agreed with the district court that the claim failed as a matter of law. The panel held that the district court did not abuse its discretion by dismissing this claim without leave to amend.

         Judge Berzon concurred in Parts I and II of the majority opinion, but dissented as to Part III (First Amendment right of access to the courts). Judge Berzon wrote separately to call attention to the inmates' plausible allegations that Arizona, through its deliberate concealment of information about its execution process, has violated their First Amendment right of access to the courts. Judge Berzon would also hold that Arizona's approach to devising, announcing, and recording its execution procedures denied condemned inmates their right under the Fourteenth Amendment to procedural due process of law.

          OPINION

          WATFORD, CIRCUIT JUDGE.

         The plaintiffs in this case are seven Arizona death-row inmates and the First Amendment Coalition of Arizona, a non-profit organization that seeks to advance free speech, accountable government, and civic participation. They brought this action against officials of the Arizona Department of Corrections (ADC) to challenge aspects of the Arizona execution process. We are asked to decide whether the plaintiffs have pleaded facts that plausibly state claims that the ADC officials have violated the plaintiffs' First Amendment rights by: (1) restricting the ability of execution witnesses to hear the sounds of the entire execution process; (2) failing to disclose the source and quality of the lethal-injection drugs that will be used in the inmates' executions; and (3) failing to disclose specific qualifications of the execution team members who will insert intravenous lines into the inmates.

         I

         Since the Supreme Court upheld the constitutionality of a three-drug protocol in Baze v. Rees, 553 U.S. 35 (2008), the State of Arizona has executed 14 prisoners by lethal injection. During that time, the State has faced a series of legal challenges to its execution process. A number of those challenges have involved whether its executions expose prisoners to needless pain in violation of the Eighth Amendment. Although we have rejected the challenge each time, we have expressed serious concerns about the suffering caused by Arizona's lethal-injection process. For instance, we noted that the execution of Robert Towery was "perilously close" to falling outside of the constitutional safe harbor created by Baze, given the length of time it took to place Towery's intravenous lines. Lopez v. Brewer, 680 F.3d 1068, 1075 (9th Cir. 2012).

         Members of our court have noted serious due process concerns with Arizona's execution procedures as well. These concerns have largely involved the shroud of secrecy surrounding Arizona's execution proceedings and the State's pattern of deviating from its lethal-injection protocols at the last minute. See Lopez v. Brewer, 680 F.3d 1084, 1094-95 (9th Cir. 2012) (Reinhardt, J., dissenting from denial of rehearing en banc). For example, Arizona informed the court that it intended to use a one-drug protocol instead of a three-drug protocol less than 48 hours before Towery's execution. See Towery v. Brewer, 672 F.3d 650, 652-53 (9th Cir. 2012). Then, when carrying out Towery's execution, the State restricted public and attorney observation, prohibited Towery from describing the pain he experienced, and limited the notes recorded in the official execution log. See Lopez, 680 F.3d at 1082-83 (Berzon, J., concurring in part and dissenting in part). These practices have constrained the ability of death-row inmates to challenge the constitutionality of Arizona's execution process, raising procedural due process concerns. See id. at 1083-84. This lack of information has also hampered judicial review and public evaluation of the process.

         In 2014, six death-row inmates filed this 42 U.S.C. § 1983 action against various ADC officials in response to the problems described above. The inmates asserted, among other things, that they have a First Amendment right to detailed information regarding the drugs to be used in their executions and the qualifications of execution team members. See Wood v. Ryan, 759 F.3d 1076, 1079 (9th Cir.), vacated, 573 U.S. 976 (2014). Joseph Wood, one of the original plaintiffs in this action, filed a motion for a preliminary injunction seeking a stay of his impending execution until he obtained the requested information. Our court concluded that Wood had raised serious questions as to whether he was entitled to the requested information under the First Amendment and granted a conditional stay. Id. at 1080-86, 1088. The Supreme Court summarily vacated that decision.

         Arizona executed Wood a day after the stay was vacated. Wood's execution was botched in several ways. According to the allegations in the plaintiffs' complaint, Wood rose up and gasped for air about 12 minutes into his execution, after first appearing to be sedated. He continued to struggle to breathe until he died, nearly two hours after the drugs were first administered. During that time, Wood was administered 15 doses of lethal-injection drugs, even though Arizona's protocol calls for only two. The execution team also failed to perform consciousness checks before each injection, as they were required to do. According to journalists who attended the execution, Wood appeared to be in agony throughout the process.

         After Wood's execution, the First Amendment Coalition joined the inmates in filing the First Amended Complaint. The parties agreed to stay the litigation until the ADC published a set of revised execution procedures. The district court lifted the stay after the new procedures were published, at which point the plaintiffs filed the operative Second Amended Complaint.

         As relevant to this appeal, the plaintiffs challenge three of Arizona's practices under the First Amendment. We explain these practices in some detail below. The plaintiffs also asserted various Eighth Amendment, due process, and equal protection claims. Those claims have been dismissed or settled by the parties.

         First, the plaintiffs claim that Arizona unconstitutionally restricts the ability of execution witnesses to hear the sounds of the entire execution process. Under Arizona's current procedures, witnesses observe the execution in a designated witness room adjacent to the execution room. Although this room has windows looking into the execution room, those windows are covered by curtains during the preliminary steps of the execution. Witnesses view the prisoner through closed-circuit monitors as he is secured on the table in the execution room, makes his last statement, and has intravenous lines inserted. During the initial procedures, the witnesses can listen to the sounds in the execution room through speakers connected to an overhead microphone.

         After the intravenous lines are inserted, execution team members turn off the closed-circuit monitors and open the curtains to the execution room. They also turn off the overhead microphone. At that point, the witnesses can still view the execution, but they can no longer hear the sounds from the execution room, other than in brief moments when execution team members turn on the execution-room microphone to give updates about the prisoner's level of consciousness. In their complaint, the plaintiffs seek an injunction that would allow witnesses to hear the sounds of the entire execution proceeding, from the time that the prisoner is brought into the execution room to the time of death.

         Second, the plaintiffs claim that ADC officials have violated their First Amendment rights by failing to disclose certain information regarding the source and quality of the lethal-injection drugs that will be used in the inmates' executions. Arizona's procedures require the Department of Corrections to disclose some information about the drug protocol to be used in an execution. That information includes the chemical composition and dosages of the drugs, as well as the procedures for administering them. The procedures also require officials to ensure that the drugs are not expired and are properly stored. In their complaint, the plaintiffs request additional information regarding the manufacturers, sellers, lot numbers, National Drug Codes, and expiration dates of the drugs.

         Third, the plaintiffs claim that ADC officials are violating the First Amendment by failing to disclose the qualifications of each execution team member who will insert intravenous lines into the inmates. Arizona's procedures require such individuals to be "currently certified or licensed within the United States" to place intravenous lines. The procedures specify that the individual may be a physician, physician assistant, nurse, emergency medical technician, paramedic, military corpsman, or any other certified or licensed personnel. The plaintiffs argue that more specific information regarding each team member's qualifications is necessary because under the current procedures, an amateur with an online certificate would be authorized to insert the intravenous lines. The plaintiffs thus seek documentation from the ADC to establish that the execution team members who will insert intravenous lines are qualified to do so.

         The plaintiffs advance two theories under the First Amendment to challenge the practices described above. They first challenge Arizona's practices as violating their First Amendment right of access to governmental proceedings. That right guarantees the public and the press a measure of access to governmental proceedings, to ensure that public discussion of governmental affairs is informed. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604-05 (1982). Under this theory, the plaintiffs contend, ADC officials are violating the First Amendment by limiting access to the sounds of the execution process and by concealing information regarding execution drugs and personnel, thereby depriving the public of information necessary to have an informed debate about capital punishment in Arizona.

         The plaintiffs also assert a separate claim under the First Amendment predicated on violation of the inmates' right of access to the courts. That right guarantees prisoners a meaningful opportunity to bring legal challenges to their sentences and the conditions of their confinement. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). According to the complaint, ADC officials are violating the inmates' First Amendment rights by limiting their access to important information about the execution process, thus hindering their ability to challenge the constitutionality of their executions.

         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 ...


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