and "public access plays a significant positive role in the functioning of the particular process in question," id, the court finds that the First Amendment guarantees that the witnesses attending executions be able to view the procedure from a point in time prior to the immobilization of the condemned by confinement to the apparatus of death, in the case of lethal injection, the gurney, until shortly after his death.
It may be that future executions will demonstrate the need to open further the window of public access in order for witnesses to see and appreciate the nature and quality of execution through lethal injection. Alternatively, future executions may demonstrate the need for limitations on public access to lethal injection executions not found necessary when other methods of execution have been employed. Based on what is now before the court, the degree of access directed here is the minimum necessary to conform this relatively new method of execution to historical practice and the functional values of the First Amendment.
Although the First Amendment protects access to executions, the warden's limitations may be constitutional if the court finds that they serve "an overriding interest" and are "narrowly tailored to serve that interest." Press-Enterprise I, 464 U.S. at 510. Defendants suggest that the court instead apply the "rational relation" test generally applicable to prison regulations that impinge on constitutional rights. See Turner v Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). The court recognizes the difficulties inherent in prison administration, see id, but, as noted above, the imposition of capital punishment does not fall within the bounds of the everyday workings of the penal system. For the same reasons that Houchins v KQED does not control this case, see above at III, the "rational relation" standard provided by Turner v Safley is inappropriate to these circumstances.
As indicated at the hearing on the preliminary injunction, the safety of prison personnel is a compelling state interest. See Bell v Wolfish, 441 U.S. 520, 546, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) ("maintaining institutional security [in prisons] and preserving internal order and discipline are essential goals"). The defendants have not, however, raised a genuine issue of material fact regarding whether limiting the view of witnesses to an execution is "narrowly tailored" to serve that interest. Defendants have provided no evidence that the identities of prison personnel performing previous executions have been disclosed by witnesses, much less that any harm has resulted from such disclosure. Plaintiffs have suggested that the identities of these individuals could be protected by the use of surgical masks and gowns. Defendants argue that this attire would be unprofessional, undignified and possibly ineffective. Defendants' concerns about professionalism and dignity are understandable and laudable, but they simply do not rise to the level of a compelling state interest when weighed against the awesomeness of the state's imposition of death as punishment. Defendants have not presented any evidence that either the surgical outfits or some other method of hiding their distinguishing features would fail to protect the safety of prison personnel without infringing upon the First Amendment rights of the witnesses.
For these reasons, the plaintiffs' motion for summary judgment is GRANTED. Defendants are directed to allow the witnesses to executions by lethal injection to view the procedure at least from the point in time just prior to the condemned being immobilized, that is strapped to the gurney or other apparatus of death, until the point in time just after the prisoner dies.
IT IS SO ORDERED.
VAUGHN R. WALKER
United States District Judge
Fed. R. Civ. Pro. 58
In accordance with this court's order of February 28, 1997, plaintiffs' motion for summary judgment is GRANTED.
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