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February 28, 1997

ARTHUR CALDERON, Warden of San Quentin State Prison and JAMES H. GOMEZ, Director of the California Department of Corrections, Defendants.

The opinion of the court was delivered by: WALKER

 On February 23, 1996, California executed William Bonin. It was the state's first execution performed by lethal injection. On that occasion, witnesses were allowed to enter the observation room adjoining the execution chamber only after the condemned had been strapped to the gurney and the intravenous ("IV") tubes had been inserted into his arms. The witnesses did not hear the execution order. After several minutes in the observation room, the witnesses were told that the prisoner was dead.

 Plaintiffs brought this suit seeking to enjoin prison officials from imposing on witnesses to future executions (including representatives of the media) the limitations that were imposed at the Bonin execution. Plaintiffs predicate their claim for relief on the First Amendment to the United States Constitution.

 California Penal Code § 3605 requires that various persons be present to observe executions, including at least twelve reputable citizens. In a prior case, Judge Schnacke issued an injunction directing the warden of San Quentin, his successors and agents not to exclude all representatives of the media from the execution witness area. KQED, Inc v Vasquez, 1991 U.S. Dist. LEXIS 19791, 1995 WL 489485, 18 Media L. Rep. 2323, 2324 (ND Cal 1991). Judge Schnacke appears to have based his decision on the First Amendment. See id at 2325.

 In this case, the court is called upon to decide what aspects of the lethal injection procedure the witnesses, including the media representatives, must be allowed to see as a matter of constitutional norm. On May 1, 1996, the court issued a preliminary injunction preventing the defendants from precluding witnesses' observation of executions "from at least just before the time intravenous tubes are inserted to at least just after death." The parties have now filed cross-motions for summary judgment.


 Summary judgment is a method for the prompt disposition of an action in which there is no genuine issue of material fact. FRCP 56(c) provides for the granting of summary judgment where the moving party is entitled to judgment as a matter of law. The burden of establishing that there is no genuine issue of material fact lies with the moving party. Celotex Corp v Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has met that burden by presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial, FRCP 56(e) shifts to the nonmoving party the burden of presenting specific facts showing that such contradiction is possible. British Airways Bd v Boeing Co, 585 F.2d 946, 950-52 (9th Cir 1978).

 A party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings. Rather, responses, either by affidavits or as otherwise provided in the rule, must set forth specific facts showing that there is a genuine issue for trial. A mere "scintilla" of evidence supporting the nonmoving party's position will not suffice. There must be enough of a showing that the jury could reasonably find for the nonmoving party. Anderson v Liberty Lobby, Inc, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The question in summary judgment motions is whether reasonable minds could differ as to the import of the evidence. Eisenberg v Insurance Co of North America, 815 F.2d 1285, 1288 (9th Cir 1987). "If the evidence is merely colorable * * * or is not significantly probative, summary judgment may be granted." Id at 1288. The nonmoving party's evidence is to be taken as true and all inferences are to be drawn in the light most favorable to the nonmoving party. Eisenberg, 815 F.2d at 1289.


 Defendants first argue that the plaintiffs lack standing to "represent the interest of the general public." Defendants' memorandum does not make clear in what sense they are using the term "standing," nor does it suggest what conclusion the court should draw from this argument. Defendants cite Hunt v Washington Apple Advertising Comm'n, 432 U.S. 333, 340, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977), a case that concerned whether the Washington Apple Advertising Commission had suffered an "injury-in-fact" for purposes of the Article III "case or controversy" requirement. Defendants do not suggest, however, that plaintiffs' members have not suffered an injury sufficient for constitutional standing. Defendants might be arguing that plaintiffs do not have third-party standing to assert the rights of "the general public." This seems an odd suggestion, however, because defendants rely heavily on the notion that the rights of the press in this matter are identical to the rights of the general public. If that is the case, then members of the press possess personally the rights defendants claim they cannot assert. In short, defendants have failed to make a persuasive showing either that plaintiffs lack standing to bring this suit or that they lack standing to assert the First Amendment rights they are claiming.


 In addressing the substantive issues of the case, defendants argue that the decision of the court is controlled by Houchins v KQED, 438 U.S. 1, 57 L. Ed. 2d 553, 98 S. Ct. 2588 (1978). In Houchins, the Supreme Court determined that the First Amendment does not guarantee press access to prison facilities or inmates. Id at 18. The opinion rests on the notion that the press does not have a right to all sources of information in the possession of the government. Id at 9. In the case of prison conditions, the Court indicated that the state legislature was best placed to decide how access to information would be provided. Id at 12.

 Defendants assert that Houchins is directly on point. Executions take place within prison walls and, therefore, Houchins says that the First Amendment does not guarantee access to them. This argument seriously oversimplifies matters. Executions are fundamentally different from the everyday workings of the prison system. The death penalty remains a salient political issue in this country because, as both its supporters and its critics contend, it is a unique punishment. See Satterwhite v Texas, 486 U.S. 249, 262, 100 L. Ed. 2d 284, 108 S. Ct. 1792 (1988) (Marshall, concurring) ("The awesome severity of a sentence of death makes it qualitatively different from all other sanctions"). California has recognized the singularity of execution in a number of ways, the most relevant to this case being the enactment of Penal Code § 3605, which requires that certain people, including at least twelve reputable citizens, are present at every execution. The ...

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