District of Arizona, Phoenix D.C. No. 2:10-cv-02246-ROS
Before: Pamela Ann Rymer, Kim McLane Wardlaw, and William A. Fletcher, Circuit Judges.
Order; Concurrence by Judge Wardlaw; Dissent by Chief Judge Kozinski
A judge of this court sua sponte called for this case to be reheard en banc. A vote was taken, and a majority of the active judges of the court did not vote for a rehearing en banc. Fed. R. App. 35(f). The call for this case to be reheard en banc is DENIED.
Circuit Judges WARDLAW and W. FLETCHER, with whom Judges PREGERSON and BERZON join, concurring in the denial of rehearing en banc:
As Chief Justice Roberts, writing for the three-justice plurality, observed in Baze v. Rees, 553 U.S. 35, 62 (2008), "[o]ur society has . . . steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today's consensus on lethal injection." In Baze, the Supreme Court approved the execution method employed by the state of Kentucky, while simultaneously highlighting that imposition of the death penalty is a solemn matter of serious public concern, with important implications for the preservation of human dignity. The State's repeated refusal in this case to comply with the district court's orders to provide it with critical information about the provenance and efficacy of the foreign-source drug, which the state announced only five days ago it planned to use to execute Landrigan, has precluded the district court from resolving his fundamental Eighth Amendment claim that the sodium thiopental the State plans to use to anesthetize him creates a substantial risk of harm. The State's gamesmanship is unseemly at best, and inhumane at worst.
Applying our highly deferential standard of review, see Lopez v. Candaele, ___ F.3d ___, 2010 WL 3607033, at *4 (9th Cir. 2010), our panel concluded that the district court properly acted within its discretion when it ordered a temporary stay after properly weighing the Winter factors. See Winter v. Natural Res. Defense Council, 129 S.Ct. 365, 374 (2008). In a separate action, our panel denied Landrigan's application to file a second or successive habeas petition in the district court based upon newly discovered DNA results, concluding that there was no constitutional error supporting that relief.*fn1 Thus, neither our panel opinion nor the district court's temporary stay of execution grants Landrigan any relief on the merits of his underlying conviction or death sentence. As a practical matter, the question is whether Landri- gan will be executed today or in a few months; the net effect is that Landrigan's execution will be delayed at most until such time as the only American manufacturer of sodium thiopental can begin operations in 2011. Certainly, moreover, the district court's order has provided the State with the opportunity to come forward with evidence demonstrating that the sodium thiopental it wishes to use will perform as it is supposed to, and will obviate the risk of excruciating pain from the drug causing paralysis and cardiac arrest that would follow. See Baze, 553 U.S. at 44.
We review the district court's grant of a preliminary injunction for abuse of discretion. Candaele, at *4 (citing Johnson v. Couturier, 572 F.3d 1067, 1078 (9th Cir. 2009). (We apply the same abuse-of-discretion standard to temporary restraining orders. See, e.g., Woratzeck v. Ariz. Bd. of Exec. Clemency, 117 F.3d 400, 402 (9th Cir. 1997).) "This review is 'limited and deferential' and it does not extend to the underlying merits of the case." Johnson, 572 F.3d at 1067 (quoting Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)). "[T]he scope of our review is 'generally limited to whether the district court  employed the proper preliminary injunction standard and  whether the court correctly apprehended the underlying legal issues in the case.' " Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir. 2009) (quoting Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003)). "In other words, '[a]s long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.' " Id. (quoting Wildwest Inst. v. Bull, 472 F.3d 587, 589 (9th Cir. 2006)). Here, the district court got the law right, and did not abuse its discretion in temporarily staying Landrigan's execution to permit time for review of Arizona's proposed use of a drug, the provenance and efficacy of which remained a mystery to Landrigan, his attorneys, the public, and even the judges of this court.
Landrigan made a showing based on expert declarations and citations to the Supreme Court's decision in Baze-a thin showing, but a showing nevertheless-that an unidentified, foreign-source drug about which nothing is known has a greater risk of serious harm than a drug about which something is known (like sodium thiopental from Hospira, the sole FDA-approved domestic distributor). See Baze, 553 U.S. at 53 ("It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride."). The State countered that it had legally obtained sodium thiopental from a foreign source with an expiration date of May 2014 in a sufficient quantity, and it pointed to built-in protections in the protocol.
As the district court explained at length, the delay in dealing with the provenance and efficacy of the sodium thiopental is due to the state's tactics, and not to any tardiness on the part of Landrigan. See District Court Order at 11-14.
Chief Judge Kozinski posits that Arizona's procedural safeguards go beyond those adopted elsewhere,*fn2 and that they are there to ensure that the prisoner is in fact unconscious before the second and third drugs are administered. However, the safeguards built into the Arizona protocol protect against failed administration, not necessarily against a flawed drug. The safeguards are in the nature of physical monitoring, and so do not address the situation in which defective sodium thiopental wears off after the paralytic has been administered, or in which this particular sodium thiopental procured by the state is in fact adulterated, or is even some other drug, and causes pain without rendering Landrigan unconscious.
The drug in the Kentucky protocol that passed muster in Baze was sodium thiopental from the sole American supplier, Hospira. (Among the exhibits in Baze were copies of the drug labels showing that the sodium pentathol procured by the state was manufactured by Abbott Laboratories, which later spun off Hospira. See Joint Appendix, Vol. III, at 844, 847, Baze v. Rees, 553 U.S. 35 (2008) (copies of drug labels)).*fn3 The significance is that, by virtue of being approved by the FDA, the Hospira-distributed drug carries with it some assurance of integrity. The same cannot be said of some version of the drug manufactured by an unknown entity under unknown conditions to unknown specifications. Neither the district court nor the panel suggest that FDA approval of an execution drug is required by the Eighth Amendment; such approval, however, provides some level of confidence that the drug works for its intended purpose. Moreover, the district court also indicated that the state could merely substitute "another available, FDA-approved barbiturate" if it wished to proceed with the execution immediately, instead of waiting until early 2011, when Hospira will begin manufacturing again.
What is missing in the record here is evidence that the drug the State intends to use works for its intended purpose. The State made no showing, publicly (in redacted form or otherwise), or privately in its in camera submission to the district court, about the efficacy of the drug it obtained. It would not have been hard for the state to do so, either voluntarily or in compliance with the district court's order. As the district court said, "Defendants could have submitted an affidavit stating that the drug was obtained through reputable sources and there was no reason to question that it would function as intended." But the state submitted no such affidavit.
For whatever reason, the State chose not to file any declarations in district court of any sort, and chose not to file its in camera submission in our court.*fn4 Apart from one line in the second paragraph of its motion to lift the stay-where the State simply indicates that it provided information for in cam-era review by the district court-it chose not to make a point of what that information consisted of, or what that information means. This was a litigation choice. The district court considered the submission and found no information regarding the efficacy of the sodium thiopental the State had obtained. The State could have argued this was wrong and asked us to take a look for ourselves, but it did not. There is no basis in the record before us to call the district court's finding into question.
But if one does look at the in camera submission, it lists the manufacturer and the distributor from whom the drugs were purchased, and attaches promotional material off the manufacturer's web site. It has no information on the sodium thiopental itself, and none on the manufacturer's (or broker's) experience with it. In other words, it provides no information about the drug's efficacy beyond the name of the manufacturer. Moreover, examination of the in camera submission reveals no justification whatever for the State's refusal to provide the information to Landrigan, as the district court ordered. Our courts operate on an adversarial basis; submissions in camera are acceptable only in very rare circumstances, where as the district court here recognized, the information is privileged or subject to other statutory protection. A party and his lawyers may, through research, additional evidence, and advocacy, succeed in proving that information that appears benign to a judge is not. And although the dissent from the denial of rehearing en banc (at 18048) suggests that Arizona has a legitimate interest in avoiding a public attack on its foreign drug source, we fail to see how that interest could justify precluding a plaintiff from obtaining information pertinent to his claims. There are a very few interests that justify keeping otherwise-pertinent information from an opposing party; shielding a non-party corporation from public criticism is surely not one of them.
Although the Supreme Court in Baze and the district court in Dickens were concerned with the protocol itself and did not directly address the source of the drugs in the "cocktail" each approved, Hospira was the source of the sodium thiopental used in Baze. Baze assumed a proper dose of sodium thiopental when it observed that "failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation" from administration of the two other drugs. See 553 U.S. at 53. The State has not disputed that it previously used Hospira-manufactured sodium thiopental for the first injection, but simply ran out of it.
Given Arizona's refusal (or inability) to stand behind its newly obtained drug as a "proper dose," or say anything about efficacy, and given that this is an equitable proceeding, we concluded that the district court did not abuse its discretion in staying the execution temporarily. Our decision does not mean that Landrigan will not be executed; instead, it simply means that Landrigan's execution will be delayed until either the courts have time to consider the constitutionality of the state's proposed use ...