Samuel Lopez v. Janice Brewer, et al

Filing

FILED OPINION (M. MARGARET MCKEOWN, MARSHA S. BERZON and JOHNNIE B. RAWLINSON) The district court did not abuse its discretion in denying the injunction. Lopez s emergency motion for a stay of execution is denied for the same reason. AFFIRMED, subject to interim modification with respect to counsel visits. Motion for stay of execution DENIED.Judge: MMM Authoring, Judge: MSB Concurring & dissenting, FILED AND ENTERED JUDGMENT. [8178483]

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FILED
FOR PUBLICATION
UNITED STATES COURT OF APPEALS

MAY 15 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SAMUEL VILLEGAS LOPEZ,
Plaintiff - Appellant,

No. 12-16084
D.C. No. 2:12-cv-00245-NVW

v.
OPINION
JANICE K BREWER, Governor of
Arizona; CHARLES L. RYAN, Director,
Arizona Department of Corrections; RON
CREDIO, Warden, Arizona Department of
Corrections - Eyman; LANCE R.
HETMER, named as: Lance
Hetmer/Warden, Arizona Department of
Corrections - Florence; UNKNOWN
PARTIES, named as: IV Team Leader; IV
Team Members 1-5; Special Operations
Team Leader; Special Operations Team
Recorder; Special Operations Team
Members 1-5; and Does 1-25,
Defendants - Appellees.

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted May 14, 2012
San Francisco, California

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Before: McKEOWN, BERZON, and RAWLINSON, Circuit Judges.
Opinion by Judge McKeown:
We embark upon this opinion with deja vu, the feeling that we have been
here before, but with the knowledge that we will likely be here again. We have
entertained, usually at the last minute, a number of challenges to Arizona’s
execution protocol. No court has determined the constitutionality of Arizona’s
current death penalty protocol, adopted in January 2012, yet we have been asked to
address individual provisions of the protocol in the abstract, without a
constitutionally firm base. Further complicating our task, in certain respects, the
actual procedures followed during individual executions have not been consistent;
instead, in the intervening two months since we issued Towery v. Brewer, 672 F.3d
650 (9th Cir. 2012), there is uncertainty as to how the next execution will be
carried out. The State continues to cling to its discretion, all the while urging
us—during oral argument in the waning hours before execution—to trust that it
will exercise its discretion in a constitutionally permissible manner. The State’s
insistence “on amending its execution protocol on an ad hoc basis—through
add-on practices, trial court representations and acknowledgments, and last minute
written amendments—leav[es] the courts with a rolling protocol that forces us to
engage with serious constitutional questions and complicated factual issues in the
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waning hours before executions.” Id. at 653. Review of death penalty cases is a
grim and difficult undertaking, even without these complications.
B ACKGROUND
Arizona death-row inmates Robert Charles Towery, Robert Henry
Moormann, Pete Rovogich, Thomas Arnold Kemp, Milo McCormick Stanley, and
Samuel Villegas Lopez brought this action under 42 U.S.C. § 1983, asserting that
the Arizona Department of Corrections’ (the “ADC”) execution protocol violates
the Eighth Amendment.1 Lopez, one of the named plaintiffs with an impending
execution date, moved the district court for a preliminary injunction against the
ADC’s use of its current lethal injection protocol. The district court denied relief
and Lopez appealed. We affirm.
In Towery v. Brewer, we considered an almost equivalent challenge to
Arizona’s current execution protocol by another named plaintiff in this case. In
light of the extensive prior opinions, we will not repeat the chronology and

1

Some of the named plaintiffs have since been executed.
3

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background. See id. at 654-55; see also Dickens v. Brewer, 631 F.3d 1139 (9th
Cir. 2011). Lopez’s challenge, in effect, picks up where Towery left off.2
In the district court, Lopez alleged that: 1) the ADC’s medical procedures
for inserting IV catheters in condemned prisoners violates his Eighth Amendment
rights; 2) the ADC’s January 25, 2012, amendment to Department Order 710 (the
“2012 Protocol”) violates his right to equal protection under the Fourteenth
Amendment; and 3) the ADC’s execution protocol violates his rights of access to
counsel and the courts.
Lopez moved for a preliminary injunction to enjoin his execution to allow
for litigation of these claims. The district court considered the evidence in the
record and, without holding an evidentiary hearing, denied the request for a
preliminary injunction.
The district court held that Lopez had not presented a substantial likelihood
of success on the merits regarding his claim that the 2012 Protocol facially violates
the Eighth Amendment. Lopez claimed that the ADC’s actions surrounding the
insertion of IV catheters in condemned prisoners demonstrates an objectively

2

The State has advised that it will use a one-drug protocol in Lopez’s
execution. Lopez does not explicitly argue that the protocol is, in itself,
unconstitutional. To the extent he indirectly makes this claim, it fails because he
provides insufficient evidence to support such a claim.
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intolerable risk of harm, even where a one-drug protocol is used instead of a threedrug protocol. The district court held that the mere presence of pain and
discomfort resulting from the placement of IV lines did not constitute “an
objectively intolerable risk of harm” and that some pain was an inescapable
consequence of death.
Lopez also claimed that the 2012 Protocol violates his right to equal
protection because each of the prisoners executed since the adoption of the
Protocol has been treated differently with respect to IV placement and that these
variances affected the risk of pain to which each was subjected. Because
individualized and changing factors may impact IV placement and because use of a
femoral catheter is no more likely to create a risk of cruel and unusual punishment
than the use of a peripheral catheter, the district court concluded that Lopez failed
to raise serious questions on the merits of his equal protection claim.
Finally, the district court upheld the prohibition on in-person non-contact
visitation with the condemned’s attorney after 7:00 a.m. on the day of the
scheduled execution. It found the prohibition proper because communication with
counsel by telephone is still permitted past 7:00 a.m. The district also determined
that Lopez is not entitled to have counsel observe the IV-placement procedure.

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A NALYSIS
On appeal, Lopez challenges four aspects of the district court’s denial of the
preliminary injunction: 1) application of the “serious questions” test; 2) the
conclusion that the 2012 Protocol does not violates Lopez’s Eighth Amendment
rights; 3) the conclusions regarding the ADC’s restrictions on in-person noncontact counsel visits; and 4) the decision not to hold an evidentiary hearing. We
review this denial of a preliminary injunction for abuse of discretion. Lands
Council v. McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc). An abuse of
discretion will be found if the district court based its decision “on an erroneous
legal standard or clearly erroneous findings of fact.” Id. We note that in this
appeal Lopez did not advance the argument offered by the dissent, namely a due
process challenge based on unfettered discretion and transparency.
I.

P RELIMINARY INJUNCTION S TANDARD
The district court appropriately articulated the legal principles governing the

grant of a preliminary injunction and applied these principles to the limited facts
presented by Lopez. A preliminary injunction is “an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a clear showing,
carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (per curiam) (citation omitted). To obtain preliminary injunctive relief,
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Lopez must demonstrate that: 1) he is likely to succeed on the merits of such a
claim; 2) he is likely to suffer irreparable harm in the absence of preliminary relief;
3) the balance of equities tips in his favor; and 4) that an injunction is in the public
interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). As we
emphasized in Towery, these principles apply even in the context of an impending
execution. 672 F.3d at 657 (citing Hill v. McDonough, 547 U.S. 573, 583-84
(2006)).
Under the “serious questions” variation of the test, a preliminary injunction
is proper if there are serious questions going to the merits; there is a likelihood of
irreparable injury to the plaintiff; the balance of hardships tips sharply in favor of
the plaintiff; and the injunction is in the public interest. Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). The elements of the
preliminary injunction test must be balanced, so that a stronger showing of one
element may offset a weaker showing of another. “‘[S]erious questions going to
the merits’ and a balance of hardships that tips sharply towards the plaintiff can
support issuance of a preliminary injunction, so long as the plaintiff also shows
that there is a likelihood of irreparable injury and that the injunction is in the public
interest.” Id. at 1135.

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Lopez takes issue with the district court’s analysis, arguing that the court
failed to balance the four Winter factors and did not consider whether Lopez
presented serious questions going to the merits of the claims. The district court,
however, articulated the Winter standard and discussed each of the elements.
Although the court’s discussion of irreparable harm, the balance of equities, and
the public interest is brief, the court did engage with each of these three factors,
and thus did not apply an incorrect legal standard. See United States v. Hinkson,
585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc) (a court abuses its discretion if it
fails to identify and apply the correct legal rule).
To the extent Lopez argues that the “serious questions going to the merits”
consideration is a separate and independent analysis from the court’s assessment of
Lopez’s likelihood of success on the merits, Lopez misunderstands our precedent.
See M.R. v. Dreyfus, 663 F.3d 1100, 1108 (9th Cir. 2011) (articulating preliminary
injunction standard in terms of likelihood of success on the merits or serious
questions going to the merits). Because the district court did not err in determining
that Lopez failed to demonstrate a likelihood of success on the merits, it follows
that Lopez also failed to raise serious questions going to the merits.

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II.

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E IGHTH A MENDMENT C LAIM—P LACEMENT OF IV L INES
The Eighth Amendment to the Constitution prohibits the infliction of “cruel

and unusual punishments,” not punishment itself. Part of Lopez’s ultimate
punishment—a sentence of death—is the execution process itself. Lopez
challenges Arizona’s procedures for conducting executions, specifically the
placement of the IV lines, claiming that they present an intolerable risk of harm
rendering the process unconstitutional.
To prevail on an Eighth Amendment claim “there must be a substantial risk
of serious harm, an objectively intolerable risk of harm that prevents prison
officials from pleading that they were subjectively blameless for purposes of the
Eighth Amendment.” Baze v. Rees, 553 U.S. 35, 50 (2009) (quotation marks
omitted). Lopez’s argument that the ADC is not “subjectively blameless” for its
actions is insufficient; instead, the appropriate benchmark is whether the ADC’s
procedures create “an objectively intolerable risk of harm” that precludes a finding
that the prison officials were subjectively blameless. In other words, “[s]imply
because an execution method may result in pain, either by accident or as an
inescapable consequence of death, does not establish the sort of objectively
intolerable risk of harm that qualifies as cruel and unusual.” Id.

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Towery’s recent execution is the primary basis of Lopez’s claim. During the
execution, which started at 9:52 a.m., the ADC spent approximately thirty minutes,
and made at least six punctures, unsuccessfully attempting to place IV catheters in
both of Towery’s arms near his elbows. The ADC’s records document that “[a]fter
multiple attempts of the left and right peripheral - (approximately 4 in right - 2 in
left), IV Team Leader recommended right femoral as primary and left peripheral as
back-up.” According to attorney testimony, “[d]uring Mr. Towery’s last words, he
also said that he should have gone left and he went right. He went right when he
should have gone left. He then went on to say he made ‘mistake, after mistake
after mistake.’ Based on my discussions with Mr. Towery, this phrase meant that
there were problems or he was hurt during the insertion of the catheters.”
At this point, the Director of the ADC called the Arizona Attorney General’s
Office to “provide[] an update regarding the IV process.” The Team Leader’s
recommendation was then attempted, and the “[r]ight femoral was successful; left
peripheral was unsuccessful.” After further discussion between the Director and
the Team Leader, the “[r]ight hand peripheral” was chosen as the back-up catheter
site. This attempt was successful at 10:59 a.m., approximately an hour after the
process began.

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Lopez claims that this sequence of events, along with other recent executions
conducted by the ADC, demonstrate that he may be subjected to an
unconstitutional level of pain during his execution. The district court held that
“Lopez has not cited any legal authority or alleged any facts that bring into
question the prior conclusion in West that the Eighth Amendment is not offended
by administration of lethal chemicals through a femoral central line. Nor is there
any persuasive or even colorable reason to think that placement of a peripheral IV
line in a prisoner’s hand, while possibly more uncomfortable than other peripheral
sites, poses an objectively intolerable risk of severe pain that qualifies as cruel and
unusual.” In addition, “[w]hile undoubtedly disquieting to a condemned inmate
awaiting execution, repeated efforts to set IV lines do not, in and of themselves,
suggest malevolence from Defendants, extreme pain, or even unnecessary pain.”
We acknowledge, as demonstrated by the evidence, that there can be some
pain and discomfort associated with the placement of IV lines and that, depending
on the individual, such placement can be difficult from time to time. An inmate
might also experience some pain from the administration of the lethal drugs
through a relatively smaller vein. The relevant inquiry, however, is whether
placement of the peripheral line in the hand, the femoral catheter, and the series of
abortive IV placement attempts, either individually or in combination, lead to an

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objectively intolerable risk of pain. Lopez has not documented that they do. The
record does not support, with any likelihood, the conclusion that the pain Towery
purportedly suffered establishes an “objectively intolerable” risk of pain for Lopez,
as required under the Eighth Amendment. See Baze, 553 U.S. at 50. Our sister
circuits have taken a similar view. See Raby v. Livingston, 600 F.3d 552, 558-61
(5th Cir. 2010) (upholding Texas lethal injection protocol where evidence of
problems with inserting IVs); Cooey v. Strickland, 589 F.3d 210, 217-18, 224, 23334 (6th Cir. 2009) (upholding Ohio protocol despite evidence of problems inserting
IV); Emmett v. Johnson, 532 F.3d 291, 303, 306-08 (4th Cir. 2008) (upholding
Virginia protocol despite problems with IV lines).
At this stage, we credit Lopez’s characterization of the Towery execution, as
the State offered nothing to the contrary. The somewhat increased pain suffered by
Towery attendant to his execution was therefore a single, isolated incident, which
“alone does not give rise to an Eighth Amendment violation, precisely because
such an event, while regrettable, does not suggest cruelty, or that the procedure at
issue gives rise to a ‘substantial risk of serious harm.’” Baze, 553 U.S. at 50

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(citation omitted).3 The isolated nature is underscored by the fact that both
Moormann’s and Kemp’s executions were completed without similar difficulties.
Because Lopez does not demonstrate a likelihood of success on the merits, the
district court did not abuse its discretion.
Lopez next argues that the increased pain is avoidable if qualified
individuals are hired to place the IVs.4 The Director admitted in December 2011
that “he conducted the last five executions with full knowledge that at least one of
the Medical Team members did not hold a medical license and did not administer
IVs in his current employment.” West v. Brewer, No. CV–11–1409–PHX–NVW,
2011 WL 6724628, at *6 (D. Ariz. Dec. 21, 2011). Our decision in Towery
explained that the 2012 Protocol, as amended by the State’s representation and
commitments to this court, addresses this issue. The state represented, and we
accepted, that “‘relevant experience,’ as used in Paragraph 1.2.5.1 of the 2012

3

Lopez also challenges the pain related to puncture of the femoral artery and
vein. Assuming that puncture of the femoral artery or arterial administration of the
lethal drugs leads to pain, Lopez has not demonstrated that the increased pain
meets the Baze standard, either in isolation or in combination with the other issues
discussed here.
4

This challenge is limited to the personnel the Director might hire to insert
the peripheral IV lines. Under the 2012 Protocol, a medically-licensed physician
must insert the femoral central line. 2012 Protocol, Attach. D, § E.1 (“In no event
shall a femoral central line be used without being done by a medically-licensed
physician.”).
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Protocol, means that IV Team members must have no less than the training that is
traditionally given for people to be licensed to place IVs. We view this
representation as a binding one that cabins the meaning of ‘appropriately trained’
and ‘relevant experience’ in the context of the 2012 Protocol.” Id. at 658
(emphasis added). We reaffirm this holding, and note also that the ADC
committed during oral argument that trained professionals, in this case a licensed
physician and nurse, constitute the IV Team for Lopez’s execution.
Nonetheless, Arizona’s actions come perilously close to losing safe-harbor
protection under Baze. The 2012 Protocol does not provide for any time-limit with
respect to the siting of IV lines, whereas the protocol blessed in Baze had a onehour time limit. Compare 2012 Protocol, Attach. D, § E, with Baze, 553 U.S. at
45. This limitation was tested with the siting of Towery’s IV lines, which took
almost an hour. Although this isolated circumstance does not, in itself, create a
serious question going to the merits, the inability of the class of condemned
prisoners to procure details about the execution process is troubling. This lack of
access is compounded by the State’s touting of the public nature of the execution,
while concurrently curtailing transparency by shrouding the IV-siting process in a
cloak of secrecy.

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Recent exercises of the Director’s discretion give us further cause for
concern. For example, detailed execution logs have given way to vague
generalities about the execution. The “Continuous Correctional Log” related to
West’s execution provides minute-by-minute detail regarding the insertion of the
IV lines.5 In contrast, the log for Towery’s execution simply concludes, for a 36minute time period, that “[a]fter multiple attempts of the left and right peripheral (approximately 4 in right - 2 in left), IV Team Leader recommended right femoral
as primary and left peripheral as back-up.” And, when questioned about the
Director’s exercise of his discretion, the State’s basic argument boils down to a
conclusory statement that the Director is presumed to exercise his discretion in a
constitutionally permissible manner. While the State correctly claims the Director
may order that an execution attempt be aborted, it cannot explain what
circumstances, if any, would trigger such an order. Although we uphold the
district court’s decision, we caution, yet again, that Arizona’s ad hoc approach
risks going beyond Baze’s safe harbor. Towery, 672 F.3d at 653.

5

With respect to insertion of the lines, the log states: “Medical Team leader
determined there is significant risk of adverse effects if the vein is defective. A
central line was deemed necessary as a backup method to ensure the safest
administration of the chemicals.” Five minutes later, the log reports that the left
arm IV placement attempt failed due to “poor veins,” and that the right arm was
designated as the primary line.
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B.

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E QUAL P ROTECTION C LAIM—D ISPARATE T REATMENT

Lopez’s equal protection claim is that Arizona treats inmates differently and
that such differences result in unconstitutional disparate treatment. As we noted in
Towery, the state’s decision as to how to administer the chemicals “may well
depend on individualized and changing factors such as the availability of particular
people to participate in the execution, the supply of drugs available to the State at a
given time, and the condition of the prisoner’s veins.” Id. at 661. For the same
reasons that a similar claim failed in Towery, the district court held that it fails here
as well.
The district court noted that at the time of our decision in Towery, the ADC
had utilized either peripheral or femoral (or both) IV lines in carrying out each of
the previous 26 executions by lethal injection. The district court found that the use
of a femoral catheter is no more likely to create a risk of cruel and unusual
punishment than the use of a peripheral catheter and held that Lopez had not raised
serious questions or shown a likelihood of success on the merits of his equal
protection claim.
Lopez points to our language in Towery to argue that an equal protection
claim exists because he has shown “an actual pattern of treating prisoners
differently in ways that did affect the risk of pain to which they would be

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subjected, and therefore the risk of being subjected to cruel and unusual
punishment.” 672 F.3d at 660 (discussing In re Ohio Execution Protocol Litig,
___ F. Supp. 2d ___, 2012 WL 84548, at *9 (S.D. Ohio Jan. 11, 2010), motion to
vacate stay denied, ___ F.3d ___, 2012 WL 118322, at *1 (6th Cir. Jan. 13, 2012)).
This statement cannot be extracted from its context. The most significant part of
the discussion preceded that statement: namely that a prisoner’s right to be free of
cruel and unusual punishment “is not affected simply because that prisoner is
treated less favorably than another, where one means of execution is no more likely
to create a risk of cruel and unusual punishment than the other, and both are
constitutionally available.” Id.6
Since each condemned inmate is physiologically different, no two prisoners
would necessarily be similarly situated with respect to the siting of IV lines. While
Lopez may be correct that the pain suffered by an inmate could depend on whether

6

Unlike Lopez’s challenge, the In re Ohio Execution Protocol Litigation
case involved challenges to deviations from the Ohio execution protocol by prison
officials other than the Director, despite language in the Ohio protocol that the
Director, and only the Director, could approve such deviations. 2012 WL 84548,
at *9. Some of these deviations removed various procedural protections contained
in the Ohio execution protocol—for example, requirements to review an inmate’s
medical chart—which arguably exposed the inmates to differing risks of pain
depending on whether the written protocol was followed. Lopez’s argument,
however, appears to be that the Director’s exercise of discretion under the protocol
is itself unconstitutionally impermissible.
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the Director elects to use a peripheral or femoral line, Lopez does not demonstrate
that the Director has exercised his discretion in a manner that increases a prisoner’s
risk of being subjected to an objectively intolerable risk of pain. Nor does he
demonstrate that the Director has exercised his discretion in a constitutionally
prohibited manner, for instance, based on a suspect or any other classification. The
district court did not abuse its discretion in holding that Lopez fails to raise a
serious question going to the merits on his equal protection claim.
III.

A CCESS TO C OUNSEL
In Towery, we stated that “[c]ounsel for Towery and Moormann will be

permitted in-person visits with their clients, including during the morning of the
execution, under the long-standing ADC practice, as reflected in Department Order
710–IO–F (Nov. 5, 2004), § 710.02, ¶ 1.3.3.5.” 672 F.3d at 658. Our decision in
Towery was expressly contingent upon the State’s representations and
commitments made during the preliminary injunction hearing before this court. Id.
Contrary to the Director’s assertion, Towery did not “incorrectly rely on a 2004
protocol referring to visitation.” Instead, we noted that the 2004 protocol—which
permitted counsel visits up to 45 minutes—was representative of the ADC’s longstanding practice of permitting counsel in-person visits with clients, including

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during the morning of the execution.7 Consistent with its representations to this
court, the State permitted in-person non-contact attorney visits until 9:15 a.m. on
the mornings of Towery’s and Moormann’s executions.
The ADC now claims that its representations in Towery were limited to the
Moormann and Towery executions and did not waive the Director’s right to
exercise his discretion with respect to the scheduling of future in-person attorney
visits on the morning of a scheduled execution. In fact, for Kemp’s execution, the
Director notified Kemp’s attorney that attorney visitation would be permitted from
6:00 a.m. until 7:00 a.m. on the morning of the execution; any subsequent contact

7

See ADC Internal Management Procedure 500.4 (Feb. 4, 1986) § 4.4.5
(“Visits from the Attorney of Record and a Chaplain of condemned inmate’s
choice shall be permitted up to ½ hour prior to the scheduled time of the
execution.”); Internal Management Procedure 500 (Mar. 10, 1993) § 5.6.3.6
(“Non-Contact Visits from the Attorney of Record and a Chaplain of condemned
inmate’s choice shall be permitted up to two hours prior to the scheduled
execution.”); Internal Management Procedure 500.4 (Dec. 24, 1994) § 5.2.1.2.4
(“Visits from the Attorney of Record and a Chaplain of condemned inmate’s
choice shall be permitted up to one-half hour before the scheduled execution
time.”); Department Order 710-IO-F (Nov. 5, 2004) § 1.3.3.5 (“Visits from the
Attorney of Record and a Department Chaplain of condemned inmate’s choice are
permitted up to forty-five (45) minutes prior to the scheduled execution.”);
Department Order 710.09 (Sept. 15, 2009) § 1.6.2 (“The inmate’s visitation
privileges shall be terminated at 2100 hours the day prior to the execution,
excluding non-contact visits with the inmate’s Attorney of Record and facility
chaplain as approved by the Division Director for Offender Operations.”);
Department Order 710.09 (May 12, 2011) § 1.5.2 (same).
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would occur telephonically and only within the discretion of the Director. The
ADC has notified Lopez that a similar practice will be used for his execution.
We made clear in Towery that the State’s repeated ad hoc modifications to
its written protocol—“through add-on practices, trial court representations and
acknowledgments, and last minute written amendments”—is not sustainable. 672
F.3d at 653. Since the implementation of Department Order 710.09 in September
15, 2009, Arizona has incrementally, and without reason, imposed restrictions on
in-person non-contact attorney visits on the morning of a scheduled execution.
The 2012 Protocol, as written, permits the Director to preclude any in-person noncontact visits with counsel beyond 9:00 p.m. the day before the execution. Lopez
is understandably concerned about what will actually occur in his case. While the
State assured us at oral argument that the Director has no plans to deviate from his
current practice of permitting attorney non-contact visits from 6:00 to 7:00 a.m. on
the morning of the execution, we once again find ourselves evaluating a practice
that is not, in fact, the written protocol.
The State cites confidentiality of the execution team and timeliness of the
execution as concerns that justify the written prohibition. While confidentiality is
a legitimate concern in the abstract, the State proffers no contemporaneous
evidence of any breaches of confidentiality by defense counsel. See Cal. First

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Amend. Coalition v. Woodford, 299 F.3d 868, 880 (9th Cir. 2002) (noting that
defendants’ fear that execution team members will be publicly identified and
retaliated against was an overreaction, supported only by questionable
speculation). The State also fails to provide evidence that attorney visits led to
delays in the execution. For example, Moormann’s execution started on time even
though counsel was meeting with Moormann until 9:15 a.m. And prior versions of
the protocol permitted non-contact visits up to 30 minutes before the execution.
Thus, the State has failed to provide, and we cannot discern, any penological
justification for the 9:00 p.m. cutoff on the day before the execution, nor for the
7:00 a.m. cutoff on the morning of the execution. Id. at 878 (“in reviewing a
challenge to a prison regulation that burdens fundamental rights, we are directed to
ask whether the regulation is reasonably related to legitimate penological
objectives, or whether it represents an exaggerated response to those concerns.”
(quoting Turner v. Safley, 482 U.S. 78, 87 (1987)) (internal quotation marks
omitted)).
The difficulty with the State’s variable limitation on attorney visits on the
morning of the execution is that an individual petitioner has no expectation
baseline. The policy can change up to the last hour. Until the record is developed
through trial and final resolution of the underlying litigation, counsel and the court

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are subject to the “rolling protocol.” Towery, 672 F.3d at 653. To stabilize the
counsel visit protocol, as an interim temporary matter, pending trial and any
subsequent appeal, we direct the Director to permit counsel in-person non-contact
visitation until 9:00 a.m. on the morning of a scheduled execution.
The remainder of Lopez’s counsel challenge deals with having counsel
observe the IV-placement procedure. The district court did not abuse its discretion
in denying this request.
IV.

E VIDENTIARY H EARING
Lopez claims that the new evidence relating to the executions of Moormann,

Towery, and Kemp tips the likelihood of success in his favor. As discussed above,
the new evidence does not alter our conclusion that the district court did not abuse
its discretion in denying Lopez’s motion for a preliminary injunction. See Stanley
v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010) (noting that this court reviews denials
of evidentiary hearing requests for an abuse of discretion).8 An evidentiary hearing
was not required or warranted, and the district court did not abuse its discretion in
so concluding. See Silva v. Woodford, 279 F.3d 825, 833 (9th Cir. 2002) (noting

8

A doctor’s speculation that Kemp’s shaking “suggests a partial seizure”
caused by either the “medication administration, previous head injury or stroke, or
a history of seizures,” is insufficient to raises a serious question going to the
merits.
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that an evidentiary hearing is required where a defendant’s “allegations, if proved,
would establish the right to relief.”).
C ONCLUSION
The district court did not abuse its discretion in denying the injunction.
Lopez’s emergency motion for a stay of execution is denied for the same reason.
AFFIRMED, subject to interim modification with respect to counsel
visits. Motion for stay of execution DENIED.

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COUNSEL
Dale A. Baich, Robin C. Konrad, Cary S. Sandman, and Jon M. Sands, Federal
Public Defender’s Office, Phoenix, AZ; Amanda R. Conley, David Sepanik, and
Flora Vigo, O’Melveny & Myers LLP, San Francisco, CA; Denise I. Yong,
Tucson, AZ; Kelley J. Henry and Henry A. Martin, Federal Public Defender’s
Office, Nashville, TN, for plaintiffs-appellants.
Kent Ernest Cattani, Thomas C. Horne, and Jeffrey A. Zick, Arizona Attorney
General’s Office, Phoenix, AZ, for defendant-appellees.

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