Schad v. Brewer et al

Filing 23

ORDER granting 8 Motion to Intervene; granting in part and denying in part 11 Motion for TRO. Signed by Senior Judge Roslyn O. Silver on 10/4/2013.(ROS, kb)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edward Harold Schad, Jr., and
Robert Glen Jones, Jr.,

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Plaintiffs,
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vs.
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Janice K. Brewer, et al.,

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Defendants.

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No. CV-13-02001-PHX-ROS
DEATH PENALTY CASE

ORDER

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Plaintiffs Edward Schad, Jr., and Robert Glen Jones, Jr., have applied for a

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preliminary injunction. (Doc. 11.) Based on the standard applicable to such requests, the

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evidence presented, and the arguments made at the October 4, 2013 hearing, Plaintiffs have

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carried their burden of establishing that they are likely to succeed, in part, on the merits, that

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they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance

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of equities tips in their favor, and that an injunction is in the public interest. Plaintiffs’

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request will therefore be granted in part. A more complete order will be issued no later than

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October 7, 2013.

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Plaintiffs have established a First Amendment right to access information regarding

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the manufacturer of the lethal-injection drugs, the National Drug Code of the drugs, the lot

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numbers of the drugs, and the expiration date of the drugs. See California First Amendment

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Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002). Further, Defendants have not carried

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their burden under Turner v. Safely, 482 U.S. 78 (1987), to demonstrate that the withholding

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of this information is reasonably related to legitimate penological objectives, and that it is

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not an exaggerated response to those concerns. Specifically, in view of the fact that

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Defendants have disclosed this very information in the past, see Document 39 in West v.

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Brewer, CV-11-1409-PHX-NVW, and at today’s hearing could not articulate any harm

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stemming from that disclosure, the Court finds that their refusal to disclose identical

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information now constitutes an exaggerated response to the asserted penological justification.

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Defendants have, however, demonstrated that there are legitimate penological reasons for not

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disclosing information that might identify the execution team. Finally, Plaintiffs have not

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established any current basis to enjoin their executions.

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Accordingly,

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IT IS ORDERED granting in part Plaintiffs’ Motion for Preliminary Injunction

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(Doc. 11). No later than 12:00 p.m. on Saturday, October 5, 2013, Defendants must file on

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the docket, not under seal, the following information:

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a. The manufacturer of the lethal-injection drugs that will be used in Plaintiffs’
executions;

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b. The NDCs of the lethal-injection drugs that will be used in Plaintiffs’ executions;

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c. The lot numbers of the lethal-injection drugs that will be used in Plaintiffs’

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executions; and
d. The expiration dates of the lethal-injection drugs that will be used in Plaintiffs’

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executions.

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In all other respects, the Motion is denied.

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IT IS FURTHER ORDERED granting the Motion of Robert Glen Jones, Jr., to
Intervene (Doc. 8).
DATED this 4th day of October, 2013.

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Roslyn O. Silver
Senior United States District Judge

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