Guardian News & Media LLC et al v. Ryan et al

Filing 70

ORDER granting in part and denying in part #43 Motion for Summary Judgment; denying #45 Motion for Summary Judgment. Signed by Judge G Murray Snow on 12/21/16.(KGM)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Guardian News & Media LLC, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-14-02363-PHX-GMS Charles L. Ryan, et al., 13 Defendant. 14 Pending before the Court are the Motion for Summary Judgment by Plaintiffs 15 Arizona Republic, Associated Press, Guardian News & Media LLC, KPHO Broadcasting 16 Corporation, KPNX-TV Channel 12, and Star Publishing Company (Doc. 43), and the 17 Motion for Summary Judgment by Defendant Charles L. Ryan (Doc. 45). For the 18 following reasons, the Court grants in part and denies in part Plaintiffs’ motion, and 19 denies Defendant’s motion. 20 BACKGROUND 21 This case concerns the extent to which the press and the public are entitled to view 22 executions in Arizona and to obtain information relating to those executions. Plaintiffs 23 are members of the news media. They contend that the press and the public have a First 24 Amendment right to view aspects of executions that are not currently open to public view 25 pursuant to state policies. (Doc. 1 at 11.) They also contend that the press and the public 26 have a First Amendment right to certain information about executions—specifically, the 27 “source, composition, and quality” of the drugs used and the “qualifications” of those 28 involved in the execution. (Id.) Plaintiffs seek a declaratory judgment that these rights 1 exist and an injunction prohibiting the State from violating them. (Id. at 11–12.) 2 Executions in Arizona are conducted pursuant to Arizona Revised Statutes 3 (“A.R.S.”) §§ 13-757 and 13-758, and Arizona Department of Corrections (“ADC”) 4 Department Order 710, (Doc. 52-1 at 1, PDF 7). Department Order 710 is a public 5 document; the most recent version, effective as of October 23, 2015, is available online at 6 7 Various provisions in the state statute and in Department Order 710 relate to the 8 information to which Plaintiffs assert a right of access. 9 The parties have filed cross-motions for summary judgment on whether, and the 10 extent to which, the First Amendment grants the access Plaintiffs seek and overrides any 11 state statutory provisions to the contrary. DISCUSSION 12 13 I. Legal Standard 14 The Court grants summary judgment when the movant “shows that there is no 15 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 16 of law.” Fed. R. Civ. P. 56(a). In making this determination, the Court views the 17 evidence “in a light most favorable to the non-moving party.” 18 Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). Where the parties have filed cross-motions 19 for summary judgment, the Court “evaluate[s] each motion independently, ‘giving the 20 nonmoving party in each instance the benefit of all reasonable inferences.’” Lenz v. 21 Universal Music Corp., 815 F.3d 1145, 1150 (9th Cir. 2015) (quoting ACLU v. City of 22 Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003)). Even when both parties assert that 23 there is no uncontested issue of material fact and seek summary judgment, the Court must 24 make its own determination whether a dispute exists and may deny summary judgment to 25 both if appropriate. See United States v. Fred A. Arnold, Inc., 575 F.2d 605, 606 (9th Cir. 26 1978) (per curiam). “[A] party seeking summary judgment always bears the initial 27 responsibility of informing the district court of the basis for its motion, and identifying 28 those portions of [the record] which it believes demonstrate the absence of a genuine -2- Warren v. City of 1 issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 2 Although “[t]he evidence of [the non-moving party] is to be believed, and all 3 justifiable inferences are to be drawn in [its] favor,” the non-moving party “must do more 4 than simply show that there is some metaphysical doubt as to the material facts.” 5 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The 6 nonmoving party cannot avoid summary judgment by relying solely on conclusory 7 allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 8 “A party asserting that a fact cannot be or is genuinely disputed must support the 9 assertion by: (A) citing to particular parts of materials in the record . . . or other materials; 10 or (B) showing that the materials cited do not establish the absence or presence of a 11 genuine dispute, or that an adverse party cannot produce admissible evidence to support 12 the fact.” Fed. R. Civ. P. 56(c). Substantive law determines which facts are material, and 13 “[o]nly disputes over facts that might affect the outcome of the suit under the governing 14 law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, 15 Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a 16 reasonable jury could return a verdict for the nonmoving party.’” Villiarimo v. Aloha 17 Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 18 248). Thus, the nonmoving party must show that the genuine factual issues “can be 19 resolved only by a finder of fact because they may reasonably be resolved in favor of 20 either party.” Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 21 F.2d 1466, 1468 (9th Cir. 1987) (quoting Anderson, 477 U.S. at 250). 22 II. Analysis 23 Plaintiffs assert the right to view the totality of the execution. Plaintiffs also assert 24 a right to more information than can be gathered from simply being present and 25 witnessing the totality of the execution. Specifically, they seek (1) information about the 26 “composition” and “quality” of the lethal execution drugs, (2) information about the 27 qualifications of those who perform the execution, and (3) the identity of the source or 28 sources of the lethal injection drugs. -3- 1 Plaintiffs claim that each of these asserted rights derives from the First 2 Amendment right of access. Beginning in the 1980s, in a series of cases dealing with 3 criminal proceedings, the Supreme Court recognized that “[f]ree speech carries with it 4 some freedom to listen.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 5 (1980). “In guaranteeing freedoms such as those of speech and the press, the First 6 Amendment can be read as protecting the right of everyone to attend trials so as to give 7 meaning to those explicit guarantees.” Id. (emphasis added). Though this “right of 8 access” was initially recognized in the context of criminal trials, the Supreme Court 9 described it in language that could apply to other government proceedings. See, e.g., 10 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604–05 (1982) (describing the 11 right of access as “protect[ing] the free discussion of governmental affairs” and 12 “ensur[ing] that this constitutionally protected discussion of governmental affairs is an 13 informed one”). 14 To determine whether there is a First Amendment right of access to a government 15 proceeding, courts consider two “complementary considerations”: 16 proceeding has “historically been open to the press and general public” and (2) “whether 17 public access plays a significant positive role in the functioning of the particular process 18 in question.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9 (1986) (“Press- 19 Enterprise II ”). “These considerations of experience and logic are, of course, related, for 20 history and experience shape the functioning of governmental processes.” Id. at 9. 21 Where a government proceeding passes the “tests of experience and logic,” there arises 22 “a qualified First Amendment right of public access.” Id. But even then, the right of 23 access “is not absolute.” Id. The government may still close a proceeding to which a 24 right of access attaches by showing a sufficient justification to do so. Id. at 13–14. The 25 burden the government must meet to justify closure depends on the type of proceeding. 26 Compare Globe Newspaper, 457 U.S. at 606–07 (“Where . . . the State attempts to deny 27 the right of access in order to inhibit the disclosure of sensitive information, it must be 28 shown that the denial is necessitated by a compelling governmental interest, and is -4- (1) whether the 1 narrowly tailored to serve that interest.”), with Cal. First Amendment Coal. v. Woodford, 2 299 F.3d 868, 877 (9th Cir. 2002) (applying a more deferential standard to closure of 3 executions). Regardless of the standard applied, “Press-Enterprise II balances the vital 4 public interest in preserving the media’s ability to monitor government activities against 5 the government’s need to impose restrictions if necessary for safety or other legitimate 6 reasons.” Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012). “Under this framework, a 7 court cannot rubber-stamp an access restriction simply because the government says it is 8 necessary.” Id. “[C]ourts have a duty to conduct a thorough and searching review of any 9 attempt to restrict public access.” Id. 10 A. The Right to View the Totality of the Execution Proceeding 11 Here, Plaintiffs seek the right “to see and hear the totality of an execution, 12 including whether the State is administering additional doses of lethal injection drugs.” 13 (Doc. 1 at 11.) For example, during the execution of Joseph R. Wood on July 23, 2014, 14 witnesses could see Wood but could not see the execution team administering additional 15 doses of the lethal injection drugs after the initial dose failed to induce death. Witnesses 16 could “watch and listen via closed-circuit television as two IV lines were inserted into 17 Mr. Wood inside the death chamber,” but then “[a]fter the IVs were set, the closed-circuit 18 television was turned off, the curtains to the chamber were opened, and the audio 19 allowing witnesses to hear inside the chamber were shut off.” (Galvan Decl., Doc. 47-1 20 at 174, ¶¶ 3–5.) “For the remainder of the execution, the views of the observers were 21 restricted to line-of-sight observation of Wood from a distance. Observers could not see 22 where the drugs were mixed and injected into the IV lines.” (Id. at 174 ¶ 6.) The 23 observers were unable to view execution team members administering the additional 24 doses and were therefore “completely unaware while observing the execution that 25 additional doses were being administered.” (Id. at 175 ¶ 15.) 26 Though Department Order 710 does not fully describe the layout of the execution 27 complex, it identifies three rooms relevant to the Court’s analysis. The “execution room” 28 is where the defendant is secured to a gurney, connected to IVs, and, eventually, -5- 1 executed. (Doc. 52-1 at PDF 35, Dep’t Order 710-D(D).) The “chemical room” is where 2 the “Special Operations Team” prepares the drugs and syringes. (Id. at PDF 31, Dep’t 3 Order 710-D(B).) Eventually, the drugs are injected into the IV lines from this room as 4 well. (Id. at PDF 37, Dep’t Order 710-D(F)(3).) Witnesses are located in the “witness 5 room.” (Id. at PDF 36, Dep’t Order 710-D(D)(10).) While members of the “IV Team,” 6 in the execution room, place the IV catheters, witnesses in the witness room observe the 7 process via audio and video feeds. (Id.) The audio feed from the execution room is 8 turned off prior to the administration of lethal chemicals. (Id.) At some point after the 9 IVs are placed, witnesses are able to view the defendant directly through a window 10 between the execution room and the witness room. The curtains on this window may be 11 closed, however, at the direction of the Director of ADC. (Id. at PDF 37, Dep’t Order 12 710-D(F)(5).) At no point do witnesses have audio or visual information about what is 13 happening in the chemical room. 14 A.R.S. § 13-758 regulates who may be present at executions. Plaintiffs do not 15 challenge any specific provision of that statute, but rather some of the state practices 16 which delineate what witnesses may and may not see. Plaintiffs note, for example, that 17 they are unable “to see and hear the totality of an execution, including whether the State 18 is administering additional doses of lethal injection drugs.” (Doc. 1 at 11.) According to 19 Plaintiffs, “ADC violates this access right by excluding the administration of drugs from 20 observation, leaving witnesses unaware of the administration of doses beyond those 21 called for by its protocol.” (Doc. 43 at 7.) Plaintiffs also challenge a provision of 22 Department Order 710 that authorizes the ADC Director to “direct the curtains to the 23 witness viewing room be closed, and, if necessary, for witnesses to be removed from the 24 facility.” (Doc. 52-1 at PDF 37, Dep’t Order 710-D(F)(5).) 25 In California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 26 2002), the Ninth Circuit addressed a California execution protocol that prevented 27 witnesses from observing the execution until after the prisoner had been strapped down 28 and the IV lines inserted. Id. at 871. The Ninth Circuit applied the Press-Enterprise II -6- 1 test in determining that the public and the press have a right of access to executions. The 2 Court concluded: (1) “[t]he public and press historically have been allowed to watch the 3 condemned inmate enter the execution place, be attached to the execution device and then 4 die,” and (2) “[i]ndependent public scrutiny—made possible by the public and media 5 witnesses to an execution—plays a significant role in the proper functioning of capital 6 punishment.” Id. at 876. The Court determined that “[b]ecause there is both an historical 7 tradition—beginning with entirely public executions and continuing with the practice of 8 inviting official witnesses—and a functional importance of public access to executions, 9 both prongs of the [experience and logic test] have been satisfied.” Id. at 877. In scope, 10 this right is the right to view the entirety of a criminal execution, “from the moment the 11 condemned is escorted into the execution chamber, including those initial procedures that 12 are inextricably intertwined with the process of putting the condemned inmate to death.” 13 Id. The same logic applies with equal force to the administration (or subsequent 14 administrations) of doses of the lethal injection drugs when and if such additional 15 injections are deemed necessary. 16 The Ninth Circuit also determined that the standard for determining whether the 17 right of access to view executions can be overcome is the “unitary, deferential standard 18 for reviewing prisoners’ constitutional claims,” even though restricting the public’s right 19 of access to executions affects “the rights of outsiders rather than prisoners.” Id. at 877– 20 78 (“Because the executions at issue here take place within prison walls . . . and are 21 staffed by the same personnel who participate in the daily operations of the prison, our 22 level of scrutiny must be guided by the line of cases addressing constitutional challenges 23 to prison regulations, rather than by those governing access to governmental 24 proceedings.”). This “hands-off approach” is applied to issues of prison administration 25 because the nature of such problems is “peculiarly within the province of the legislative 26 and executive branches of government.” Id. (quoting Procunier v. Martinez, 416 U.S. 27 396, 404–05 (1974)). In applying this deferential standard, a court must determine 28 “whether the regulation ‘is reasonably related to legitimate penological objectives, or -7- 1 whether it represents an exaggerated response to those concerns.’” Id. at 878 (quoting 2 Turner v. Safley, 482 U.S. 78, 87 (1987)). However, the Ninth Circuit determined that 3 because a restriction on the public’s right to view executions is “broad in nature,” there 4 must be a “closer fit” than usual between the restriction and the state’s interest in the 5 security of those involved in executions. Id. at 879. 6 Plaintiffs identify two ways in which Department Order 710 falls short of allowing 7 the press and the public the access to which they are entitled. The first is ADC’s failure 8 to provide a means of viewing the administration of lethal injection drugs, including the 9 administration of additional or subsequent doses of the drug. Defendant has not 10 established that the failure to provide this access “is reasonably related to legitimate 11 penological objectives” and does not “represent[] an exaggerated response to those 12 concerns.” Turner, 482 U.S. at 87. Defendant’s assertion that “physical and logistical 13 difficulties exist, given that the drugs are administered into the IV lines in a separate 14 room,” (Doc. 53 at 10), carries no weight in the absence of any indication of what those 15 difficulties might be, particularly since closed-circuit televisions are already used to allow 16 witnesses to view the insertion of the IV lines. See Fed. R. Civ. P. 56(c) (“A party 17 asserting that a fact . . . is genuinely disputed must support the assertion by: (A) citing to 18 particular parts of the record . . . or (B) showing that the materials cited do not establish 19 the presence of a genuine dispute . . . .”). 20 “protecting the anonymity of personnel in the room where the drugs are administered,” 21 (Doc. 53 at 10), but this assertion fails factually and legally. If ADC can maintain the 22 anonymity of its personnel while focusing a camera on the IV placement site, as provided 23 for in Department Order 710-D(D)(10), there is no reason it cannot likewise focus a 24 camera on the area in the chemical room in which syringes are injected into the IV line. 25 Alternatively, the Ninth Circuit has held that “[t]he use of surgical garb is a practical 26 alternative to restricting access to witness lethal injection executions in order to conceal 27 the identity of such execution staff should security concerns warrant such concealment.” 28 Associated Press v. Otter, 682 F.3d 821, 825 (9th Cir. 2012) (quoting Cal. First -8- Defendant mentions ADC’s interest in 1 Amendment Coal., 299 F.3d at 884). Indeed, Department Order 710-D(G)(4) already 2 calls for the IV Team Leader to be “dressed in a manner to preserve their anonymity.” 3 By failing to provide for the contemporaneous awareness1 of the administration of drugs, 4 ADC violates Plaintiffs’ right of access, without a legitimate penological purpose for 5 doing so. 6 The second problem is the Director’s discretionary authority to “direct the curtains 7 to the witness viewing room be closed, and, if necessary, for witnesses to be removed 8 from the facility.” (Doc. 52-1 at PDF 37, Dep’t Order 710-D(F)(5).) Of course, the right 9 to view executions may be burdened if the state can show legitimate penological reasons 10 for ordering a closing of a particular execution, so long as there is a “close fit” between 11 the means of closing the execution and the ends sought. But Department Order 710 does 12 not cabin the Director’s authority in this or any other way. It may be, as Defendant 13 asserted at oral argument, that the Director would only exercise this authority in a 14 situation where legitimate penological objectives called for it. But, a court should not 15 “uphold an unconstitutional statute merely because the Government promises to use it 16 responsibly.” United States v. Stevens, 559 U.S. 460, 480 (2010). Nor is the prospect of 17 retrospective relief, should the Director use this authority improperly, sufficient to save 18 the provision as written. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First 19 Amendment freedoms, for even minimal periods of time, unquestionably constitutes 20 irreparable injury.”). This provision violates Plaintiffs’ First Amendment right of access 21 without legitimate penological justification. 22 The Court therefore grants summary judgment to Plaintiffs on this issue. 23 Defendants are permanently enjoined from conducting lethal injection executions without 24 providing a means for witnesses to be aware of the administration(s) of lethal drugs, and 25 from invoking Department Order 710-D(F)(5) as currently written to close the viewing of 26 27 28 1 Plaintiffs’ pleadings assert a right to “see and hear” the administration of drugs. However, at oral argument, Plaintiffs clarified that they do not seek an audio feed into the chemical room, and conceded that a video feed showing the administration of drugs would satisfy the asserted right of access. -9- 1 an execution absent the existence of a legitimate penological objective which would merit 2 such closure. 3 B. The Right to Obtain Information About Executions 4 In addition to seeking unrestricted access to the execution proceeding itself, 5 Plaintiffs also seek access to information about (1) the “composition”2 and “quality” of 6 the lethal injection drugs, (2) the qualifications of those performing the executions, and 7 (3) the identity of the source or sources of lethal injection drugs. Both state statutory law 8 and Department Order 710 speak to the extent of access currently allowed as to this 9 information. 10 If the execution involves the use of any compounded chemicals, Department Order 11 710 specifies that the compounded chemicals must be “obtained from a certified or 12 licensed compounding pharmacist or compounding pharmacy in good standing with their 13 licensing board.” (Doc. 52-1 at PDF 32, Dep’t Order 710-D(C)(2).) The Inspector 14 General’s Office reviews the licensing, certification, and criminal history of the 15 compounding pharmacist or pharmacy. (Id.) As of the October 23, 2015 revision to 16 Department Order 710,3 “[a] qualitative analysis of the compounded chemical to be used 17 in the execution shall be provided upon request within ten calendar days after the state 18 seeks a Warrant of Execution.” (Id.) 19 Department Order 710 describes the medical training required to participate in the 20 “Intravenous Team” (“IV Team”), which is responsible for inserting intravenous lines. 21 The IV Team comprises “any two or more of the following: physician(s), physician 22 assistant(s), nurse(s), emergency medical technician(s) (EMT’s), paramedic(s), military 23 corpsman or other certified or licensed personnel including those trained in the United 24 States Military.” (Doc. 52-1 at PDF 12, Dep’t Order 710. All members of the 25 IV Team must be “currently certified or licensed within the United States to place IV 26 2 27 28 Plaintiffs do not define “composition” in their Complaint. A full reading of Plaintiffs arguments and evidence indicates that “composition” includes information about concentration and potency. 3 The October 23, 2015 revision was published after the complaint in this case was filed. - 10 - 1 lines.” (Id.) 2 By statute, “[t]he identity of executioners and other persons who participate or 3 perform ancillary functions in an execution and any information contained in records that 4 would identify those persons is confidential and is not subject to disclosure . . . .” A.R.S. 5 § 13-757(C). Citing the statute, Department Order 710 also addresses confidentiality, in 6 an introductory section entitled “Important Guidelines Regarding Confidentiality and 7 Voluntariness of Participation in an Execution.” (Doc. 52-1 at PDF 8.) It provides that 8 “[t]he anonymity of any person . . . who participates in or performs any ancillary 9 function(s) in the execution, including the source of the execution chemicals, and any 10 information contained in records that would identify those persons are, as required by 11 statute, to remain confidential and are not subject to disclosure.” (Id.) 12 Determining whether these provisions violate Plaintiffs’ First Amendment right of 13 access requires an examination of just how far that right of access extends. As a general 14 matter, the First Amendment does not guarantee “a right of access to government 15 information or sources of information within government control.” Houchins v. KQED, 16 438 U.S. 1, 15 (1978) (plurality opinion). The California First Amendment Coalition 17 decision addressed only the right to view executions and did not address whether there 18 was a right to access related information. Generally, simply because the public and the 19 press have a right to access a proceeding does not automatically imply a right to 20 information about the proceeding. In the context of some judicial proceedings, the Ninth 21 Circuit has found a right of access to some related documents but not others. See, e.g., 22 CBS, Inc. v. U.S. Dist. Court, 765 F.2d 823, 825 (9th Cir. 1985) (“We begin with the 23 presumption that the public and the press have a right of access to criminal proceedings 24 and documents filed therein.”) (emphasis added); Associated Press v. U.S. Dist. Court, 25 705 F.2d 1143, 1145 (9th Cir. 1983) (noting that pretrial documents “are often important 26 to a full understanding” of the judicial process and thus “[t]here is no reason to 27 distinguish between pretrial proceedings and the documents filed in regard to them”). So, 28 too, has the Supreme Court. Press-Enterprise II itself involved the right of access to a - 11 - 1 document: a transcript of a preliminary hearing. 478 U.S. at 5. 2 But the right of access to a given proceeding does not automatically grant a right 3 to access all information related to that proceeding, or even all information that would 4 help in meaningfully understanding the proceeding. See First Amendment Coal. of Ariz. 5 v. Ryan, No. CV-14-01447-PHX-NVW, 2016 WL 2893413, at *13 (D. Ariz. May 18, 6 2016) (“The public’s First Amendment right to view court proceedings does not reach 7 back to sitting in on the police’s, the prosecutor’s, or the judge’s preparation for the 8 proceeding.”). Transcripts of hearings on a motion to seal would certainly help the public 9 understand the underlying criminal proceeding. But they are not subject to a right of 10 access. See In re Copley Press, Inc., 518 F.3d 1022, 1027–28 (9th Cir. 2008). Access to 11 a presentencing investigation report prepared by a court’s probation department would 12 help the public understand a sentencing hearing. But while there is a First Amendment 13 right of access to sentencing hearings, see United States v. Rivera, 682 F.3d 1223, 1229 14 (9th Cir. 2012), whether there is a right of access to presentence investigation reports 15 requires a case-by-case, common law analysis. See United States v. Schlette, 842 F.2d 16 1574, 1582–84 (9th Cir. 1988). 17 To extend California First Amendment Coalition to cover all related documents 18 and information that would help more fully understand the execution goes beyond its 19 holding. Rather, if information about executions is encompassed by a First Amendment 20 right of access, that right of access is best determined by an independent application of 21 the Press-Enterprise II test to the specific information sought. See In re Boston Herald, 22 Inc., 321 F.3d 174, 184 (1st Cir. 2003) (“[T]he First Amendment does not grant the press 23 or the public an automatic constitutional right of access to every document connected to 24 judicial activity. Rather, courts must apply the Press-Enterprise II standards to a 25 particular class of documents or proceedings and determine whether the right attaches to 26 that class.”); United States v. Corbitt, 879 F.2d 224, 228–29 (7th Cir. 1989) (“[T]he 27 press’ right of access to documents submitted for use in a hearing must be considered 28 separately from the press’ right to attend the hearing itself.”). - 12 - 1 Unlike the right to view executions, the existence of a right to access information 2 about executions has not been decided in the Ninth Circuit.4 The Ninth Circuit has noted 3 that the Press-Enterprise II test is used “to evaluate right of access claims in a variety of 4 nonjudicial contexts.” See Courthouse News Serv., Inc. v. Planet, 750 F.3d 776, 786 (9th 5 Cir. 2014) (citing Cal-Almond, Inc. v. U.S. Dep’t of Agric., 960 F.2d 105, 109 (9th Cir. 6 1992)). The Court therefore applies the Press-Enterprise II test here. 7 Initially, however, this challenge occurs not with respect to any pending execution 8 but with respect to Arizona’s execution policy on its face. Facial challenges are generally 9 “disfavored.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 10 (2008). Courts should be cautious in declaring statutes unconstitutional where claims o 11 facial invalidity “rest on speculation” and thereby anticipate questions of constitutional 12 law that may not need to be addressed. Id. Courts have discretion to deny summary 13 judgment when the factual record is underdeveloped. See Askew v. Hargrave, 401 U.S. 14 476, 478–79 (1971) (per curiam) (finding summary judgment inappropriate when 15 “pleadings and an affidavit” were inadequate to decide the claim and holding that the 16 “claim should not be decided without fully developing the factual record at a hearing”). 17 This is especially so when a court is asked to resolve a First Amendment facial challenge 18 through a declaratory judgment at the summary judgment stage. See Eccles v. Peoples 19 Bank of Lakewood Village, Cal., 333 U.S. 426, 434 (1948) (“Caution is appropriate 20 against the subtle tendency to decide public issues free from the safeguards of critical 21 scrutiny of the facts, through use of a declaratory summary judgment.”); Nation 22 Magazine v. U.S. Dep’t of Def., 762 F. Supp. 1558, 1572 (S.D.N.Y. 1991) (declining to 23 24 25 26 27 28 4 Two courts in this district have considered the question and reached opposing conclusions. Compare Schad v. Brewer, No. CV-13-2001-PHX-ROS, 2013 WL 5551668 (D. Ariz. Oct. 7, 2013), with Wood v. Ryan, No. CV-14-1447-PHX-NVW (JFM), 2014 WL 3385115 (D. Ariz. July 10, 2014), rev’d, 759 F.3d 1076 (9th Cir. 2014), vacated, 135 S. Ct. 21 (2014). The Ninth Circuit reversed the latter decision and noted in the course of granting a preliminary injunction that there was a “serious question[] as to whether a First Amendment right, in the context of executions, attaches to” information about drug manufacturers and qualifications of executioners. Wood v. Ryan, 759 F.3d 1076, 1086 (9th Cir. 2014, vacated, 135 S. Ct. 21 (2014). That decision was subsequently vacated by the Supreme Court. Ryan v. Wood, 135 S. Ct. 21 (2014). - 13 - 1 “grant plaintiffs’ request for declaratory relief on their right of access claim” when issues 2 were “presented in a highly abstract form” and “a full record [was not] available”). With 3 this in mind, it is clear even without going through the Press-Enterprise II analysis that 4 several of the issues are not appropriate for summary judgment at this time. 5 1. Composition and Quality of the Execution Drugs 6 On October 23, 2015, after Plaintiffs filed their motion for summary judgment, 7 ADC promulgated a revised version of Department Order 710. (See Doc. 52 at ¶ 13.) 8 Department Order 710 now provides that “[i]f any compounded chemical is used” in the 9 execution, “[a] qualitative analysis of the compounded chemical . . . shall be provided 10 upon request within ten calendar days after the state seeks a Warrant of Execution.” 11 (Doc. 52-1 at PDF 32, Dep’t Order 710-D(C)(2).) Plaintiffs still assert that “[t]his 12 revised protocol does not indicate that ADC will make public information about the 13 source, composition, or quality of the execution drugs.” (Doc. 52 at ¶ 14.) A plain 14 reading of the policy, however, indicates that ADC will do exactly that, at least with 15 respect to compounded chemicals. It would, after all, be a deficient “qualitative analysis 16 of the compounded chemical to be used” that did not adequately and fairly disclose the 17 composition and quality of the drug. Because Department Order 710 requires ADC to 18 provide an advance “qualitative analysis of the compounded chemical” that ADC will use 19 in the execution, and because Plaintiffs have not yet requested or received such a 20 qualitative analysis, there is presently no sufficient factual basis for the Court to conclude 21 that the state’s procedures for disclosing information about compounded chemicals 22 violates any First Amendment rights that Plaintiffs may have to such information. And 23 while the new policy makes no provision for a qualitative analysis of non-compounded 24 chemicals, Plaintiffs have thus far focused their arguments on the need for information 25 about compounded drugs. At this point, there has been neither evidence nor argument 26 respecting a demand or need for information about the quality and source of non- 27 compounded drugs. It would be, at best, premature for the Court to rule that the state 28 policy in this respect is unconstitutional. See A.L. Mechling Barge Lines, Inc. v. United - 14 - 1 States, 368 U.S. 324, 342 (1961) (“We think that sound discretion withholds the remedy 2 [of declaratory judgment] where it appears that a challenged ‘continuing practice’ is, at 3 the moment adjudication is sought, undergoing significant modification so that its 4 ultimate form cannot be confidently predicted.”). Summary judgment is therefore denied 5 to both parties as to whether there is a right of access to information about the 6 “composition” and the “quality” of the drugs. 2. 7 Qualifications of Execution Personnel 8 There is also a problem with Plaintiffs’ request for information about the 9 “qualifications of those chosen to administer” the lethal injection drugs. (Doc. 43 at 1.) 10 Plaintiffs do not specify the nature of the qualifications they believe the First Amendment 11 requires to be disclosed in addition to those that are already disclosed by Department 12 Order 710.5 13 government to establish particular qualifications, only that the First Amendment requires 14 unspecified “qualifications” to be disclosed to the public. 15 prohibits the disclosure of any information that would identify those who participate in or 16 have ancillary functions in executions. 17 executioners and other persons who participate or perform ancillary functions in an 18 execution and any information contained in records that would identify those persons is 19 confidential and is not subject to disclosure.”). An untethered requirement that a team 20 member’s “qualifications” be disclosed, which presumably would require disclosure 21 beyond the generic qualifications already established by Department Order 710, risks 22 disclosing information which could identify a team member. Without knowing what 23 qualifications Plaintiffs seek, the Court cannot determine whether the disclosure of such 24 qualifications would violate the statute, and whether, if so, it would fall within the ambit 25 of the First Amendment, through the Press-Enterprise II test or otherwise, to nevertheless Plaintiffs make no argument that the First Amendment requires the Yet, state statutory law A.R.S. § 13-757(C) (“The identity of 26 5 27 28 Department Order 710 provides that the IV Team comprises “any two or more of the following: physician(s), physician assistant(s), nurse(s), emergency medical technician(s) (EMT’s), paramedic(s), military corpsman or other certified or licensed personnel including those trained in the United States Military.” (Doc. 52-1 at PDF 12, Dep’t Order 710. - 15 - 1 compel the disclosure of such qualifications. The Court cannot grant summary judgment 2 on such a generalized request.6 Therefore, the Plaintiffs’ request for summary judgment 3 is denied as to qualifications. Because it is not clear that Plaintiffs would be unable to 4 request qualification information that would not be identifying, however, Defendant’s 5 motion is also denied. 3. 6 Identities of the Sources of the Execution Drugs 7 Plaintiffs also seek to compel the identity of the sources of lethal injection drugs 8 despite the identity protection afforded by A.R.S. § 13-757(C). In Department Order 9 710, ADC makes clear that the confidentiality granted by A.R.S. § 13-757(C) extends to 10 those who provide ADC with lethal injection drugs. (Doc. 52-1 at PDF 8.) The 11 compounding and/or preparation of such drugs constitutes at least an ancillary function to 12 an execution. 13 information pursuant to the First Amendment and the statute and policy are therefore 14 unconstitutional. Further, because Plaintiffs seek to have a declaratory judgment entered 15 on the question as a matter of law, they seek a determination that the statute is 16 unconstitutional per se and is not capable of a constitutional application, at least as it 17 applies to withholding the manufacturer of lethal injection drugs. The scope of Plaintiffs’ 18 requests and, accordingly, the state laws and policies implicated, are clearer than in the 19 other requests for information. Here, too, however, summary judgment is inappropriate, 20 as is revealed by an application of the Press-Enterprise II test to the facts of this case. Plaintiffs argue that they have a qualified right of access to this 21 The burden is on the Plaintiffs to establish that the First Amendment entitles them 22 to obtain the identity of the lethal injection drug manufacturer despite the statute’s 23 restriction on such information. 24 analysis of Press-Enterprise II, see 478 U.S. at 8, demonstrates this entitlement. The Plaintiffs contend that the “experience and logic” 25 26 27 28 6 Plaintiffs have clarified, at oral argument and in subsequent written submission to the Court, that they seek “whatever information [the State] obtains about the relevant qualifications of those appointed to the IV team.” (Doc. 69 at 3 n.1.) While this makes it possible to eventually determine what that information is and whether it might run the risk of identifying team members, the facts are insufficient to make that determination at this point. - 16 - 1 “experience” prong requires a court to consider whether the information at issue has 2 “historically been open to the press and general public.” Id. This inquiry is “significant 3 in constitutional terms not only ‘because the Constitution carries the gloss of history’ but 4 also because ‘a tradition of accessibility implies the favorable judgment of experience.’” 5 Globe Newspaper, 457 U.S. at 605 (quoting Richmond Newspapers, 448 U.S. at 589 6 (Brennan, J., concurring in judgment)). The historical inquiry “does not look to the 7 particular practice of any one jurisdiction, but instead to the experience in that type or 8 kind of hearing throughout the United States.” El Vocero de P.R. v. Puerto Rico, 508 9 U.S. 147, 150 (1993) (internal quotation marks omitted). 7 10 Plaintiffs characterize all of their requests for information as asking for 11 information about the “means” of the execution, to make sure that the “means” are 12 functioning properly. (Doc. 43 at 13–14.) The historical record Plaintiffs present does 13 lend support to a historical tradition of the public viewing of executions—a matter 14 already decided by California First Amendment Coalition. It also suggests that in some 15 types of executions the public was able to inspect some of the instrumentalities of 16 execution. For example, Plaintiffs proffer evidence that “hangings, the dominant method 17 of execution in the United States for most of American history, were usually public 18 events that were often viewed by large audiences,” and that the witnesses “typically had 19 access to information about the instruments used to carry out the execution.” (Banner 20 Decl., Doc 47-1 at 19 ¶ 2.) At jail-yard hangings, “some spectators carefully examined 21 the gallows before the execution, trying out the pulleys and the spring.” (Id. at 21 ¶ 11.) 22 Plaintiffs also proffer evidence that when the “first gas chamber execution in American 23 24 25 26 27 28 7 The experience prong, however, may be less relevant if the proceeding at issue has undergone significant changes over time. In Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1516 (9th Cir. 1988), the Ninth Circuit applied the Press-Enterprise II test to the issue of press access to briefs filed in a pretrial detention hearing. The Court noted that changes in pretrial proceedings generally, and bail procedures specifically, meant that the traditional “informal procedures are no longer adequate.” Id. at 1516. This meant that “[u]nder these circumstances, the historical tradition surrounding bail proceedings is much less significant.” Id. The Court then found that the logic inquiry “weigh[ed] heavily in favor of a right of access to bail proceedings” and found a qualified right of access on that basis. Id. at 1516–17. - 17 - 1 history” occurred, “[n]ewspapers reported that the lethal gas used in the Nevada 2 execution was manufactured by the California Cyanide Company of Los Angeles.” 3 (Christianson Decl., Doc 47-1 at 42 ¶ 16.) 4 Nevertheless, Plaintiffs do not dispute that there are different levels of access to 5 the different instrumentalities used in the different methods of executions. There does 6 appear, within the application of some still-used historical execution techniques, a 7 concern to keep confidential the identities of those involved in the execution from the 8 public and, at times, even from the executioners themselves. For example, Plaintiffs’ 9 expert Stuart Banner describes, in a book he cites in his declaration, the manner in which 10 firing squad executions in Nevada were carried out in the early part of the twentieth 11 century: 12 The firing squad was located in a tent to hide the sharpshooters’ identity from the spectators. A target was placed over the condemned person’s heart. Some of the guns were loaded with bullets and others with blanks, in a pattern not known to the shooters, so that none would know whether he was actually an executioner. 13 14 15 Stuart Banner, The Death Penalty: An American History 203 (2002).8 16 17 18 19 20 21 22 Similarly, A.R.S. 13-757(C) or its predecessor—the Arizona statute that affords confidentiality to those involved in even ancillary aspects of executions—has been in place since 1998, less than six years after Arizona adopted lethal injection as a method of execution. See 1998 Ariz. Sess. Laws ch. 232, § 1 (adding present-day A.R.S. § 757(C)); 1993 Ariz. Sess. Laws ch. 2, § 1 (adopting lethal injection). The State did disclose the identity of one of its suppliers in 2013, pursuant to a court order, and that information was apparently already available to the public. (Def’s Resp. to Interrogatories, Doc. 47-1 23 24 25 26 27 28 8 Similar measures were apparently taken in the 1977 execution of Gary Gilmore and the 2010 execution of Ronnie Lee Gardner, both executed in Utah by firing squad. See The Law: After Gilmore, Who’s Next to Die?, Time, Jan. 31, 1977, time/magazine/article/0,9171,918639,00.html (“Hidden behind the curtain stood five riflemen armed with .30-.30 deer rifles, four loaded with steel-jacketed shells, the fifth with a blank.”); Ray Sanchez, Ronnie Lee Gardner Executed by Firing Squad in Utah, ABC News, June 18, 2010, (“A team of five anonymous marksmen [stood] behind a brick wall cut with a gun port . . . . One rifle was loaded with a blank so no one knew who fired the fatal shot.”). - 18 - 1 at 205.) But ADC has also refused to disclose the identities of drug suppliers on several 2 occasions. (Id. at 204.) And, as to the lessons to be drawn from this history, the affidavit 3 of Carson McWilliams in this matter suggests that disclosures that have been made have 4 resulted in a refusal by suppliers to provide execution drugs, in response to the negative 5 reaction by members of the public towards the manufacturer. (See McWilliams Decl., 6 Doc. 50-1 at 2–3.) 7 The historical inquiry requires an examination not just of local experience but of 8 the experience of the type or kind of proceeding throughout the United States. See El 9 Vocero de P.R., 508 U.S. at 150. Some states have adopted laws barring the disclosure of 10 the identities of the suppliers of lethal injection drugs.9 Such laws are generally of recent 11 vintage, having been adopted within the past decade. 12 representative example, adopted statutory protections for executioner identities in 200810 13 and extended that protection to drug suppliers in 2013.11 Other states that authorize 14 capital punishment have no such statutory protections. Of course, the use of lethal 15 injection as a method of execution is itself a relatively recent development, dating back to 16 1977. See Baze v. Rees, 553 U.S. 35, 42 (2008). The actual practices of information 17 disclosure by various states since the adoption of lethal injection might well be 18 illuminating in determining the lessons of experience, but such evidence has not been 19 presented and is beyond the appropriate scope of judicial notice. At least some states that 20 employ lethal injection have determined that disclosure of the identities of lethal injection 21 suppliers does not carry the “favorable judgment of experience,” but the facts before the 22 Court at this point do not lend themselves to a broader conclusion than this on the South Dakota, to take a 23 24 25 26 27 9 See, e.g., Okla. Stat. Ann. tit. 22, § 1015(B) (West 2016) (“The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential . . . .”); S.D. Codified Laws § 23A-27A-31.2 (2016) (“The name, address, qualifications, and other identifying information relating to the identity of any person or entity supplying or administering the intravenous injection substance or substances . . . are confidential.”). 10 2008 S.D. Sess. Laws ch. 117, § 25. 11 2013 S.D. Sess. Laws ch. 113, § 1. 28 - 19 - 1 “experience” prong. 2 The “logic” prong requires a court to consider “whether public access plays a 3 significant positive role in the functioning of the particular process in question.” Press- 4 Enterprise II, 478 U.S. at 8. In deciding that public access played an important role in 5 allowing the press total access to an execution proceeding, the Ninth Circuit observed 6 that “[i]ndependent public scrutiny . . . plays a significant role in the proper functioning 7 of capital punishment” and that “[a]n informed public debate is critical in determining 8 whether execution by lethal injection comports with ‘the evolving standards of decency 9 which mark the progress of a maturing society.’” Cal. First Amendment Coal., 299 F.3d 10 at 876 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Plaintiffs argue that disclosure 11 of the sources of lethal injection drugs contributes to this informed public debate. They 12 submit evidence that information about the source of the drugs is necessary for the public 13 to assess the drugs’ quality. (Waisel Decl., Doc. 47-1 at 135–40.) Plaintiffs present 14 evidence that compounding pharmacies are largely unregulated by the FDA, and that 15 several recent high-profile tragedies have occurred as a result of disease outbreaks or 16 other problems at compounding pharmacies. (Id. at 136–37.) Even if the quality of an 17 individual batch could be verified by qualitative analysis, more information about the 18 source of the drug could “allow observers to evaluate the pharmacy’s reputation by 19 checking such facts as its volume of drug sales, number of drug recalls, litigation filed 20 against it or citations issued by the FDA or state pharmacy board.” (Id. at 137.) This, in 21 turn, could arguably “support[] public confidence in the execution process itself and 22 ensure[] an informed debate over capital punishment.” (Doc. 43 at 14.) 23 But the logic prong requires consideration not just of the benefit to the public but 24 also of the detriment to the government. Even when it is clear that openness and public 25 scrutiny would serve a beneficial purpose, logic may still dictate that there is no right of 26 access if the public access would place a substantial burden on the governmental 27 function. See id. at 8–9 (noting in describing the logic prong that “[a]lthough many 28 governmental processes operate best under public scrutiny, it takes little imagination to - 20 - 1 recognize that there are some kinds of government operations that would be totally 2 frustrated if conducted openly”); see also, e.g., United States v. Kravetz, 706 F.3d 47, 54 3 (1st Cir. 2013) (“As for logic, there is scant value and considerable danger” in finding a 4 right of access to Rule 17(c) subpoenas.” (emphasis added)); PG Publ’g Co. v. Aichele, 5 705 F.3d 91, 111 (3d Cir. 2013) (“In addition to considering the benefits that would result 6 from press and public access, we must take account of the flip side—the extent to which 7 openness impairs the public good. Indeed, the logic analysis must account for the 8 negative effects of openness, for otherwise it is difficult to conceive of a government 9 proceeding to which the public would not have a First Amendment right of access.” 10 (internal citations and quotation marks omitted)). 11 The Ninth Circuit followed this balancing approach in applying the Press- 12 Enterprise II test in the context of pre-indictment warrant proceedings. See Times Mirror 13 Co. v. United States, 873 F.2d 1210, 1217 (9th Cir. 1989). There, the Ninth Circuit held 14 that even though “it is unquestioned that open warrant proceedings might operate as a 15 curb on prosecutorial or judicial misconduct,” that “social utility . . . would be 16 outweighed by the substantial burden openness would impose on government 17 investigations.” Id. (internal quotation marks omitted). As a result, the court held, there 18 was “no First Amendment right of access” to pre-indictment warrant proceedings at all. 19 Id. at 1218. Following this analysis, the Court must weigh both the benefits and costs of 20 disclosure in determining whether a qualified right of access exists. 21 Thus, Defendant in this case does not contest that there could be aspects of 22 openness that would insure the quality of execution drugs. Rather, Defendant presents 23 evidence that if the source of the drugs used in lethal injection executions were made 24 public, the drugs would become “highly difficult, if not impossible” to obtain. 25 (McWilliams Decl., Doc 50-1 at 2 ¶ 7.) Defendant presents evidence in the form of the 26 declaration of Carson McWilliams, who is employed by ADC as the Director of the 27 Division of Offender Operations and is “tasked with locating suppliers of lethal injection 28 - 21 - 1 drugs.”12 (Id. at 2 ¶¶ 1–2.) McWilliams states that “[l]ethal injection drugs have been 2 difficult to obtain without promises of confidentiality of the supplier.” (Id. at 2 ¶ 3.) 3 After the identity of a supplier for midazolam was publicly revealed in litigation in another state, that supplier wrote to the Arizona Department of Corrections, as well as corrections departments in other states, stating that it would no longer sell the drug to corrections departments for use in lethal injections. Compounding pharmacies that provided pentobarbital for executions began refusing to provide it after their identities were released publicly and they began receiving threats. 4 5 6 7 8 9 10 11 (Id. at 2 ¶ 4.) This evidence indicates two distinct, albeit related, dangers proceeding from public disclosure of execution drug sources: not only that Arizona would be unable to carry out executions, which presents a substantial burden on a governmental function, but that drug suppliers would face threats or boycotts for their participation in the execution process when state statute guarantees their anonymity. 12 13 14 15 16 17 18 19 20 21 22 23 24 Plaintiffs have presented evidence that disclosure of the drugs’ source may well contribute to informed public discourse about capital punishment. Defendant has presented evidence that disclosure of the drugs’ source may impair Arizona’s ability to obtain lethal injection drugs—and, by extension, Arizona’s important government interest in carrying out executions entirely. To determine whether there is a qualified right of access to the drugs’ source requires this Court to weigh whether the “social utility” of disclosure “would be outweighed by the substantial burden openness would impose on” Arizona’s ability to carry out executions. Times Mirror, 873 F.2d at 1217 (internal quotation marks omitted). On similar facts, a district court in Ohio recently determined, albeit in the context of a Rule 26(c) protective order dispute rather than a First Amendment right of access question, that the balance of interests favored nondisclosure. See In re Ohio Execution Protocol Litig., No. 2:11-cv-1016, 2015 WL 6446093, at *10 (S.D. Ohio Oct. 26, 2015). Nevertheless, the Court is disinclined to 25 26 12 27 28 Mr. McWilliams’s declaration is admissible evidence. Where a declaration is “based on personal knowledge, legally relevant, and internally consistent,” the evidence in the declaration is “sufficient to establish a genuine dispute of material fact.” Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497–98 (9th Cir. 2015). Personal knowledge may be inferred from a declarant’s position. In re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2000). - 22 - 1 grant summary judgment to either side on this question, especially when as it pertains to 2 suppliers of lethal injection drugs doing so would require a per se determination that 3 A.R.S. § 13-757(C) is unconstitutional. If the parties wish to pursue a declaratory 4 judgment on this matter, they must provide the Court with a more complete factual and 5 legal record. 6 Moreover, even if the Court were, in this case, to determine that the First 7 Amendment provides a qualified right of access to the identity of drug sources, that right 8 of access can be overcome. The level of scrutiny a court is to apply in determining 9 whether the qualified right of access is overcome depends on the type of process 10 involved. In California First Amendment Coalition the Ninth Circuit applied a relaxed 11 standard of review as applied to executions. Rather than require “specific, on the record 12 findings . . . demonstrating that ‘closure is essential to preserve higher values and is 13 narrowly tailored to serve that interest,’” 478 U.S. at 13–14, which is the Press 14 Enterprise II standard, the Court merely required that the State show “legitimate 15 penological objectives”—the Turner standard—to burden the right to view the execution. 16 Cal. First Amendment Coal., 299 F.3d at 873. Although the Turner standard originally 17 applied only to regulations affecting prisoners, and California First Amendment Coalition 18 only extended it to an execution taking place within a prison, it may make sense to extend 19 it here to restrictions on information related to executions—as it can hardly be questioned 20 that capital punishment implements the state’s penological objectives. Just like prison 21 administration generally and execution administration within prisons, the logistical steps 22 in administering executions may not be “readily susceptible of resolution by decree” and 23 “require expertise, comprehensive planning, and the commitment of resources, all of 24 which are peculiarly within the province of the legislative and executive branches of 25 government.” Cal. First Amendment Coal., 299 F.3d at 877–78 (quoting Procunier v. 26 Martinez, 416 U.S. 396, 404–05 (1974)). 27 Nevertheless, the Court need not decide which level of scrutiny applies here, 28 because, for the reasons specified above, the Court declines to rule as a matter of - 23 - 1 summary judgment that the public has a qualified right of access to the identity of the 2 supplier of the state’s lethal injection drugs. In the absence of such a ruling, the question 3 of whether that right of access can be overcome does not yet present itself. Nevertheless, 4 the evidence presented by both parties indicates that the relationship between public 5 opinion, supplier confidentiality, and government ability to carry out executions may be a 6 dynamic one. A categorical resolution may be particularly inappropriate here, when the 7 relevant inputs in the constitutional analysis are not static facts and may require case 8 specific analysis. See, e.g., El Vocero de P.R., 508 U.S. at 151 (“The concern of the 9 majority below that publicity will prejudice defendants’ fair trial rights is, of course, 10 legitimate. But this concern can and must be addressed on a case-by-case basis.”); Globe 11 Newspaper, 457 U.S. at 608 (“A trial court can determine on a case-by-case basis 12 whether closure is necessary to protect the welfare of a minor victim.”). 13 On summary judgment, the moving party or parties must “show[] that there is no 14 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 15 of law.” Fed. R. Civ. P. 56(a). The record before the Court at this time is insufficient to 16 make the determination whether there is a qualified right of access in the public to the 17 source of lethal injection drugs and if so whether the state has a sufficient interest to 18 overcome that right. The “critical scrutiny of the facts” that the Supreme Court called for 19 in cases involving the declaration of public rights demands more. See Eccles, 333 U.S. at 20 434. 21 22 23 The Court therefore denies summary judgment to both parties on the matter of enjoining Defendant to disclose the source of the ADC’s lethal injection drugs. CONCLUSION 24 The public and the press enjoy a qualified First Amendment right of access to 25 view executions in their entirety, including each administration of the means of achieving 26 death, and Defendant has not overcome this right of access. The Court therefore grants 27 Plaintiffs a permanent injunction requiring Defendant to allow execution witnesses to 28 view the entirety of the execution, including each administration of drugs, and declares - 24 - 1 that all sections of Department Order 710 that provide to the contrary are unconstitutional 2 on their face. 3 Summary judgment as to whether there is a qualified First Amendment right of 4 access to information about executions is inappropriate at this time. The stage of the 5 proceedings and the current factual record prevent the declaration of the rights of the 6 parties at this stage. 7 8 9 10 11 IT IS THEREFORE ORDERED that the Motion for Summary Judgment by Plaintiffs (Doc. 43) is GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED that the Motion for Summary Judgment by Defendant Charles L. Ryan (Doc. 45) is DENIED. Dated this 21st day of December, 2016. 12 13 14 Honorable G. Murray Snow United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 25 -

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