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

Filing 98

FINDINGS OF FACT AND CONCLUSIONS OF LAW JUDGMENT ORDER - For the reasons stated above, the Court finds in favor of Plaintiffs to the extent that it granted them summary judgment in its previous Order (Doc. #70 ) and finds in favor of the Defendants on the remaining issues that were set forth at trial. It thus enters judgment in favor of the Plaintiffs insofar as they have requested access to the entire execution procedure, and enters judgment on the remaining issues tried by the parties in favor of the Defendants. (See document for complete details). Signed by Judge G Murray Snow on 9/21/17. (SLQ)

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Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 1 of 22 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., No. CV-14-02363-PHX-GMS 10 Plaintiffs, FINDINGS OF FACT AND CONCLUSIONS OF LAW JUDGMENT ORDER 11 v. 12 Charles L Ryan, et al., 13 Defendants. 14 15 On July 25, 2017, this matter was tried to the Court without a jury. Thereafter the 16 Court allowed the parties to file post-trial briefs. Pursuant to Federal Rule of Civil 17 Procedure 52, the Court hereby makes its findings of fact and conclusions of law. FINDINGS OF FACT 18 19 I. Background 20 1. Plaintiffs, members of the news media, assert that the First Amendment grants 21 the public and the press a right of access to certain information about executions in 22 Arizona, beyond the information that the state of Arizona currently makes public. 23 2. Specifically, Plaintiffs assert that the First Amendment grants the public and 24 the press a right to information about six specific measures of the composition and 25 quality of the drugs used in lethal injections, the identities of the suppliers of those drugs, 26 and specific qualifications of those who administer the drugs and monitor the inmate 27 during executions. 28 3. This asserted right derives from the First Amendment’s “right of access” to Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 2 of 22 1 certain government proceedings. See Press-Enterprise Co. v. Co. v. Superior Court of 2 Cal. for Cty. of Riverside, 478 U.S. 1 (1986) (“Press-Enterprise II”). 3 4. To determine whether a right of access to a given proceeding exists, courts 4 examine both “whether the place and process have historically been open to the press and 5 general public” and “whether public access plays a significant positive role in the 6 functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8. 7 These two questions may be referred to as the “experience” prong and the “logic” prong. 8 9 5. If these two factors favor access, a qualified right of access under the First Amendment arises. Id. at 9. 10 11 6. The government may, however, close a proceeding to which there is a qualified right of access with sufficient justification. Id. 12 7. Depending upon the nature of the governmental proceeding, such a closure 13 must be justified either by a legitimate penological purpose, Cal. First Amend. Coal. v. 14 Woodford, 299 F.3d 868 (9th Cir. 2002), or by a compelling interest achieved by 15 narrowly tailored means, Press-Enterprise II, 478 U.S. at 10. 16 8. The Ninth Circuit has held that there is a qualified First Amendment right of 17 access to execution proceedings, subject to closure on the basis of legitimate penological 18 purposes. See Cal. First Amend. Coal., 299 F.3d at 877–79. 19 9. This Court previously granted summary judgment to Plaintiffs to the extent that 20 they wished to witness all relevant aspects of the execution. The Court declined to enter 21 summary judgment for either party on whether the First Amendment grants the public 22 and the press a right of access to information about the composition and quality of the 23 drugs used in lethal injections, the suppliers of those drugs, and the qualifications of those 24 who administer the drugs and monitor the inmate during executions. (Doc. 70.) 25 II. 26 27 28 Lethal Injection Executions in the United States 10. The first states to authorize the use of lethal injection as an execution method were Texas and Oklahoma in 1977. 11. Today, the federal government and all states that carry out executions -2- Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 3 of 22 1 authorize execution by lethal injection. 2 12. From 1977 to January 31, 2017, there were 1270 lethal injection executions 3 carried out in the United States. 4 III. Executions in Arizona 5 13. As a matter of law, executions in Arizona are conducted exclusively by lethal 6 injection, although inmates convicted of an offense that took place prior to November 23, 7 1992 may elect to be executed by lethal gas instead of through lethal injection. A.R.S. 8 § 13-757. 9 10 14. Executions in Arizona are conducted pursuant to the Arizona Department of Corrections’ (“ADC”) written execution protocol, contained in Department Order 710. 11 12 15. Department Order 710 is publicly available at default/files/policies/700/0710_062917.pdf. 13 16. Among other things, Department Order 710 lists two specific drug and dosage 14 alternatives that ADC may use to carry out an execution. It also lists the required 15 qualifications for the IV Team personnel who assist in administering the drugs. 16 17. Department Order 710 does not include any guidelines relating to the 17 procurement of lethal injection drugs apart from clarifying that, pursuant to state law, the 18 identities of the suppliers of lethal injection drugs are to be kept confidential. 19 18. Also pursuant to state law, Department Order 710 provides that the identity of 20 any member of the IV Team is to remain confidential, as well as any information 21 contained in records that would identify such persons. 22 19. The confidentiality provisions of Department Order 710 are based on A.R.S. 23 § 13-757(C), which states that “[t]he identity of executioners and other persons who 24 participate or perform ancillary functions in an execution and any information contained 25 in records that would identify those persons is confidential and is not subject to 26 disclosure[.]” 27 /// 28 /// -3- Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 4 of 22 1 IV. The Characteristics of the Drug 2 A. The Drugs ADC Uses and the Information it Provides 3 20. Department Order 710 currently provides that ADC will use either 4 5 6 7 8 9 10 pentobarbital or sodium pentothal as the execution drug. 21. Department Order 710 requires ADC to provide notice of the drug it will use in an execution. 22. Department Order 710 also requires the ADC to obtain a quantitative analysis of the drug, the results of which must be made public upon re quest. 23. The quantitative analysis is conducted by the Arizona Department of Public Safety (“DPS”). 11 24. Department Order 710 does not define the quantitative analysis that DPS will 12 perform on ADC’s behalf; but the parties stipulated at trial that this quantitative analysis 13 will identify the substance that is tested as well as its concentration. 14 25. The concentration of a drug refers to the mass per volume of the drug. 15 26. The concentration of a drug is relevant because it allows the calculation of 16 17 how much of a drug must be injected to achieve a given dose and a given effect. 27. The injection of either pentobarbital or sodium pentothal at a lower 18 concentration than expected could lead to underdosing, which creates a risk of inadequate 19 anesthetization or prolonged death, as well as a possible need to administer further doses. 20 28. The injection of either pentobarbital or sodium pentothal at a higher than 21 expected concentration could lead to an overdose, which could cause pain during 22 administration. 23 B. 24 29. Concentration is one of the six specific measures of the lethal injection drug 25 that the Plaintiffs assert the First Amendment compels the ADC to obtain and disclose. 26 The other five are: stability, sterility, purity, osmolarity and pH of the drug. 27 28 Additional Measures of Composition and Quality 30. Drugs that are correctly identified and have a proper concentration may still fail to perform as expected or cause pain upon injection. -4- Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 5 of 22 1 31. The quantitative analysis does not definitively answer whether the drugs 2 analyzed are likely to cause pain during a lethal injection procedure, or be fully effective. 3 32. Stability refers to the expected time during which a drug or chemical 4 formulation will stay within a certain concentration range under a specific set of storage 5 conditions. 6 33. Stability is measured by multiple potency or concentration analyses separated 7 by time; mathematical formulas can be used to predict when the concentration will drop 8 below a useful level. 9 10 34. The sterility of a drug or chemical formulation refers to the extent that foreign microbial contaminants are present in the solution. 11 35. Sterility can be affected by a number of issues surrounding the method of 12 manufacture or preparation, including, for example, whether the compounding pharmacy 13 starts with bulk active material as well as its terminal sterilization procedures. 14 36. The sterility of a drug -- the presence or absence of impurities of various types 15 -- can also affect the drug’s efficacy and the potential that it will cause pain when injected 16 into the body. 17 37. If a drug is not sterile, particulate matter may change the osmolarity of the 18 drug and cause pain, or the pH of the drug may change, also causing pain; alternatively, it 19 is possible that nonsterile matter may congeal and block the blood vessel or burst it. 20 38. The sterility of a drug may be tested using a sterility testing plate. 21 39. 22 The purity of a drug refers to the extent to which the drug is free of unintended additives. 23 40. Unintended additives may cause the drug not to work as intended. They also 24 may affect other qualities such as the osmolarity and pH, or cause an allergic reaction in 25 the body. 26 27 28 41. The use of impure drugs in lethal injections creates a risk of pain to the inmate. 42. Purity, like potency and concentration, may be measured by a sufficiently -5- Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 6 of 22 1 detailed liquid chromatography analysis. 2 43. Osmolarity refers to the concentration of a solution expressed as the total 3 number of solute particles per liter, and this includes both the active drug and any 4 inactive ingredients added in the production or preparation process. In other words, 5 osmolarity measures the total number of particles in a solution. 6 7 8 9 10 44. Knowing the potency of a drug does not necessarily indicate its osmolarity, because potency measures only the concentration of the active drugs in the solution. 45. Pharmaceutical drug products and preparations contain both active drug molecules and inactive ingredients. Any ingredient added into the solution contributes to the osmolarity of the solution. 11 46. In human physiology and homeostasis, the body tries to maintain a consistent 12 osmolarity in blood. If an injectable drug or chemical formulation has an osmolarity, the 13 drug or formulation will exert a substantial pressure change across the cell membranes in 14 the blood, throughout the body, when injected. 15 16 47. Depending on the severity of the pressure change, this condition can create extraordinary pain for the individual receiving the injection. 17 48. The osmolarity of a drug may be tested with an osmometer. 18 49. The pH of a drug refers to the extent to which the drug is acidic or basic. 19 50. The pH of a solution can also affect how a drug or chemical formulation acts 20 upon injection into the body. If the pH is too extreme, the drug or chemical formulation 21 will be incompatible with the pH of human blood and its injection would be expected to 22 cause substantial pain. 23 51. The pH of a drug or chemical formulation is also relevant to the stability and 24 potency of the drug. If the pH is not stabilized in some way, this can cause chemicals in 25 the solution to fall out of solution and revert to a solid form, known as a precipitate, 26 which renders it unfit for intended use and can cause many untoward effects in the body. 27 28 52. The pH of a drug may be measured through pH probes or paper testing strips, or a pH meter. -6- Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 7 of 22 1 53. Plaintiffs have presented uncontested evidence that historically, the public had 2 the ability to obtain at least some information about the quality of the means of execution. 3 For example, “some spectators carefully examined the gallows before the execution, 4 trying out the pulleys and the spring” and “[s]pectators at jail-yard hangings are also 5 known to have collected pieces of rope after the hanging had ended, and thus could 6 inspect its physical qualities.” (Pls. Exh. 7 at 4–5.) 7 54. The public has not traditionally had access to chemical analyses performed to 8 determine the characteristics of a specific batch of lethal injection drugs. Nor do the 9 Plaintiffs provide any evidence that suggests that the State performs such analyses on 10 lethal injection drugs apart from the quantitative analysis provided for in Department 11 Order 710. 12 V. Qualifications of Execution Team Members 13 A. 14 55. Department Order 710 sets out the roles of various execution team members 15 ADC’s Policies as to the IV Team and the qualifications required to participate. 16 56. The “IV Team” comprises any two or more of the following: physicians(s), 17 physician assistants(s), nurse(s), emergency medical technician(s), paramedic(s), military 18 corpsman or other certified or licensed personnel including those trained in the United 19 States military. 20 57. The IV Team is responsible for inserting the IV catheters, supervising the 21 mixing of chemicals and the preparation of syringes, and monitoring the inmate during 22 the procedure. 23 58. The IV Team will use either a peripheral IV catheter or a central femoral line, 24 as determined by the Director of ADC based on the recommendation of the IV Team 25 Leader. 26 27 28 59. All members of the IV Team must be currently certified or licensed within the United States to place IV lines. 60. If a central femoral line is used, the Team member placing the line must be -7- Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 8 of 22 1 2 3 4 qualified to do so by “experience, training, certification or licensure.” 61. Department Order 710 requires ADC to conduct a criminal history check on IV Team members. 62. ADC possesses records reflecting the IV Team members’ qualifications, 5 certifications, licenses and criminal history, including copies of relevant certifications and 6 licenses, and results of criminal history investigations. 7 63. Department Order 710 does not require specific qualifications, certifications 8 or licenses relating to monitoring the inmate during the execution procedure, nor does it 9 require the disclosure of such qualifications if any team member has them. 10 11 12 64. ADC does not make public information about the specific qualifications of specific members of the IV Team. 65. Since 1998, Arizona law has explicitly protected the identity of executioners 13 and those who perform ancillary functions in executions. See A.R.S. § 13-757(C). 14 66. All team members’ service regarding an execution is strictly voluntary. 15 67. ADC relies on the voluntary participation of team members to carry out lethal 16 injection executions. 17 68. The personnel necessary for ADC to carry out lethal injection executions are 18 less likely to voluntarily participate if their specific qualifications, such as licenses and 19 certifications they hold and any criminal history they might have, are publicly disclosed 20 for fear that disclosure of this information could lead to discovery of their identities. 21 69. Public access to specific information about execution team members, such as 22 the licenses and certifications they hold and any criminal history, would therefore make it 23 more difficult for the State to have the voluntary participation of qualified individuals it 24 requires to carry out lawfully-imposed, constitutional sentences of death. 25 70. Plaintiffs provide no persuasive evidence of an historical tradition of public 26 access to information about the identities or qualifications of those administering lethal 27 injection drugs or performing executions generally. 28 71. To the contrary, as the Court noted in its summary judgment order, and -8- Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 9 of 22 1 discussed with the parties at oral argument, there is at least some historical tradition of 2 keeping the identity of executioners secret. Plaintiffs have presented no evidence to the 3 contrary. 4 B. 5 72. Plaintiffs seek a certification from the State that all members of the IV Team 6 The Certifications Plaintiffs Seek are qualified to place IV lines. 7 73. Plaintiffs concede that as currently written, Department Order 710 already 8 requires all members of the IV Team to be qualified to place IV lines, but they seek a 9 declaration that this certification is required by the First Amendment. 10 74. The improper placement of an intravenous line may cause pain to the inmate. 11 75. An improperly placed IV line may cause infiltration or extravasation, where 12 intravenous fluid leaks into the surrounding tissue rather than proceeding through the 13 venous system. 14 15 16 17 18 19 20 21 22 23 76. The infiltration or extravasation of either pentobarbital or sodium pentothal would cause significant pain. 77. Additionally, infiltration or extravasation may lead to a lower actual dose of the chemical having an effect on the inmate. 78. IV lines need to be monitored on an ongoing basis to ensure that they are working properly. 79. The IV Team’s responsibility of monitoring the inmate includes assessing the inmate’s level of consciousness and establishing the time of death. 80. The skills of IV placement are wholly unrelated to the ability to properly sedate or anesthetize a person. 24 81. It is difficult for someone without training to tell the difference between 25 sedation and anesthesia, and unqualified individuals are likely to miss subtle signs of 26 inadequate anesthesia. 27 28 82. An inmate who is properly anesthetized will not be aware of any pain; one who is merely sedated, however, may be able to feel pain. -9- Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 10 of 22 1 2 83. Both pentobarbital and sodium pentothal anesthetize patients in sufficient doses, but merely sedate patients at lower doses. 3 4 84. professional can become qualified to properly anesthetize a patient. 5 6 85. Inadequate anesthesia during a lethal injection may lead to significant pain and sensations such as suffocation or air hunger. 7 8 Significant training and certification are necessary before a medical 86. The skill necessary for successfully monitoring anesthetization comes from experience in monitoring. 9 87. Apart from physicians trained as anesthesiologists, none of the professions 10 listed as qualified to be members of the IV Team are qualified by training to assess 11 whether a patient is fully anesthetized. 12 88. The American Board of Anesthesiology prohibits its members from 13 participating in lethal injections. Anesthesiologists who participate in executions by 14 lethal injection may have their certifications revoked by the American Board of 15 Anesthesiology. 16 89. Although there are no national certifications for recognizing the distinction 17 between anesthetization and sedation apart from being a board certified anesthesiologist, 18 some individual hospitals do provide training and certifications to non-anesthesiologists 19 related to monitoring sedation. 20 90. Accordingly, Plaintiffs also claim entitlement to information about any 21 certifications and experience that qualifies each member of the IV Team to assess 22 whether the inmate is properly anesthetized or sedated. 23 I. Information about the Source of Lethal Injection Drugs 24 A. 25 91. 26 injection drugs. 27 92. 28 Suppliers of Lethal Injection Drugs Plaintiffs seek the disclosure of the identities of the suppliers of lethal Arizona has obtained lethal injection drugs both from pharmaceutical manufacturers and from compounding pharmacies, though drugs from compounding - 10 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 11 of 22 1 pharmacies have never been used in an execution. 2 93. Pharmaceutical manufacturing involves the commercial manufacture of drugs. 3 94. Compounding, on the other hand, is a process by which a pharmacist brings 4 5 6 7 together active and inactive pharmaceutical ingredients to create a drug. 95. There are two types of compounding pharmacies; “traditional” (503A) and “non-traditional” or “hybrid” (503B). 96. These categories were demarcated for regulatory purposes by Congress 8 following a 2012 incident in which contaminated drugs from a compounding pharmacy 9 resulted in 751 illnesses and 64 deaths, and subsequent FDA inspections subsequent 10 11 12 13 14 15 16 identified problems in 78% of the compounding pharmacies examined. 97. 503A compounding pharmacies create drugs to meet the needs of a specific patient with a prescription. 98. 503B compounding pharmacies, on the other hand, mass produce drugs for sale and distribution. 99. Different regulatory standards apply to pharmaceutical manufacturers, 503B compounding pharmacies and 503A compounding pharmacies. 17 100. Pharmaceutical manufacturers are subject to FDA oversight and must follow 18 the current Good Manufacturing Practice For Finished Pharmaceuticals (“cGMPs”) as set 19 forth in 21 C.F.R. § 211. 20 101. 503B pharmacies must register with the FDA and submit to FDA inspection, 21 and are expected to conform to the cGMPs. The precise formulations of the drugs, 22 however, are not scrutinized by the FDA. 23 102. 503A pharmacies are expected to follow the minimum practices and quality 24 standards set for in U.S. Pharmacopeial Convention’s United States Pharmacopeia and 25 The National Formulary Chapter 797 (“USP 797”). They are not subject to the FDA 26 regulatory framework. 27 103. Additionally, purchasers of drugs receive different information regarding the 28 length of time for which the drug remains good, depending on the type of manufacturer - 11 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 12 of 22 1 who produced the drug. 2 104. Pharmaceutically manufactured drugs are assigned an expiration date, which 3 is the date beyond which the remaining pharmaceutical ingredient is around 90% of what 4 it originally was. 5 105. By contrast, compounded drugs do not have an expiration date, but they do 6 have a “beyond-use date,” which is defined in USP 797 as the “date or time after which a 7 compounded sterile preparation (‘CSP’) shall not be stored or transported.” 8 9 106. Beyond-use dates are not determined with the same scientific rigor as expiration dates. 10 107. Since compounded drug preparations degrade in a non-linear manner, 11 frequently much more rapidly than FDA-approved drugs, compounded drug preparations 12 lose their fitness for intended use more rapidly and have comparatively short beyond-use 13 dates. 14 B. 15 108. ADC does not inquire if the sources from which it purchases lethal injection 16 drugs comply with USP 797, or with applicable Arizona regulations (A.A.C. R4-23-670). 17 109. When ADC seeks to purchase drugs from foreign sources, it does not inquire 18 19 20 21 22 23 ADC’s Practices as to Suppliers about those sources’ practices. 110. Both A.R.S. § 13-757(C) and Department Order 710 explicitly provide that the identities of the sources of lethal injection drugs are to remain confidential. 111. Other states have also adopted laws protecting the identities of the suppliers of lethal injection drugs, mostly within the past twenty years. 112. Of the thirty-one states that have adopted lethal injection executions, 24 fourteen have secrecy laws protecting the identities of suppliers. 25 (Arizona and Florida) adopted secrecy laws prior to 2011. Only two states 26 113. It has become increasingly difficult for the state to purchase lethal injection 27 drugs. During the last ten years in which Carson McWilliams, the ADC Director in 28 charge of prison operations, has been tasked with procuring lethal injection drugs, he has - 12 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 13 of 22 1 found fewer and fewer producers willing to sell such drugs to the state. He believes that 2 this is due to campaigns to discourage manufacturers from selling such drugs. He has, 3 however, spoken with at least one potential drug supplier that was willing to provide 4 lethal injection drugs to Arizona so long as its identity was kept confidential. He believes 5 it will become much more difficult to obtain lethal injection drugs if the identity of the 6 supplier becomes known, and currently he knows of no one in the United States who will 7 sell lethal injection drugs to the state. 8 114. He has also been provided by at least one compounding pharmacy what 9 appeared to be a mass-produced letter threatening the future viability of the pharmacy if it 10 was discovered that the pharmacy provided lethal injection drugs to the state of Arizona. 11 115. There is no evidence of a widespread practice of states voluntarily and 12 proactively making public the identities of the suppliers of lethal injection drugs, 13 although there is evidence that such identities have at times been publicly known. 14 116. The level of public access to information about the sources of execution 15 equipment has varied over time. While public hangings were often widely attended and 16 thoroughly observed, there is no evidence that spectators knew who supplied the lumber 17 or the ropes. 18 117. Plaintiffs present evidence that several manufacturers of gas chambers were 19 publicly known, as was the supplier of the lethal gas used in those gas chambers, 20 although they do not present evidence suggesting that the state disclosed such 21 information. 22 CONCLUSIONS OF LAW 23 1. A right of access to a proceeding does not necessarily imply a right of access to 24 information about that proceeding. See United States v. Corbitt, 879 F.2d 224, 228–29 25 (7th Cir. 1989) (“[T]he press’ right of access to documents submitted for us in a hearing 26 must be considered separately from the press’ right to attend the hearing itself.”). 27 Further, when analyzing whether a right of access attaches to information about a 28 proceeding, a court must analyze not whether there is a right of access to information - 13 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 14 of 22 1 generally but to each specific type of information sought. See In re Boston Herald, Inc., 2 321 F.3d 174, 184 (1st Cir. 2003) (“[T]he First Amendment does not grant the press or 3 the public an automatic constitutional right of access to every document connected to 4 judicial activity. 5 particular class of documents or proceedings and determine whether the right attaches to 6 that class.”). Accordingly, the Court must consider whether the Press-Enterprise II test 7 applies to each category of information the Plaintiffs seek, and if so, what the results of 8 that test are. 9 2. Rather, courts must apply the Press-Enterprise II standards to a As to the qualifications of the IV Team members, Plaintiffs seek (1) a 10 certification that the members of the IV Team are qualified to place an IV line; and (2) 11 information about the team members that indicates whether each team member is 12 sufficiently skilled to assess whether the inmate is properly anesthetized. It is undisputed 13 both that Department Order 710 requires each member of the IV Team to be qualified to 14 place an IV line (and at least one member to be qualified to place a central femoral line if 15 such a line is used), and that all of the professions required by the protocol as a 16 prerequisite to IV team membership require that a person be qualified to set peripheral IV 17 lines. Plaintiffs thus, in essence, seek the State to certify what is already set out in 18 Department Order 710: that every member of the IV Team is qualified to place an IV. 19 Indeed, Plaintiff’s counsel conceded that the State’s policy serves as sufficient 20 certification, while still seeking a declaration that the First Amendment requires the State 21 to continue to make this certification. 22 3. As an initial matter, it is not clear that there is even a justiciable controversy as 23 to the qualifications of the IV Team to place IV lines. At the very least, a declaration that 24 the State’s current practice comports with the First Amendment runs afoul of “the 25 fundamental principle of judicial restraint that courts should neither anticipate a question 26 of constitutional law in advance of the necessity of deciding it nor formulate a rule of 27 constitutional law broader than is required by the precise facts to which it is to be 28 applied.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 - 14 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 15 of 22 1 (2008) (internal quotation marks and citations omitted). Nor is it apparent that a change 2 in the State’s policy would escape review since the Plaintiffs can raise such arguments if 3 the State ever changes its policy in this regard. 4 4. Even assuming that a sufficient controversy exists, what the Plaintiffs request is 5 not the disclosure of information held by the State; but that the State certify that those 6 performing part of the execution function meet certain criteria. No matter how wise it 7 may be for the State to set specific substantive qualifications for those who perform 8 execution procedures, Plaintiffs offer no precedent, either legal or historical, which would 9 give the media, through its First Amendment right of access, the ability to oblige the 10 State to obtain certification that those performing functions involved in executions are 11 certified to perform them. Such a use would sever the Press-Enterprise II test from its 12 moorings in the First Amendment. 13 standards for various procedures to which the government must adhere, and Plaintiffs 14 provide no cases in which the Press-Enterprise II test has been so applied. As with their 15 demand that the State ascertain and disclose certain categories of information about the 16 drug, discussed below, Plaintiffs seek to define the substantive requirements for 17 performing authorized government procedures through the First Amendment. 18 substance of procedures is a matter best left to the political process. See Bd. of Regents of 19 Univ. of Wisc. Sys. v. Southworth, 529 U.S. 217, 235 (2000) (“When the government 20 speaks, for instance to promote its own policies or to advance a particular idea, it is, in 21 the end, accountable to the electorate and the political process for its advocacy.”); see 22 generally Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467–68 (2009) (citing 23 cases for the proposition that the First Amendment is not a vehicle for the public to 24 control government speech). The First Amendment does not set substantive The 25 5. With respect to the disclosure of any certifications or other information relating 26 to IV Team members that may reflect their ability to monitor the inmate to assess 27 anesthesia and/or sedation, related problems exist. 28 suggest that the disclosure of qualifications of those participating in executions has - 15 - First, Plaintiffs offer nothing to Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 16 of 22 1 historically been required. Second, even though it likely would ensure more painless 2 executions to require that a member of the IV team have qualifications to monitor the 3 difference between sedation and anesthetization, based on the testimony offered by the 4 Plaintiffs at hearing it would be difficult if not impossible for the state to obtain such 5 persons. 6 anesthesiologists are qualified to perform such functions and further that, 7 anesthesiologists are prohibited by the American Association of Anesthesiologists from 8 participating in executions in any capacity. 9 10 Plaintiff’s expert, Dr. David Waisel, testified at hearing that only 6. Further as is discussed above, nothing in the First Amendment entitles the media to require anesthesiologists be part of the IV team. 11 7. And, Plaintiffs have failed to demonstrate that forcing the state to disclose such 12 credentials that are held by IV team members, even if they are not required by the 13 protocol, would not serve to identify those team members to their detriment. 14 example, the testimony at the hearing was that although only an anesthesiologist would 15 be able adequately to distinguish between sedation and anesthetization, some individual 16 hospitals may provide sedation training to other medical professionals. However, If the 17 state were required to disclose such certifications as are provided by specific local 18 hospitals, the disclosure of such certifications would seem to have a high potential to be 19 identifying of the IV Team member. Plaintiff does not purport to desire to obtain 20 information that would be identifying. And the Plaintiffs put forth no evidence that there 21 is a qualified First Amendment right of access to information that would identity persons 22 participating in executions. For 23 8. On the other hand, nothing prevents the press from publishing that the State has 24 no requirement that a person qualified to adequately distinguish between sedation and 25 anesthesia be part of the execution team, nor is there anything preventing the press from 26 disclosing that it may prove very difficult, if not impossible, for the state to obtain such 27 participation on its IV team. 28 qualifications has no historic precedent and would serve limited benefit under the logic Thus, in this instance the required disclosure of the - 16 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 17 of 22 1 prong that would not be more than offset by harm resulting from the disclosure. 2 9. The Press-Enterprise II test does not apply to the information about the 3 composition and quality of the drugs that Plaintiffs seek.1 4 Amendment does not serve to establish and specify criteria with which the government 5 must comply in performing its functions. It merely allows the Press to observe and report 6 those functions. Second, the information Plaintiffs seek as to composition and quality is 7 information that the State does not 8 Amendment requires the government to generate information that is not in its possession. 9 The parties have not presented, and the Court has not found, a single case ever finding possess. First, again, the First There is no indication that the First 10 that Press-Enterprise II requires the government to generate information.2 11 Enterprise II involves a right of access to information, not a right to require the 12 generation of information. In other words, the First Amendment only protects against 13 “arbitrary interference with access to important information.” Richmond Newspapers, 14 Inc. v. Virginia, 448 U.S. 555, 583 (1980) (Stevens, J., concurring). 15 10. Press- State statute prohibits the disclosure of the source of execution drugs, 16 reflecting the State’s judgment that confidentiality is necessary both to protect drug 17 suppliers and to ensure that the State has access to such drugs. When it comes to the 18 source of the state’s lethal injection drugs, the state presumably has this information 19 unlike information related to the makeup of the drug. Further disclosure of the source of 20 the drugs does not serve to compel, in itself, a standard of quality that the drugs must 21 meet. Thus, the question of the constitutionality of the statute as it applies to the source 22 1 24 As an initial note, that sections of rope used in public hangings were collected as souvenirs after the fact does not suggest a historical tradition of the public testing the instrumentalities of execution beforehand or otherwise, to ensure the efficacy and relative painlessness of the hanging. 25 2 23 26 27 28 Plaintiffs argue that the State’s refusal to perform additional tests on the lethal injection drugs is analogous to a refusal “to obtain and produce a translated transcript of a criminal trial conducted in a language understood only by trial participants.” (Doc. 97 at 10.) This analogy is inapposite. Courts in the United States do not conduct proceedings in an esoteric language known only to the participants, but in the same language, English, that predominates in public discourse. While the State must of course provide participants in a legal proceeding with a translation of the proceedings in any non-English language they understand, it has no such duty to members of the public. - 17 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 18 of 22 1 of lethal injection drugs is amenable to the application of the Press-Enterprise II test. 2 11. As an initial matter, the Court reiterates its decision on an argument to which 3 Plaintiffs alluded at trial. The Ninth Circuit’s decision in California First Amendment 4 Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), holding that the public has the right 5 to view the entirety of an execution proceeding, does not necessarily mean that the public 6 has a right of access to all information possessed by the government concerning an 7 execution. As the Court has already held, “the right of access to a given proceeding does 8 not automatically grant a right to access all information related to that proceeding, or 9 even all information that would help in meaningfully understanding the proceeding” and 10 accordingly “if information about executions is encompassed by a First Amendment right 11 of access, that right of access is best determined by an independent application of the 12 Press-Enterprise II test to the specific information sought.” (Doc. 70 at 12.) 13 12. The first prong of the Press-Enterprise II test asks “whether the place and 14 process have historically been open to the press and general public.” Press-Enterprise II, 15 478 U.S. at 8. The historical record as applies to the suppliers of lethal injection drugs is 16 short, and the historical record as abstracted to suppliers of execution materials in general 17 is far from clear—and of questionable relevance. Lethal injection drug suppliers have 18 also been at times publicly known, but secrecy statutes are now commonplace. Evidence 19 has been presented that the identity of Arizona’s suppliers has at times been public 20 knowledge, but that the State itself only disclosed such information pursuant to court 21 order. To the extent that suppliers of execution drugs are considered entitled to the same 22 confidentiality protection as those on the IV team—as Department Order 710 considers 23 them to be—there is, as discussed above, no evidence that the identities of the IV team, 24 or previous executioners has been made known, and evidence that various affirmative 25 steps have historically been taken to protect the identities of executioners. 26 13. The Ninth Circuit has noted that where the proceeding at issue has undergone 27 significant changes over time, the experience prong may be less relevant in determining 28 whether a qualified right of access exists. See Seattle Times Co., 845 F.2d at 1516–17. - 18 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 19 of 22 1 That caution seems particularly appropriate given the changes in capital punishment 2 throughout American history. 3 14. The question thus becomes “whether public access plays a significant positive 4 role in the functioning of the particular process in question.” Press-Enterprise II, 478 5 U.S. at 8. Answering this question requires the Court to consider both the benefits and 6 detriments of public access. See United States v. Index Newspapers, LLC, 766 F.3d 1072, 7 1087–88 (9th Cir. 2014) (“Where the harm cause by disclosure of judicial records 8 outweighs the benefit of disclosure to the public, public access no longer ‘plays a 9 significant positive role in the functioning of the particular process in question.’” 10 (quoting Press-Enterprise II, 478 U.S. at 8)); In re Boston Herald, Inc., 321 F.3d at 186 11 (noting that “a test that is blind to the functional drawbacks of access becomes no test at 12 all” and accordingly the logic of access “cannot be ascertained without some reference to 13 the potential problems created by public access as well as to the advantages”). 14 15. Plaintiffs assert that disclosure of sources improves the functioning of capital 15 punishment in two distinct ways. First, it serves as a proxy for determining the quality 16 and composition of the lethal injection drugs, as the public can infer these characteristics 17 from the type of supplier and its reputation. The public then has a better basis for 18 assessing whether capital punishment is carried out in a humane manner, and for 19 demanding that improvements be made if necessary. Second, disclosure of sources 20 serves a general democratic oversight purpose, such that the public can review the 21 decisions the State is making with respect to its choice of drug suppliers. 22 16. Disclosure of the sources may motivate the State to attempt to acquire high- 23 quality drugs as an assurance that capital punishment therefore functions in a more 24 humane fashion. Yet, according to McWilliams’s uncontested testimony, there are 25 currently no sources for such drugs in the United States, so acquiring such drugs from 26 pharmaceutical manufacturers is not a possibility. Further, the press is free to report that 27 under the protocol, the State will neither reveal the specific source from which it obtains 28 the drugs, nor certify that it acquires the drug from sources whose reliability is - 19 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 20 of 22 1 established either by reputation or regulation. Nothing prevents the press from informing 2 the public of the significant difference between the quality of drugs produced by 3 manufacturers and those produced by compounding pharmacies. The public knows that 4 the State declines to make this guarantee, and the public can meaningfully assess whether 5 a program of capital punishment absent such a guarantee is one in which it wants its 6 government to engage. Thus, the ability to report on the information that the state 7 declines to provide, itself fulfills to a significant extent the purpose of the logic prong of 8 the Press-Enterprise II test. To the extent that some of the purposes of the logic prong 9 might be more fully served by the media having access to the actual source of the lethal 10 injection drug, that benefit must also be weighed against the detriment that access to the 11 information would cause to the functioning of the process, and to persons and entities 12 involved in it. 13 17. Capital punishment is not unconstitutional. The legislature of Arizona has 14 chosen to authorize it in the form of lethal injection. The State presented evidence that 15 the opposition to capital punishment by a substantial portion of the public presents risks 16 not only to those involved in the process, but to the State’s ability to carry it out entirely. 17 Carson McWilliams testified that no manufacturing sources will now sell execution drugs 18 to the state, and he further testified of being shown an anonymous threat to a potential 19 compounding pharmacy, threatening to ruin that pharmacy’s business if the pharmacy did 20 business with ADC. The phenomenon of opponents of capital punishment using threats 21 of boycotts to discourage drug producers to provide capital punishment drugs has been 22 widely noted. See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2733 (2015) (“Baze cleared 23 any legal obstacle to use of the most common three-drug protocol that had enabled States 24 to carry out the death penalty in a quick and painless fashion. But a practical obstacle 25 soon emerged, as anti-death-penalty advocates pressured pharmaceutical companies to 26 refuse to supply the drugs used to carry out death sentences.”); Zink v. Lombardi, 783 27 F.3d 1089, 1106 (8th Cir. 2015) (“In this capital litigation, it should be remembered that 28 one stated objective of the prisoners’ lawsuit is to pressure the State’s suppliers and - 20 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 21 of 22 1 agents to discontinue providing the drugs and other assistance necessary to carry out 2 lawful capital sentences.”). 3 Amendment protection. 4 execution process. 5 punishment that the State has chosen to impose—might not function at all if anti-death 6 penalty activists are successful in discouraging suppliers from providing drugs to the 7 State. Such activism is, of course, itself entitled to First Nevertheless, it negatively affects the functioning of the Indeed, the process of capital punishment—a constitutional 8 18. Further, if the disclosure causes harm or threats, economic or otherwise, to 9 those who participate in a legal process, that potential harm itself must be taken into 10 account when assessing whether the logic prong would dictate access. The State has an 11 interest in protecting the wellbeing of those who participate in the execution process—an 12 interest demonstrated by the confidentiality provision of A.R.S. § 13-757(C). It is true of 13 course, as Plaintiffs suggested at trial, that the State might select other methods of capital 14 punishment, but again, the First Amendment rarely, if ever, directly dictates the methods 15 used by states to accomplish their constitutional objectives; ; it may only be used to 16 accurately report how they do, or do not, do so. 17 19. State statute currently provides a guarantee of confidentiality, and it is logical 18 and unsurprising in light of testimony and case law that absent that guarantee, at least 19 some sources of drugs would decline to do business with ADC, and those who do 20 business with ADC may suffer negative consequences. See, e.g., In re: Ohio Execution 21 Protocol Litig., No. 2:11-cv-1016, 2015 WL 6446093, at *2–3 (S.D. Ohio Oct. 26, 2015) 22 (describing threatening letter sent to compounding pharmacy regarding the provision of 23 execution chemicals). The First Amendment protects the right of the people to argue 24 against the imposition of capital punishment through many means including activism; it 25 does not oblige the State to reveal statutorily-protected information to the detriment of 26 the State’s ability to carry out its constitutional, lawfully-imposed criminal punishments. 27 That the First Amendment right of access extends to information that improves the 28 positive functioning of a legitimate governmental process does not prevent the - 21 - Case 2:14-cv-02363-GMS Document 98 Filed 09/21/17 Page 22 of 22 1 government from declining to provide limited information relating to that process if 2 providing such limited information would otherwise practically disable that process or 3 endanger the persons or businesses involved in it. 4 20. In sum, Plaintiffs have failed to show that they have a qualified First 5 Amendment right to the information they seek in this lawsuit. The Court therefore need 6 not determine whether, in the context of information about executions, the State may 7 overcome that right by demonstrating, as in other execution-related contexts, that non- 8 disclosure advances “legitimate penological objectives,” Cal. First Amend. Coal., 299 9 F.3d at 877–79, or alternatively must demonstrate that non-disclosure achieves a 10 11 compelling interest by narrowly tailored means, Press-Enterprise II, 478 U.S. at 10. 21. Any conclusion of law deemed a finding of fact is so adopted. 12 CONCLUSION 13 For the reasons stated above, the Court finds in favor of Plaintiffs to the extent that 14 it granted them summary judgment in its previous Order (Doc. 70) and finds in favor of 15 the Defendants on the remaining issues that were set forth at trial. It thus enters judgment 16 in favor of the Plaintiffs insofar as they have requested access to the entire execution 17 procedure, and enters judgment on the remaining issues tried by the parties in favor of the 18 Defendants. 19 IT IS THEREFORE SO ORDERED AND JUDGMENT IS SO ENTERED. 20 Dated this 21st day of September, 2017. 21 22 23 Honorable G. Murray Snow United States District Judge 24 25 26 27 28 - 22 -

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