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Guardian News & Media LLC v. Ryan

United States District Court, D. Arizona

December 21, 2016

Guardian News & Media LLC, et al., Plaintiffs,
Charles L. Ryan, et al., Defendant.


          Honorable G. Murray Snow United States District Judge

         Pending before the Court are the Motion for Summary Judgment by Plaintiffs Arizona Republic, Associated Press, Guardian News & Media LLC, KPHO Broadcasting Corporation, KPNX-TV Channel 12, and Star Publishing Company (Doc. 43), and the Motion for Summary Judgment by Defendant Charles L. Ryan (Doc. 45). For the following reasons, the Court grants in part and denies in part Plaintiffs' motion, and denies Defendant's motion.


         This case concerns the extent to which the press and the public are entitled to view executions in Arizona and to obtain information relating to those executions. Plaintiffs are members of the news media. They contend that the press and the public have a First Amendment right to view aspects of executions that are not currently open to public view pursuant to state policies. (Doc. 1 at 11.) They also contend that the press and the public have a First Amendment right to certain information about executions-specifically, the “source, composition, and quality” of the drugs used and the “qualifications” of those involved in the execution. (Id.) Plaintiffs seek a declaratory judgment that these rights exist and an injunction prohibiting the State from violating them. (Id. at 11-12.)

         Executions in Arizona are conducted pursuant to Arizona Revised Statutes (“A.R.S.”) §§ 13-757 and 13-758, and Arizona Department of Corrections (“ADC”) Department Order 710, (Doc. 52-1 at 1, PDF 7). Department Order 710 is a public document; the most recent version, effective as of October 23, 2015, is available online at Various provisions in the state statute and in Department Order 710 relate to the information to which Plaintiffs assert a right of access.

         The parties have filed cross-motions for summary judgment on whether, and the extent to which, the First Amendment grants the access Plaintiffs seek and overrides any state statutory provisions to the contrary.


          I. Legal Standard

         The Court grants summary judgment when the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In making this determination, the Court views the evidence “in a light most favorable to the non-moving party.” Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). Where the parties have filed cross-motions for summary judgment, the Court “evaluate[s] each motion independently, ‘giving the nonmoving party in each instance the benefit of all reasonable inferences.'” Lenz v. Universal Music Corp., 815 F.3d 1145, 1150 (9th Cir. 2015) (quoting ACLU v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003)). Even when both parties assert that there is no uncontested issue of material fact and seek summary judgment, the Court must make its own determination whether a dispute exists and may deny summary judgment to both if appropriate. See United States v. Fred A. Arnold, Inc., 575 F.2d 605, 606 (9th Cir. 1978) (per curiam). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         Although “[t]he evidence of [the non-moving party] is to be believed, and all justifiable inferences are to be drawn in [its] favor, ” the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). Substantive law determines which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the nonmoving party must show that the genuine factual issues “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (quoting Anderson, 477 U.S. at 250).

         II. Analysis

         Plaintiffs assert the right to view the totality of the execution. Plaintiffs also assert a right to more information than can be gathered from simply being present and witnessing the totality of the execution. Specifically, they seek (1) information about the “composition” and “quality” of the lethal execution drugs, (2) information about the qualifications of those who perform the execution, and (3) the identity of the source or sources of the lethal injection drugs.

         Plaintiffs claim that each of these asserted rights derives from the First Amendment right of access. Beginning in the 1980s, in a series of cases dealing with criminal proceedings, the Supreme Court recognized that “[f]ree speech carries with it some freedom to listen.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980). “In guaranteeing freedoms such as those of speech and the press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees.” Id. (emphasis added). Though this “right of access” was initially recognized in the context of criminal trials, the Supreme Court described it in language that could apply to other government proceedings. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604-05 (1982) (describing the right of access as “protect[ing] the free discussion of governmental affairs” and “ensur[ing] that this constitutionally protected discussion of governmental affairs is an informed one”).

         To determine whether there is a First Amendment right of access to a government proceeding, courts consider two “complementary considerations”: (1) whether the proceeding has “historically been open to the press and general public” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986) (“Press-Enterprise II ”). “These considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes.” Id. at 9. Where a government proceeding passes the “tests of experience and logic, ” there arises “a qualified First Amendment right of public access.” Id. But even then, the right of access “is not absolute.” Id. The government may still close a proceeding to which a right of access attaches by showing a sufficient justification to do so. Id. at 13-14. The burden the government must meet to justify closure depends on the type of proceeding. Compare Globe Newspaper, 457 U.S. at 606-07 (“Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.”), with Cal. First Amendment Coal. v. Woodford, 299 F.3d 868, 877 (9th Cir. 2002) (applying a more deferential standard to closure of executions). Regardless of the standard applied, “Press-Enterprise II balances the vital public interest in preserving the media's ability to monitor government activities against the government's need to impose restrictions if necessary for safety or other legitimate reasons.” Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012). “Under this framework, a court cannot rubber-stamp an access restriction simply because the government says it is necessary.” Id. “[C]ourts have a duty to conduct a thorough and searching review of any attempt to restrict public access.” Id.

         A. The Right to View the Totality of the Execution Proceeding

         Here, Plaintiffs seek the right “to see and hear the totality of an execution, including whether the State is administering additional doses of lethal injection drugs.” (Doc. 1 at 11.) For example, during the execution of Joseph R. Wood on July 23, 2014, witnesses could see Wood but could not see the execution team administering additional doses of the lethal injection drugs after the initial dose failed to induce death. Witnesses could “watch and listen via closed-circuit television as two IV lines were inserted into Mr. Wood inside the death chamber, ” but then “[a]fter the IVs were set, the closed-circuit television was turned off, the curtains to the chamber were opened, and the audio allowing witnesses to hear inside the chamber were shut off.” (Galvan Decl., Doc. 47-1 at 174, ¶¶ 3-5.) “For the remainder of the execution, the views of the observers were restricted to line-of-sight observation of Wood from a distance. Observers could not see where the drugs were mixed and injected into the IV lines.” (Id. at 174 ¶ 6.) The observers were unable to view execution team members administering the additional doses and were therefore “completely unaware while observing the execution that additional doses were being administered.” (Id. at 175 ¶ 15.)

         Though Department Order 710 does not fully describe the layout of the execution complex, it identifies three rooms relevant to the Court's analysis. The “execution room” is where the defendant is secured to a gurney, connected to IVs, and, eventually, executed. (Doc. 52-1 at PDF 35, Dep't Order 710-D(D).) The “chemical room” is where the “Special Operations Team” prepares the drugs and syringes. (Id. at PDF 31, Dep't Order 710-D(B).) Eventually, the drugs are injected into the IV lines from this room as well. (Id. at PDF 37, Dep't Order 710-D(F)(3).) Witnesses are located in the “witness room.” (Id. at PDF 36, Dep't Order 710-D(D)(10).) While members of the “IV Team, ” in the execution room, place the IV catheters, witnesses in the witness room observe the process via audio and video feeds. (Id.) The audio feed from the execution room is turned off prior to the administration of lethal chemicals. (Id.) At some point after the IVs are placed, witnesses are able to view the defendant directly through a window between the execution room and the witness room. The curtains on this window may be closed, however, at the direction of the Director of ADC. (Id. at PDF 37, Dep't Order 710-D(F)(5).) At no point do witnesses have audio or visual information about what is happening in the chemical room.

         A.R.S. § 13-758 regulates who may be present at executions. Plaintiffs do not challenge any specific provision of that statute, but rather some of the state practices which delineate what witnesses may and may not see. Plaintiffs note, for example, that they are unable “to see and hear the totality of an execution, including whether the State is administering additional doses of lethal injection drugs.” (Doc. 1 at 11.) According to Plaintiffs, “ADC violates this access right by excluding the administration of drugs from observation, leaving witnesses unaware of the administration of doses beyond those called for by its protocol.” (Doc. 43 at 7.) Plaintiffs also challenge a provision of Department Order 710 that authorizes the ADC Director to “direct the curtains to the witness viewing room be closed, and, if necessary, for witnesses to be removed from the facility.” (Doc. 52-1 at PDF 37, Dep't Order 710-D(F)(5).)

         In California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), the Ninth Circuit addressed a California execution protocol that prevented witnesses from observing the execution until after the prisoner had been strapped down and the IV lines inserted. Id. at 871. The Ninth Circuit applied the Press-Enterprise II test in determining that the public and the press have a right of access to executions. The Court concluded: (1) “[t]he public and press historically have been allowed to watch the condemned inmate enter the execution place, be attached to the execution device and then die, ” and (2) “[i]ndependent public scrutiny-made possible by the public and media witnesses to an execution-plays a significant role in the proper functioning of capital punishment.” Id. at 876. The Court determined that “[b]ecause there is both an historical tradition-beginning with entirely public executions and continuing with the practice of inviting official witnesses-and a functional importance of public access to executions, both prongs of the [experience and logic test] have been satisfied.” Id. at 877. In scope, this right is the right to view the entirety of a criminal execution, “from the moment the condemned is escorted into the execution chamber, including those initial procedures that are inextricably intertwined with the process of putting the condemned inmate to death.” Id. The same logic applies with equal force to the administration (or subsequent administrations) of doses of the lethal injection drugs when and if such additional injections are deemed necessary.

         The Ninth Circuit also determined that the standard for determining whether the right of access to view executions can be overcome is the “unitary, deferential standard for reviewing prisoners' constitutional claims, ” even though restricting the public's right of access to executions affects “the rights of outsiders rather than prisoners.” Id. at 877- 78 (“Because the executions at issue here take place within prison walls . . . and are staffed by the same personnel who participate in the daily operations of the prison, our level of scrutiny must be guided by the line of cases addressing constitutional challenges to prison regulations, rather than by those governing access to governmental proceedings.”). This “hands-off approach” is applied to issues of prison administration because the nature of such problems is “peculiarly within the province of the legislative and executive branches of government.” Id. (quoting Procunier v. Martinez, 416 U.S. 396, 404-05 (1974)). In applying this deferential standard, a court must determine “whether the regulation ‘is reasonably related to legitimate penological objectives, or whether it represents an exaggerated response to those concerns.'” Id. at 878 (quoting Turner v. Safley, 482 U.S. 78, 87 (1987)). However, the Ninth Circuit determined that because a restriction on the public's right to view executions is “broad in nature, ” there must be a “closer fit” than usual between the restriction and the state's interest in the security of those involved in executions. Id. at 879.

         Plaintiffs identify two ways in which Department Order 710 falls short of allowing the press and the public the access to which they are entitled. The first is ADC's failure to provide a means of viewing the administration of lethal injection drugs, including the administration of additional or subsequent doses of the drug. Defendant has not established that the failure to provide this access “is reasonably related to legitimate penological objectives” and does not “represent[] an exaggerated response to those concerns.” Turner, 482 U.S. at 87. Defendant's assertion that “physical and logistical difficulties exist, given that the drugs are administered into the IV lines in a separate room, ” (Doc. 53 at 10), carries no weight in the absence of any indication of what those difficulties might be, particularly since closed-circuit televisions are already used to allow witnesses to view the insertion of the IV lines. See Fed. R. Civ. P. 56(c) (“A party asserting that a fact . . . is genuinely disputed must support the assertion by: (A) citing to particular parts of the record . . . or (B) showing that the materials cited do not establish the presence of a genuine dispute . . . .”). Defendant mentions ADC's interest in “protecting the anonymity of personnel in the room where the drugs are administered, ” (Doc. 53 at 10), but this assertion fails factually and legally. If ADC can maintain the anonymity of its personnel while focusing a camera on the IV placement site, as provided for in Department Order 710-D(D)(10), there is no reason it cannot likewise focus a camera on the area in the chemical room in which syringes are injected into the IV line. Alternatively, the Ninth Circuit has held that “[t]he use of surgical garb is a practical alternative to restricting access to witness lethal injection executions in order to conceal the identity of such execution staff should security concerns warrant such concealment.” Associated Press v. Otter, 682 F.3d 821, 825 (9th Cir. 2012) (quoting Cal. First Amendment Coal., 299 F.3d at 884). Indeed, Department Order 710-D(G)(4) already calls for the IV Team Leader to be “dressed in a manner to preserve their anonymity.” By failing to provide for the contemporaneous awareness[1] of the administration of drugs, ADC violates Plaintiffs' right of access, without a legitimate penological purpose for doing so.

         The second problem is the Director's discretionary authority to “direct the curtains to the witness viewing room be closed, and, if necessary, for witnesses to be removed from the facility.” (Doc. 52-1 at PDF 37, Dep't Order 710-D(F)(5).) Of course, the right to view executions may be burdened if the state can show legitimate penological reasons for ordering a closing of a particular execution, so long as there is a “close fit” between the means of closing the execution and the ends sought. But Department Order 710 does not cabin the Director's authority in this or any other way. It may be, as Defendant asserted at oral argument, that the Director would only exercise this authority in a situation where legitimate penological objectives called for it. But, a court should not “uphold an unconstitutional statute merely because the Government promises to use it responsibly.” United States v. Stevens, 559 U.S. 460, 480 (2010). Nor is the prospect of retrospective relief, should the Director use this authority improperly, sufficient to save the provision as written. See ...

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