United States District Court, D. Arizona
FINDINGS OF FACT AND CONCLUSIONS OF LAW JUDGMENT
Honorable G. Murray Snow Judge
25, 2017, this matter was tried to the Court without a jury.
Thereafter the Court allowed the parties to file post-trial
briefs. Pursuant to Federal Rule of Civil Procedure 52, the
Court hereby makes its findings of fact and conclusions of
Plaintiffs, members of the news media, assert that the First
Amendment grants the public and the press a right of access
to certain information about executions in Arizona, beyond
the information that the state of Arizona currently makes
Specifically, Plaintiffs assert that the First Amendment
grants the public and the press a right to information about
six specific measures of the composition and quality of the
drugs used in lethal injections, the identities of the
suppliers of those drugs, and specific qualifications of
those who administer the drugs and monitor the inmate during
asserted right derives from the First Amendment's
“right of access” to certain government
proceedings. See Press-Enterprise Co. v. Co. v. Superior
Court of Cal. for Cty. of Riverside, 478 U.S. 1 (1986)
determine whether a right of access to a given proceeding
exists, courts examine both “whether the place and
process have historically been open to the press and general
public” and “whether public access plays a
significant positive role in the functioning of the
particular process in question.” Press-Enterprise
II, 478 U.S. at 8. These two questions may be referred
to as the “experience” prong and the
these two factors favor access, a qualified right of access
under the First Amendment arises. Id. at 9.
government may, however, close a proceeding to which there is
a qualified right of access with sufficient justification.
Depending upon the nature of the governmental proceeding,
such a closure must be justified either by a legitimate
penological purpose, Cal. First Amend. Coal. v.
Woodford, 299 F.3d 868 (9th Cir. 2002), or by a
compelling interest achieved by narrowly tailored means,
Press-Enterprise II, 478 U.S. at 10.
Ninth Circuit has held that there is a qualified First
Amendment right of access to execution proceedings, subject
to closure on the basis of legitimate penological purposes.
See Cal. First Amend. Coal., 299 F.3d at 877-79.
Court previously granted summary judgment to Plaintiffs to
the extent that they wished to witness all relevant aspects
of the execution. The Court declined to enter summary
judgment for either party on whether the First Amendment
grants the public and the press a right of access to
information about the composition and quality of the drugs
used in lethal injections, the suppliers of those drugs, and
the qualifications of those who administer the drugs and
monitor the inmate during executions. (Doc. 70.)
Lethal Injection Executions in the United States
first states to authorize the use of lethal injection as an
execution method were Texas and Oklahoma in 1977.
Today, the federal government and all states that carry out
executions authorize execution by lethal injection.
From 1977 to January 31, 2017, there were 1270 lethal
injection executions carried out in the United States.
Executions in Arizona
a matter of law, executions in Arizona are conducted
exclusively by lethal injection, although inmates convicted
of an offense that took place prior to November 23, 1992 may
elect to be executed by lethal gas instead of through lethal
injection. A.R.S. § 13-757.
Executions in Arizona are conducted pursuant to the Arizona
Department of Corrections' (“ADC”) written
execution protocol, contained in Department Order 710.
Department Order 710 is publicly available at
Among other things, Department Order 710 lists two specific
drug and dosage alternatives that ADC may use to carry out an
execution. It also lists the required qualifications for the
IV Team personnel who assist in administering the drugs.
Department Order 710 does not include any guidelines relating
to the procurement of lethal injection drugs apart from
clarifying that, pursuant to state law, the identities of the
suppliers of lethal injection drugs are to be kept
Also pursuant to state law, Department Order 710 provides
that the identity of any member of the IV Team is to remain
confidential, as well as any information contained in records
that would identify such persons.
confidentiality provisions of Department Order 710 are based
on A.R.S. § 13-757(C), which states that “[t]he
identity of executioners and other persons who participate or
perform ancillary functions in an execution and any
information contained in records that would identify those
persons is confidential and is not subject to
The Characteristics of the Drug
The Drugs ADC Uses and the Information it Provides
Department Order 710 currently provides that ADC will use
either pentobarbital or sodium pentothal as the execution
Department Order 710 requires ADC to provide notice of the
drug it will use in an execution.
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.
quantitative analysis is conducted by the Arizona Department
of Public Safety (“DPS”).
Department Order 710 does not define the quantitative
analysis that DPS will perform on ADC's behalf; but the
parties stipulated at trial that this quantitative analysis
will identify the substance that is tested as well as its
concentration of a drug refers to the mass per volume of the
concentration of a drug is relevant because it allows the
calculation of how much of a drug must be injected to achieve
a given dose and a given effect.
injection of either pentobarbital or sodium pentothal at a
lower concentration than expected could lead to underdosing,
which creates a risk of inadequate anesthetization or
prolonged death, as well as a possible need to administer
injection of either pentobarbital or sodium pentothal at a
higher than expected concentration could lead to an overdose,
which could cause pain during administration.
Additional Measures of Composition and Quality
Concentration is one of the six specific measures of the
lethal injection drug that the Plaintiffs assert the First
Amendment compels the ADC to obtain and disclose. The other
five are: stability, sterility, purity, osmolarity and pH of
Drugs that are correctly identified and have a proper
concentration may still fail to perform as expected or cause
pain upon injection.
quantitative analysis does not definitively answer whether
the drugs analyzed are likely to cause pain during a lethal
injection procedure, or be fully effective.
Stability refers to the expected time during which a drug or
chemical formulation will stay within a certain concentration
range under a specific set of storage conditions.
Stability is measured by multiple potency or concentration
analyses separated by time; mathematical formulas can be used
to predict when the concentration will drop below a useful
sterility of a drug or chemical formulation refers to the
extent that foreign microbial contaminants are present in the
Sterility can be affected by a number of issues surrounding
the method of manufacture or preparation, including, for
example, whether the compounding pharmacy starts with bulk
active material as well as its terminal sterilization
sterility of a drug -- the presence or absence of impurities
of various types -- can also affect the drug's efficacy
and the potential that it will cause pain when injected into
a drug is not sterile, particulate matter may change the
osmolarity of the drug and cause pain, or the pH of the drug
may change, also causing pain; alternatively, it is possible