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Guardian News & Media LLC v. Ryan

United States District Court, D. Arizona

September 21, 2017

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

          FINDINGS OF FACT AND CONCLUSIONS OF LAW JUDGMENT ORDER

          Honorable G. Murray Snow Judge

         On July 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 law.

         FINDINGS OF FACT

         I. Background

         1. 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 public.

         2. 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 executions.

         3. This 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) (“Press-Enterprise II”).

         4. To 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 “logic” prong.

         5. If these two factors favor access, a qualified right of access under the First Amendment arises. Id. at 9.

         6. The government may, however, close a proceeding to which there is a qualified right of access with sufficient justification. Id.

         7. 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.

         8. The 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.

         9. This 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.)

         II. 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 authorize execution by lethal injection.

         12. From 1977 to January 31, 2017, there were 1270 lethal injection executions carried out in the United States.

         III. Executions in Arizona

         13. As 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.

         14. Executions in Arizona are conducted pursuant to the Arizona Department of Corrections' (“ADC”) written execution protocol, contained in Department Order 710.

         15. Department Order 710 is publicly available at https://corrections.az.gov/sites/ default/files/policies/700/0710062917.pdf.

         16. 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.

         17. 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 confidential.

         18. 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.

         19. The 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 disclosure[.]”

         IV. The Characteristics of the Drug

         A. The Drugs ADC Uses and the Information it Provides

         20. Department Order 710 currently provides that ADC will use either 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”).

         24. 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.

         25. The concentration of a drug refers to the mass per volume of the drug.

         26. 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.

         27. The 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 further doses.

         28. The injection of either pentobarbital or sodium pentothal at a higher than expected concentration could lead to an overdose, which could cause pain during administration.

         B. Additional Measures of Composition and Quality

         29. 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 the drug.

         30. Drugs that are correctly identified and have a proper concentration may still fail to perform as expected or cause pain upon injection.

         31. The quantitative analysis does not definitively answer whether the drugs analyzed are likely to cause pain during a lethal injection procedure, or be fully effective.

         32. 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.

         33. 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 level.

         34. The sterility of a drug or chemical formulation refers to the extent that foreign microbial contaminants are present in the solution.

         35. 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 procedures.

         36. The 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 the body.

         37. If 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 that ...


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