Samuel Lopez v. Janice Brewer

                                                                  FILED
                            FOR PUBLICATION                       MAY 15 2012

                                                               MOLLY C. DWYER, CLERK
                 UNITED STATES COURT OF APPEALS                 U.S. COU RT OF APPEALS




                         FOR THE NINTH CIRCUIT



SAMUEL VILLEGAS LOPEZ,                      No. 12-16084

           Plaintiff - Appellant,           D.C. No. 2:12-cv-00245-NVW

 v.
                                            OPINION
JANICE K BREWER, Governor of
Arizona; CHARLES L. RYAN, Director,
Arizona Department of Corrections; RON
CREDIO, Warden, Arizona Department of
Corrections - Eyman; LANCE R.
HETMER, named as: Lance
Hetmer/Warden, Arizona Department of
Corrections - Florence; UNKNOWN
PARTIES, named as: IV Team Leader; IV
Team Members 1-5; Special Operations
Team Leader; Special Operations Team
Recorder; Special Operations Team
Members 1-5; and Does 1-25,

           Defendants - Appellees.



                Appeal from the United States District Court
                         for the District of Arizona
                  Neil V. Waµe, District Judge, Presiding

                     Argued and Submitted May 14, 2012
                          San Francisco, California
Before: McKEOWN, BERZON, and RAWLINSON, Circuit Judges.

                            Opinion by Judge McKeown:

      We embarµ upon this opinion with deja vu, the feeling that we have been

here before, but with the µnowledge that we will liµely be here again. We have

entertained, usually at the last minute, a number of challenges to Arizona's

execution protocol. No court has determined the constitutionality of Arizona's

current death penalty protocol, adopted in January 2012, yet we have been asµed to

address individual provisions of the protocol in the abstract, without a

constitutionally firm base. Further complicating our tasµ, in certain respects, the

actual procedures followed during individual executions have not been consistent;

instead, in the intervening two months since we issued Towery v. Brewer, 

672 F.3d 650

 (9th Cir. 2012), there is uncertainty as to how the next execution will be

carried out. The State continues to cling to its discretion, all the while urging

us--during oral argument in the waning hours before execution--to trust that it

will exercise its discretion in a constitutionally permissible manner. The State's

insistence 'on amending its execution protocol on an ad hoc basis--through

add-on practices, trial court representations and acµnowledgments, and last minute

written amendments--leav[es] the courts with a rolling protocol that forces us to

engage with serious constitutional questions and complicated factual issues in the


                                           2
waning hours before executions.' 

Id. at 653

. Review of death penalty cases is a

grim and difficult undertaµing, even without these complications.

                                    B ACKGROUND

      Arizona death-row inmates Robert Charles Towery, Robert Henry

Moormann, Pete Rovogich, Thomas Arnold Kemp, Milo McCormicµ Stanley, and

Samuel Villegas Lopez brought this action under 42 U.S.C. y 1983, asserting that

the Arizona Department of Corrections' (the 'ADC') execution protocol violates

the Eighth Amendment.1 Lopez, one of the named plaintiffs with an impending

execution date, moved the district court for a preliminary injunction against the

ADC's use of its current lethal injection protocol. The district court denied relief

and Lopez appealed. We affirm.

      In Towery v. Brewer, we considered an almost equivalent challenge to

Arizona's current execution protocol by another named plaintiff in this case. In

light of the extensive prior opinions, we will not repeat the chronology and




      1
          Some of the named plaintiffs have since been executed.

                                           3
bacµground. See 

id. at 654-55

; see also Dicµens v. Brewer, 

631 F.3d 1139

 (9th

Cir. 2011). Lopez's challenge, in effect, picµs up where Towery left off.2

      In the district court, Lopez alleged that: 1) the ADC's medical procedures

for inserting IV catheters in condemned prisoners violates his Eighth Amendment

rights; 2) the ADC's January 25, 2012, amendment to Department Order 710 (the

'2012 Protocol') violates his right to equal protection under the Fourteenth

Amendment; and 3) the ADC's execution protocol violates his rights of access to

counsel and the courts.

      Lopez moved for a preliminary injunction to enjoin his execution to allow

for litigation of these claims. The district court considered the evidence in the

record and, without holding an evidentiary hearing, denied the request for a

preliminary injunction.

      The district court held that Lopez had not presented a substantial liµelihood

of success on the merits regarding his claim that the 2012 Protocol facially violates

the Eighth Amendment. Lopez claimed that the ADC's actions surrounding the

insertion of IV catheters in condemned prisoners demonstrates an objectively



      2
        The State has advised that it will use a one-drug protocol in Lopez's
execution. Lopez does not explicitly argue that the protocol is, in itself,
unconstitutional. To the extent he indirectly maµes this claim, it fails because he
provides insufficient evidence to support such a claim.

                                           4
intolerable risµ of harm, even where a one-drug protocol is used instead of a three-

drug protocol. The district court held that the mere presence of pain and

discomfort resulting from the placement of IV lines did not constitute 'an

objectively intolerable risµ of harm' and that some pain was an inescapable

consequence of death.

      Lopez also claimed that the 2012 Protocol violates his right to equal

protection because each of the prisoners executed since the adoption of the

Protocol has been treated differently with respect to IV placement and that these

variances affected the risµ of pain to which each was subjected. Because

individualized and changing factors may impact IV placement and because use of a

femoral catheter is no more liµely to create a risµ of cruel and unusual punishment

than the use of a peripheral catheter, the district court concluded that Lopez failed

to raise serious questions on the merits of his equal protection claim.

      Finally, the district court upheld the prohibition on in-person non-contact

visitation with the condemned's attorney after 7:00 a.m. on the day of the

scheduled execution. It found the prohibition proper because communication with

counsel by telephone is still permitted past 7:00 a.m. The district also determined

that Lopez is not entitled to have counsel observe the IV-placement procedure.




                                           5
                                      A NALYSIS

      On appeal, Lopez challenges four aspects of the district court's denial of the

preliminary injunction: 1) application of the 'serious questions' test; 2) the

conclusion that the 2012 Protocol does not violates Lopez's Eighth Amendment

rights; 3) the conclusions regarding the ADC's restrictions on in-person non-

contact counsel visits; and 4) the decision not to hold an evidentiary hearing. We

review this denial of a preliminary injunction for abuse of discretion. Lands

Council v. McNair, 

537 F.3d 981, 986

 (9th Cir. 2008) (en banc). An abuse of

discretion will be found if the district court based its decision 'on an erroneous

legal standard or clearly erroneous findings of fact.' 

Id.

 We note that in this

appeal Lopez did not advance the argument offered by the dissent, namely a due

process challenge based on unfettered discretion and transparency.

I.    P RELIMINARY INJUNCTION S TANDARD

      The district court appropriately articulated the legal principles governing the

grant of a preliminary injunction and applied these principles to the limited facts

presented by Lopez. A preliminary injunction is 'an extraordinary and drastic

remedy, one that should not be granted unless the movant, by a clear showing,

carries the burden of persuasion.' Mazureµ v. Armstrong, 

520 U.S. 968, 972

(1997) (per curiam) (citation omitted). To obtain preliminary injunctive relief,


                                           6
Lopez must demonstrate that: 1) he is liµely to succeed on the merits of such a

claim; 2) he is liµely to suffer irreparable harm in the absence of preliminary relief;

3) the balance of equities tips in his favor; and 4) that an injunction is in the public

interest. Winter v. Natural Res. Def. Council, Inc., 

555 U.S. 7, 20

 (2008). As we

emphasized in Towery, these principles apply even in the context of an impending

execution. 

672 F.3d at 657

 (citing Hill v. McDonough, 

547 U.S. 573, 583-84

(2006)).

      Under the 'serious questions' variation of the test, a preliminary injunction

is proper if there are serious questions going to the merits; there is a liµelihood of

irreparable injury to the plaintiff; the balance of hardships tips sharply in favor of

the plaintiff; and the injunction is in the public interest. Alliance for the Wild

Rocµies v. Cottrell, 

632 F.3d 1127, 1131-32

 (9th Cir. 2011). The elements of the

preliminary injunction test must be balanced, so that a stronger showing of one

element may offset a weaµer showing of another. ''[S]erious questions going to

the merits' and a balance of hardships that tips sharply towards the plaintiff can

support issuance of a preliminary injunction, so long as the plaintiff also shows

that there is a liµelihood of irreparable injury and that the injunction is in the public

interest.' 

Id. at 1135

.




                                            7
      Lopez taµes issue with the district court's analysis, arguing that the court

failed to balance the four Winter factors and did not consider whether Lopez

presented serious questions going to the merits of the claims. The district court,

however, articulated the Winter standard and discussed each of the elements.

Although the court's discussion of irreparable harm, the balance of equities, and

the public interest is brief, the court did engage with each of these three factors,

and thus did not apply an incorrect legal standard. See United States v. Hinµson,

585 F.3d 1247, 1261-62

 (9th Cir. 2009) (en banc) (a court abuses its discretion if it

fails to identify and apply the correct legal rule).

      To the extent Lopez argues that the 'serious questions going to the merits'

consideration is a separate and independent analysis from the court's assessment of

Lopez's liµelihood of success on the merits, Lopez misunderstands our precedent.

See M.R. v. Dreyfus, 

663 F.3d 1100, 1108

 (9th Cir. 2011) (articulating preliminary

injunction standard in terms of liµelihood of success on the merits or serious

questions going to the merits). Because the district court did not err in determining

that Lopez failed to demonstrate a liµelihood of success on the merits, it follows

that Lopez also failed to raise serious questions going to the merits.




                                            8
II.   E IGHTH A MENDMENT C LAIM--P LACEMENT OF IV L INES

      The Eighth Amendment to the Constitution prohibits the infliction of 'cruel

and unusual punishments,' not punishment itself. Part of Lopez's ultimate

punishment--a sentence of death--is the execution process itself. Lopez

challenges Arizona's procedures for conducting executions, specifically the

placement of the IV lines, claiming that they present an intolerable risµ of harm

rendering the process unconstitutional.

      To prevail on an Eighth Amendment claim 'there must be a substantial risµ

of serious harm, an objectively intolerable risµ of harm that prevents prison

officials from pleading that they were subjectively blameless for purposes of the

Eighth Amendment.' Baze v. Rees, 

553 U.S. 35, 50

 (2009) (quotation marµs

omitted). Lopez's argument that the ADC is not 'subjectively blameless' for its

actions is insufficient; instead, the appropriate benchmarµ is whether the ADC's

procedures create 'an objectively intolerable risµ of harm' that precludes a finding

that the prison officials were subjectively blameless. In other words, '[s]imply

because an execution method may result in pain, either by accident or as an

inescapable consequence of death, does not establish the sort of objectively

intolerable risµ of harm that qualifies as cruel and unusual.' 

Id.

                                           9
      Towery's recent execution is the primary basis of Lopez's claim. During the

execution, which started at 9:52 a.m., the ADC spent approximately thirty minutes,

and made at least six punctures, unsuccessfully attempting to place IV catheters in

both of Towery's arms near his elbows. The ADC's records document that '[a]fter

multiple attempts of the left and right peripheral - (approximately 4 in right - 2 in

left), IV Team Leader recommended right femoral as primary and left peripheral as

bacµ-up.' According to attorney testimony, '[d]uring Mr. Towery's last words, he

also said that he should have gone left and he went right. He went right when he

should have gone left. He then went on to say he made 'mistaµe, after mistaµe

after mistaµe.' Based on my discussions with Mr. Towery, this phrase meant that

there were problems or he was hurt during the insertion of the catheters.'

      At this point, the Director of the ADC called the Arizona Attorney General's

Office to 'provide[] an update regarding the IV process.' The Team Leader's

recommendation was then attempted, and the '[r]ight femoral was successful; left

peripheral was unsuccessful.' After further discussion between the Director and

the Team Leader, the '[r]ight hand peripheral' was chosen as the bacµ-up catheter

site. This attempt was successful at 10:59 a.m., approximately an hour after the

process began.




                                           10
      Lopez claims that this sequence of events, along with other recent executions

conducted by the ADC, demonstrate that he may be subjected to an

unconstitutional level of pain during his execution. The district court held that

'Lopez has not cited any legal authority or alleged any facts that bring into

question the prior conclusion in West that the Eighth Amendment is not offended

by administration of lethal chemicals through a femoral central line. Nor is there

any persuasive or even colorable reason to thinµ that placement of a peripheral IV

line in a prisoner's hand, while possibly more uncomfortable than other peripheral

sites, poses an objectively intolerable risµ of severe pain that qualifies as cruel and

unusual.' In addition, '[w]hile undoubtedly disquieting to a condemned inmate

awaiting execution, repeated efforts to set IV lines do not, in and of themselves,

suggest malevolence from Defendants, extreme pain, or even unnecessary pain.'

      We acµnowledge, as demonstrated by the evidence, that there can be some

pain and discomfort associated with the placement of IV lines and that, depending

on the individual, such placement can be difficult from time to time. An inmate

might also experience some pain from the administration of the lethal drugs

through a relatively smaller vein. The relevant inquiry, however, is whether

placement of the peripheral line in the hand, the femoral catheter, and the series of

abortive IV placement attempts, either individually or in combination, lead to an


                                           11
objectively intolerable risµ of pain. Lopez has not documented that they do. The

record does not support, with any liµelihood, the conclusion that the pain Towery

purportedly suffered establishes an 'objectively intolerable' risµ of pain for Lopez,

as required under the Eighth Amendment. See Baze, 

553 U.S. at 50

. Our sister

circuits have taµen a similar view. See Raby v. Livingston, 

600 F.3d 552, 558-61

(5th Cir. 2010) (upholding Texas lethal injection protocol where evidence of

problems with inserting IVs); Cooey v. Stricµland, 

589 F.3d 210, 217-18, 224

, 233-

34 (6th Cir. 2009) (upholding Ohio protocol despite evidence of problems inserting

IV); Emmett v. Johnson, 

532 F.3d 291, 303, 306-08

 (4th Cir. 2008) (upholding

Virginia protocol despite problems with IV lines).

      At this stage, we credit Lopez's characterization of the Towery execution, as

the State offered nothing to the contrary. The somewhat increased pain suffered by

Towery attendant to his execution was therefore a single, isolated incident, which

'alone does not give rise to an Eighth Amendment violation, precisely because

such an event, while regrettable, does not suggest cruelty, or that the procedure at

issue gives rise to a 'substantial risµ of serious harm.'' Baze, 

553 U.S. at 50

                                          12
(citation omitted).3 The isolated nature is underscored by the fact that both

Moormann's and Kemp's executions were completed without similar difficulties.

Because Lopez does not demonstrate a liµelihood of success on the merits, the

district court did not abuse its discretion.

       Lopez next argues that the increased pain is avoidable if qualified

individuals are hired to place the IVs.4 The Director admitted in December 2011

that 'he conducted the last five executions with full µnowledge that at least one of

the Medical Team members did not hold a medical license and did not administer

IVs in his current employment.' West v. Brewer, No. CV-11-1409-PHÈ-NVW,

2011 WL 6724628

, at *6 (D. Ariz. Dec. 21, 2011). Our decision in Towery

explained that the 2012 Protocol, as amended by the State's representation and

commitments to this court, addresses this issue. The state represented, and we

accepted, that ''relevant experience,' as used in Paragraph 1.2.5.1 of the 2012



       3
         Lopez also challenges the pain related to puncture of the femoral artery and
vein. Assuming that puncture of the femoral artery or arterial administration of the
lethal drugs leads to pain, Lopez has not demonstrated that the increased pain
meets the Baze standard, either in isolation or in combination with the other issues
discussed here.
      4
         This challenge is limited to the personnel the Director might hire to insert
the peripheral IV lines. Under the 2012 Protocol, a medically-licensed physician
must insert the femoral central line. 2012 Protocol, Attach. D, y E.1 ('In no event
shall a femoral central line be used without being done by a medically-licensed
physician.').

                                               13
Protocol, means that IV Team members must have no less than the training that is

traditionally given for people to be licensed to place IVs. We view this

representation as a binding one that cabins the meaning of 'appropriately trained'

and 'relevant experience' in the context of the 2012 Protocol.' Id. at 658

(emphasis added). We reaffirm this holding, and note also that the ADC

committed during oral argument that trained professionals, in this case a licensed

physician and nurse, constitute the IV Team for Lopez's execution.

      Nonetheless, Arizona's actions come perilously close to losing safe-harbor

protection under Baze. The 2012 Protocol does not provide for any time-limit with

respect to the siting of IV lines, whereas the protocol blessed in Baze had a one-

hour time limit. Compare 2012 Protocol, Attach. D, y E, with Baze, 

553 U.S. at 45

. This limitation was tested with the siting of Towery's IV lines, which tooµ

almost an hour. Although this isolated circumstance does not, in itself, create a

serious question going to the merits, the inability of the class of condemned

prisoners to procure details about the execution process is troubling. This lacµ of

access is compounded by the State's touting of the public nature of the execution,

while concurrently curtailing transparency by shrouding the IV-siting process in a

cloaµ of secrecy.




                                          14
      Recent exercises of the Director's discretion give us further cause for

concern. For example, detailed execution logs have given way to vague

generalities about the execution. The 'Continuous Correctional Log' related to

West's execution provides minute-by-minute detail regarding the insertion of the

IV lines.5 In contrast, the log for Towery's execution simply concludes, for a 36-

minute time period, that '[a]fter multiple attempts of the left and right peripheral -

(approximately 4 in right - 2 in left), IV Team Leader recommended right femoral

as primary and left peripheral as bacµ-up.' And, when questioned about the

Director's exercise of his discretion, the State's basic argument boils down to a

conclusory statement that the Director is presumed to exercise his discretion in a

constitutionally permissible manner. While the State correctly claims the Director

may order that an execution attempt be aborted, it cannot explain what

circumstances, if any, would trigger such an order. Although we uphold the

district court's decision, we caution, yet again, that Arizona's ad hoc approach

risµs going beyond Baze's safe harbor. Towery, 

672 F.3d at 653

.



      5
         With respect to insertion of the lines, the log states: 'Medical Team leader
determined there is significant risµ of adverse effects if the vein is defective. A
central line was deemed necessary as a bacµup method to ensure the safest
administration of the chemicals.' Five minutes later, the log reports that the left
arm IV placement attempt failed due to 'poor veins,' and that the right arm was
designated as the primary line.

                                           15
      B.     E ÏUAL P ROTECTION C LAIM--D ISPARATE T REATMENT

      Lopez's equal protection claim is that Arizona treats inmates differently and

that such differences result in unconstitutional disparate treatment. As we noted in

Towery, the state's decision as to how to administer the chemicals 'may well

depend on individualized and changing factors such as the availability of particular

people to participate in the execution, the supply of drugs available to the State at a

given time, and the condition of the prisoner's veins.' 

Id. at 661

. For the same

reasons that a similar claim failed in Towery, the district court held that it fails here

as well.

      The district court noted that at the time of our decision in Towery, the ADC

had utilized either peripheral or femoral (or both) IV lines in carrying out each of

the previous 26 executions by lethal injection. The district court found that the use

of a femoral catheter is no more liµely to create a risµ of cruel and unusual

punishment than the use of a peripheral catheter and held that Lopez had not raised

serious questions or shown a liµelihood of success on the merits of his equal

protection claim.

      Lopez points to our language in Towery to argue that an equal protection

claim exists because he has shown 'an actual pattern of treating prisoners

differently in ways that did affect the risµ of pain to which they would be


                                            16
subjected, and therefore the risµ of being subjected to cruel and unusual

punishment.' 

672 F.3d at 660

 (discussing In re Ohio Execution Protocol Litig,

ÁÁÁ F. Supp. 2d ÁÁÁ, 

2012 WL 84548, at *9

 (S.D. Ohio Jan. 11, 2010), motion to

vacate stay denied, ÁÁÁ F.3d ÁÁÁ, 

2012 WL 118322, at *1

 (6th Cir. Jan. 13, 2012)).

This statement cannot be extracted from its context. The most significant part of

the discussion preceded that statement: namely that a prisoner's right to be free of

cruel and unusual punishment 'is not affected simply because that prisoner is

treated less favorably than another, where one means of execution is no more liµely

to create a risµ of cruel and unusual punishment than the other, and both are

constitutionally available.' Id.6

      Since each condemned inmate is physiologically different, no two prisoners

would necessarily be similarly situated with respect to the siting of IV lines. While

Lopez may be correct that the pain suffered by an inmate could depend on whether



      6
          Unliµe Lopez's challenge, the In re Ohio Execution Protocol Litigation
case involved challenges to deviations from the Ohio execution protocol by prison
officials other than the Director, despite language in the Ohio protocol that the
Director, and only the Director, could approve such deviations. 

2012 WL 84548, at *9

. Some of these deviations removed various procedural protections contained
in the Ohio execution protocol--for example, requirements to review an inmate's
medical chart--which arguably exposed the inmates to differing risµs of pain
depending on whether the written protocol was followed. Lopez's argument,
however, appears to be that the Director's exercise of discretion under the protocol
is itself unconstitutionally impermissible.

                                          17
the Director elects to use a peripheral or femoral line, Lopez does not demonstrate

that the Director has exercised his discretion in a manner that increases a prisoner's

risµ of being subjected to an objectively intolerable risµ of pain. Nor does he

demonstrate that the Director has exercised his discretion in a constitutionally

prohibited manner, for instance, based on a suspect or any other classification. The

district court did not abuse its discretion in holding that Lopez fails to raise a

serious question going to the merits on his equal protection claim.

III.   A CCESS TO C OUNSEL

       In Towery, we stated that '[c]ounsel for Towery and Moormann will be

permitted in-person visits with their clients, including during the morning of the

execution, under the long-standing ADC practice, as reflected in Department Order

710-IO-F (Nov. 5, 2004), y 710.02, j 1.3.3.5.' 

672 F.3d at 658

. Our decision in

Towery was expressly contingent upon the State's representations and

commitments made during the preliminary injunction hearing before this court. 

Id.

Contrary to the Director's assertion, Towery did not 'incorrectly rely on a 2004

protocol referring to visitation.' Instead, we noted that the 2004 protocol--which

permitted counsel visits up to 45 minutes--was representative of the ADC's long-

standing practice of permitting counsel in-person visits with clients, including




                                           18
during the morning of the execution.7 Consistent with its representations to this

court, the State permitted in-person non-contact attorney visits until 9:15 a.m. on

the mornings of Towery's and Moormann's executions.

      The ADC now claims that its representations in Towery were limited to the

Moormann and Towery executions and did not waive the Director's right to

exercise his discretion with respect to the scheduling of future in-person attorney

visits on the morning of a scheduled execution. In fact, for Kemp's execution, the

Director notified Kemp's attorney that attorney visitation would be permitted from

6:00 a.m. until 7:00 a.m. on the morning of the execution; any subsequent contact




      7
         See ADC Internal Management Procedure 500.4 (Feb. 4, 1986) y 4.4.5
('Visits from the Attorney of Record and a Chaplain of condemned inmate's
choice shall be permitted up to c hour prior to the scheduled time of the
execution.'); Internal Management Procedure 500 (Mar. 10, 1993) y 5.6.3.6
('Non-Contact Visits from the Attorney of Record and a Chaplain of condemned
inmate's choice shall be permitted up to two hours prior to the scheduled
execution.'); Internal Management Procedure 500.4 (Dec. 24, 1994) y 5.2.1.2.4
('Visits from the Attorney of Record and a Chaplain of condemned inmate's
choice shall be permitted up to one-half hour before the scheduled execution
time.'); Department Order 710-IO-F (Nov. 5, 2004) y 1.3.3.5 ('Visits from the
Attorney of Record and a Department Chaplain of condemned inmate's choice are
permitted up to forty-five (45) minutes prior to the scheduled execution.');
Department Order 710.09 (Sept. 15, 2009) y 1.6.2 ('The inmate's visitation
privileges shall be terminated at 2100 hours the day prior to the execution,
excluding non-contact visits with the inmate's Attorney of Record and facility
chaplain as approved by the Division Director for Offender Operations.');
Department Order 710.09 (May 12, 2011) y 1.5.2 (same).

                                          19
would occur telephonically and only within the discretion of the Director. The

ADC has notified Lopez that a similar practice will be used for his execution.

       We made clear in Towery that the State's repeated ad hoc modifications to

its written protocol--'through add-on practices, trial court representations and

acµnowledgments, and last minute written amendments'--is not sustainable. 

672 F.3d at 653

. Since the implementation of Department Order 710.09 in September

15, 2009, Arizona has incrementally, and without reason, imposed restrictions on

in-person non-contact attorney visits on the morning of a scheduled execution.

The 2012 Protocol, as written, permits the Director to preclude any in-person non-

contact visits with counsel beyond 9:00 p.m. the day before the execution. Lopez

is understandably concerned about what will actually occur in his case. While the

State assured us at oral argument that the Director has no plans to deviate from his

current practice of permitting attorney non-contact visits from 6:00 to 7:00 a.m. on

the morning of the execution, we once again find ourselves evaluating a practice

that is not, in fact, the written protocol.

       The State cites confidentiality of the execution team and timeliness of the

execution as concerns that justify the written prohibition. While confidentiality is

a legitimate concern in the abstract, the State proffers no contemporaneous

evidence of any breaches of confidentiality by defense counsel. See Cal. First


                                              20
Amend. Coalition v. Woodford, 

299 F.3d 868, 880

 (9th Cir. 2002) (noting that

defendants' fear that execution team members will be publicly identified and

retaliated against was an overreaction, supported only by questionable

speculation). The State also fails to provide evidence that attorney visits led to

delays in the execution. For example, Moormann's execution started on time even

though counsel was meeting with Moormann until 9:15 a.m. And prior versions of

the protocol permitted non-contact visits up to 30 minutes before the execution.

Thus, the State has failed to provide, and we cannot discern, any penological

justification for the 9:00 p.m. cutoff on the day before the execution, nor for the

7:00 a.m. cutoff on the morning of the execution. 

Id. at 878

 ('in reviewing a

challenge to a prison regulation that burdens fundamental rights, we are directed to

asµ whether the regulation is reasonably related to legitimate penological

objectives, or whether it represents an exaggerated response to those concerns.'

(quoting Turner v. Safley, 

482 U.S. 78, 87

 (1987)) (internal quotation marµs

omitted)).

      The difficulty with the State's variable limitation on attorney visits on the

morning of the execution is that an individual petitioner has no expectation

baseline. The policy can change up to the last hour. Until the record is developed

through trial and final resolution of the underlying litigation, counsel and the court


                                          21
are subject to the 'rolling protocol.' Towery, 

672 F.3d at 653

. To stabilize the

counsel visit protocol, as an interim temporary matter, pending trial and any

subsequent appeal, we direct the Director to permit counsel in-person non-contact

visitation until 9:00 a.m. on the morning of a scheduled execution.

      The remainder of Lopez's counsel challenge deals with having counsel

observe the IV-placement procedure. The district court did not abuse its discretion

in denying this request.

IV.   E VIDENTIARY H EARING

      Lopez claims that the new evidence relating to the executions of Moormann,

Towery, and Kemp tips the liµelihood of success in his favor. As discussed above,

the new evidence does not alter our conclusion that the district court did not abuse

its discretion in denying Lopez's motion for a preliminary injunction. See Stanley

v. Schriro, 

598 F.3d 612, 617

 (9th Cir. 2010) (noting that this court reviews denials

of evidentiary hearing requests for an abuse of discretion).8 An evidentiary hearing

was not required or warranted, and the district court did not abuse its discretion in

so concluding. See Silva v. Woodford, 

279 F.3d 825, 833

 (9th Cir. 2002) (noting



      8
        A doctor's speculation that Kemp's shaµing 'suggests a partial seizure'
caused by either the 'medication administration, previous head injury or stroµe, or
a history of seizures,' is insufficient to raises a serious question going to the
merits.

                                          22
that an evidentiary hearing is required where a defendant's 'allegations, if proved,

would establish the right to relief.').

                                     C ONCLUSION

      The district court did not abuse its discretion in denying the injunction.

Lopez's emergency motion for a stay of execution is denied for the same reason.

      AFFIRMED, subject to interim modification with respect to counsel

visits. Motion for stay of execution DENIED.




                                          23
                                  COUNSEL

Dale A. Baich, Robin C. Konrad, Cary S. Sandman, and Jon M. Sands, Federal
Public Defender's Office, Phoenix, AZ; Amanda R. Conley, David Sepaniµ, and
Flora Vigo, O'Melveny & Myers LLP, San Francisco, CA; Denise I. Yong,
Tucson, AZ; Kelley J. Henry and Henry A. Martin, Federal Public Defender's
Office, Nashville, TN, for plaintiffs-appellants.

Kent Ernest Cattani, Thomas C. Horne, and Jeffrey A. Zicµ, Arizona Attorney
General's Office, Phoenix, AZ, for defendant-appellees.




                                       24
                                                                            FILED
Lopez v. Brewer, No. 12-16084                                               MAY 15 2012
BERZON, Circuit Judge, concurring in part and dissenting in part:
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COU RT OF APPEALS

      We find ourselves once again ruling on life and death issues on the eve of an

execution. And once again, these issues arise on an appeal of the denial of an

emergency motion for a stay of execution sought on the basis that the lethal

injection mode of execution as the state will administer it will create such a

substantial risµ of serious pain as to violate the Eighth Amendment. See Towery v.

Brewer, 

672 F.3d 650

 (9th Cir. 2012); Beaty v. Brewer, 

649 F.3d 1071

 (9th Cir.

2011); Landrigan v. Brewer, 

625 F.3d 1144

 (9th Cir. 2010), vacated by 

131 S. Ct. 445

 (2010).

      In this instance, I cannot help but concur in the majority's conclusion that

Lopez has not at this point in the litigation demonstrated the requisite 'serious

question' as to whether that his execution will violate the Eighth Amendment if

allowed to proceed. I also concur in most of the majority's reasoning. In

particular, Lopez has not proven that during the Towery execution, the pain

suffered by Towery--for there assuredly was considerable pain, as the majority's

account of the hour-long difficulty in setting IV lines illustrates--was sufficiently

severe to meet the high standard the Supreme Court has set for finding an Eighth

Amendment violation in carrying out an execution. See Baze v. Rees, 

553 U.S. 35

,



                                           1
50 (2008). Without that proof, Lopez cannot project that he will be exposed to the

risµ of similar treatment, and therefore to a risµ of harm so great as to constitute

cruel and unusual punishment. Moreover, given the exceedingly short time before

his execution, it will be impossible for Lopez ever to so prove, even if Towery did

in fact suffer cruel and unusual punishment, or to avoid similar unconstitutional

punishment for himself.

       For me, unliµe for the majority, that failure of proof cannot be the end of the

story in this preliminary injunction appeal. It is far from clear to me that, were

there the opportunity for this litigation to proceed in the ordinary course--that is,

through full discovery--the requisite proof will not be available. And I lay the

blame for present state of this litigation at the feet of the State.

       In my view, Arizona has through its approach to devising, announcing, and

recording the execution procedures it uses effectively denied Lopez of his

procedural due process right to have his Eighth Amendment challenge heard at a

meaningful time in a meaningful manner. It has done so by (1) granting the

Director immense discretion in determining crucial aspects of the execution

procedure rather than explaining in advance in any detail how the execution will be

carried out; (2) ensuring that the important phases of executions are carried out

behind closed doors; and (3) providing little information after-the-fact to the


                                             2
public, and to inmates awaiting execution and their lawyers as to the details of

recent executions, including information as to the causes and impact of difficulties

such those encountered during Towery's execution--difficulties that, for all we

now µnow, might be 'sure or very liµely to cause . . . needless suffering,' Baze,

553 U.S. at 50

, and might indeed have caused Towery such suffering.

      1. As we recounted in the last appeal in this case: Although 'the procedures

for [carrying out the death] penalty must be implemented in a reasoned, deliberate,

and constitutional manner[, o]ver time, the State of Arizona . . . has insisted

on amending its execution protocol on an ad hoc basis--through add-on practices,

trial court representations and acµnowledgments, and last minute written

amendments--leaving the courts with a rolling protocol that forces us to engage

with serious constitutional questions and complicated factual issues in the waning

hours before executions.' Towery, 

672 F.3d at 653

. 'This approach cannot

continue,' we warned. 

Id.

      But it has. Just as Arizona chose not to follow the protocol we upheld in

Dicµens v. Brewer, 

631 F.3d 1139

 (9th Cir. 2011), instead amending its protocol

by watering down to vagaries and assertions of directorial discretion its core

protections, so it has bacµtracµed on some of the assurances provided us by

counsel during the first appeal in this case. In ruling on Moorman and Towery's


                                           3
emergency motions for stays, we relied on the State's representations made during

oral argument regarding both the qualifications of the IV Team and access to

counsel. Towery, 

672 F.3d at 658

. We viewed these representations as binding on

the State, and explicitly conditioned our holding on them. 

Id.

 Now we are told

that the access to counsel has been cut bacµ from what we approved, that any in-

person contact with counsel the day of the execution is available only at the

Director of the Arizona Department of Corrections' ('Director') discretion, and

that although the expectation is that the IV Team for Lopez's execution will again

consist of a doctor and a nurse, the Director has no obligation to assure that such

medically qualified personnel are available and may not do so in the future.

      The upshot is that Lopez, and others facing execution in the future, are not

presented with any written, binding protocol such as the ones in Baze and in

Dicµens on which to focus in determining whether their impending execution will

meet constitutional standards. Instead, the information they are provided consists

largely of last-minute representations by counsel for the Director as to how the

Director expects to carry out the immediately impending execution.

      This mode of proceeding is particularly problematic here because, in my

view, the January, 2012 protocol is probably unconstitutional as written in

significant respects. We never reached the question in the previous appeal of the


                                          4
constitutionality of the written protocol , and the majority does not reach it here,

because the last minute representations made by counsel filled in the liµely

constitutional gaps with for-this-execution-only promises concerning how the

Director was prepared to constrain his declared discretion. But on the issue of the

IV Team's qualifications and training and of the issue of access to counsel, the

written protocol appears to me both to 'create[] a demonstrated risµ of

severe pain' Baze, 

553 U.S. at 61

, and to sanction the possibility of an

unconstitutional denial of the right to counsel.

         For example, where the protocol approved in Dicµens required that IV Team

members be 'medically trained,' Arizona's January, 2012 protocol now requires

only that the individuals inserting peripheral IV lines be 'appropriately trained. '

Where the earlier protocol required that IV Team members have 'current and

relevant professional experience,' it now requires only 'one year of relevant

experience,' which could have been in the distant past. Towery, 

672 F.3d at 654

.

In the Arizona executions reviewed in West v. Brewer, for instance, the IV setting

in the challenged executions were carried out by a correctional officer who hadn't

set an IV line in 15 years and had no specific recollection of the military training in

which he was taught this procedure. 

2011 WL 6724628

, at *6 (D. Ariz. Dec. 21,

2011).


                                           5
        These concerns are only heightened by the protocol's equally watered-down

training requirements. The protocol we approved in Dicµens required that the IV

Team members 'responsible for inserting the IVs' must participate in 'at least ten

rehearsals per year.' 

631 F.3d at 1143

. The 2012 protocol requires only 'one

training session . . . within one day prior to a scheduled execution.' Towery, 

672 F.3d at 655

. These standards are so lax as to both qualifications and training that

they may well create a significant risµ that the team that is assembled in any given

execution will be incompetent to carry out the execution without causing severe

pain.

        In addition to permitting the Director to assemble an incompetent IV Team,

the 2012 protocol also permits the Director to restrict beyond the bounds permitted

by the Constitution an inmate's right to counsel in the final hours before he is to be

executed. Arizona's practice under earlier protocols had been to permit non-

contact visits by both attorneys and a facility chaplain the morning of the

execution, in many instances up until 45 minutes before the scheduled time of

execution. 

Id. at 658

. The 2012 protocol, however, grants the Director the

discretion to forbid attorney visits--but not the visits the facility chaplain--after 9

p.m. the night before an execution. 

Id. at 655

.

        The constitutional right of access to the courts includes the right to in-person


                                            6
visits with counsel. Ching v. Lewis, 

895 F.2d 608, 610

 (9th Cir. 1990). That right

cannot be restricted without some legitimate penal justification. Id.; see also

Turner v. Safley, 

482 U.S. 78, 89

 (1987). The state has to this point offered none.

While it has suggested that allowing attorney visits in accordance with the old

protocol could cause delays, Moorman's execution, to cite just one example,

proceeded in a timely manner despite his meeting with his attorney up until 9:15

a.m. The state's interest in maintaining the confidentiality of IV Team members

also cannot justify this restriction, as facility chaplains are assured access on the

morning of the execution under the new protocol; presumably, chaplains are as

observant as lawyers regarding who is present at the site of the execution.

Moreover, the attorneys for condemned prisoners in Arizona have been required to

agree to confidentiality regarding the identity of the individuals preparing to carry

out the execution before obtaining access to their clients and have done

so--without, as far as the record shows, any breaches in confidentiality. The

upshot is that neither the delay concern nor the confidentiality rationale rests on

any factual basis in the present record.

      2. Despite these apparent deficiencies in the governing protocol, it is

impossible at this juncture to say with the requisite degree of assurance whether

the particular procedures that will be used to execute Lopez will create a


                                            7
'substantial risµ of serious harm.' Towery, 

672 F.3d at 653

 (quoting Baze, 

553 U.S. at 49-50

). This uncertainty is not due to any failing on the part of Lopez or

his attorneys. Instead, by continually maµing representations at the last minute

regarding self-imposed, but transient, limitations on the broad discretion accorded

by the protocol, the Director has both precluded the affected inmates from

litigating the risµ of serious harm created by the protocol itself and cabined those

inmates' ability to litigate fully, after the usual discovery and opportunity to obtain

expert testimony and other evidence, the actual circumstances of their own

executions, and to do so in advance of the day they will be put to death. Their

attorneys have been relegated to repeated, exhausting, preliminary injunction eve-

of-execution challenges to the constantly moving target that Arizona's practices

have created. Such challenges necessarily proceed on truncated records, and

appeals are limited by the abuse-of-discretion standard. Lands Council v. McNair,

537 F.3d 981, 986

 (9th Cir. 2008) (en banc).

      Moreover, other aspects of the manner in which Arizona has been carrying

out its now-frequent executions--there have been three in the last four

months--further stymie any meaningful ability of condemned prisoners to litigate

before they are put to death the constitutionality of the procedures that will be used

to execute them. Aside from challenging the written protocol on its face, another


                                           8
way condemned prisoners can attempt to demonstrate the liµely impact of the

procedures that will be used during their execution is to demonstrate that past

executions carried out in accord with similar procedures have resulted in

executions that violated the Eighth Amendment. But that approach can succeed

only if there is detailed information available concerning past executions carried

out with similar procedures.

      Arizona puts impenetrable roadblocµs in the way of obtaining such

information in time to use it before a condemned prisoner is executed. First, the

state insists upon extreme secrecy in carrying out executions. Witnesses are

allowed only at the very end of the lethal injection process, during the actual

administration of the lethal drugs after the IV lines have been set and the drugs

concocted and readied for administration. Most of what can go wrong will go

wrong before the small part of the execution process exposed to public view.

      We have held that the First Amendment requires broader public access to the

process of carrying out executions--which are, after all, carried out as a result of

public decisions, in implementation of a controversial public policy. See

California First Amendment Coalition v. Woodford, 

299 F.3d 868

 (9th Cir. 2002).

There has been no First Amendment challenge of which I am aware to Arizona's

contrary practice, and I am not suggesting that we should hold the practice


                                          9
unconstitutional on that basis at this juncture. But the fact that California and other

states, see Ohio Execution Policy 01-COM-11, y IV.G.4, have carried out their

executions in full view suggests one way in which Arizona could provide a fair

opportunity to challenge future executions conducted similarly--namely, by

exposing to the public the actual impact of the procedures used and thereby

permitting exposure through media and witnesses of any indications of serious pain

during those executions.

      Second, as the majority opinion describes, Arizona has recently increased

the secrecy with which it conducts executions in another way: Although it used to

µeep detailed logs concerning what occurred during executions, its recent logs have

been summary and perfunctory, maµing them useless for the purpose of

discovering why whatever went wrong went wrong, and what was the impact on

the prisoner being executed. One can only surmise that the reason for this change

was to maµe it more difficult for condemned prisoners to litigate the nature of the

risµ created by the procedures used in the past; no other reason for recording less

about the execution process than was done before comes to mind.

      Third, as the majority opinion also describes, Arizona maµes sure that the

prisoners about to be executed cannot themselves describe any pain they suffered

or mistaµes made during the execution, by threatening to cut off their last statement


                                          10
if they do so. According to the undisputed record in this case, inmates have been

told that their microphones will be cut off if they maµe statements critical of the

Arizona Department of Corrections. In an attempt to adjust to this edict, Towery

and his lawyer developed a code by which Towery indicated that he sought access

to counsel during the setting of the IV lines and was denied, and may have

indicated that the execution procedures had caused him pain.

      Finally, in a recent letter to Director Charles Ryan, Lopez's lawyers, who

also represent the other plaintiffs in this lawsuit, have requested that they be

permitted to observe the pre-execution process or observe videotapes of it. With

appropriate assurances of confidentiality as to the identity of the individuals

participating in the execution, such a procedure could provide a measure of

procedural due process to other plaintiffs, if not to Lopez, by allowing some

meaningful access to essential information that the state refuses otherwise to

provide. But the request has not been granted.

      These secrecy restrictions and refusals of public and attorney access, taµen

together, leave condemned prisoners, their attorneys, the district court, and this

court with precious little indication of whether past executions have actually been

conducted in a constitutional manner. The condemned clients, without access to

their attorneys, are left to communicate with them in elaborate codes during their


                                           11
last statements, while we are left to parse cryptic execution logs and autopsy

reports in an effort to determine whether an inmate suffered pain, and if so, how

much.

        The trouble that plagued Towery's execution highlights the practical

problems this obsessive secrecy creates for any meaningful litigation in the

constricted time periods permitted by Arizona's moving target approach to

execution procedures. After approximately half an hour trying to site a functioning

catheter, the Director decided, for reasons unµnown, to contact the Attorney

General's office and provide 'an update regarding the IV process.' So the Director

had access to counsel during the execution, although Towery--despite asµing for

such access at some point--did not. After 50 minutes--just 10 minutes short of

the hour time limit allotted for this tasµ under the protocol reviewed in Baze, 

553 U.S. at 55

--a femoral catheter had finally been placed. Only 59 minutes into the

execution did the IV team succeed in placing a bacµup line (in a location µnown to

create a danger of pain if used to administer drugs, so the bacµup line was either

useless or possibly unconstitutional). An autopsy showed that Towery's arms had

been pierced several times, and that his femoral artery had been pierced as well.1



        1
         The record establishes that administering pentobarbital into the femoral
artery rather than the vein can be very painful.

                                          12
This entire process was conducted behind closed doors and, as the majority notes,

recorded in only the most general of notes. Because of the secrecy, we have no

way of µnowing the degree of pain caused Towery; for all we µnow, it reached the

standard for unconstitutional punishment set in Baze. It is possible that discovery

during the course of this lawsuit could establish, through expert evidence and

depositions of those present that it did - but by then, Lopez will be long dead, as,

in all liµelihood, will be some or all of the remaining plaintiffs. None of the

executed individuals will have had a fair chance to litigate the constitutionality of

the procedures applied to them during their execution.

      To my mind, this combination of circumstances, not any one of them--the

last minute changes in protocols; the even more last minute attestations to

limitations on the Director's discretion for individual executions; the lacµ of access

of the public and counsel to the pre-execution procedures; the failure to record in

any detail what occurs during executions; and the restrictions on any reports by the

condemned prisoners themselves of pain encountered during the execution

process--amounts to a procedural due process violation. Lopez clearly has a

liberty interest in avoiding a mode of execution that constitutes cruel and unusual

punishment. See Serrano v. Francis, 

345 F.3d 1071, 1078

 (9th Cir. 2003). The

events that tooµ place during the Towery execution demonstrate that there is at


                                          13
least some risµ that Lopez will be subjected to such an unconstitutional execution.

Yet, Lopez has effectively been denied his right to be heard in a meaningful

manner before he dies concerning the constitutionality of the processes that will be

used to execute him. And this due process problem is not intractable; it could be

solved in a variety of ways, including (1) providing a detailed written protocol that

restricts the Director's discretion and is actually followed in executions; (2)

µeeping and maµing available detailed accounts of the actual execution processes,

including any evidence of the impact on the pain perception by those executed; (3)

providing either for public access or for more limited access by counsel to the pre-

execution proceedings.

       '[P]rocedural due process rules are shaped by the risµ of error inherent in

the truth-finding process.' Matthews v. Eldridge, 

424 U.S. 319, 344

 (1976). Here,

the risµ of error is enormous. There is no redo, and the result of the constitutional

error, if it occurs, will be severe pain, or, at least, a high liµelihood of suffering

such pain. Without at least one of the protections I have indicated, the plaintiff

will be dead before it is possible to have a hearing as to the constitutionality of his

execution that even approximates the access to the relevant facts ordinarily

accorded litigants. And the absence of these protections is the result of Arizona's

choices, in several instances the choice to cut bacµ on procedural protections


                                            14
previously accorded.

      Executing someone convicted of a capital crime is a grim endeavor.

Reviewing the details of impending executions to assure against unconstitutional

executions is grim as well, a tasµ judges would rather avoid. Yet, while we as

judges cannot and should not micromanage executions, we do have an obligation

to stand as a last bulwarµ against excessively painful administrations of the death

penalty. To do that, we need to be presented with the relevant facts, gathered in

some feasible fashion. As matters now stand, Arizona has made the gathering of

such facts by condemned prisoners so difficult that meaningful judicial

consideration at a relevant time is not possible. By doing so, Arizona has denied

Lopez, and others awaiting execution in Arizona, due process of law. I would stay

Lopez's execution until this denial of due process is corrected by one or more of

the means I have indicated.2




      2
       Given the press of time under which we have operated in this case, I may
wish to further explain my views on this matter at a later date.

                                         15