Robert Charles Towery v. Janice K Brewer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT CHARLES TOWERY; ROBERT 
HENRY MOORMANN; PETE
ROVOGICH; THOMAS ARNOLD KEMP;
MILO MCCORMICK STANLEY;
SAMUEL VILLEGAS LOPEZ,
Plaintiffs-Appellants,
v.
JANICE K BREWER, Governor of
Arizona; CHARLES L. RYAN, No. 12-15381
Director, Arizona Department of
D.C. No.
Corrections; RON CREDIO, Warden,
Arizona Department of  2:12-cv-00245-
Corrections-Eyman; LANCE R. NVW
HETMER, Warden, Arizona OPINION
Department of Corrections-
Florence; UNKNOWN PARTIES, 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. Wake, District Judge, Presiding
Argued and Submitted
February 27, 2012—Phoenix, Arizona
Filed February 28, 2012
2501
2502 TOWERY v. BREWER
Before: M. Margaret McKeown, Marsha S. Berzon, and
Johnnie B. Rawlinson, Circuit Judges.
Per Curiam Opinion
2504 TOWERY v. BREWER
COUNSEL
Dale A. Baich, Robin C. Konrad and Cary S. Sandman, Fed-
eral Public Defender’s Office, Phoenix, Arizona; David
Sepanik and Flora Vigo, O’Melveny & Myers LLP, San Fran-
cisco, California, for the plaintiffs-appellants.
Kent Ernest Cattani, Michael E. Gottfried, and Jeffrey A.
Zick, Arizona Attorney General’s Office, Phoenix, Arizona,
for the defendants-appellees.
OPINION
PER CURIAM:
This appeal under 42 U.S.C. § 1983 challenges Arizona’s
execution protocol, adopted as Order 710 of the Arizona
Department of Corrections (“ADC”) on January 25, 2012.
Robert Charles Towery, Robert Henry Moormann, Pete
Rovogich, Thomas Arnold Kemp, Milo McCormick Stanley,
and Samuel Villegas Lopez are death row inmates in Arizona
who claim that ADC’s execution protocol violates the Eighth
and Fourteenth Amendments. Towery and Moormann, two of
TOWERY v. BREWER 2505
the named plaintiffs with impending execution dates, moved
the district court for a preliminary injunction against ADC’s
use of its current lethal injection protocol. The district court
denied the preliminary injunction, and Towery and Moor-
mann appealed. Because the new protocol was adopted on the
eve of the two planned executions, this appeal comes to us at
the eleventh hour. We held oral argument less than 48 hours
before the first scheduled execution.
Even after the appeal was filed and hours before the argu-
ment, Arizona yet again changed course as to its plans for the
executions.1 It advised the court on February 27, 2012, that it
was not proceeding under the three-drug protocol but instead
under the one-drug protocol because it discovered at the last
minute that the originally-planned drugs had expired in Janu-
ary 2012. How such a discovery escaped the State for the past
six weeks is beyond us, and gives us pause as to the regularity
and reliability of Arizona’s protocols. To be sure, the State
caught the mistake, but almost too late.
“The penalty of death differs from all other forms of crimi-
nal punishment, not in degree but in kind. It is unique in its
total irrevocability. It is unique in its rejection of rehabilita-
tion of the convict as a basic purpose of criminal justice. And
it is unique, finally, in its absolute renunciation of all that is
embodied in our concept of humanity.” Furman v. Georgia,
408 U.S. 238, 306 (1972) (Stewart, J., concurring). Because
the death penalty is undeniably the most serious penalty avail-
able to a State, the procedures for such penalty must be imple-
mented in a reasoned, deliberate, and constitutional manner.
Over time, the State of Arizona, however, has insisted on
amending its execution protocol on an ad hoc basis—through
add-on practices, trial court representations and acknowledg-
ments, and last minute written amendments—leaving the
courts with a rolling protocol that forces us to engage with
1
The death warrants were issued on January 11, 2012 and notice of the
three-drug protocol was issued on February 2, 2102.
2506 TOWERY v. BREWER
serious constitutional questions and complicated factual issues
in the waning hours before executions. This approach cannot
continue.
Although we uphold the denial of the preliminary injunc-
tion based on the 2012 Protocol, as amended by the State dur-
ing oral argument with respect to Towery and Moormann’s
executions, the State’s frequent changes to its protocol during
litigation are not sustainable. We find ourselves, once again,
deciding not the merits of Arizona’s written protocol, but the
validity of litigation-related, often case-specific, amendments
to the protocol designed to ensure constitutionality. We are
mindful of the admonition requiring us to refrain from micro-
managing each individual execution, but the admonition has
a breaking point. The State appears to have invited the present
litigation through its recent amendment of the protocol after
the issuance of Towery and Moormann’s death warrants.
Unless permanent changes are made in the manner in which
Arizona amends its protocols, Arizona’s ongoing conduct
may require us “to monitor every execution on an ad hoc
basis, because the State cannot be trusted to fulfill its other-
wise lawful duty to execute inmates sentenced to death.” In
re Ohio Execution Protocol Litigation, ___ F.3d ___, No. 12-
3035, 2012 WL 118322, at *1 (6th Cir. Jan. 13, 2012). We
trust this will not be the case.
On the basis of the protocol approved in Dickens v. Brewer,
631 F.3d 1139 (9th Cir. 2011), as well as the State’s undertak-
ings as to the upcoming executions, we affirm the denial of
the preliminary injunction, albeit on different grounds than
underlay the district court’s denial.
BACKGROUND
I. THE BAZE STANDARD
In Baze v. Rees, the Supreme Court held that Kentucky’s
three-drug lethal injection protocol does not violate the Eighth
TOWERY v. BREWER 2507
Amendment’s prohibition on cruel and unusual punishment.
553 U.S. 35 (2008). The plurality held that the Kentucky pro-
tocol is constitutional because it contains sufficient safeguards
to prevent improper anesthetization, and thus does not give
rise to a “substantial risk of serious harm.” Id. at 49-50.
Faced with the Justices’ divergent views, our circuit
adopted the plurality’s substantial risk of serious harm stan-
dard as the governing one because it is the narrowest neces-
sary to secure a majority in any given challenge to a method
of execution. Dickens, 631 F.3d at 1144-45. We explained
that “[e]very circuit court that has considered a challenge to
a lethal injection protocol following Baze has analyzed the
protocol under the plurality’s substantial risk standard.” Id. at
1145.
II. ARIZONA’S LETHAL INJECTION PROTOCOL DURING
DICKENS
Since the end of a six-year hiatus in implementation of the
death penalty from 2000 to 2006, Arizona has conducted exe-
cutions by lethal injection. Prior to the 2012 changes in its
lethal injection protocol, Arizona used a three-drug lethal
injection cocktail that consisted of three chemicals—sodium
thiopental, pancuronium bromide, and potassium chloride—
administered sequentially. Sodium thiopental is a fast-acting
barbiturate that anesthetizes the inmate and permits the other
chemicals to be administered without causing pain.
Pancuronium bromide is a paralytic neuromuscular blocking
agent that causes complete paralyzation and suffocation.
Potassium chloride induces cardiac arrest. In Dickens, we
constrained our holding to the constitutionality of Arizona’s
November 1, 2007, protocol, as amended by the Joint Report
(the “2007 Protocol”), and did “not conside[r]—and express-
[ed] no opinion on—any amendments to the [2007] Protocol.”
631 F.3d at 1142.
2508 TOWERY v. BREWER
III. ARIZONA’S CURRENT (2012) LETHAL INJECTION
PROTOCOL
Since Dickens, ADC has made various amendments to its
lethal injection protocol. Some of those were informal amend-
ments through practice, and others were incorporated into a
formal departmental order. At issue here is ADC’s January
25, 2012, amendment to Department Order 710 (the “2012
Protocol”). The revised 35-page protocol permits execution
through either a three-drug or one-drug protocol and requires
ADC to choose between these two protocols at least seven
days prior to a scheduled execution.2 2012 Protocol, § 710.01,
¶ 1.1.2.4 & Attach. D, § C.1.
The 2012 Protocol further directs that the ADC Director
(“Director”), upon consultation with the IV Team Leader,
shall determine the catheter sites and that, at the Director’s
choice, a central femoral line may be utilized instead of a
peripheral IV line if placed by a medically-licensed physician
with relevant experience. 2012 Protocol, Attach. D, § E.1.
The 2012 Protocol also changed the composition and expe-
rience requirements for the IV Team:
The IV Team will consist of any two or more of the
following: physician(s), physician assistant(s), nur-
se(s), emergency medical technician(s), parame-
dic(s), military corpsman, phlebotomist(s) or other
appropriately trained personnel including those
trained in the United States Military. All team mem-
bers shall have at least one year of relevant experi-
ence in placing either peripheral or central femoral
intravenous lines.
2
If a three-drug protocol is used, executions will occur via administra-
tion of a sequence of three drugs—either sodium pentothal or pentobarbi-
tal, pancuronium bromide, and potassium chloride. If a one-drug protocol
is used, executions will occur via administration of either sodium pento-
thal or pentobarbital.
TOWERY v. BREWER 2509
2012 Protocol, § 710.02, ¶ 1.2.5.1. The 2007 Protocol held
constitutional in Dickens required “medically trained person-
nel” instead of allowing the Director to hire “other appropri-
ately trained personnel,” and required one year of “current
and relevant professional experience in their assigned duties
on the Medical Team” rather than just one year of “relevant
experience.” Compare Dickens, 631 F.3d at 1142-43 with
2012 Protocol, § 710.02, ¶ 1.2.5.1. In addition, the 2012 Pro-
tocol requires IV Team members to participate in “at least one
training session with multiple scenarios within one day prior
to a scheduled execution” rather than, as at the time of Dick-
ens, “at least ten execution rehearsals per year, and, if a War-
rant of Execution issues, train weekly up until the execution.”
See Dickens, 631 F.3d at 1142; see also 2012 Protocol,
§ 710.02, ¶ 1.2.5.5. Finally, the 2012 Protocol permits only
telephonic contact between an inmate and his attorney after
9:00 p.m. the night before a scheduled execution, whereas
previously counsel were permitted unlimited non-contact visi-
tation until very shortly before the execution. 2012 Protocol,
§ 710.11, ¶ 1.5.
IV. DISTRICT COURT PROCEEDINGS
In the district court, Towery and Moormann alleged that
ADC’s revised protocol impermissibly eliminates safeguards
by increasing the Director’s discretion, and codifies arbitrary
and disparate treatment of capital prisoners, in violation of the
Eighth and Fourteenth Amendments. They further alleged that
ADC’s intent to execute them using pancuronium bromide
imported from a foreign source is improper. Finally, they
alleged that the 2012 Protocol violates their due process right
to notice concerning the specific drugs and venous access to
be used during execution, and also the right of access to coun-
sel and the courts.
Towery and Moormann moved for a preliminary injunction
to enjoin their executions to allow for litigation of these
claims. The district court held a hearing, and the parties
2510 TOWERY v. BREWER
elected not to present live witnesses. On February 23, 2012,
the court denied the request for a preliminary injunction.
A. EIGHTH AMENDMENT
The district court held that Towery and Moormann had not
presented a substantial likelihood of success on the merits
regarding their claim that the 2012 Protocol facially violated
the Eighth Amendment. The district court’s review was based
on a very different scenario than the one presently before us,
as it focused on the three-drug protocol.
Towery and Moormann claimed that five specific changes
led to a facial constitutional flaw: 1) IV Team members (pre-
viously known as MTMs) were no longer required to have
“current” experience placing IV lines; 2) IV Team members
were no longer required to be medically trained; 3) IV Team
members now needed to attend only one training session the
day before the execution; 4) there was no longer a time limit
in which the IV Team had to insert the IVs; and 5) both a pri-
mary and a backup IV line were no longer required.
The district court concluded that the changes to the 2012
Protocol did not create a substantial risk of pain and suffering.
In reaching its conclusion, the district court referenced its
determination in West v. Brewer, No. CV-11-1409-PHX-
NVW, 2011 WL 6724628 (D. Ariz. Dec. 21, 2011) (unpub-
lished order), appeal docketed, No. 12-15009 (9th Cir. Jan 3.
2012), that deviations from ADC’s prior protocol requiring
one year of “current” experience were “reasonable in light of
both the difficulty in locating qualified individuals and the IV
Team’s extensive past experience.” Based on the district
court’s determination in West that the two IV Team members
at issue there were constitutionally proper, ADC changed its
protocol to permit any “appropriately trained personnel” to
serve on the IV Team and eliminated the requirement that the
relevant experience be one year of “current” experience. The
district court here held that Baze did not create a floor regard-
TOWERY v. BREWER 2511
ing constitutionally permissible execution protocols, nor did
it require “current” experience or multiple practice sessions.
Therefore, the district court held, in light of the remainder of
the protections in place, the inmates’ challenge rested on
speculation that ADC would hire inept IV Team members.
The additional protections the district court found relevant
include the: 1) required use of a backup catheter; 2) hepa-
rin/saline flush, which ensures that the IV lines are kept open;
3) Warden’s personal oversight over the entire process; 4) use
of an electrocardiograph; 5) constant monitoring by the exe-
cution team of the inmate during the process; and 6) physical
confirmation by the IV Team Leader that the inmate is uncon-
scious prior to the administration of the second drug of the
three-drug cocktail. The district court also dismissed the con-
cern that a time limit to set the IV lines was necessary since
any minor pain involved with multiple attempts to locate an
adequate vein did not create a substantial risk of severe
unconstitutional pain.
B. EQUAL PROTECTION
Towery and Moormann claimed that the 2012 Protocol vio-
lates their right to equal protection because the protocol gives
the Director discretion regarding the: 1) drugs used for the
execution; 2) selection of execution team members; and 3)
use of the backup catheter. The district court held that each
individual was not a “class of one,” and therefore the discre-
tion vested within the Director could not violate the individu-
al’s equal protection rights. Alternatively, even if Towery and
Moormann, individually, were a “class of one,” a rational
basis existed for vesting discretion in the Director, because
drug supply issues could mandate that the one-drug option be
chosen over the three-drug option. According to the district
court, the same reasoning applied to the availability of quali-
fied individuals to serve as execution team members. With
respect to the backup catheter, the district court held that the
Director did not have any discretion.
2512 TOWERY v. BREWER
C. IMPORTATION OF PANCURONIUM BROMIDE AND NOTICE
Towery and Moormann also argued that the use of
imported pancuronium bromide was problematic. The district
court disagreed, citing Cook v. Brewer, 637 F.3d 1002, 1007-
08 (9th Cir. 2011). The district court also disagreed with the
contention that there is a liberty interest in knowing which
drugs will be used for the execution and where the IV lines
will be placed.
D. THE RIGHT TO COUNSEL
Finally, the district court upheld the prohibition on in-
person contact with the condemned’s attorney after 9:00 p.m.
on the day before the scheduled execution. It found the prohi-
bition proper because “of increased concerns regarding the
need to protect” the identities of persons participating in the
execution process.
ANALYSIS
On appeal, Towery and Moormann challenged only three
aspects of the district court’s denial of the preliminary injunc-
tion: 1) the constitutional infirmity of the 2012 Protocol under
Baze; 2) the disparate treatment levied upon each individual
inmate due to the Director’s discretion (equal protection
claim); and 3) the prohibition on in-person contact with an
attorney after 9:00 p.m. on the day prior to the scheduled execu-
tion.3
Before the hearing on the preliminary injunction, the State
gave notice that it would proceed with the three-drug proto-
3
Towery and Moormann did not challenge on appeal the district court’s
decision regarding the imported pancuronium bromide, or the lack of
notice as to which drugs will be used during the execution and where the
IV lines will be placed (except to the extent those issues are relevant to
the equal protection challenge). We therefore do not consider those issues.
TOWERY v. BREWER 2513
col. On February 27, 2012, however—less than 48 hours
before the first scheduled execution—the State changed its
mind and filed a Notice of Intent to Administer the One-Drug
Protocol, explaining that it discovered during training sessions
that its foreign-supplied pancuronium bromide expired in Jan-
uary 2012. Because of the unavailability of pancuronium bro-
mide, ADC intends to use only domestically-obtained
pentobarbital and to administer a one-drug protocol.
Consequently, due to last minute changes by the State
regarding the protocol that will be used during Towery and
Moormann’s executions, the landscape of this appeal has
changed dramatically. We now address only the one-drug
aspects of the 2012 Protocol, as supplemented by the State’s
representations and commitments made in the hearing before
us on February 27, 2012.
I. STANDARD FOR GRANTING A PRELIMINARY INJUNCTION
A preliminary injunction “should not be granted unless the
movant, by a clear showing, carries the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)
(citation omitted). Under the “serious questions” version of
the test, a preliminary injunction is appropriate when a plain-
tiff demonstrates that “serious questions going to the merits
were raised and the balance of hardships tips sharply in the
plaintiff’s favor.” Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1135 (9th Cir. 2011) (citation omitted). This
approach requires that the elements of the preliminary injunc-
tion test be balanced, so that a stronger showing of one ele-
ment may offset a weaker 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 likelihood of irreparable injury and that the injunc-
tion is in the public interest.” Id. We review the denial of a
preliminary injunction for abuse of discretion. Lands Council
v. McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc).
2514 TOWERY v. BREWER
In the context of a capital case, the Supreme Court has
emphasized that these principles apply when a condemned
prisoner asks a federal court to enjoin his impending execu-
tion because “[f]iling an action that can proceed under § 1983
does not entitle the complainant to an order staying an execu-
tion as a matter of course.” Hill v. McDonough, 547 U.S. 573,
583-84 (2006). Rather, “a stay of execution is an equitable
remedy” and “equity must be sensitive to the State’s strong
interest in enforcing its criminal judgments without undue
interference from the federal courts.” Id. at 584.
To obtain preliminary injunctive relief, Towery and Moor-
mann must demonstrate that: 1) they are likely to succeed on
the merits of such a claim; 2) they are likely to suffer irrepara-
ble harm in the absence of preliminary relief; 3) the balance
of equities tips in their favor; and 4) an injunction is in the
public interest. Winter v. Natural Res. Def. Council, Inc., 555
U.S., 207 (2008). Because the likelihood of success on the
merits of the modified protocol as it will be applied to the two
upcoming executions is determinative, we discuss it in detail.
II. REVIEW OF 2012 PROTOCOL AND SUPPLEMENTAL
REQUIREMENTS
A. THE EIGHTH AMENDMENT CHALLENGE
At the hearing before this court, the State made a number
of representations and undertook to alter the 2012 Protocol in
various ways with respect to Towery and Moormann. We
accept those representations and undertakings as binding on
the State. The protocol therefore consists of the following, as
it will be applied at Towery and Moormann’s executions:
[1] 1. One-Drug Protocol: We review the 2012 Protocol
only as it pertains to the one-drug protocol. We are not
reviewing the three-drug protocol; any challenge to the three-
drug protocol is moot for purposes of this appeal.
TOWERY v. BREWER 2515
2. The 2012 Protocol with the following amendments
and undertakings, as agreed to by the State:
[2] a. Qualifications of the IV Team: According to the
State, the IV Team to be used for both executions is com-
prised of a licensed nurse with seventeen years of experience
and a medically-licensed physician. Both of these individuals
have had experience placing IVs within the last twelve
months, not including any placements performed or training
gained during the recent pre-execution training sessions. The
State also reaffirmed the position it took before the district
court that “relevant experience,” as used in Paragraph 1.2.5.1
of the 2012 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 representa-
tion as a binding one that cabins the meaning of “appropri-
ately trained” and “relevant experience” in the context of the
2012 Protocol.
b. Backup Drugs: In addition to the full set of syringes to
be used “in the implementation of the death sentence,” the
State represented that there will be one additional set of
syringes, along with the necessary chemicals and drugs, avail-
able for immediate administration should circumstances so
require. The State acknowledged at oral argument that this
backup arrangement was “no big deal.” The IV Team mem-
bers shall insert a primary IV catheter and a backup IV cathe-
ter, as required by Attachment D, § E.1 of the 2012 Protocol.
c. Access to Counsel: Counsel 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), § 710.02, ¶ 1.3.3.5.
[3] Our decision is contingent upon the State’s representa-
tions and commitments made during the preliminary injunc-
tion hearing. With these representations, the protocol parallels
2516 TOWERY v. BREWER
the one reviewed under Dickens with respect to training and
qualifications of the IV Team and the availability of backup
drugs and catheters. It also mirrors the prior practice regard-
ing access to counsel and resolves Towery and Moormann’s
claims on these issues.
The remaining claim relates to the number of training ses-
sions. That issue largely goes away in light of the identifica-
tion of the qualifications of the individuals who will be on the
IV Team for Towery and Moormann’s executions. Nonethe-
less, we address it because it was not directly encompassed in
the representations made during the hearing before us. We do
so, however, not in the abstract, but in light of the training and
experience of the current members of the IV Team.
[4] The 2012 Protocol eliminates the requirement that IV
Team members participate in ten practice sessions per year.
Instead, the IV Team members are only required to participate
in training sessions scheduled for one day prior to the actual
execution. 2012 Protocol, § 710.02, ¶ 1.2.5.5. While ten train-
ings may be better than a single one-day training, Towery and
Moormann do not make a showing that for their executions
the lack of practice occasioned from the singular day of train-
ings will lead to a substantial risk of harm. An inmate cannot
succeed on an Eighth Amendment claim by showing one
more step the State could take as a failsafe for other, indepen-
dently adequate measures. Baze, 553 U.S. at 60-61. “Where
an execution protocol contains sufficient safeguards, the risk
of not adopting an additional safeguard is too ‘remote and
attenuated’ to give rise to a substantial risk of serious harm.”
Dickens, 631 F.3d at 1149 (citing Baze, 553 U.S. at 58-59).
[5] The amended 2012 Protocol, as outlined above, on the
basis of representations and commitments made at the Febru-
ary 27 hearing, comports with the protocol approved in Baze.
We therefore conclude that Towery and Moormann have not
demonstrated a substantial likelihood of success on their
Eighth Amendment challenge.
TOWERY v. BREWER 2517
B. DISPARATE TREATMENT—EQUAL PROTECTION
CHALLENGE
Towery and Moormann argue that the grant of discretion to
the Director to make decisions regarding the manner in which
his execution will be carried out violates the Fourteenth
Amendment’s Equal Protection Clause. We do not agree.
The 2012 Protocol, Towery and Moormann observe, grants
the Director the discretion to select members of the IV Team,
provided they are “appropriately trained,” as well as to desig-
nate the IV Team Leader. The Director also has discretion to
choose either a three- or one-drug protocol, using either
sodium pentothal or pentobarbital and to decide, “upon the
advice of the IV Team Leader,” whether to use peripheral or
central femoral IV access to administer the drugs (as long as
a medically-licensed physician is available to implement the
latter option).
Towery and Moormann maintain that the broad grants of
discretion to the Director violate the Equal Protection Clause,
either because they burden a fundamental right and so fail
strict scrutiny, or because they treat Towery and Moormann,
individually, as a “class of one” without a rational basis for
doing so. Neither argument has merit.
[6] As we have already determined, the protocol as it will
be implemented for Towery and Moormann’s executions does
not violate their right under the Eighth Amendment to be free
from cruel and unusual punishment. Where there is no Eighth
Amendment violation, the district court ruled, that necessarily
means that there has been no interference with fundamental
rights sufficient to trigger strict scrutiny under the Equal Pro-
tection Clause. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307,
312 (1976). We do not need to adopt this broad proposition
to conclude that given the ways the Director has chosen to
exercise his discretion in the upcoming executions, there has
2518 TOWERY v. BREWER
been no showing here of any burden on the right to be free of
cruel and unusual punishment.
Towery and Moormann argue otherwise, relying on Bush v.
Gore, 531 U.S. 98, 105 (2000). Urging that there is a distinc-
tion between state action that violates a fundamental right and
state action that merely burdens a fundamental right, they
proffer that the latter was sufficient to trigger strict scrutiny
in Bush and should also be here.
[7] The right to vote, however, “ ‘can be denied by a
debasement or dilution of the weight of a citizen’s vote just
as effectively as by wholly prohibiting the free exercise of the
franchise.’ ” Id. (quoting Reynolds v. Sims, 377 U.S. 533, 555
(1964)). A prisoner’s right to be free of cruel and unusual
punishment, in contrast, is not affected simply because that
prisoner is treated less favorably than another, where one
means of execution is no more likely to create a risk of cruel
and unusual punishment than the other, and both are constitu-
tionally available. Treating one similarly situated prisoner dif-
ferently from another with regard to punishment does not
inherently impact the right to be free of cruel and unusual
punishment (although it might for other reasons violate the
Equal Protection Clause).
[8] That is not to say that there could not be exercises of
discretion that do burden the right to be free of cruel and
unusual punishment. The contrast with the litigation surround-
ing Ohio’s lethal injection protocol, invoked by Towery and
Moormann in support of their fundamental rights Equal Pro-
tection argument, is instructive. In those cases, plaintiffs were
able to show an actual pattern of treating prisoners differently
in ways that did affect the risk of pain to which they would
be subjected, and therefore the risk of being subjected to cruel
and unusual punishment. See In re Ohio Execution Protocol
Litig., ___ F. Supp. 2d ___, 2012 WL 84548, at *9 (S.D. Ohio
Jan. 11, 2012), motion to vacate stay denied, ___ F.3d at ___,
2012 WL 118322, at *1 (6th Cir. Jan. 13, 2012). Here, no
TOWERY v. BREWER 2519
such showing has been made, either generally or with respect
to the planned application of the protocol to Towery and
Moormann’s executions. The fundamental rights prong of
Equal Protection analysis therefore cannot apply.
Alternatively, Towery and Moormann argue that each is a
“class of one,” and that the protocol allows the Director to
treat him differently from others similarly situated with no
rational basis for doing so. See Vill. of Willowbrook v. Olech,
528 U.S. 562, 564 (2000). We disagree.
[9] The class-of-one doctrine does not apply to forms of
state action that “by their nature involve discretionary deci-
sionmaking based on a vast array of subjective, individualized
assessments.” Engquist v. Oregon Dep’t of Agric., 553 U.S.
591, 603 (2008). “In such cases,” the Court noted,
the rule that people should be ‘treated alike, under
like circumstances and conditions’ is not violated
when one person is treated differently from others,
because treating like individuals differently is an
accepted consequence of the discretion granted. In
such situations, allowing a challenge based on the
arbitrary singling out of a particular person would
undermine the very discretion that such state offi-
cials are entrusted to exercise.
Id.[10] Here, decisions on matters such as which drug proto-
col to use, which people to select for the execution team, and
whether to use a central femoral IV are, under Arizona’s stat-
utory scheme, relegated to the Director, with no State law
requirement that there be uniformity. Ariz. Rev. Stat. § 13-
757(A). Absent any pattern of generally exercising the discre-
tion in a particular manner while treating one individual dif-
ferently and detrimentally, there is no basis for Equal
Protection scrutiny under the class-of-one theory. In other
2520 TOWERY v. BREWER
words, the existence of discretion, standing alone, cannot be
an Equal Protection violation. At the very least, there must be
some respect in which the discretion is being exercised so that
the complaining individual is being treated less favorably than
others generally are.
[11] Even if we were to subject the protocol’s grant of dis-
cretion to the Director to rational basis review, it would sur-
vive our consideration. It is rational for ADC to conclude that
the Director is best situated to select the execution team from
those available who meet the criteria listed in the protocol
(assuming those criteria do not themselves create a risk of
harm greater than that tolerable under the Eighth Amend-
ment), or to decide that the Director should be the one to
select which of the four possible drug sequences to use, or to
assign to the Director and the IV Team Leader the task of
selecting which IV site to use. It is entirely rational for these
determinations to be made on a case-by-case basis, as they
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. The Equal Pro-
tection claim, as framed here, cannot succeed on the merits.
C. BALANCE OF INTERESTS UNDER WINTER AND ALLIANCE
FOR THEWILD ROCKIES
[12] We recognize that Towery and Moormann demon-
strate irreparable harm, as does every § 1983 plaintiff in an
injunction appeal involving an upcoming execution. We also
recognize that the State ordinarily has “a strong interest in
enforcing its judgments without undue interference from fed-
eral courts,” although, as indicated at the outset, that interest
can be and has been undermined to a degree by Arizona’s pat-
tern of behavior in the recent execution litigation. Finally, we
also recognize that the victims of crime have an important
interest in “timely enforcement of a sentence.” Hill, 547 U.S.
at 584-85. Nonetheless, in light of our conclusion that Towery
TOWERY v. BREWER 2521
and Moormann do not raise serious questions going to the
merits of their Eighth and Fourteenth Amendment claims with
regard to their executions as they will actually be carried out,
we conclude that Towery and Moormann do not meet the
standards under Winter and Alliance for the Wild Rockies for
issuance of a preliminary injunction.
AFFIRMED; the request for stay of execution is
DENIED.