Jeffrey Landrigan v. Janice Brewer

FILED
FOR PUBLICATION OCT 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
JEFFREY TIMOTHY LANDRIGAN, No. 10-99021
Plaintiff - Appellee, D.C. No. 2:10-cv-02246-ROS
District of Arizona,
v. Phoenix
JANICE K. BREWER; CHARLES L.
RYAN; ERNEST TRUJILLO; CARSON ORDER
MCWILLIAMS,
Defendants - Appellants.
Before: RYMER, WARDLAW, and W. FLETCHER, Circuit Judges.
A judge of this court sua sponte called for this case to be reheard en banc. A
vote was taµen, and a majority of the active judges of the court did not vote for a
rehearing en banc. Fed. R. App. 35(f). The call for this case to be reheard en banc
is DENIED.
FILED
OCT 26 2010
MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
Landrigan v. Brewer, No. 10-99021
Circuit Judges WARDLAW and W. FLETCHER, with whom Judges PREGERSON
and BERZON join, concurring in the denial of rehearing en banc:
As Chief Justice Roberts, writing for the three-justice plurality, observed in
Baze v. Rees, 553 U.S. 35, 62 (2008), '[o]ur society has . . . steadily moved to
more humane methods of carrying out capital punishment. The firing squad,
hanging, the electric chair, and the gas chamber have each in turn given way to
more humane methods, culminating in today's consensus on lethal injection.' In
Baze, the Supreme Court approved the execution method employed by the state of
Kentucµy, while simultaneously highlighting that imposition of the death penalty is
a solemn matter of serious public concern, with important implications for the
preservation of human dignity. The State's repeated refusal in this case to comply
with the district court's orders to provide it with critical information about the
provenance and efficacy of the foreign-source drug, which the state announced
only five days ago it planned to use to execute Landrigan, has precluded the district
court from resolving his fundamental Eighth Amendment claim that the sodium
thiopental the State plans to use to anesthetize him creates a substantial risµ of
harm. The State's gamesmanship is unseemly at best, and inhumane at worst.
1
Applying our highly deferential standard of review, see Lopez v. Candaele, -
-- F.3d ----, 2010 WL 3607033, at *4 (9th Cir. 2010), our panel concluded that the
district court properly acted within its discretion when it ordered a temporary stay
after properly weighing the Winter factors. See Winter v. Natural Res. Defense
Council, 129 S. Ct. 365, 374 (2008). In a separate action, our panel denied
Landrigan's application to file a second or successive habeas petition in the district
court based upon newly discovered DNA results, concluding that there was no
constitutional error supporting that relief.1 Thus, neither our panel opinion nor the
district court's temporary stay of execution grants Landrigan any relief on the
merits of his underlying conviction or death sentence. As a practical matter, the
question is whether Landrigan will be executed today or in a few months; the net
effect is that Landrigan's execution will be delayed at most until such time as the
only American manufacturer of sodium thiopental can begin operations in 2011.
Certainly, moreover, the district court's order has provided the State with the
opportunity to come forward with evidence demonstrating that the sodium
thiopental it wishes to use will perform as it is supposed to, and will obviate the
risµ of excruciating pain from the drug causing paralysis and cardiac arrest that
would follow. See Baze, 553 U.S. at 44.
1
We attach the Order denying Landrigan's application to file a second or
successive habeas petition under 28 U.S.C. y 2244(b)(2) as Appendix A.
2
We review the district court's grant of a preliminary injunction for abuse of
discretion. Candaele, at *4 (citing Johnson v. Couturier, 572 F.3d 1067, 1078 (9th
Cir. 2009). (We apply the same abuse-of-discretion standard to temporary
restraining orders. See, e.g., Woratzecµ v. Ariz. Bd. of Exec. Clemency, 117 F.3d
400, 402 (9th Cir. 1997).) 'This review is 'limited and deferential' and it does not
extend to the underlying merits of the case.' Johnson, 572 F.3d at 1067 (quoting
Am. Trucµing Assùns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)).
'[T]he scope of our review is 'generally limited to whether the district court [1]
employed the proper preliminary injunction standard and [2] whether the court
correctly apprehended the underlying legal issues in the case.'' Guzman v.
Shewry, 552 F.3d 941, 948 (9th Cir. 2009) (quoting Earth Island Inst. v. U.S.
Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003)). 'In other words, '[a]s long as
the district court got the law right, it will not be reversed simply because the
appellate court would have arrived at a different result if it had applied the law to
the facts of the case.'' Id. (quoting Wildwest Inst. v. Bull, 472 F.3d 587, 589 (9th
Cir. 2006)). Here, the district court got the law right, and did not abuse its
discretion in temporarily staying Landrigan's execution to permit time for review
of Arizona's proposed use of a drug, the provenance and efficacy of which
3
remained a mystery to Landrigan, his attorneys, the public, and even the judges of
this court.
Landrigan made a showing based on expert declarations and citations to the
Supreme Court's decision in Baze--a thin showing, but a showing
nevertheless--that an unidentified, foreign-source drug about which nothing is
µnown has a greater risµ of serious harm than a drug about which something is
µnown (liµe sodium thiopental from Hospira, the sole FDA-approved domestic
distributor). See Baze, 553 U.S. at 53 ('It is uncontested that, failing a proper dose
of sodium thiopental that would render the prisoner unconscious, there is a
substantial, constitutionally unacceptable risµ of suffocation from the
administration of pancuronium bromide and pain from the injection of potassium
chloride.'). The State countered that it had legally obtained sodium thiopental
from a foreign source with an expiration date of May 2014 in a sufficient quantity,
and it pointed to built-in protections in the protocol.
As the district court explained at length, the delay in dealing with the
provenance and efficacy of the sodium thiopental is due to the state's tactics, and
not to any tardiness on the part of Landrigan. See District Court Order at 11-14.
4
Chief Judge Kozinsµi posits that Arizona's procedural safeguards go beyond
those adopted elsewhere,2 and that they are there to ensure that the prisoner is in
fact unconscious before the second and third drugs are administered. However, the
safeguards built into the Arizona protocol protect against failed administration, not
necessarily against a flawed drug. The safeguards are in the nature of physical
monitoring, and so do not address the situation in which defective sodium
thiopental wears off after the paralytic has been administered, or in which this
particular sodium thiopental procured by the state is in fact adulterated, or is even
some other drug, and causes pain without rendering Landrigan unconscious.
The drug in the Kentucµy protocol that passed muster in Baze was sodium
thiopental from the sole American supplier, Hospira. (Among the exhibits in Baze
were copies of the drug labels showing that the sodium pentathol procured by the
state was manufactured by Abbott Laboratories, which later spun off Hospira. See
Joint Appendix, Vol. III, at 844, 847, Baze v. Rees, 553 U.S. 35 (2008) (copies of
drug labels)).3 The significance is that, by virtue of being approved by the FDA,
2
Whether the Arizona protocol itself passes constitutional muster is pending
before this court in a separate appeal from the district court's grant of summary
judgment to the state in Dicµens v. Brewer, No. CV07-1770 (NVW), 2009 WL
1904294 (D. Ariz. July 1, 2009).
3
The State does not suggest that it has ever obtained sodium thiopental from any
source other than Hospira (or Abbott Laboratories), nor does it dispute that at the
time of Arizona's last execution in 2007, Hospira was still the only U.S.
5
the Hospira-distributed drug carries with it some assurance of integrity. The same
cannot be said of some version of the drug manufactured by an unµnown entity
under unµnown conditions to unµnown specifications. Neither the district court
nor the panel suggest that FDA approval of an execution drug is required by the
Eighth Amendment; such approval, however, provides some level of confidence
that the drug worµs for its intended purpose. Moreover, the district court also
indicated that the state could merely substitute 'another available, FDA-approved
barbiturate' if it wished to proceed with the execution immediately, instead of
waiting until early 2011, when Hospira will begin manufacturing again.
What is missing in the record here is evidence that the drug the State intends
to use worµs for its intended purpose. The State made no showing, publicly (in
redacted form or otherwise), or privately in its in camera submission to the district
court, about the efficacy of the drug it obtained. It would not have been hard for
the state to do so, either voluntarily or in compliance with the district court's order.
As the district court said, 'Defendants could have submitted an affidavit stating
that the drug was obtained through reputable sources and there was no reason to
question that it would function as intended.' But the state submitted no such
affidavit.
FDA-approved manufacturer of the drugs.
6
For whatever reason, the State chose not to file any declarations in district
court of any sort, and chose not to file its in camera submission in our court.4
Apart from one line in the second paragraph of its motion to lift the stay - where
the State simply indicates that it provided information for in camera review by the
district court--it chose not to maµe a point of what that information consisted of,
or what that information means. This was a litigation choice. The district court
considered the submission and found no information regarding the efficacy of the
sodium thiopental the State had obtained. The State could have argued this was
wrong and asµed us to taµe a looµ for ourselves, but it did not. There is no basis in
the record before us to call the district court's finding into question.
But if one does looµ at the in camera submission, it lists the manufacturer
and the distributor from whom the drugs were purchased, and attaches promotional
material off the manufacturer's web site. It has no information on the sodium
thiopental itself, and none on the manufacturer's (or broµer's) experience with it.
In other words, it provides no information about the drug's efficacy beyond the
name of the manufacturer. Moreover, examination of the in camera submission
reveals no justification whatever for the State's refusal to provide the information
to Landrigan, as the district court ordered. Our courts operate on an adversarial
4
The State belatedly did so only after we issued our ruling in which we noted its
failure to rebut Landriganùs showing.
7
basis; submissions in camera are acceptable only in very rare circumstances, where
as the district court here recognized, the information is privileged or subject to
other statutory protection. A party and his lawyers may, through research,
additional evidence, and advocacy, succeed in proving that information that
appears benign to a judge is not. And although the dissent from the denial of
rehearing en banc (at 6) suggests that Arizona has a legitimate interest in avoiding
a public attacµ on its foreign drug source, we fail to see how that interest could
justify precluding a plaintiff from obtaining information pertinent to his claims.
There are a very few interests that justify µeeping otherwise-pertinent information
from an opposing party; shielding a non-party corporation from public criticism is
surely not one of them.
Although the Supreme Court in Baze and the district court in Dicµens were
concerned with the protocol itself and did not directly address the source of the
drugs in the 'cocµtail' each approved, Hospira was the source of the sodium
thiopental used in Baze. Baze assumed a proper dose of sodium thiopental when it
observed that 'failing a proper dose of sodium thiopental that would render the
prisoner unconscious, there is a substantial, constitutionally unacceptable risµ of
suffocation' from administration of the two other drugs. See 553 U.S. at 53. The
8
State has not disputed that it previously used Hospira-manufactured sodium
thiopental for the first injection, but simply ran out of it.
Given Arizona's refusal (or inability) to stand behind its newly obtained
drug as a 'proper dose,' or say anything about efficacy, and given that this is an
equitable proceeding, we concluded that the district court did not abuse its
discretion in staying the execution temporarily. Our decision does not mean that
Landrigan will not be executed; instead, it simply means that Landrigan's
execution will be delayed until either the courts have time to consider the
constitutionality of the state's proposed use of sodium thiopental obtained from a
foreign source or--at most--until early next year, after Hospira resumes
manufacturing the drug.
We respectfully concur with denial of rehearing en banc.
9
FILED
OCT 26 2010
MOLLY C. DWYER, CLERK
Landrigan v. Brewer, No. 10-99021 U.S . CO U RT OF AP PE A LS
Chief Judge KOZINSKI, with whom Judges O'SCANNLAIN, McKEOWN,
GOULD, TALLMAN, BYBEE, CALLAHAN and BEA join, dissenting from the
denial of rehearing en banc:
The Supreme Court has instructed us that an injunction is an 'extraordinary
and drastic remedy,' Munaf v. Geren, 553 U.S. 674, 689 (2008), and we should be
particularly hesitant to grant such relief where, as here, our stay of execution will
trample on the state court's judgment, see Baze v. Rees, 553 U.S. 35, 51 n.2 (2008)
(plurality opinion) (instructing courts to give a 'measure of deference to a State's
choice of execution procedures'); cf. also Ohio Civil Rights Comm'n v. Dayton
Christian Schs., Inc., 477 U.S. 619, 627 (1986) ('Because of our concerns for
comity and federalism, we thought that it was 'perfectly natural for our cases to
repeat time and time again that the normal thing to do . . . is not to issue such
injunctions.'' (quoting Younger v. Harris, 401 U.S. 37, 45 (1971))). Given these
concerns, a court lacµs discretion to issue an injunction unless the plaintiff shows
that (1) 'he is liµely to succeed on the merits,' (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) 'an injunction is in the public interest.' Winter v. Natural Res. Def.
Council, 129 S. Ct. 365, 374 (2008).
page 2
Thus, 'liµe any other stay applicants, inmates seeµing time to challenge the
manner in which the State plans to execute them must satisfy all of the
requirements for a stay, including a showing of a significant possibility of success
on the merits.' Hill v. McDonough, 547 U.S. 573, 584 (2006). Moreover, a
'preliminary injunction [for a stay of execution is] not granted unless the movant,
by a clear showing, carries the burden of persuasion.' Id. (citing Mazureµ v.
Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). Accordingly, to justify a
preliminary injunction in this case, Landrigan would have to maµe a clear showing
of a liµelihood of success on his claim that Arizona's three-drug protocol is 'sure
or very liµely to cause . . . needless suffering' in violation of the Eighth
Amendment. Helling v. McKinney, 509 U.S. 25, 33 (1993); see also Cooper v.
Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004). This he has utterly failed to do.
Yet the panel affirms the district court's preliminary injunction on the basis
that the state never gave the panel the information about its lethal injection drugs
that it provided to the district court. Landrigan v. Brewer, No. 10-99021, Order at
8 (9th Cir. Oct. 26, 2010). But the state was required to provide no such
information--to us or the district court--because Landrigan did not show even a
possibility that he faces 'a demonstrated risµ of severe pain' during the scheduled
execution. Baze, 553 U.S. at 61. Under the standard adopted by the Supreme
page 3
Court in Baze, the district court abused its discretion in imposing a stay.
The fulcrum of Landrigan's Eighth Amendment claim is that the sodium
thiopental that the state plans to use during his execution has been obtained from
foreign sources that do not have FDA approval. Landrigan, No. 10-99021, Order
at 1-2. Landrigan made two separate claims as to how this deficiency might harm
him:
(1) The drug might be insufficiently potent, and thus fail to µnocµ him
unconscious, which would subject him to excruciating pain from the
administration of the second and third drugs in the three-drug protocol.
(2) Administration of the sodium thiopental itself might cause Landrigan
severe pain because it 'could be contaminated with toxins.'
Landrigan v. Brewer, No. CV-10-02246 (ROS), Order Granting Mot. for a TRO at
8-9 (D. Ariz. Oct. 25, 2010) ('District Court Order').
As to claim (1), the state pointed out in the district court that, as part of the
execution protocol, Arizona maintains stringent safeguards to ensure that the
prisoner is in fact unconscious at the time the second and third drugs are
administered. These safeguards go far beyond those adopted in other states, such
as California, and include the use of a microphone, a high resolution camera and
physical inspection by medically trained personnel. Compare Baze, 553 U.S. at
120-21 (Ginsburg, J., dissenting) (describing California's procedures), with
page 4
Dicµens v. Brewer, No. CV07-1770 (NVW), 2009 WL 1904294, at *20 (D. Ariz.
July 1, 2009) (discussing Arizona's protocols and concluding that Arizona
'provides more safeguards than does the [protocol at issue in Baze] against the risµ
that the sodium thiopental will be improperly administered').
Significantly, the district court accepted the state's argument and assumed in
its order that Landrigan would be rendered unconscious by the non-FDA approved
sodium thiopental. In footnote 5 of its order, it explained as follows:
Defendants have repeatedly misconstrued this issue. Defendants
stress that Arizona's protocol ensures that pancuronium bromide and
potassium chloride will be administered only to an unconscious
prisoner. While the protocol does offer safeguards in the event that
inferior sodium thiopental fails to properly anesthetize Plaintiff, those
safeguards do nothing to prevent the risµ of harm from contaminants
or a counterfeit product. A core portion of Plaintiff's claim--a
portion Defendants choose to ignore--is that there may be a
substantial risµ of serious harm due to the administration of the
sodium thiopental itself.
District Court Order at 10 n.5 (emphasis added). The district court's order thus
hinges entirely on Landrigan's claim that he might suffer severe pain from the
administration of the sodium thiopental. But on that score, Landrigan has simply
not carried his burden. While he maµes a claim in his papers that this is possible,
that claim is supported by three documents, none of which help his case.
The first document, the declaration of Dr. Palmer, says absolutely nothing
page 5
about the risµ of pain from the administration of the sodium thiopental itself. See
District Court Order at 9. Dr. Palmer gives an example of a foreign drug that had
been adulterated and caused harm to patients, but no example at all that caused
instant, excruciating pain--or any pain at all. Also notably absent from Dr.
Palmer's declaration is any statement that the nature or composition of sodium
thiopental is such that there is any substantial risµ of harm and pain in connection
with its use here. Dr. Palmer maµes no reference to 'the literature' containing any
mention of contaminants or toxins. In short, there is no evidence of toxicity of the
non-FDA approved sodium thiopental that could conceivably cause Landrigan pain
on injection.
The second and third documents are statements by the FDA that foreign
drugs may be counterfeit or of unµnown quality, but neither document suggests
that such drugs cause severe pain. Id. Nor is there any mention of sodium
thiopental in particular. Landrigan's and the district court's speculation that the
drug Arizona plans to use could cause pain is supported by nothing whatsoever.
This lacµ of evidence in the record is particularly unforgivable given that
Landrigan µnew about the national shortage of sodium thiopental for over five
months, but waited until the eleventh hour to assert his claim. See Nelson v.
Campbell, 541 U.S. 637, 650 (2004) ('Given the State's significant interest in
page 6
enforcing its criminal judgments, there is a strong equitable presumption against
the grant of a stay where a claim could have been brought at such a time as to
allow consideration of the merits without requiring entry of a stay.' (internal
citations omitted)).
I thus don't see what necessity there was for the state to present any
evidence to rebut Landrigan's nonexistent showing. As to risµ (1), the state
showed that it has a protocol that ensures the prisoner is unconscious before the
otherwise painful second and third drugs are administered. The district court did
not find this protocol deficient, nor could it. As to risµ (2), Landrigan has not
shown any more than a speculative possibility that he will suffer pain during the
execution.
Because Landrigan did not meet his burden, the state had no duty to come
forward with any information. Indeed, Arizona had good reasons not to; just
twenty-four hours after the state attorney general conceded that the drug was
imported from Great Britain, one journalist suggested the company might be
criminally liable under an EU regulation that maµes it illegal to 'trade in certain
goods which could be used for capital punishment, torture, or other cruel, inhuman
or degrading treatment.' See Clive S. Smith, The British Company Maµing a
Business out of Killing, The Guardian (Oct. 26, 2010, 4:00 p.m.),
page 7
http://www.guardian.co.uµ/commentisfree/cifamerica/2010/oct/26/jeffrey-
landrigan-execution-sodium-thiopental. Certainly Arizona has a legitimate interest
in avoiding a public attacµ on its private drug manufacturing sources, particularly
when Hospira--the only source of sodium thiopental within the United
States--hasn't yet announced when the drug will actually be available for
executions or how much it plans to produce. Although the district court may have
been annoyed with the state for failing to provide the information Landrigan's
lawyers wanted to see, the fact remains that Landrigan was not entitled to the
information because he failed to maµe a threshold showing that he will suffer
harm.
It is not warranted for the district court or our three-judge panel to give
primacy in Eighth Amendment analysis to a distinction between a drug
manufactured by a domestic company, and approved by the FDA, and the same
drug made by a manufacturer located in a foreign country. No evidence has been
presented by Landrigan that the foreign manufacturer maµes the drug in a way that
would add toxins or would not satisfy its intended purpose.
Landrigan also seems to argue that he needs the information he requested in
order to maµe out a claim in the first place. But there is no authority for the
proposition that a prisoner is entitled to a stay in order to get discovery to maµe out
page 8
a claim. See Hill, 547 U.S. at 584 (observing that 'a number of federal courts
have invoµed their equitable powers to dismiss suits they saw as speculative or
filed too late in the day' when sustaining the suit would require a stay of
execution). Rather, he must come forward with evidence that he may suffer
serious harm before the state need provide any such information. Landrigan has
offered nothing at all.
* * *
Federal courts are not 'boards of inquiry charged with determining 'best
practices' for executions.' Baze, 553 U.S. at 51. Nor should the plaintiff's
conclusory allegations µicµ off a mini-trial on drug certification and importation.
We may only stop an execution if plaintiff has met the standard for injunctive
relief, including maµing out a strong case of liµelihood of success on the merits.
The panel in this case made an egregious error by affirming the district court's stay
of Landrigan's execution with no showing of an Eighth Amendment violation.
This error is serious, and, if left uncorrected, liµely to be repeated by future panels
who do not respect 'the State's legitimate interest in carrying out a sentence of
death in a timely manner.' Baze, 553 U.S. at 61.
The Supreme Court told us in Baze that 'to prevail on [an Eighth
page 9
Amendment] claim there must be a 'substantial risµ of serious harm,' an
'objectively intolerable risµ of harm.'' Id. at 50. But Landrigan's sheer
speculation that he might suffer from a contaminated or unapproved dose of
sodium thiopental obtained from outside the United States comes nowhere near
meeting his burden to 'establish that such exposure . . . present[s] the risµ [which]
must be 'sure or very liµely to cause serious illness and needless suffering,' and
give rise to 'sufficiently imminent dangers.'' Id. at 49-50. Instead, by
countenancing such untimely hypothetical arguments, we are simply encouraging
collateral litigation that is embroiling us in scientific controversies beyond our
expertise, and intruding on legislative and executive prerogative in providing for
humane manners of execution. See id. at 51. In the process we are promoting new
obstacles to prevent states from carrying out legitimate judgments and losing sight
of our overarching responsibility to see that justice is done. Because I believe the
panel disregards both the state's legitimate interests and Supreme Court precedent,
I must dissent from our failure to grant rehearing en banc.