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.