FILED
FOR PUBLICATION MAY 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
DONALD EDWARD BEATY, No. 11-99007
Plaintiff - Appellant, D.C. No. 2:11-cv-01037-NVW
District of Arizona,
v. Phoenix
JANICE K BREWER, Governor of
Arizona; CHARLES RYAN, Director, ORDER
Arizona Department of Corrections;
ERNEST TRUJILLO, Warden, Arizona
Department of Corrections- Eyman;
CARSON MCWILLIAMS, Warden,
Arizona Department of Corrections-
Florence; UNKNOWN PARTIES, Names
as Does 1-50,
Defendants - Appellees.
Before: THOMAS, Circuit Judge and Capital Case Coordinator
The Amended Order dated May 25, 2011, is amended to include the
attached concurrence by Chief Judge Kozinsµi and the additional dissent by Judge
Reinhardt.
FILED
Beaty v. Brewer, No. 11-90007 MAY 27 2011
MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
KOZINSKI, Chief Judge, with whom Judges GOULD and N.R. SMITH join,
concurring in the denial of rehearing en banc:
Because I decided not to delay further the order denying en banc rehearing, I
did not file a concurral on the day of the execution. Nevertheless, I believe it's
important to lay out an argument that I found very persuasive when voting on the
en banc call. By the time Beaty asµed for a stay, his claim--that the state violated
his constitutional rights by substituting pentobarbital for sodium thiopental as the
first drug in its three-drug execution protocol--had already been rejected by two
other courts of appeals. The Tenth Circuit approved a protocol virtually identical
to Arizona's after allowing the inmate to conduct discovery, submit an expert
report and participate in an evidentiary hearing. See Pavatt v. Jones, 627 F.3d
1336, 1338-40 (10th Cir. 2010). The Eleventh Circuit approved the substitution of
pentobarbital for sodium thiopental just last weeµ. See Powell v. Thomas, No.
11-12238, 2011 WL 1899564, at *1-2 (11th Cir. May 19, 2011) (per curiam).
None of Beaty's filings--not his complaint, nor his motion for a TRO before the
district court, nor his emergency motion in our court--suggested any way in which
the Tenth or Eleventh Circuits' analyses were deficient, or that his case differed
materially from those of the inmates there.
While these out-of-circuit cases aren't controlling, I found it significant that
page 2
the factual and legal issues in Beaty's claim had been fully considered by these
courts. Indeed, the inmate in the Eleventh Circuit had about a month's notice of
the planned drug substitution, yet the best evidence he could produce was the same
expert report the Tenth Circuit had rejected. See Powell, 2011 WL 1899564, at
*1-2. I didn't see how Beaty would come up with better evidence if we granted
him a stay, or how he'd clear the Supreme Court's high bar for finding a
constitutional violation. See Baze v. Rees, 553 U.S. 35, 49-50 (2008) (plurality
op.). It was therefore appropriate for the district court to rely on the Tenth and
Eleventh Circuits' analyses in denying Beaty a stay of his execution, and for the
three-judge panel to rely on the same reasoning. See Order Denying Mot. for TRO
or Prelim. Inj., Beaty v. Brewer, No. CIV 11-1037-PHÈ-NVW, at 7 (D. Ariz. May
25, 2011) (docµet entry ý9) ('[B]oth the Tenth and Eleventh Circuits have found
that use of pentobarbital does not create a substantial risµ of serious harm.'); see
also Beaty v. Brewer, No. 11-99007, Order at 2 (9th Cir. May 25, 2011) ('For the
reasons expressed by the district court, we conclude that Beaty has failed to satisfy
[the standard for a preliminary injunction].'). There was no reason to go en banc
and further delay the inevitable.
FILED
MAY 27 2011
Beaty v. Brewer, No. 11-99007 MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
REINHARDT, Circuit Judge, additional dissent from the denial of rehearing en
banc:
Chief Judge Kozinsµi finds it 'very persuasive' that two circuits have
approved the use of the three-drug protocol that Arizona adopted less than twenty-
four hours before the scheduled execution. Again, I find it necessary to express my
disagreement.
Conflicts among circuits are common. Indeed, one of the principal reasons
for the Supreme Court to hear cases is to resolve the numerous conflicts among
circuits. See Sup. Ct. R. 10. That other circuits have taµen a position on a
constitutional question does not relieve us of the responsibility to maµe a full and
independent judgment ourselves. This is the Ninth Circuit, not the Tenth or
Eleventh, and our views sometimes differ from those of other circuits. See, e.g.,
United States v. Gaudin, 28 F.3d 943 (9th Cir. 1994) (en banc), affirmed, 515 U.S.
506 (1995); id. at 955 (Kozinsµi, J., dissenting) (observing, prior to the affirmance
of our decision by the Supreme Court, that '[e]very other circuit to have
considered' the question presented has disagreed with the Ninth Circuit).
This is a death penalty, not a slip-and-fall case. We have no greater duty
than to decide such cases fairly and properly. Constitutional challenges often turn
on their facts. We will never µnow whether with more time Beaty could have
successfully pleaded sufficient facts to satisfy the district court or the three judges
of this court to whom the case was assigned that a stay was warranted.
When the State has created a constitutional issue by changing the method of
execution only eighteen hours before that ultimate and irreversible act is to taµe
place, we must permit the person to be executed adequate time to prepare his
challenge. That did not happen here. As a result, Beaty was deprived of due
process, and we as a court were compelled to fall bacµ on inadequate arguments
such as those advanced by Chief Judge Kozinsµi, rather than to maµe a fully
informed and independent decision of our own.
Donald Beaty v. Janice Brewer
Combined Opinion