FILED
FOR PUBLICATION JUL 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
THOMAS PAUL WEST; GREGORY No. 11-16707
DICKENS; CHARLES M. HEDLUND;
ROBERT W. MURRAY; THEODORE D.C. No. 2:11-cv-01409-NVW
WASHINGTON; TODD SMITH, District of Arizona,
Phoenix
Plaintiffs - Appellants,
v. ORDER
JANICE K BREWER, Governor of
Arizona; CHARLES L. RYAN, Director,
Arizona Department of Corrections;
ERNEST TRUJILLO; CARSON
MCWILLIAMS, Warden, Arizona
Department of Corrections- Florence;
UNKNOWN PARTIES, named as Does 1-
50,
Defendants - Appellees.
Before: KLEINFELD, WARDLAW, and CALLAHAN, Circuit Judges.
Thomas Paul West is scheduled to be executed by the State of Arizona
tomorrow, July 19, 2011. Last night, the district court denied West's Emergency
Motion for Temporary Restraining Order or Preliminary Injunction in which West
sought to temporarily stay his execution. West filed a notice of appeal, and this
morning filed an Emergency Motion Under Circuit Rule 27-3 for an Injunction.
We deny his emergency motion.
In order to obtain preliminary injunctive relief, West must show '(1) that he
is liµely to succeed on the merits of such a claim, (2) that he is liµely to suffer
irreparable harm in the absence of preliminary relief, (3) that the balance of
equities tips in his favor, and (4) that an injunction is in the public interest.' Beaty
v. Brewer, ÁÁÁ F.3d ÁÁÁ, 2011 WL 2040916, * 6 (9th Cir. May 25, 2011) (citing
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct 365, 374 (2008).
As we did in Beaty, '[w]e acµnowledge that [West] has a strong interest in being
executed in a constitutional manner, but he has not shown that this interest is
threatened in this case.' Id. West has not shown that the manner in which Arizona
intends to execute him 'creates a demonstrated risµ of severe pain. He must show
that the risµ is substantial when compared to the µnown and available alternatives.'
Baze v. Rees, 553 U.S. 35, 61 (2008).
The court heard telephonic oral argument on this matter today. At argument,
Arizona's counsel made several representations. First, he represented that
Arizona's protocol for carrying out executions, a relevant portion of which is
attached as Exhibit A to this order, had been followed in the past and, more
importantly, will be followed in West's execution. Specifically, he represented
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that the drugs called for in the protocol are available in the State's possession, and
will be used in West's execution. Moreover, he represented that the protocol will
be followed regarding the locations and order of preference for insertion sites as
detailed in Paragraph G of the protocol.
For the reasons expressed by the district court, reinforced by the
representations made by Arizona's counsel at oral argument, we conclude West has
failed to satisfy his burden to demonstrate a substantial risµ of severe pain by the
method Arizona intends to use to execute him. Baze, 553 U.S. at 61. Accordingly,
West's motion is DENIED.
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Counsel:
For Petitioner-Appellant West: Jon M. Sands, Arizona Federal Public Defender,
Dale Baich (argued), Robin C. Konrad, Assistant
Arizona Federal Public Defenders, Phoenix,
Arizona
For Respondent-Appellant Ryan: Thomas C. Horne, Attorney General,
Jonathan Bass (argued), Assistant Attorney
General, Tucson, Arizona
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EÈHIBIT A
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