Beardslee v. Woodford

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DONALD BEARDSLEE, 
Plaintiff-Appellant,
No. 05-15042
v.
D.C. No.
JEANNE S. WOODFORD, Director of
the California Department of  CV-04-5381-JF
ORDER AND
Corrections; JILL L. BROWN,
AMENDED
Warden, California State Prison at
OPINION
San Quentin,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding

Argued and Submitted
January 12, 2005—San Francisco, California

Filed January 14, 2005
Amended January 15, 2005

Before: A. Wallace Tashima, Sidney R. Thomas, and
Richard A. Paez, Circuit Judges.

Per Curiam Opinion

917
920 BEARDSLEE v. WOODFORD

COUNSEL

Steven S. Lubliner, Petaluma, California, for the petitioner-
appellant.

Dane R. Gillette, Senior Assistant Attorney General, Bill
Lockyer, Attorney General of the State of California, Robert
R. Anderson, Chief Assistant Attorney General, Gerald A.
Engler, Senior Assistant Attorney General, Ronald S. Mat-
thias, Supervising Deputy Attorney General, San Francisco,
California, for the defendant-appellees.

Alan L. Schlosser, San Francisco, California, for amici curiae
American Civil Liberties Union Foundation of Northern Cali-
fornia and Death Penalty Focus.
 BEARDSLEE v. WOODFORD 921
Stephen F. Rhode, Los Angeles, California, of counsel for
amici curiae Death Penalty Focus.

ORDER

The panel has voted to amend the opinion by adding the
following footnote to the conclusion of section I on page 5:

Although we realize that, in this case, the denial of
a preliminary injunction is tantamount to the denial
of permanent injunctive relief because the execution
date is imminent, the parties do not dispute that the
“normal,” preliminary injunction standard of review
applies. We do not reach, nor do we decide, whether
a different standard of review should apply under
these circumstances.

With the amendment, the panel has voted to deny the peti-
tion for panel rehearing. The full court has been advised of the
petition for rehearing en banc. No judge of the court has
requested a vote on it within the time set for making such a
request.

The petition for rehearing and the petition for rehearing en
banc are DENIED.

OPINION

PER CURIAM:

Donald Beardslee, a California death row inmate whose
execution is scheduled for Wednesday, January 19, 2004, at
12:01 a.m., appeals the district court’s order denying his
motion for a preliminary injunction in his action pursuant to
42 U.S.C. § 1983 against Jeanne S. Woodford, Director of the
922 BEARDSLEE v. WOODFORD
California Department of Corrections, and Jill L. Brown,
Warden of California State Prison at San Quentin, California
(collectively, “the State”). Beardslee seeks to prevent Brown
from executing him in accordance with California’s lethal
injection protocol, arguing that such an execution would vio-
late his Eighth Amendment right to be free from cruel and
unusual punishment and, potentially, his First Amendment
right to freedom of speech. Beardslee also makes an emer-
gency motion for a stay of execution.1 We have jurisdiction
under 28 U.S.C. § 1292(a)(1), and we affirm the district court
and deny the motion.

I

Beardslee was convicted by a jury in San Mateo County,
California of two counts of first degree murder with special
circumstances and sentenced to death. The California
Supreme Court affirmed his conviction and sentence. People
v. Beardslee, 806 P.2d 1311 (Cal. 1991). After exhausting his
state court remedies, Beardslee filed a habeas corpus petition
in federal district court. The district court rejected each of his
claims, including his challenge to California’s method of exe-
cution, and dismissed the petition. Beardslee did not seek a
Certificate of Appealability (“COA”) as to his claim that Cali-
fornia’s method of execution violated the Eighth Amend-
ment’s prohibition against cruel and unusual punishment.

We affirmed the district court’s denial of habeas relief,
Beardslee v. Woodford, 358 F.3d 560 (9th Cir. 2004), and the
Supreme Court denied Beardslee’s petition for a writ of cer-
tiorari, Beardslee v. Brown, 125 S. Ct. 281 (2004). After
denial of certiorari, but before our mandate was issued,
Beardslee requested, and we granted, an expanded COA
based on a decision, Sanders v. Woodford, 373 F.3d 1054 (9th
1
Because the district court denied preliminary injunctive relief, we con-
strue this motion as one for “an order . . . granting an injunction while an
appeal is pending.” Fed. R. App. P. 8(a)(1)(C); see Fed. R. Civ. P. 62(c).
 BEARDSLEE v. WOODFORD 923
Cir. 2004), that had been issued during the pendency of
Beardslee’s petition for a writ of certiorari. After briefing and
oral argument, we issued a supplemental opinion denying fed-
eral habeas relief on December 29, 2004. Beardslee v. Brown,
2004 WL 3019188 (9th Cir. Dec. 29, 2004). No COA was
issued during the federal appellate habeas proceedings for
Beardslee’s claim pertaining to the method of execution.

On December 20, 2004, Beardslee filed this § 1983 suit in
federal district court challenging California’s lethal injection
protocol. He also moved the court for a temporary restraining
order and a preliminary injunction enjoining the State from
executing him using the existing lethal injection procedure.
On January 7, 2005, the district court denied the motion for
a temporary restraining order, denied the motion for a prelimi-
nary injunction, and denied the motion for expedited discov-
ery as moot. Beardslee appeals the denial of injunctive relief.

In order to obtain a preliminary injunction on his claim,
Beardslee was required to demonstrate “(1) a strong likeli-
hood of success on the merits, (2) the possibility of irrepara-
ble injury to the plaintiff if preliminary relief is not granted,
(3) a balance of hardships favoring the plaintiff, and (4)
advancement of the public interest (in certain cases).” John-
son v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th
Cir. 1995) (internal quotation marks and citation omitted).
Alternatively, injunctive relief could be granted if he “demon-
strate[d] ‘either a combination of probable success on the
merits and the possibility of irreparable injury or that serious
questions are raised and the balance of hardships tips sharply
in his favor.’ ” Id. (citation omitted). “These two alternatives
represent ‘extremes of a single continuum,’ rather than two
separate tests.” Clear Channel Outdoor Inc. v. City of Los
Angeles, 340 F.3d 810, 813 (9th Cir. 2003) (citation omitted).
Thus, the greater the relative hardship to the party seeking the
preliminary injunction, the less probability of success must be
established by the party. Id. “In cases where the public inter-
est is involved, the district court must also examine whether
924 BEARDSLEE v. WOODFORD
the public interest favors the plaintiff.” Fund for Animals, Inc.
v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992); see also Carib-
bean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th
Cir. 1988).

In capital cases, the Supreme Court has instructed that
“[e]quity must take into consideration the State’s strong inter-
est in proceeding with its judgment.” Gomez v. U.S. Dist.
Court for N. Dist. of California, 503 U.S. 653, 654 (1992). In
such cases, “[a] court may consider the last-minute nature of
an application to stay execution in deciding whether to grant
equitable relief.” Id. Thus, before granting a stay of execution,
courts “must consider not only the likelihood of success on
the merits and the relative harms to the parties, but also the
extent to which the inmate has delayed unnecessarily in bring-
ing the claim.” Nelson v. Campbell, 541 U.S. 637, ___, 124
S. Ct. 2117, 2126 (2004).

We review the denial of a preliminary injunction for an
abuse of discretion. Bay Area Addiction Research & Treat-
ment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir.
1999). “Our review is limited and deferential.” Southwest
Voter Registration Educ. Project v. Shelley, 344 F.3d 914,
918 (9th Cir. 2003) (en banc).2

II

The State contends that Beardslee is not entitled to relief
because he previously litigated this claim in his federal habeas
action. It is true that Beardslee asserted in his federal habeas
petition a generic challenge to California’s two statutory
2
Although we realize that, in this case, the denial of a preliminary
injunction is tantamount to the denial of permanent injunctive relief
because the execution date is imminent, the parties do not dispute that the
“normal,” preliminary injunction standard of review applies. We do not
reach, nor do we decide, whether a different standard of review should
apply under these circumstances.
 BEARDSLEE v. WOODFORD 925
methods of execution, lethal gas and lethal injection. How-
ever, the claims asserted in this § 1983 suit are different. In
this case, Beardslee challenges California’s lethal injection
protocol, rather than the punishment of lethal injection per se,
as asserted in his habeas petition. The State has acknowledged
that a § 1983 action is a proper vehicle by which to challenge
a method of execution, noting that such a challenge was enter-
tained in Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004)
and Fierro v. Gomez, 77 F.3d 301 (9th Cir.), judgment
vacated by 519 U.S. 918 (1996).3

[1] Section 1983 provides the statutory authorization for
most federal court suits against local governments or state and
local government officials to redress violations of federal civil
rights. To bring a § 1983 action, a plaintiff must allege (1) a
violation of a right secured by the Constitution or federal law,
and (2) that this right was violated by someone acting under
color of state law. 42 U.S.C. § 1983. In the instant case, the
plaintiff seeks review of the method by which the sentence
will be carried out, rather than a review of the fact that he was
sentenced to death. He asserts that the defendants, acting
under color of state law, will violate his Eighth Amendment
and First Amendment rights by their use of California’s lethal
injection protocol. Thus, Beardlee’s claim is more properly
considered as a “conditions of confinement” challenge, which
is cognizable under § 1983, than as a challenge that would
implicate the legality of his sentence, and thus be appropriate
for federal habeas review. See Badea v. Cox, 931 F.2d 573,
574 (9th Cir. 1991) (“Habeas corpus proceedings are the
proper mechanism for a prisoner to challenge the ‘legality or
duration’ of confinement. A civil rights action, in contrast, is
3
Cooper did not actually decide this issue. The panel reached the merits,
but expressly declined to address the question of whether the claim was
properly made in a habeas petition, a § 1983 action, or both. Cooper, 379
F.3d at 1031. The Fierro decision was vacated, and ultimately dismissed
on standing grounds. Fierro v. Terhune, 147 F.3d 1158, 1160 (9th Cir.
1998). The Supreme Court recently has also declined to reach the issue.
Nelson, 124 S. Ct. at 2122-23.
926 BEARDSLEE v. WOODFORD
the proper method of challenging ‘conditions of . . . confine-
ment.’ ”) (citation omitted) (revision in original). Therefore,
Beardslee is not foreclosed from asserting this challenge in a
§ 1983 action even though he raised a challenge to the consti-
tutionality of the statute authorizing legal injection in his fed-
eral habeas proceeding.4

III

Relying in large part on our decision in Cooper, the district
court held that, because Beardslee did not file this action until
his execution was scheduled, he was subject to a “strong equi-
table presumption against the grant of a stay [of execution]”
unless he could “make a showing of serious questions going
to the merits that is sufficient to overcome that strong pre-
sumption.” The district court, however, overreads Cooper.
Cooper did not decide whether such a presumption existed;
rather, the decision merely reported the finding of the district
court, then reached the merits.

To be sure, as the Supreme Court has instructed in Nelson
and Gomez, the district court is entitled to take delay into con-
sideration in exercising its equitable powers. However, this
consideration is based on the strong interest against the plain-
tiff engaging in manipulation of the system. See Gomez, 503
U.S. at 654 (“Equity must take into consideration the State’s
strong interest in proceeding with its judgment and [the peti-
tioner’s] obvious attempt at manipulation.”).

[2] In Cooper, the district court made a similar finding
based on the facts and circumstances of that case. Here, how-
ever, the district court appeared to apply the presumption
solely on the basis that Beardslee had not filed the case until
the California Supreme Court lifted its stay of execution.
4
For the same reason, Beardslee’s § 1983 action cannot be considered
a second or successive federal habeas corpus petition governed by 28
U.S.C. § 2254.
 BEARDSLEE v. WOODFORD 927
Once an execution was imminent, Beardslee acted promptly.
Beardslee correctly points out that the precise execution pro-
tocol is subject to alteration until the time of execution. More-
over, by regulation the California Department of Corrections
does not permit challenges to “anticipated action[s].” 15 Cal.
Code Regs. § 3084.3(c)(3).5 A close examination of the record
indicates that, unlike the situation in Cooper or Gomez,
Beardslee pursued his claims aggressively as soon as he
viewed them as ripe.6

[3] In short, the district court erred in applying a general
rule that a claim was dilatory if first filed at the time when the
5
The State claims that, regardless of this regulatory prohibition, Beards-
lee could have brought his administrative challenges earlier. Beardslee
contends that they would have been dismissed as unripe. The plain lan-
guage regulation supports Beardslee’s argument. Whether or not excep-
tions would exist for circumstances such as these is an unsettled question.
Furthermore, there may be some question, in this context, about whether
Beardslee was required to exhaust his state administrative remedies under
the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), prior to filing a
§ 1983 action. However, both parties have assumed that exhaustion was
required, and the same district court in Cooper had dismissed Cooper’s
claims for failing to exhaust remedies. In any case, given the regulation
and prior action, Beardslee cannot be faulted now for pursuit of his admin-
istrative remedies prior to filing this action.
6
To date, we have not resolved the question of when challenges to exe-
cution methods are ripe. In Stewart v. Martinez-Villareal, 523 U.S. 637,
644-45 (1998), the Supreme Court held that an inmate’s competency chal-
lenge was properly dismissed as unripe because “his execution was not
imminent and therefore his competency to be executed could not be deter-
mined at that time.” The Court held that the inmate’s claim was “unques-
tionably ripe” only after it was clear that he “would have no federal habeas
relief for his conviction or his death sentence, and the Arizona Supreme
Court issued a warrant for his execution.” Id. at 643. We have suggested
that a constitutional challenge to an execution method becomes ripe when
the method is chosen. LaGrand v. Stewart, 170 F.3d 1158, 1159 (9th Cir.
1999). However, because the execution protocol is subject to change,
Beardslee argues that his challenge to the protocol, as opposed to a generic
challenge to the statutorily specified method, did not become ripe until his
execution was imminent as described in Martinez-Villareal. We need not,
and do not resolve this question.
928 BEARDSLEE v. WOODFORD
possibility of execution became imminent. Rather, the district
court should have conducted a fact-specific inquiry to ascer-
tain whether the claims could have been brought earlier, and
whether the petitioner had good cause for delay.

IV

Despite the district court’s improper application of a
“strong presumption,” we cannot say, given our deferential
standard of review, that the district court abused its discretion
in denying the motion for a preliminary injunction and stay of
execution based on Beardslee’s Eighth and First Amendment
claims.

A

[4] The Eighth Amendment prohibits punishments that are
“incompatible with ‘the evolving standards of decency that
mark the progress of a maturing society.’ ” Estelle v. Gamble,
429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86,
101 (1958) (plurality opinion)). In the context of executions,
the Eighth Amendment prohibits punishments that “involve
the unnecessary and wanton infliction of pain,” Gregg v.
Georgia, 428 U.S. 153, 173 (1976), “involve torture or a lin-
gering death,” In re Kemmler, 136 U.S. 436, 447 (1890), or
do not accord with “the dignity of man, which is the basic
concept underlying the Eighth Amendment,” Gregg, 428 U.S.
at 173 (internal quotation marks and citation omitted). Thus,
we held that execution by hanging under the State of Wash-
ington’s protocols did not constitute cruel and unusual punish-
ment based on the district court’s findings that the
“mechanisms involved in bringing about unconsciousness and
death in judicial hanging occur extremely rapidly, that uncon-
sciousness was likely to be immediate or within a matter of
seconds, and that death would follow rapidly thereafter.”
Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994) (en
banc). In contrast, although the opinion was later vacated
based on the petitioner’s lack of standing, we held in Fierro
 BEARDSLEE v. WOODFORD 929
v. Gomez that California’s lethal gas execution protocol vio-
lated the Eighth Amendment. 77 F.3d at 308. The basis for
our holding was the district court’s findings that inmates were
likely to remain conscious for up to a minute after the execu-
tion procedure commenced and that there was a substantial
likelihood that some consciousness would persist for several
minutes during which “inmates suffer intense, visceral pain,
primarily as a result of lack of oxygen to the cells.” Id.

[5] In examining the “evolving standards of decency” under
the Eighth Amendment, we employ an “assessment of con-
temporary values concerning the infliction of a challenged
sanction.” Gregg, 428 U.S. at 173. That determination
“should be informed by objective factors to the maximum
possible extent.” Coker v. Georgia, 433 U.S. 584, 592 (1977)
(plurality opinion). Among the “clearest and most reliable
objective evidence of contemporary values is the legislation
enacted by the country’s legislatures.” Penry v. Lynaugh, 492
U.S. 302, 331 (1989). In considering objections to a particular
execution method, our “methodology review focuses more
heavily on objective evidence of the pain involved in the chal-
lenged method.” Campbell, 18 F.3d at 682. In the end, “the
objective evidence, though of great importance, [does] not
‘wholly determine’ the controversy, ‘for the Constitution con-
templates that in the end our own judgment will be brought
to bear on the question of the acceptability of the death pen-
alty under the Eighth Amendment.’ ” Atkins v. Virginia, 536
U.S. 304, 312 (2002) (quoting Coker, 433 U.S. at 597).

In this case, Beardslee challenges San Quentin Institution
Procedure 770, the current protocol by which lethal injection
executions are performed at San Quentin. Under Procedure
770, three chemicals are used to carry out the execution. Five
grams of sodium pentothal (also known as sodium thiopental),
a barbiturate sedative, are first administered to the inmate to
induce unconsciousness. The parties agree that this dosage of
sodium pentothal would be sufficient to induce unconscious-
ness, and even cause death itself, if administered properly.
930 BEARDSLEE v. WOODFORD
This is followed by an injection of pancuronium bromide
(also known as “Pavulon”), a curare-derived agent that para-
lyzes all skeletal or voluntary muscles, but which has no
effect whatsoever on awareness, cognition, or sensation. This
neuromuscular blocking agent causes paralysis and, in suffi-
cient dosages, stops respiration by paralyzing the diaphragm
and lungs. Finally, the inmate is injected with potassium chlo-
ride, an extraordinarily painful chemical which activates the
nerve fibers lining the person’s veins and which interferes
with the rhythmic contractions of the heart, causing cardiac
arrest.

Beardslee claims that there is a substantial risk that sodium
pentothal will not be administered correctly, thereby subject-
ing him to excruciating pain that will be masked to observers
by the paralyzing effects of pancuronium bromide. He con-
tends that if he is conscious during the administration of
pancuronium bromide, he will experience suffocation similar
to that observed in inmates executed by lethal gas. He con-
tends that if he is conscious during the administration of
potassium chloride, he will experience excruciating pain, but
be unable to communicate because of the paralyzing effect of
the pancuronium bromide. The State concedes that if the
inmate is not properly sedated by the first drug, the inmate
will experience torturous pain. However, it vigorously dis-
putes Beardslee’s claim that there is any likelihood that the
first drug will be ineffective to render him unconscious for the
duration of the execution procedure.

In support of his claim, Beardslee recites a number of per-
ceived problems with previous lethal injection executions in
California and toxicology reports from autopsies in other
states which he contends indicates that condemned prisoners
may have been conscious or partly conscious during the
administration of pancuronium bromide. Beardslee also points
to the American Veterinary Medical Association’s
(“AVMA”) prohibition on the use of neuromuscular paralytic
agents, such as pancuronium bromide, in animal euthanasia.
 BEARDSLEE v. WOODFORD 931
He underscores the fact that nineteen states have passed laws
banning, in whole or in part, the use of neuromuscular para-
lytic agents as a means of euthanizing animals. Beardslee
additionally challenges the lack of specificity in Procedure
770, contending that there are many variables that can compli-
cate the proper administration of the drugs, such as the use of
Valium as a pre-execution sedative, and the problems in find-
ing acceptable veins for the insertion of an intravenous tube.

The State argues that twenty-seven of the thirty-seven
states employing lethal injection use the same combination of
chemicals as California; that no court in any state has found
lethal injection or the drugs used in such executions to be con-
stitutionally infirm;7 and that this case is indistinguishable
from Cooper. The State also underscores the concession by
Beardslee’s expert that, if properly administered, a five gram
dose of sodium pentothal would likely be fatal. The State
highlights, as it did in Cooper, its expert’s declaration that all
but an infinitesimally small number of people would be ren-
dered unconscious within a minute after the proper adminis-
tration of sodium pentothal. It contests the conclusions based
on autopsy reports submitted by Beardslee, citing a lack of
information about the specific protocol used in administering
the drugs and the interval of time after death when the
autopsy was performed.

[6] In analyzing these arguments, and considering the
objective factors present in this preliminary injunction record,
we first examine the action by state legislatures. As we
observed in Cooper, “[e]xecution by lethal injection is now
used by 37 of the 38 states with the death penalty.” Cooper,
7
The State also points out that we previously rejected challenges to Ari-
zona’s method of lethal injection in LaGrand v. Stewart, 133 F.3d 1253,
1265 (9th Cir. 1998), and Poland v. Stewart, 117 F.3d 1094, 1104-05 (9th
Cir. 1997). However, as Beardslee correctly responds, those challenges
were not to the execution protocol, did not involve the California proce-
dure at issue here, and were mostly founded on evidentiary deficiencies.
932 BEARDSLEE v. WOODFORD
379 F.3d at 1033.8 Thus, objective evidence of contemporary
values indicates that lethal injection has been deemed an
acceptable means for society to implement a death sentence.
However, this observation does not address the issue raised in
this case because Beardslee is not raising a generic challenge
to lethal injection as a means of execution. Rather, he contests
the specific protocol used in California, most importantly, the
use of pancuronium bromide. In analyzing objective evidence
of contemporary values on that issue, it is somewhat signifi-
cant that at least nineteen states have enacted laws that either
mandate the exclusive use of a sedative or expressly prohibit
the use of a neuromuscular blocking agent in the euthanasia
of animals.9 It is also of some significance that the leading
8
Alabama, Ala. Code 1975 § 15-18-82; Arizona, Ariz. Rev. Stat. Ann.
§ 13-704; Arkansas, Ark. Code Ann. § 5-4-617; California, Cal. Penal
Code § 3604; Colorado, Colo. Rev. Stat. Ann. § 18-1.3-102; Connecticut,
Conn. Gen. Stat. § 54-100; Delaware, Del. Code Ann. tit. 11, § 4209(f);
Florida, Fla. Stat. Ann. § 922.105; Georgia, Ga. Code Ann., § 17-10-38;
Idaho, Idaho Code § 19-2716; Illinois, 725 Ill. Comp. Stat. Ann. 5/119-
5(a)(1); Indiana, Ind. Code Ann. § 35-38-6-1; Kansas, Kan. Stat. Ann.
§ 22-4001; Kentucky, Ky. Rev. Stat. Ann. § 431.220; Louisiana, La. Rev.
Stat. Ann. § 15:569 B; Maryland, Md. Code Ann., Corr. Servs. § 3-905;
Mississippi, Miss. Code Ann. 99-19-51; Missouri, Mo. Rev. Stat.
§ 546.720; Montana, Mont. Code Ann. § 46-19-103; Nevada, Nev. Rev.
Stat. § 176.355 1; New Hampshire, N.H. Rev. Stat. Ann. § 630:5 XIII;
New Jersey, N.J. Stat. Ann. § 2C:49-2; New Mexico, N.M. Stat. Ann.
§ 31- 14-11; New York, N.Y. Correct. Law § 658; North Carolina, N.C.
Gen. Stat. § 15-187; Ohio, Ohio Rev. Code Ann. § 2949.22; Oklahoma,
Okla. Stat. Ann. tit. 22, § 1014; Oregon, Or. Rev. Stat. § 137.473,
amended by 2003 Or. Laws 103; Pennsylvania, Pa. Stat. Ann. tit. 61,
§ 3004; South Carolina, S.C. Code Ann. 24-3-530; South Dakota, S.D.
Codified Laws § 23A-27A-32; Tennessee, Tenn. Code Ann. § 40-23-114;
Texas, Texas Crim. Proc. Code Ann. § 43.14; Utah, Utah Code Ann. § 77-
18-5.5; Virginia, Va. Code Ann. § 53.1-233; Washington, Wash. Rev.
Code Ann. § 10.95.180; and Wyoming, Wyo. Stat. Ann. § 7-13-904. Since
Cooper was decided, the death penalty statutes in New York and Kansas
have been held unconstitutional for reasons other than the method of exe-
cution. People v. LaValle, 817 N.E.2d 341, 367 (N.Y. 2004); State v.
Marsh, 102 P.3d 445, 458-59 (Kan. 1994).
9
The states that expressly forbid the use of neuromuscular blocking
agents to euthanize animals are: Florida, Fla. Stat. §§ 828.058 and
 BEARDSLEE v. WOODFORD 933
professional association of veterinarians promulgated guide-
lines that prohibit the use of a sedative with a muscle-
paralyzing drug for purposes of euthanasia, concluding that
“[a] combination of pentobarbital with a neuromuscular
blocking agent is not an acceptable euthanasia agent” for ani-
mals. 2000 Report of the American Veterinary Medical Asso-
ciation Panel on Euthanasia, 218 J. Am. Veterinary Med.
Ass’n, 669, 681 (2001), at 680.10 Beardslee’s expert opines
that the AVMA condemns this combination due to the risk
that the animal might not be properly sedated by the barbitu-
rate and therefore would be conscious of the severe pain of
asphyxiation while being suffocated by the neuromuscular
blocking agent. In any case, it is quite clear that the AVMA
does not approve of the use of neuromuscular drugs in animal
euthanasia, and this view has been adopted by many states.

In the context of this particular challenge, the more impor-
tant consideration may be the examination of the objective
evidence as to the pain caused by the particular method
employed at San Quentin.

828.065; Georgia, Ga. Code Ann. § 4-11-5.1; Maine, Me. Rev. Stat. Ann.,
tit. 17, § 1044; Maryland, Md. Code Ann., Criminal Law, § 10-611; Mas-
sachusetts, Mass. Gen. Laws ch. 140 § 151A; New Jersey, N.J. Stat. Ann.
4:22-19.3; New York, N.Y. Agric. & Mkts Law § 374; Oklahoma, Okla.
Stat. tit. 4, § 501; and Tennessee, Tenn. Code Ann. § 44-17-303. The
states that mandate the use of particular methods for animal euthanasia,
most often the use of the sedative sodium pentobarbitol, and therefore
implicitly ban the use of neuromuscular blocking agents are: Connecticut,
Conn. Gen. Stat. § 22-344a; Delaware, Del. Code Ann. tit. 3, § 8001; Illi-
nois, 510 Ill. Comp. Stat. 70/2.09; Kansas, Kan. Stat. Ann. § 47-1718(a);
Kentucky, Ky. Rev. Stat. Ann. § 312.181(17) and Ky. Admin. Regs.
16:090 section 5(1); Louisiana, La. Rev. Stat. Ann. § 3.2465; Missouri,
Mo. Rev. Stat. § 578.005(7); Rhode Island, R.I. Gen. Laws § 4-1-34; and
South Carolina; S.C. Code Ann. § 47-3-420; Texas, Tex. Health & Safety
Code Ann. § 821.052(a).
10
The most common protocol for animal euthanasia is a single overdose
of a barbiturate, usually sodium pentobarbital (which is a longer acting
barbiturate than sodium pentothal).
934 BEARDSLEE v. WOODFORD
The procedure used in most states for lethal injections orig-
inated in Oklahoma when Senator Bill Dawson asked Dr.
Stanley Deutsch, then chair of the Anesthesiology Department
at Oklahoma University Medical School, to recommend a
method for executing prisoners through the administration of
intravenous drugs. In a responsive letter, Dr. Deutsch recom-
mended the administration of an “ultra short acting barbitu-
rate” to induce unconsciousness, followed by the
administration of a neuromuscular blocking drug to induce
paralysis and death. See Deborah W. Denno, When Legisla-
tures Delegate Death: The Troubling Paradox Behind State
Uses of Electrocution and Lethal Injection and What It Says
About Us, 63 Ohio St. L.J. 63, 95-97 (2002). Shortly thereaf-
ter, in 1977, Oklahoma became the first state to adopt lethal
injection as an execution method, employing the protocol
described in Dr. Deutsch’s letter. See Rebecca Brannan, Sen-
tence and Punishment: Change Method of Executing Individ-
uals Convicted of Capital Crimes from Electrocution to
Lethal Injection, 17 Ga. St. U. L. Rev. 116, 121 (2000). The
first lethal injection execution occurred in Texas in 1982.
Christina Michalos, Medical Ethics and the Execution Pro-
cess in the United States of America, 16 Med. & L. 125, 126
(1997). Lethal injection has been an authorized method of
execution in California since 1992, and the presumptive
method since 1996. Cal. Penal Code § 3604, amended by
1992 Cal. Legis. Serv. 558 (West), amended by 1996 Cal.
Legis. Serv. 84 (West). Humane concerns formed a large part
of the motivation in adopting lethal injection as the presump-
tive method of execution in California. The California Assem-
blyman who introduced the measure in the wake of concerns
over constitutionality of executing inmates by lethal gas,
stated that lethal injection is “the only form of execution
which from our own life’s experience, we can conclude is
entirely devoid of discomfort.” He further asserted that “[n]o
one knows for sure whether a prisoner suffers in the gas
chamber. . . . With lethal injection, we know exactly what the
person is going through because it’s exactly what someone
 BEARDSLEE v. WOODFORD 935
undergoing surgery experiences.” Jonathan S. Abernethy, The
Methodology of Death: Re-examining the Deterrence Ratio-
nale, 27 Colum. Hum. Rts. L. Rev. 379, 414 (1996).

Although the origins of the addition of potassium chloride
to the combination are uncertain, it probably originated both
from the advice of consulting physicians and Fred Leuchter,
the creator of execution machinery. Denno, When Legisla-
tures Delegate Death, supra, at 99. Twenty-seven states use
the three-drug protocol. Id. at 117. New Jersey uses a two-
drug protocol, administering sodium pentothal with potassium
chloride. Id. North Carolina uses a two-drug protocol, using
sodium pentothal with pancuronium bromide. Id.11

The key element in this procedure is the proper administra-
tion of the barbiturate. It is undisputed that “substantial pain
and suffering can occur when the inmate receives an inade-
quate dosage of sodium pentothal and therefore retains con-
sciousness and sensation during the injection of the second
and third chemicals.” Deborah W. Denno, Getting to Death:
Are Executions Constitutional?, 82 Iowa L. Rev. 319, 380
(1997). Despite the critical nature of correct medical proce-
dure, lethal injection executions are hampered by ethical
restrictions on physicians, who are prohibited from participat-
ing in executions. See generally W. Noel Keyes, The Choice
of Participation by Physicians in Capital Punishment, 22
Whittier L. Rev. 809 (2001). Thus, the prisons must rely on
personnel who may not always be experienced in establishing
an intravenous connection. Compounding this problem is the
fact that some prisoners have collapsed or inaccessible veins
due to drug abuse or because the veins are too deep, too flat,
or below layers of fat. Denno, Getting to Death, supra at 381.
11
The history of the use of the three chemical protocol gives some force
to Beardslee’s argument that the adoption of the procedure in California
was informally based on the observation of two Texas executions by the
then-warden of San Quentin and the precise protocol was never subjected
to the rigors of scientific analysis.
936 BEARDSLEE v. WOODFORD
In some cases, executioners are forced to perform a “cut-
down,” a surgical procedure that exposes the vein. Id. at 382.
In addition, sodium pentothal is a short acting barbiturate that
must be administered properly to induce the desired effect and
thereafter monitored carefully. Id. at 380. The sensitivity to
sodium pentothal varies greatly among the population. Id.
Some individuals, particularly those who have been building
additional resistance by taking Valium or other anti-anxiety
medication, are significantly more resistant to sodium pento-
thal than others. Id.

Beardslee has submitted evidence that he contends shows
that a number of executed inmates in California may have
been conscious, or partially conscious, during the administra-
tion of chemicals that would cause significant pain for a
period similar to the one involved in Fierro. 77 F.3d at 308.
He points to the California execution logs of William Bonin,
Keith Williams, Jaturun Siripongs, and Manuel Babbit, which
contain indications that there were problems associated with
the administration of the chemicals that may have resulted in
the prisoners being conscious during portions of the execu-
tions. This evidence, coupled with the opinion tendered by
Beardslee’s expert, raises extremely troubling questions about
the protocol. Nonetheless, the record before us at this stage is
insufficient to support a conclusion that the district court
abused its discretion in denying the preliminary injunction.

Beardslee tendered an expert opinion based on the witness
accounts and execution logs. However, the value of Beards-
lee’s expert’s interpretations of the witness accounts and exe-
cution log entries was undercut by the expert’s concession
that his expertise regarding the “pharmacokinetics [the time
course of medications in the body] and pharmacodynamics
[the effect of medications on the body] of sodium thiopental”
was inferior to the State’s expert on those matters. See Reid
v. Johnson, 333 F.Supp.2d 543, 547 n.7 (E.D. Va. 2004).
According to the State’s expert, over 99.999999999999% of
the population would be unconscious within sixty seconds
 BEARDSLEE v. WOODFORD 937
from the start of the administration of five grams of sodium
pentothal — which is 12.5 times the normal surgical dosage
— and would render most people unconscious for a period in
excess of 13 hours. Given the comparative expertise of the
experts in different fields, the district court did not abuse its
discretion in crediting the State’s expert’s interpretation.

As the district court correctly observed, the evidence and
the arguments in this case are almost identical to those made
in Cooper. Beardslee’s challenge to the protocol is not based
on any factors peculiar to him, such as those that were at issue
in Nelson involving compromised veins in the condemned
inmate. See 124 S. Ct. at 2121. Furthermore, even Beardslee’s
expert concedes that the amount of sodium pentothal given
under Procedure 770, if properly administered, would likely
be sufficient to cause loss of consciousness and probable
death prior to the administration of pancuronium bromide.

In addition to his challenge to the use of pancuronium bro-
mide as part of Procedure 770, Beardslee also raises a series
of questions about the ambiguity of the procedure and noting
the risks attendant to the improper administration of the drugs.
Obviously, there are risks involved in virtually every method
of execution. However, the Supreme Court has rejected
Eighth Amendment challenges based on an “unforeseeable
accident,” Louisiana ex rel. Francis v. Resweber, 329 U.S.
459, 464 (1947), and has presumed that state officials have
acted “in a careful and humane manner,” id. at 462; see also
Campbell, 18 F.3d at 682 (“The risk of accident cannot and
need not be eliminated from the execution process in order to
survive constitutional review.”).

On the other hand, the State has tendered only minimal evi-
dence in response to Beardslee’s claims. Virtually the only
affirmative evidence tendered by the State was its expert’s
declaration that all but an infinitesimally small number of
people would be rendered unconscious within a minute after
the proper administration of sodium pentothal. The State did
938 BEARDSLEE v. WOODFORD
not defend the protocol. Indeed, the State declined to produce
significant portions of Procedure 770.12 The State did not,
even under repeated questioning at oral argument, provide a
single justification for the use of pancuronium bromide,
which is one of the key issues. This response is, to say the
least, troubling.13

Nonetheless, the question before us is not the ultimate reso-
lution of the merits of this issue. That will have to await
another day, based on a full record. Our “[a]ppellate review
of the grant or denial of preliminary injunctive relief requires
consideration of the merits of the underlying issue, but it does
not decide them.” Cooper, 379 F.3d at 1034 (Browning, J.,
concurring) (citing Roe v. Anderson, 134 F.3d 1400, 1402
(9th Cir. 1998)); Southwest Voter, 344 F.3d at 918). Our
review at this stage is “limited and deferential.” Southwest
Voter, 344 F.3d at 918.

[7] The critical question that we must ultimately answer in
this case is not whether Beardslee has raised serious questions
about the protocol itself, but whether, in this specific chal-
lenge, he has shown enough of a likelihood that he will be
conscious during the administration of pancuronium bromide
and potassium chloride to experience pain. The undisputed
evidence in this limited record is that an administration of five
grams of sodium pentothal will produce unconsciousness, and
perhaps even death, if properly administered. Beardslee has
not shown a sufficient likelihood that the administration will
be improper in his case, or that there are specific risks unique
to him that require modification of the protocol. His objec-
12
The State has advanced no legitimate reason, indeed, no reason at all,
for its refusal to disclose the entire protocol to the condemned prisoner.
13
Indeed, the State’s expert conceded that at least one of the purposes
for the use of pancuronium bromide in the lethal injection protocol is to
prevent seizures that often occur after cardiac arrest induced by the admin-
istration of potassium chloride that could be interpreted erroneously by lay
observers as pain or discomfort. The record does not contain any other
explanation.
 BEARDSLEE v. WOODFORD 939
tions to the use of pancuronium bromide become irrelevant
upon the proper administration of sodium pentothal.

[8] Given the undisputed evidence that death or uncon-
sciousness is likely to occur prior to the administration of
pancuronium bromide and the lack of showing of any unique
risk to Beardslee in this limited record, we cannot say that the
district court abused its discretion in applying the appropriate
balancing tests in the context of this case and denying the pre-
liminary injunction.

B

Beardslee also raises a First Amendment claim. This claim
was not litigated in Cooper. Beardslee contends that the use
of pancuronium bromide will prevent him from audibly and
consciously expressing his pain, thereby denying him his right
to free speech under the First Amendment. Framed in this
manner, Beardslee’s argument is tied to his claim that there
is a risk that he will be conscious when the final two drugs are
administered. On this limited record, he has not made that
showing. Therefore, in the context at this stage of the case, the
district court did not abuse its discretion in denying prelimi-
nary injunctive relief on Beardslee’s independent First
Amendment claim.14
14
We granted the ACLU of Northern California and Death Penalty
Focus leave to file an amici brief in this case, and heard argument from
Amici. Amici argue that the public has a First Amendment right to a
pancuronium bromide-free execution independent of that of Beardslee.
Amici contend that the use of pancuronium bromide serves no purpose
during an execution other than a purpose not recognized by the Constitu-
tion — to prevent viewers from seeing the inmate suffer excruciating pain
and convulse as the lethal chemicals are administered. Thus, Amici claim
that pancuronium bromide acts as a “chemical curtain” interfering with the
public’s right to know. See Cal. First Amendment Coalition v. Woodford,
299 F.3d 868 (9th Cir. 2002). Although their arguments may have merit,
these parties did not intervene in the district court action and their inde-
pendent claims are not properly before us. See Russian River Watershed
Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 n.1 (9th Cir.
1998) (“Generally, we will not consider on appeal an issue raised only by
an amicus.”).
940 BEARDSLEE v. WOODFORD
V

For these reasons, we conclude that the district court did
not abuse its discretion in denying the preliminary injunction,
given the limited record and the context of the case. We
express no opinion on the ultimate merits of the claims.

The district court’s order denying injunctive relief is
AFFIRMED. The motion for a stay of execution is
DENIED.