Ninth Circuit stops Arizona execution so inmate can pursue a First Amendment claim

July 20

The Ninth Circuit has handed down a new decision that I find rather puzzling. The case is Wood v. Ryan, and it involves a preliminary injunction of a planned lethal injection so the inmate can litigate a First Amendment claim seeking information about his execution. I’ll give a quick run-down of the court’s analysis, and then I’ll explain why I find it unpersuasive.

Wood, the condemned, is set to be executed by lethal injection in Arizona next week using a combination of two drugs, Midazolam and Hydromorphone. In this case, Wood seeks the following information about the execution:

the source(s), manufacturer(s), National Drug Codes (“NDCs”), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information and documents explaining how the Department developed its current lethal-injection drug protocol.

Wood claims that the First Amendment provides a right of the public to access such details about an execution. So Wood filed a suit seeking access to this information and requested a preliminary injunction of his execution so he can fully litigate the question and hopefully gain access to the information he is seeking. The district court rejected the claim.

In the new decision, a divided panel of the Ninth Circuit held that the district court abused its discretion in denying the motion to preliminarily enjoin the state from executing the inmate so he could pursue his First Amendment claim. The court first holds that there is a likelihood of success on the merits of his claim that the First Amendment provides a right of access to the requested information. The court next holds that the remaining preliminary injunction requirements point in favor of the preliminary injunction. First, a denial of First Amendment freedoms is always irreparable injury. Second, the equities point in favor of an injunction because the state doesn’t appear (in the panel’s view) to have a good reason why it is withholding the information. Third, the public interest is in favor of the injunction, as the public has a strong interest in the First Amendment and in debating methods of execution.

Although I find Judge Bybee’s dissent persuasive on the underlying First Amendment question, I was even more puzzled by the majority’s remedial analysis. I’m not an expert in civil remedies, but there’s something that strikes me as quite odd about the court’s remedies discussion.

Here’s my thinking. Usually, when a plaintiff seeks a preliminary injunction, the requested relief is an injunction of the unlawful conduct. The plaintiff claims that X is unlawful, so he asks the court to preliminarily enjoin X. The court then applies the requirements for a preliminary injunction established by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008): The plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” The Winter requirements amount to an assessment of the pros and cons of enjoining the unlawful act — the likelihood the challenged act is unlawful, the costs of allowing the unlawful act to continue, and the like.

This case is odd because the plaintiff is not trying to enjoin the allegedly unlawful act. Instead, the plaintiff is trying to enjoin his execution — something that is not being challenged here as unlawful — so the plaintiff can effectively pursue the underlying First Amendment claim on the public’s behalf. The extra weird part is that when the court considers whether the plaintiff has satisfied the Winter requirements for the preliminary injunction, the court does not evaluate the pros and cons of the court granting the injunction. Instead, the court evaluates the pros and cons of the plaintiff winning his First Amendment claim. It then uses the outcome of that inquiry to then provide the quite different relief of enjoining the execution. It’s an odd juxtaposition: The Winter requirements concern one claim and the remedy is about a different claim.

Of course, I get the practical connection between the two claims. The plaintiff is trying to find out the details of his execution in part so he can challenge the execution using whatever details are disclosed. He can’t challenge the execution after it occurs, so he needs have the execution stopped first so he can find out more information and then challenge the execution again based on what he learns. I get the strategy. But the legal argument doesn’t fit the strategy, it seems to me. The legal argument is based on a general public right of access to which everyone is entitled; as a legal matter, he’s no more entitled than anyone else who seeks the information to bring the underlying First Amendment claim. Given that, the remedy of preliminarily enjoining the execution doesn’t fit the nature of the claim.

Or so it seems to me. As I said, I’m not an expert in civil remedies, so maybe I’m just missing something. If so, I hope readers will fill me. And I should stress that I’m just analyzing the legal argument as a legal argument: Those who are more inclined to analyze this case through the lens of policy or morality of course may have a very different view.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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