Dickens v. Brewer
2011 U.S. App. LEXIS 2543
| 9th Cir. | 2011Background
- Arizona uses a three-drug lethal injection protocol (sodium thiopental, pancuronium bromide, potassium chloride) with safeguards to ensure proper anesthesia.
- Dickens filed a 42 U.S.C. § 1983 action asserting the protocol presents substantial risk of inadequate anesthesia and extreme pain, despite safeguards.
- The district court granted summary judgment for Arizona, applying the Baze plurality standard that safeguards reduce risk below constitutional threshold.
- Arizona amended the November 1, 2007 protocol through a Joint Report, adding background checks, training, and experience requirements for Medical Team Members (MTMs).
- The protocol provides two teams (Special Operations Team and Medical Team), with monitoring via video, microphone, and direct unconsciousness verification.
- Dickens argued questions of fact remained about future compliance with the protocol; the district court and Ninth Circuit analyzed under the controlling Baze standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What standard governs constitutionality of the protocol? | Dickens argues the evidence raises genuine issues about future compliance with safeguards. | Arizona contends Baze plurality standard controls and facial safeguards suffice. | Baze standard controls; safeguards suffice to avoid substantial risk. |
| Does evidence of past noncompliance create a material factual issue under Baze? | Dickens presents past hiring/training issues and execution missteps to show future risk. | Isolated past failures do not prove ongoing substantial risk; protocol amended creates adequate safeguards. | No material factual dispute; past issues do not establish substantial risk under current protocol. |
| Are the protocol’s safeguards, including MTM qualifications and verification steps, constitutionally adequate? | Current safeguards may be insufficient to prevent improper anesthesia. | Safeguards exceed Kentucky’s and are sufficient under Baze. | Safeguards are constitutionally adequate; no substantial risk identified. |
| Should Dickens be allowed to compel a one-drug protocol as a constitutional remedy? | One-drug protocol would guarantee death without pain. | Baze does not require adopting a safer alternative where current protocol is not shown to create substantial risk. | Not required; one-drug protocol rejected as non-mandatory absent substantial risk. |
| Did the district court err by not remanding for further development regarding future compliance? | More discovery is needed to assess future adherence to safeguards. | Baze permits evaluating current safeguards without extensive remand for speculative future conduct. | No remand; current record shows adequate safeguards and compliance. |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (Supreme Court 2008) (plurality upholds constitutionality where safeguards prevent substantial risk of harm)
- Marks v. United States, 430 U.S. 188 (Supreme Court 1977) (guides stability of holding in fragmented decisions)
- Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010) (evidence of past problems does not alone create substantial risk)
- Nooner v. Norris, 594 F.3d 592 (8th Cir. 2010) (current protocol safeguards enough despite past issues)
- Jackson v. Danberg, 594 F.3d 210 (3d Cir. 2010) (procedural safeguards and training reduce risk; isolated errors not enough)
- Cooey v. Strickland, 589 F.3d 210 (6th Cir. 2009) (past procedural failures do not prove ongoing substantial risk)
- Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009) (hiring/qualification concerns weighed against safeguards)
- Harbison v. Little, 571 F.3d 531 (6th Cir. 2009) (additional safeguards not required when existing safeguards are sufficient)
- Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008) (evidence of dosing issues; safeguards evaluated under protocol)
- Morales v. Cate, 623 F.3d 828 (9th Cir. 2010) (context of evaluating California's protocol under safe-harbor standard)