938 F.3d 1069
9th Cir.2019Background
- Plaintiffs: seven Arizona death-row inmates and the First Amendment Coalition of Arizona challenged ADC execution practices under the First Amendment after a series of problematic Arizona executions (notably Joseph Wood).
- Three contested practices: (1) witnesses in an adjacent room are prevented from hearing the execution after IV lines are placed; (2) ADC refuses to disclose manufacturers, lot numbers, NDCs, and expiration dates of lethal-injection drugs; (3) ADC refuses to disclose specific qualifications of personnel who will place IVs.
- Procedural posture: district court dismissed the First Amendment claims under Rule 12(b)(6); plaintiffs appealed. The Ninth Circuit panel reversed in part and affirmed in part and remanded.
- Key factual context: prior botched or problematic executions (Towery, Wood) and Arizona’s practice of last‑minute protocol changes and secrecy motivated the suit and informed the court’s analysis.
- Outcome summary: court held that the public/press have a First Amendment right to hear the sounds of executions in their entirety and that Arizona’s categorical audio cutoff plausibly burdens that right; court held there is no First Amendment right of access to the drug-source/lot/qualification information and rejected the inmates’ access-to-courts claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the First Amendment right of access to governmental proceedings includes the right to hear the sounds of an execution in its entirety | Witnesses must be able to hear the entire execution so the press/public can accurately report and police constitutionality | Audio cutoff protects security, anonymity of execution team, and reduces litigation risk | Held: Yes. Right to hear exists; Arizona’s categorical cutoff plausibly burdens it and lacks a sufficient penological fit; reversed as to this restriction |
| Whether the public/press have a First Amendment right to disclosure of lethal-injection drug source, lot numbers, NDCs, expiration dates, and supplier identities | Disclosure is necessary for public oversight and to assess drug quality/safety | No First Amendment right to government-held information of this kind; privacy/confidentiality and security interests justify nondisclosure | Held: No. First Amendment does not require disclosure of these drug‑source/identifying details; dismissal affirmed as to these claims |
| Whether the public/press have a First Amendment right to disclosure of specific qualifications of execution team members who place IVs | Specific qualifications are necessary to evaluate competency and risk of painful executions | Qualification requirement already in protocol; no First Amendment right to this personnel information; disclosure could harm safety/confidentiality | Held: No. No First Amendment right to detailed personnel qualifications; dismissal affirmed |
| Whether inmates’ First Amendment right of access to the courts entitles them to the requested information to discover and litigate Eighth Amendment claims | Concealment of information actively impedes inmates’ ability to discover and litigate Eighth Amendment challenges | Right of access to courts does not compel the state to provide information to discover grievances; plaintiffs can file claims without affirmative discovery right | Held: No. Court concludes access-to-courts claim fails as a matter of law and dismissal was proper (majority). Concurring/dissenting judge argued the allegations plausibly show deliberate concealment amounting to active interference and would not dismiss at pleading stage |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (2008) (upheld constitutionality of a three-drug lethal-injection protocol)
- Woodford v. Ngo, 299 F.3d 868 (9th Cir. 2002) (public has qualified First Amendment right to view executions in their entirety)
- Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (two-part test for existence of First Amendment right of access)
- Turner v. Safley, 482 U.S. 78 (1987) (prison regulation review; reasonableness test and four-factor analysis)
- Houchins v. KQED, Inc., 438 U.S. 1 (1978) (First Amendment does not create a general right to government information)
- McBurney v. Young, 569 U.S. 221 (2013) (First Amendment does not mandate disclosure of all information available under public‑information laws)
- Lewis v. Casey, 518 U.S. 343 (1996) (right of access to courts does not include right to discover grievances or to litigate effectively by compelling state to provide evidentiary information)
- Christopher v. Harbury, 536 U.S. 403 (2002) (access-to-courts claim may arise where government action actively interferes with litigation; requires an underlying nonfrivolous claim and remedy)
- Wood v. Ryan, 759 F.3d 1076 (9th Cir.) (panel previously granted stay based on need for drug provenance and personnel qualifications; later vacated by Supreme Court)
- Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012) (expressed concern about Arizona’s deviations from protocol and secrecy)
- Towery v. Brewer, 672 F.3d 650 (9th Cir. 2012) (execution nearly violated constitutional limits due to IV placement delay)
- Silva v. Di Vittorio, 658 F.3d 1090 (9th Cir. 2011) (two categories of access-to-courts claims: denial of legal assistance and active interference)
- Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010) (prisoners’ right to meaningful opportunity to challenge their sentences/conditions)
- Phillips v. DeWine, 841 F.3d 405 (6th Cir. 2016) (no First Amendment right to disclosure of identities/sources of execution-drug suppliers)
- Zink v. Lombardi, 783 F.3d 1089 (8th Cir. 2015) (no First Amendment right to suppliers’ identities)
- Wellons v. Commissioner, 754 F.3d 1260 (11th Cir. 2014) (no First Amendment right to qualifications of execution team or drug sources)