Robert Charles Towery v Janice K Brewer
2012 U.S. App. LEXIS 4012
| 9th Cir. | 2012Background
- Death-row inmates in Arizona challenge ADC's 2012 lethal-injection protocol (Order 710) under §1983 on Eighth and Fourteenth Amendment grounds.
- Towery and Moormann sought a preliminary injunction pending litigation; district court denied.
- Arizona shifted from a three-drug to a one-drug protocol just before executions due to a cash-flowing drug expiration, prompting expedited appellate briefing.
- The 2012 Protocol allowed either a three-drug or one-drug approach and granted the Director discretion in IV access, drug choice, and team composition.
- On appeal, the State represented additional amendments at oral argument to ensure constitutionality for Towery and Moormann; issues focus on the one-drug application.
- The court affirms the district court’s denial of the injunction as applied to the 2012 Protocol, based on representations limiting the protocol’s discretion and safeguards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the 2012 Protocol, as applied to the two executions, violate the Eighth Amendment? | Towery | State maintains safeguards and contingency measures render not substantial risk of harm | No substantial likelihood of success on Eighth Amendment grounds. |
| Does the 2012 Protocol's Director-discretion provisions violate the Equal Protection Clause? | Towery | Discretion is rational and necessary given drug availability and staffing | No Equal Protection violation; discretion rationally related to legitimate state interests. |
| Does the prohibition on in-person attorney access after 9:00 p.m. violate due process or rights to counsel? | Towery | Policy safeguards counsel identity and security; prior practice allows visits | Representation commitments preserved; no due process violation under the circumstances. |
| Did last-minute protocol changes moot other challenges? | Towery/Moormann | Changes necessary to ensure constitutionality; binding representations at hearing | Issues narrowed to one-drug protocol as applied; other challenges moot. |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (U.S. (2008)) (substantial risk standard; safeguards suffice to constitutional protocol)
- Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011) (courts review protocol safeguards; not violate Eighth Amendment)
- Hill v. McDonough, 547 U.S. 573 (U.S. (2006)) (stay of execution is not automatic; equitable relief requires balancing)
- Bush v. Gore, 531 U.S. 98 (U.S. (2000)) (fundamental rights—weight is not strictly protected when discretionary state action applies)
- Engquist v. Oregon Dep’t of Agric., 553 U.S. 591 (U.S. (2008)) (class-of-one equal protection limitations do not apply to discretionary state decisions)
- Willowbrook v. Olech, 528 U.S. 562 (U.S. (2000)) (class-of-one doctrine requires rational basis; discretionary decisions carve exceptions)
- Murgia v. Massachusetts Bd. of Retirement, 427 U.S. 307 (U.S. (1976)) (enum of rights; equal protection analysis under rational basis with no fundamental right burden)
- Cook v. Brewer, 637 F.3d 1002 (9th Cir. 2011) (recognizes Baze framework and safeguards in lethal-injection challenges)