680 F.3d 1084
9th Cir.2012Background
- Lopez challenges Arizona’s lethal injection protocol as unconstitutional cruely and unusual punishment under the Eighth Amendment.
- The district court denied Lopez’s request for a preliminary injunction staying the execution; the panel’s opinion affirmed.
- Arizona’s execution procedures are governed by a written protocol that has evolved; access to counsel and public observation are tightly controlled.
- The majority emphasizes recent last-minute protocol changes and representations by state counsel, rather than a fixed, pre-approved protocol.
- There is significant discussion of the Towery and related executions to illustrate potential pain and procedural deficiencies, and concerns about secrecy and record-keeping.
- Dissenters argue the state has deprived Lopez of meaningful due process and public accountability, warranting a stay or remand for fuller discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eighth Amendment risk of serious pain | Lopez argues risk of pain is intolerable | State contends not an intolerable risk given evidence | No proven intolerable risk; no Eighth Amendment violation found |
| Procedural due process and secrecy concerns | Lopez claims due process denied by ad hoc protocol, secrecy, and limited counsel access | State asserts discretion within protocol and no demonstrated denial of due process | Majority: no stay on this basis; Berzon concurrence would stay; due process concerns acknowledged but unresolved in majority |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (U.S. 2008) (risk of serious harm standard for lethal injection)
- Towery v. Brewer, 672 F.3d 650 (9th Cir. 2012) (execution protocol changes; secrecy; IV issues)
- Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011) (pre-existing upheld protocol protections; IV team requirements)
- California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002) (First Amendment access to execution process)
- Ching v. Lewis, 895 F.2d 608 (9th Cir. 1990) (right to in-person access to counsel during confinement)
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (abuse-of-discretion standard and scope of preliminary injunctions)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (due process balancing in administrative hearings)
- Taylor v. Crawford, 457 F.3d 902 (8th Cir. 2006) (written protocols for lethal injection)
- Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009) (summary of protocol framework for lethal injections)