THE ASSOCIATED PRESS, a New York corporation; IDAHO STATESMAN PUBLISHING, LLC, a Delaware limited liability company doing business as The Idaho Statesman; LEE ENTERPRISES, INCORPORATED, a Delaware corporation doing business as The Times-News; THE IDAHO PRESS CLUB, INC., an Idaho corporation; PIONEER NEWSPAPERS, INC., a Nevada corporation doing business as Idaho Press-Tribune, Idaho State Journal, Standard Journal, Teton Valley News, The News-Examiner, The Preston Citizen, and Messenger Index; TPC HOLDINGS, INC., an Idaho corporation doing business as Lewiston Tribune and Moscow-Pullman Daily News; BAR BAR INC., an Idaho corporation doing business as Boise Weekly; COWLES PUBLISHING COMPANY, a Washington corporation doing business as The Spokesman-Review; IDAHOANS FOR OPENNESS IN GOVERNMENT, INC., an Idaho non-profit corporation, Plaintiffs-Appellants, v. C.L. “BUTCH” OTTER, in his official capacity as the Governor of the State of Idaho; ROBIN SANDY, in her official capacity as Chairman of the Idaho Board of Correction; HOWARD G. “J.R.” VAN TASSEL, in his official capacity as Secretary of the Idaho Board of Correction; JAY NIELSEN, in his official capacity as Vice Chairman of the Idaho Board of Correction; BRENT REINKE, in his official capacity as the Director of the Idaho Department of Correction; KEVIN KEMPF, in his official capacity as Division Chief of Operations of the Idaho Department of Correction, Defendants-Appellees.
No. 12-35456
United States Court of Appeals for the Ninth Circuit
June 8, 2012
D.C. No. 1:12-cv-00255-EJL
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and Marsha S. Berzon, Circuit Judges. Opinion by Judge Reinhardt
Argued and Submitted June 7, 2012—Pasadena, California
Filed and Amended June 8, 2012
Charles A. Brown, Lewiston, Idaho, for the plaintiffs-appellants.
Lawrence G. Wasden, Attorney General; Steven L. Olsen, Chief of Civil Litigation; Michael S. Gilmore, Deputy Attorney General; Mark A. Kubinski, Lead Deputy Attorney General, Idaho Department of Correction; Thomas C. Perry, Counsel to the Governor, Boise, Idaho, for the defendants-appellees.
ORDER
The opinion filed on June 8, 2012 is hereby amended by the insertion of a footnote after line 14 of page 3, reading as follows: “Although the State was at fault, the plaintiffs, as noted by the district court, could have mitigated this situation by filing the lawsuit earlier, because they had notice as of February 2012 that the State believed it was in compliance with California First Amendment Coalition.”
OPINION
REINHARDT, Circuit Judge:
Nearly a decade ago, we held in the clearest possible terms that “the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, including those ‘initial procedures’ that are inextricably intertwined with the process of putting the condemned inmate to death.” California First Amendment Coalition v. Woodford, 299 F.3d 868, 877 (9th Cir. 2002). The State of Idaho has had ample opportunity for the past decade to adopt an execution procedure that reflects this set-
We reverse the district court‘s denial of a preliminary injunction and remand for the entry of such an injunction forthwith, and in any event prior to the impending execution of Richard Leavitt.
I
The dispute here is narrow. Under its current execution procedure, the State would allow witnesses to view the final portion of Leavitt‘s execution, beginning with the reading of the death warrant and concluding with the pronouncement of death. As in the Rhoades execution, however, the State does not intend to allow witnesses to view the first part of the procedure, beginning with Leavitt‘s entry into the execution chamber, through the insertion of intravenous lines into his body.
The State asserts what it considers to be four legitimate penological objectives that, in its view, override the First Amendment right of public access to executions in their entirety. First, it says, it wishes to preserve the condemned prisoner‘s privacy and dignity. Second, it wishes to respect the sensibilities of the condemned prisoner‘s family. Third, it wishes to do the same for his fellow death-row inmates. Fourth, it wishes to protect the anonymity of the members of the medical team who participate in the execution. Under California First Amendment Coalition, the State can prevail if the limitation of the plaintiffs’ First Amendment right is “reasonably related to legitimate penological objectives,” rather than “an exaggerated response to those concerns,” Turner v. Safley, 482 U.S. 78, 87 (1987) (internal quotation marks omitted). See 299 F.3d at 879 (adopting the Turner standard).
[1] “A plaintiff seeking a preliminary injunction must establish” four elements: “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.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “We review a district court‘s decision to grant or deny a preliminary injunction for abuse of discretion. In deciding whether the district court has abused its discretion, we employ a two-part test: first, we ‘determine de novo whether the trial court identified the correct legal rule to apply to the relief
II
We hold that the district court abused its discretion with respect to each of the four elements that the plaintiffs must establish.
A
[2] First, the plaintiffs are quite likely to succeed on the merits of their First Amendment claim. As discussed above, California First Amendment Coalition makes clear that the First Amendment protects the public‘s right to witness all phases of Leavitt‘s execution, including the portion that the State now shields from view. Although the State argued below that California First Amendment Coalition‘s interpretation of the First Amendment was premised in part on the history of public executions in California—a history that, the State asserted, differed from Idaho‘s—the district court rejected this argument, and the State does not raise it on appeal. The only question as to the merits, then, is whether the State has asserted legitimate penological interests sufficient to overcome the First Amendment right of public access. See California First Amendment Coalition, 299 F.3d at 879 (adopting as the relevant inquiry “whether a prison regulation that burdens fundamental rights is reasonably related to legitimate penological objectives, or whether it represents an exaggerated response to those concerns” (internal quotation marks omitted)).
[3] Here, the plaintiffs showed that they are likely to succeed on the merits simply by pointing to our prior opinion in
[4] The State‘s interest in preserving the anonymity of medical team members who participate in the execution is more substantial. We considered this interest at length in California First Amendment Coalition, however, characterizing California‘s “fear that execution team members [would] be publicly identified and retaliated against” as “an overreaction, supported only by questionable speculation,” 299 F.3d at 880, and upholding the factual finding “that ‘[t]he use of surgical garb is a practical alternative to restricting access to witness lethal injection executions in order to conceal the identity of such execution staff should security concerns warrant such concealment,‘” id. at 884. The State has made no serious attempt to explain why medical team members in Idaho might be less likely to remain anonymous than those in California
[5] Nor has the State provided any support whatsoever for its speculation that it may be unable to recruit and retain medical team members to participate in executions. The declaration of Jeff Zmuda, Deputy Chief of the Idaho Bureau of Prisons, makes only a bare assertion to that effect. Given that there are only five members of the current medical team, it would have been a simple matter for the State to submit evidence, such as a declaration filed under seal from a team member or a declaration from an official who had spoken with the team members, that any one of those members was even considering withdrawing from participation in either Leavitt‘s execution or any future execution. At oral argument, we invited the State to produce, even at this late date, any such evidence that it might be able to obtain. We conclude from the State‘s failure to do so that no such evidence exists.
[6] The district court was correct to have “significant concerns” regarding the State‘s arguments. Dist. Ct. Order at 14-15. The court abused its discretion, however, by failing to recognize, in light of these concerns, that the plaintiffs are likely to succeed in showing that the State‘s limitation on witness access is not “reasonably related to legitimate penological objectives” but rather “represents an exaggerated response to those concerns,” Turner, 482 U.S. at 87 (internal quotation marks omitted).
B
[7] The district court also held that the plaintiffs had failed to show that they would suffer irreparable harm in the absence
C
[8] Our balancing of the equities—like the district court‘s—turns on whether there is any realistic possibility that a preliminary injunction will delay Leavitt‘s execution. We reject each of the three premises on which the district court believed that such a delay could occur. First, there is minimal chance that the injunction will lead to a successful stay application by Leavitt. Not only is the prospect of any such application speculative, but if filed, it would likely fail. Second, in light of the minimal changes that an injunction might require and the State‘s failure to specify the nature of any such change, we have trouble imagining why an alteration to the training procedures would be necessary. Even if such a change were required, the State has not explained why it would delay the execution. Third, as noted earlier, the State has failed to do
D
[9] For the same reason, we have no doubt that the entry of a preliminary injunction promotes the public interest. “Courts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). The district court relied instead on the public interest in the timely enforcement of criminal judgments. Although we recognize that interest as legitimate, it lacks any weight in light of our conclusion that no delay will occur.
III
[10] We reverse the district court‘s denial of a preliminary injunction and remand for the entry of an order requiring the State to allow witnesses to observe Leavitt‘s entire execution, “from the moment [he] enters the execution chamber through, to and including, the time [he] is declared dead.” California First Amendment Coalition, 299 F.3d at 886 (internal quotation marks omitted).
The mandate shall issue forthwith.
REVERSED and REMANDED.