California First Amendment Coalition v. Calderon

• Decision Date: 28 April 1998
• Docket Number: No. 97-15493,97-15493
• Citation: 138 F.3d 1298
• Parties: 26 Media L. Rep. 1629, 98 Cal. Daily Op. Serv. 3140, 98 Daily Journal D.A.R. 4347 CALIFORNIA FIRST AMENDMENT COALITION; Society of Professional Journalists, Northern California Chapter, Plaintiffs-Appellees, v. Arthur CALDERON, Warden; James Gomez, Director, Dept. of Corrections, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1298

138 F.3d 1298

26 Media L. Rep. 1629, 98 Cal. Daily Op. Serv. 3140,

98 Daily Journal D.A.R. 4347

CALIFORNIA FIRST AMENDMENT COALITION; Society of

Professional Journalists, Northern California

Chapter, Plaintiffs-Appellees, v. Arthur CALDERON, Warden; James Gomez, Director, Dept. of

Corrections, Defendants-Appellants.

No. 97-15493.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 11, 1997.

Decided April 28, 1998.

Karl S. Mayer, Office of Atty. Gen., San Francisco, California, for defendants-appellants.

David M. Fried, Law Offices of David M. Fried, San Francisco, California, for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California; Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-96-01291-VRW.

Before: BROWNING, PREGERSON, and HAWKINS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

Arthur Calderon, Warden of San Quentin Prison, and James H. Gomez, Director of the California Department of Corrections (collectively "Calderon"), appeal the district court's injunction requiring them to allow witnesses to executions by lethal injection to view the procedure from the time the inmate is secured to the gurney until just after the pronouncement of death. The injunction was granted in an action brought pursuant to 42 U.S.C. § 1983 by the California First Amendment Coalition and the Society of Professional Journalists, Northern California Chapter, alleging that the defendants' handling of the February 23, 1996 execution of William Bonin violated the public's First Amendment right of observation of and access to government proceedings.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

FACTS AND PRIOR PROCEEDINGS

The History and Scope of Access to Executions in California

Before 1858, California had public hangings. See People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, 890 n. 25 (1972). In 1858, the California Legislature passed a statute moving executions inside county jails and requiring "at least 12 reputable citizens" to be in attendance. The current witness statute, Cal.Penal Code § 3605, is virtually identical to the 1858 statute. ¹

Although neither § 3605 nor the 1858 statute requires that members of the press be present, members of both the press and the public have attended executions in California from the 1860's until the present. ² While logistical and other concerns have kept most members of the general public from attending executions, the press has been a constant presence.

As witnesses to executions, members of both the media and the general public traditionally have had some access to the events surrounding the execution itself. This access has enabled the press to observe and report on matters such as the condemned's demeanor in his final minutes as well as any final words he may have spoken. For example, until California abandoned hanging as a method of execution in 1936, witnesses in that state could view executions in their entirety, from the condemned's ascent up the gallows to the fall of the trap door. ³ Similarly, when California switched to lethal gas in 1937, witness observation of executions began from the time the condemned was escorted into the gas chamber until pronouncement of death. ⁴ Eyewitness media reports of the first lethal gas executions sparked public debate over this form of execution and the death penalty itself. ⁵

California is currently enjoined from using lethal gas as a method of execution. See Fierro v. Gomez, 77 F.3d 301 (9th Cir.1996). In the two most recent lethal gas executions, consistent with historical practice and San Quentin Institution Procedure No. 769 (the applicable procedure for lethal gas executions), witnesses were allowed to be present in the observation room before the inmate was led into the gas chamber.

Currently, California uses only lethal injection. In implementing this form of execution in 1992, new regulations were issued limiting witness observation of the execution, San Quentin Institution Procedure No. 770 ("Procedure 770"). ⁶ Procedure 770 provides, in part, that before witnesses are present in the observation room: (1) the condemned is escorted into the chamber and strapped to the gurney; (2) the execution team inserts two intravenous ("IV") tubes into the inmate's veins; (3) the team leaves the chambers; and (4) the normal saline IV's are started and are running properly. Witnesses in the observation room are then able to view the condemned and, pursuant to the Warden's command, lethal chemicals are administered until the inmate is dead.

While Procedure 769 allows witnesses to lethal gas executions to view the execution from the time the condemned is led into the gas chamber and strapped into the chair, Procedure 770 allows witnesses to lethal injection executions to view the process only after the condemned has been strapped to the gurney and an IV saline solution is running. Lethal gas executions expose the prison staff for approximately one minute, while lethal injection executions can take as much as twenty minutes for the staff to prepare the condemned for execution. Calderon explains that twenty minutes of exposure to witnesses will increase the likelihood of an identification of execution team members. In turn, "[t]his would subject the officers' and their families to harassment and intimidation which would impact the officers' execution of their duties and would compromise the safety and security of the officers, their families, and the institution." It is out of this concern for staff safety and institutional security that Calderon adopted Procedure 770.

Procedure 770 was followed for the first and only time at the execution of William Bonin on February 23, 1996. ⁷ After Bonin had been strapped to the gurney and the IV inserted, witnesses were admitted to the observation room and the curtain was drawn aside. The witnesses could see Bonin motionless as he was strapped to the gurney with the IV tubes already inserted and running. Five minutes later, the witnesses were told that Bonin was dead. According to the district court:

[W]itnesses were allowed to enter the observation room adjoining the execution chamber only after the condemned had been strapped to the gurney and the intravenous ("IV") tubes had been inserted into his arms. The witnesses did not hear the execution order. After several minutes in the observation room, the witnesses were told that the prisoner was dead.

California First Amendment Coalition v. Calderon, 956 F.Supp. 883, 884 (N.D.Cal.1997). The witnesses' information concerning those portions of the execution they were not allowed to see, including the execution team's difficulty in administering the procedure (i.e., insertion of the IV tubes), was limited to what they were told by prison officials.

The District Court Proceedings

Plaintiffs, the California First Amendment Coalition and the Society of Professional Journalists, Northern California Chapter ("Coalition"), brought an action against Arthur Calderon, Warden of San Quentin Prison, and James H. Gomez, Director of the California Department of Corrections, alleging that Calderon's new practices violated their First and Fourteenth Amendment rights to view crucial aspects of the execution. The Coalition filed a complaint as well Calderon appealed the preliminary injunction and filed a request for an emergency stay of the injunction, which we denied. California First Amendment Coalition v. Calderon, No. 96-15798, 1996 WL 442471 (August 5, 1996).

as a motion for preliminary injunction in April 1996. The district court granted the Coalition's motion, entering a preliminary injunction which prohibited defendants from "preventing witness observation of executions from at least just before the time intravenous tubes are inserted to at least just after death."

In the fall of 1996, the parties filed cross-motions for summary judgment in the district court. The district court granted the Coalition's motion for summary judgment in February 1997. See California First Amendment Coalition, 956 F.Supp. at 883. In granting summary judgment, the district court entered a permanent injunction restraining Calderon from preventing the witnesses from "view[ing] the procedure from at least the point in time just prior to the condemned being immobilized, that is strapped to the gurney or other apparatus of death, until the point in time just after the prisoner dies." Id. at 890.

Calderon appeals the district court's judgment and order of permanent injunctive relief.

STANDARDS OF REVIEW

A grant of summary judgment is reviewed de novo. See Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997). The appellate court's review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c). See Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1054 (9th Cir.1997). This court must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. See Covey, 116 F.3d at 834.

Moreover, a district court's ruling on the constitutionality of a state statute is reviewed de novo. See Bland v. Fessler, 88 F.3d 729, 732 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 513, 136 L.Ed.2d 403 (1996); NCAA v. Miller, 10 F.3d 633, 637 (9th Cir.1993).

STANDING

Under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977):

an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Applying this test, we...