California First Amendment Coalition v. Woodford, 00-16752.

• Citation: 299 F.3d 868
• Decision Date: 02 August 2002
• Docket Number: No. 00-16752.,00-16752.
• Parties: CALIFORNIA FIRST AMENDMENT COALITION; Society of Professional Journalists, Northern California Chapter, Plaintiffs-Appellees, v. Jeanne WOODFORD, Acting Warden, San Quentin Prison; Calterhune, Director of California Department of Corrections, Defendants-Appellants, and Arthur Calderon, Warden; James Gomez, Director, Department of Corrections, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 868

299 F.3d 868

CALIFORNIA FIRST AMENDMENT COALITION; Society of Professional Journalists, Northern California Chapter, Plaintiffs-Appellees, v. Jeanne WOODFORD, Acting Warden, San Quentin Prison; Calterhune, Director of California Department of Corrections, Defendants-Appellants, and Arthur Calderon, Warden; James Gomez, Director, Department of Corrections, Defendants.

No. 00-16752.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 4, 2001.

Filed August 2, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas S. Patterson, Deputy Attorney General, San Francisco, CA, for the defendants-appellants.

David M. Fried, (argued) Law Offices of David M. Fried; Alan L. Schlosser, American Civil Liberties Union Foundation of Northern California, Jeffrey S. Ross, Craig E. Stewart and Michael J. Kass, Pillsbury Winthrop LLP, San Francisco, CA, for the plaintiffs-appellees.

Roger R. Myers and Lisa M. Sitkin, Steinhart & Falconer, San Francisco, CA, for the amici curiae Associated Press; Cable News Network; The Copley Press, Inc.; The Hearst Corporation dba the San Francisco Chronicle; Los Angeles Times Communications LLC dba the Los Angeles Times; The McClatchy Company dba The Sacramento Bee; Media News Group, Publisher of the Oakland Tribune and Marin Independent-Journal; and The California Newspaper Publisher's Association.

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

Before BRIGHT,^* B. FLETCHER and FISHER, Circuit Judges.

OPINION

FISHER, Circuit Judge.

This appeal concerns the restriction on viewing lethal injection executions imposed on the public and the press by San Quentin Institutional Procedure 770. We hold that Procedure 770 is an exaggerated, unreasonable response to prison officials' legitimate concerns about the safety of prison staff and thereby unconstitutionally restricts the public's First Amendment right to view executions from the moment the condemned is escorted into the execution chamber.

FACTUAL AND PROCEDURAL BACKGROUND

In assessing the reasonableness of Procedure 770's viewing restriction, it is helpful to understand the execution process. California executions take place in San Quentin State Prison, in a sealed octagonal room that has four large windows facing an adjoining witness area. The witness area accommodates as many as 50 people to watch the execution, including four prison guards, 12 official witnesses, 17 news media witnesses and up to five individuals requested by the prisoner. A curtain may be drawn over the windows to obscure the witnesses' view of the execution chamber. Approximately 25 minutes before the execution is scheduled to take place, four guards escort the condemned inmate from a special overnight holding cell to the execution chamber. Though his legs are free, the condemned is handcuffed and his wrists are shackled to his waist. Upon entering the execution chamber, the condemned is laid on a gurney, to which he is secured with six straps. Next, two of the four guards leave and two medical technicians enter to insert two intravenous lines (one is redundant, in the event the main line fails). Once the intravenous lines are inserted, a saline solution begins to flow into the inmate's veins and all staff exit the chamber. The warden then gives the order to dispense a progression of chemicals — sodium pentothal, to render the inmate unconscious, followed by pancuronium bromide, to stop his lungs, and finally potassium chloride, to stop his heart.

Historically, representatives of the public and the press have been allowed to witness California's entire execution process from start to finish. During the era of the gas chamber (beginning in 1937), that meant watching the prison staff escort the prisoner into the execution chamber (the same chamber where lethal injection executions now take place), strap him into the chair and administer the lethal gas until he was declared dead. However, for the execution of William Bonin — the first lethal injection execution in California — San Quentin officials implemented Procedure 770, which prohibits witnesses from observing the execution until after the execution team members exit the chamber. Thus, witnesses were not permitted to watch Bonin as the guards brought him into the chamber, tied him down to the gurney, inserted the intravenous lines and left him alone to await the warden's order to dispense the chemicals. Rather, by the time prison officials opened the chamber curtains, permitting the witnesses to see inside the chamber, Bonin lay motionless on the gurney, appearing to be asleep or sedated. (Bonin had not, in fact, been sedated.) The lethal chemicals were then administered — without any announcement to the witnesses — and after several minutes, Bonin was declared dead. The witnesses, therefore, observed Bonin as he died, but were unable to see the processes leading to that point.

Following Bonin's execution, the California First Amendment Coalition and the Society of Professional Journalists, Northern California Chapter ("plaintiffs"), whose members attend and report on executions in California, sued in federal court and obtained a preliminary injunction prohibiting the named prison officials ("defendants") "from preventing witness observations of executions from at least just before the time intravenous tubes are inserted to at least just after death." Two days later, Keith Daniel Williams was executed, and witnesses were permitted to observe the insertion of the intravenous lines. We affirmed the preliminary injunction in an unpublished memorandum disposition. Cal. First Amend. Coalition v. Calderon, 92 F.3d 1191, 1996 WL 442471 (9th Cir. Aug.5, 1996) ("Cal. First Amend. I").

The district court subsequently granted summary judgment to the plaintiffs and entered a slightly broader permanent injunction, directing defendants to "allow the witnesses to executions by lethal injection to view the procedure at least from 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." Cal. First Amend. Coalition v. Calderon, 956 F.Supp. 883, 890 (N.D.Cal. 1997). On appeal to this Court, we reversed the district court's summary judgment for plaintiffs because we concluded that Procedure 770 did not — on the record then before the Court — violate whatever First Amendment right plaintiffs might have to view executions. Rather, absent substantial evidence that Procedure 770 was an exaggerated response by prison officials to asserted concerns "directly related to prison security, staff safety, and the orderly operation of the institutional procedure," we were prepared to defer to those officials. Cal. First Amend. Coalition v. Calderon, 150 F.3d 976, 982-83 (9th Cir.1998) ("Cal. First Amend. III") (internal quotation marks omitted). We remanded to the district court "to determine whether [plaintiffs have] presented `substantial evidence' that Procedure 770 represents an exaggerated response to [defendants'] security and safety concerns." Id. at 983.¹

In accordance with our remand instructions, the district court heard evidence during two days of trial regarding the prison officials' security and safety concerns and the reasonableness of Procedure 770 in addressing them. The district court agreed that ensuring prison staff safety is a legitimate safety concern, but found on the evidence presented that "restricting public access to view lethal injection executions to a degree greater than that afforded to view lethal gas executions is an exaggerated response to defendants' safety concerns." Cal. First Amend. Coalition v. Woodford, No. C-96-1291-VRW, 2000 WL 33173913 at *6 (N.D.Cal. July 26, 2000); see also id. at *4-6 (discussing specific reasons for so finding). It therefore permanently enjoined the defendants "from preventing uninterrupted viewing of executions from the moment the condemned enters the execution chamber through to, and including, the time the condemned is declared dead." Id. at *11.

As a result of the appellate proceedings, which reversed the district court's injunction, Procedure 770 was in effect at the executions of Thomas M. Thompson on July 14, 1998; Jaturan Siripongs on February 9, 1999; Manuel Babbitt on May 4, 1999 and Darrell Keith Richard on March 15, 2000. Following the district court's entry of its post-trial injunction, California executed Robert Lee Massie on March 27, 2001 and Stephen Wayne Anderson on January 29, 2002.

STANDARD OF REVIEW

We review de novo the constitutionality of Procedure 770, the district court's conclusions of law and its determinations on mixed questions of law and fact. See Neal v. Shimoda, 131 F.3d 818, 823 (9th Cir. 1997). We review the district court's findings of fact for clear error, and we will not disturb those findings without a "definite and firm conviction that a mistake has been committed." Jones v. United States, 127 F.3d 1154, 1156 (9th Cir.1997). "If the district court's' account of the evidence is plausible in light of the record viewed in its entirety,' we may not reverse even if we are convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently." Id.

ANALYSIS

The issues presented involve the balance between the State's ability to carry out executions in a safe and orderly manner and the public's right to be informed about how the State and its justice system implement the most serious punishment a state can exact from a criminal defendant — the penalty of death. Given our previous opinion in California First Amendment III, we do not write on a blank slate. Nonetheless, because the issues are important and Procedure 770 will govern future executions — indeed, there have been seven during the pendency of this litigation — we review the historical and constitutional...