Dickens v. Brewer
| Decision Date | 09 February 2011 |
| Docket Number | No. 09–16539.,09–16539. |
| Citation | 631 F.3d 1139 |
| Parties | Gregory Scott DICKENS; Donald Edward Beaty; Charles M. Hedlund; Robert Wayne Murray; Theodore Washington; Todd Smith, Plaintiffs–Appellants,v.Janice K. BREWER; Carson McWilliams, Warden, ASPF; Robert Stewart, Warden, ASPCE; Unknown Executioners, in their official capacities as Employees, Contractors and/or Agents of the ADC; Charles L. Ryan, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Steven A. Rosenstein and Allen W. Burton, O'Melveny & Myers LLP, New York, NY; Jon M. Sands, Robin C. Konrad and Dale A. Baich, Federal Public Defenders, Phoenix, AZ, for the plaintiffs-appellants.
Kent E. Cattani and Jeffrey A. Zick, Arizona Attorney General's Office, Phoenix, AZ, for the defendant-appellees.Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. 2:07–cv–01770–NVW.Before: PROCTER HUG, JR., D.W. NELSON, and M. MARGARET McKEOWN, Circuit Judges.
Like most states that impose the death penalty, Arizona uses a three-drug lethal injection protocol. Under the protocol, executions are carried out through the sequential administration of three chemicals—sodium thiopental, pancuronium bromide and potassium chloride. The problems that can arise from the use of such a protocol are well known: if the sodium thiopental is not administered correctly, the inmate will be improperly anesthetized during the execution and will experience tremendous pain and suffering from the administration of the pancuronium bromide and potassium chloride. Arizona's protocol contains a number of safeguards intended to ensure proper anesthetization. In this appeal, we are asked to decide whether, despite these safeguards, Arizona's protocol creates an unconstitutional risk that an inmate will be improperly anesthetized and thus experience extreme pain and suffering while dying.
The appellants—Gregory Dickens, Donald Edward Beaty, Charles M. Hedlund, Michael Emerson Correll, Robert Wayne Murray, Theodore Washington, and Todd Smith (referred to collectively as “Dickens”)—are death row inmates in Arizona. In 2007, Dickens brought an action under 42 U.S.C. § 1983, asserting that Arizona's execution protocol violates the Eighth Amendment because of the risk of improper anesthetization. The district court granted summary judgment in favor of Arizona, holding that the protocol contains sufficient safeguards to protect against improper anesthetization and thus is constitutional under the standard set forth by the three-Justice plurality in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008)—not giving rise to a “substantial risk of serious harm” and not “sure or very likely to cause” serious pain and suffering.
On appeal, the heart of Dickens's argument is not that the safeguards in Arizona's protocol are inadequate. Dickens does argue that Arizona should be required to adopt some additional safeguards. His central assertion, however, is that evidence gathered during discovery raises issues of fact as to whether Arizona will follow the protocol and ensure that the existing safeguards are properly implemented. Because the protocol's safeguards are adequate under the Baze standard and because there is no material issue of fact regarding compliance with the protocol, we affirm.
II. BackgroundA. Lethal Injection in Arizona
Arizona has mandated execution by lethal injection since 1992.1 From 1992 to 2000, Arizona executed twenty inmates. Then there was a six-year hiatus—Arizona did not conduct any executions from 2000 to 2006. In 2007, Arizona executed one inmate, Robert Comer, on May 22, 2007.
Arizona uses a three-drug lethal injection cocktail that consists of three chemicals—sodium thiopental, pancuronium bromide and potassium chloride—administered sequentially. Sodium thiopental is a fast-acting barbiturate that anesthetizes the inmate and permits the other chemicals to be administered without causing pain. Pancuronium bromide is a paralytic neuromuscular blocking agent that causes complete paralyzation and suffocation. Potassium chloride induces cardiac arrest. It is uncontested on this record that, if an inmate is not properly anesthetized by the sodium thiopental at the start of the execution, he will experience significant pain and suffering from the administration of the pancuronium bromide and potassium chloride. If the sodium thiopental is administered properly, however, there is no risk of pain during the execution.
Until 2007, Arizona did not have any written procedures for preparing and administering the lethal injection chemicals. Execution procedures were maintained solely “through practical exercises and training.” In the months leading up to Comer's execution in May 2007, Arizona began revising its execution procedures and drafting a written execution protocol. After Comer's execution, Arizona further revised the procedures, eventually producing a written protocol dated November 1, 2007.
During the course of this litigation, Arizona agreed to amend the November 1, 2007 protocol to address some concerns raised by Dickens. Among other amendments, Arizona agreed to conduct license and background checks on all members of the medical team that assists with executions, and to no longer employ certain medical team members who Dickens argued were incompetent. Arizona also added training and experience requirements for medical team members. The amendments are set forth in a Joint Report submitted to the district court on April 9, 2009.
The district court considered the constitutionality of the November 1, 2007 protocol, as amended by the Joint Report (the “Protocol”), and our analysis on appeal is similarly constrained. We have not considered—and express no opinion on—any amendments to the Protocol or any provisions that were not addressed by the district court.2
B. Arizona's Lethal Injection Protocol
Under the Protocol, an execution is carried out by two teams—the Special Operations Team (“SOT”) and the Medical Team. SOT's primary duty is to administer the chemicals. It consists of at least seven medically trained individuals and a team leader; all members must undergo a screening panel and individual interview prior to joining SOT. SOT members must participate in at least ten execution rehearsals per year, and, if a Warrant of Execution issues, train weekly up until the execution.
The Medical Team, which has at least two members, is responsible for inserting the intravenous (IV) catheters through which the chemicals are injected, preparing the chemicals and supervising their administration, and monitoring the inmate. Members of the Medical Team (“MTMs”) must be medically trained personnel, such as physicians, physician assistants, nurses, or emergency medical technicians; they must have at least one year of current and relevant professional experience in their assigned duties. MTMs's professional qualifications, training, experience, professional licenses and certifications are checked prior to hiring. Licensing and criminal history reviews are conducted before hiring, annually and upon the issuance of a Warrant of Execution. The MTMs responsible for inserting the IVs and any MTMs without medical licenses must participate in at least ten rehearsals per year with SOT. All MTMs must participate in at least two rehearsals prior to participating in an actual execution.
According to the Protocol, the chemicals must be administered through IV catheters inserted in the inmate's peripheral veins. The MTMs who place the peripheral lines must have at least one year of current and regular experience with the procedure. If it is not possible to place peripheral lines, an MTM can place a percutaneous central line in the femoral vein in the inmate's thigh. The MTM who places the central line must have at least one year of current and regular experience with the procedure.
The MTMs and the SOT Leader directly observe the inmate throughout the administration of the chemicals, and monitor the inmate's face with a high-resolution, color video camera. A microphone is attached to the inmate's chest so that the teams can speak to and hear the inmate during the execution. The warden remains in the execution chamber throughout the procedure to observe the IV lines and notify the MTMs of any problems.
After the sodium thiopental is administered, the MTMs confirm that the inmate is unconscious by “sight and sound” using the camera and microphone, and an MTM enters the execution chamber to physically confirm unconsciousness. If the inmate is conscious, the Director of the Arizona Department of Corrections may order the SOT members to administer an additional dose of sodium thiopental, and the MTMs go through the same steps to verify unconsciousness. The SOT members cannot administer the pancuronium bromide until the MTMs have confirmed that the inmate is unconscious and at least three minutes have elapsed from the commencement of the administration of the sodium thiopental. The IV lines are flushed with heparin/saline between each injection, to ensure that they are clean and functioning properly.
C. District Court Proceedings
In his original complaint filed in 2007, Dickens asserted that the Protocol carries an unconstitutional risk of inflicting extreme pain and suffering because it does not adequately protect against the risk that he will be insufficiently anesthetized prior to administration of the pancuronium bromide and potassium chloride.
In 2008, while Dickens's suit was in the discovery phase, the United States Supreme Court issued its decision in Baze, in which a plurality held that Kentucky's lethal injection protocol is constitutional because it does not carry a “substantial risk of serious harm.” Id. at 49–50, 128 S.Ct. 1520 (internal quotation and...
To continue reading
Request your trial
-
Isaacson v. Horne
...patients on whose behalf they sue, then plaintiffs have met their burden for an as-applied challenge. 1.See, e.g., Dickens v. Brewer, 631 F.3d 1139, 1142 (9th Cir.2011) (“Arizona uses a three-drug lethal injection cocktail that consists of three chemicals—sodium thiopental, pancuronium brom......
-
Sansing v. Ryan
...the Ninth Circuit has concluded that Arizona's lethal injection protocol does not violate the Eighth Amendment. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). D. Length of Time on Death Row In Claim 28, Petitioner asserts that inordinate delay in carrying out his sentence violates his ri......
-
Andriano v. Shinn
...the Ninth Circuit has concluded that Arizona's lethal injection protocol does not violate the Eighth Amendment. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). In addition, prior to execution, Andriano may present this claim in a separate civil rights action under 42 U.S.C. § 1983. See Hi......
-
United States v. Duvall
...majority result even when Justices in prior precedent had based reasoning on different constitutional amendments); Dickens v. Brewer, 631 F.3d 1139, 1145 (9th Cir.2011) (“When applying the Marks rule, we look for a legal standard which, when applied, will necessarily produce results with wh......