Beaty v. Brewer

• Decision Date: 25 May 2011
• Docket Number: No. 11–99007.,11–99007.
• Citation: Beaty v. Brewer, 649 F.3d 1071, 11 Cal. Daily Op. Serv. 6382, 11 Cal. Daily Op. Serv. 6481, 2011 Daily Journal D.A.R. 7728, 2011 Daily Journal D.A.R. 7805 (9th Cir. 2011)
• Parties: Donald Edward BEATY, Plaintiff–Appellant,v.Janice K. BREWER, Governor of Arizona; Charles Ryan, Director, Arizona Department of Corrections; Ernest Trujillo, Warden, Arizona Department of Corrections–Eyman; Carson McWilliams, Warden, Arizona Department of Corrections–Florence; Unknown Parties, Names as Does 1–50, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

649 F.3d 1071

11 Cal. Daily Op. Serv. 6382

11 Cal. Daily Op. Serv. 6481

2011 Daily Journal D.A.R. 7728

2011 Daily Journal D.A.R. 7805

Donald Edward BEATY, Plaintiff–Appellant,

v.Janice K. BREWER, Governor of Arizona; Charles Ryan, Director, Arizona Department of Corrections; Ernest Trujillo, Warden, Arizona Department of Corrections–Eyman; Carson McWilliams, Warden, Arizona Department of Corrections–Florence; Unknown Parties, Names as Does 1–50, Defendants–Appellees.

No. 11–99007.

United States Court of Appeals, Ninth Circuit.

May 25, 2011.

Dale A. Baich, Esquire, Robin C. Konrad, Esquire, Assistant Federal Public Defenders, Jon M. Sands, Federal Public Defender, FPDAZ—Federal Public Defender's Office, Phoenix, AZ, Allen W. Burton, O'Melveny & Myers LLP, New York, NY, for Plaintiff–Appellant.Kent Ernest Cattani, Chief Counsel, John Pressley Todd, Esquire, Assistant Attorney General, Arizona Attorney General's Office, Phoenix, AZ, for Defendants–Appellees.D.C.No. 2:11–cv–01037–NVW, District of Arizona, Phoenix.D.C.No. CIV 11–1037–PHX–NVW, District of Arizona, Phoenix.Before: THOMAS, Circuit Judge and Capital Case Coordinator.

ORDER

Pursuant to the rules applicable to capital cases in which an execution date has been scheduled, a deadline was established by which any judge could request a vote on whether the panel's order should be reheard en banc.A judge requested a vote on whether to rehear the panel's decision en banc.Judges Silverman and Ikuta were recused and did not participate in the vote.

A majority of the non-recused active judges did not vote in favor of rehearing en banc.Therefore, the panel's order is the final order of this Court.A copy of the panel order, along with a copy of the district court order to which it refers is attached.Also attached is a dissent from the order denying rehearing en banc and a concurrence in the order.

No further petitions for rehearing or rehearing en banc will be entertained as to the order.The previously issued temporary stay of execution is VACATED.

Before: O'SCANNLAIN, GRABER, and McKEOWN, Circuit Judges.

ORDER

Donald Beaty is scheduled to be executed by the State of Arizona today, Wednesday, May 25, 2011.Earlier today, the district court denied Beaty's Motion for Temporary Restraining Order or Preliminary Injunction.Beaty subsequently filed, in this court, an Emergency Motion Under Circuit Rule 27–3 for an Injunction.

To obtain preliminary injunctive relief, a plaintiff must demonstrate (1) that he is likely to succeed on the merits of such a claim, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.SeeWinter v. Natural Res. Def. Council, Inc.,555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249(2008).We acknowledge that Beaty has a strong interest in being executed in a constitutional manner, but he has not shown that this interest is threatened in this case.For the reasons expressed by the district court, we conclude that Beaty has failed to satisfy this standard.

Accordingly, Beaty's motion is DENIED.

REINHARDT, Circuit Judge, dissenting from the denial of rehearing en banc, with whom Judges SCHROEDER, PREGERSON, W. FLETCHER, FISHER, PAEZ, and BERZON join:

Rushing to execute Donald Beaty under the circumstances before us is unconscionable.At 4:00 p.m. yesterday, a mere eighteen hours before the State was scheduled to execute him, Arizona announced that, due to concerns about the legality of its importation of the drug constitutionally approved for use in its three-drug protocol, it would switch to a new drug that it had never tested and that its executioners had not been trained to use.

The issue before us is not the substantive one of whether substituting drug A for drug B is “very likely” to cause needless suffering.It is the question of procedural due process: whether an individual may be executed pursuant to a protocol substituted for the established means of execution, eighteen hours before the scheduled time of execution and without sufficient opportunity even to present his constitutional objections.

The last-minute action in this case, unlike those previously condemned by the Supreme Court, was taken by the State not the individual about to be executed.Normally, we count against a condemned man seeking a stay “the extent to which the inmate has delayed unnecessarily in bringing the claim.”Nelson v. Campbell,541 U.S. 637, 649, 124 S.Ct. 2117, 158 L.Ed.2d 924(2004).The State should be held to a higher standard, not a lower one.The state's last-minute action serves, whether by design or otherwise, to deprive a capital defendant of a fair opportunity to contest the constitutionality of the new method of death to be used.Surely, under these circumstances, the condemned individual is entitled to attempt to determine and present to the Court any objections that he may legitimately raise to the new execution protocol hastily introduced by the State.

Due Process demands more.“The fundamental requisite of due process of law is the opportunity to be heard.This right to be heard has little reality or worth unless one is informed that the matter is pending....”Mullane v. Cent. Hanover Bank & Trust Co.,339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865(1950)(internal citations omitted).Recently, we observed that “[i]f a court could never look beyond the facial constitutionality of an execution protocol when presented with evidence of improper administration, states could simply adopt constitutionally sufficient protocols similar to Kentucky's and then flout them without fear of repercussion.”Dickens v. Brewer,631 F.3d 1139, 1146(9th Cir.2011).But now Arizona has upped the stakes: Why bother to properly administer a protocol that a court has held is constitutionally sufficient on its face, when you can just discard that protocol and adopt a new one on the eve of the execution?This way, Arizona has ensured itself a way of using a protocol that a court can “never” look at it in any serious fashion, and it can “flout” the requirement for a constitutionally sufficient protocol “without fear of repercussion.”

Beaty has a right to reasonable notice of changes or variations to the mode and manner in which the State plans to carry out his execution in order to review it and ensure that it comports with constitutional requirements.He has a protected interest in knowing and being given an opportunity to be heard about the State's use of pentobarbital in his execution, in contrast to its protocol in past executions.Were it otherwise, the capital defendant's due process right to review such protocols would be meaningless.

The panel denied relief because Beaty failed to demonstrate certain factual matters regarding the new protocol.Yet, we cannot fault him for failing to do so in less than a single day.To require such a showing in the eighteen hours before execution is to deny Beaty due process.The Winter v. Natural Resources Defense Council¹ test relied on by the panel cannot apply when a party has not been given an opportunity to make the necessary showing.Here, Beaty was clearly not afforded that opportunity.A stay should be issued in order to allow him to do so.

We err not only by concluding that Beaty will not suffer irreparable injury, a rather odd proposition to say the least, but by failing to recognize that the judicial system itself will as well.This is not the first time there has been a rush to judgment in a capital case, nor the first time there has been an unwillingness to provide due process to a capital defendant.Our conduct in this case, as in others, will certainly weaken even further the diminishing public confidence in the administration of the death penalty.

TALLMAN, Circuit Judge, with whom Chief Judge KOZINSKI, and Judges O'SCANNLAIN, CALLAHAN, BEA, and M. SMITH join, concurring in the denial of rehearing en banc:

Judge Reinhardt and those who join him fault this Court for failing to further delay the inevitable.They fault us for not giving Donald Beaty yet another opportunity to delay the just punishment he has been resisting for more than twenty-six years.Admittedly, we, like the district court, are “troubled by the timing of both the Department of Justice's request that [the Arizona Department of Corrections's (“ADC”) ] sodium thiopental not be used in Plaintiff's execution and the ADC's decision to substitute pentobarbital.”Nevertheless, we cannot say that Beaty has not been afforded all the process he is due.Apparently, the Supreme Court agrees.While we voted on whether to rehear this case en banc, the Court denied Beaty's petition for certiorari challenging the State's decision to substitute the drugs.Beaty v. Brewer,––– U.S. ––––, 131 S.Ct. 2929, 179 L.Ed.2d 1267, 2011 WL 2029883(2011).

Judge Reinhardt argues that the “issue is not the substantive one of whether substituting drug A or drug B is ‘very likely’ to cause needless suffering.”Not so.Though “the right to procedural due process is ‘absolute,’ ” it is not unmeasured.Carey v. Piphus,435 U.S. 247, 259, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252(1978).“[I]n deciding what process constitutionally is due in various contexts, the Court repeatedly has emphasized that ‘procedural due process rules are shaped by the risk of error inherent in the truth-finding process....' ”Id. at 259, 98 S.Ct. 1042(quotingMathews v. Eldridge,424 U.S. 319, 344, 96 S.Ct. 893, 47 L.Ed.2d 18(1976)).

Had Beaty raised a claim of significant merit, the “risk of error” would have risen and so, too, would the degree of process necessary to satisfy any constitutional concern.However, Beaty did not raise such a claim.To the contrary, Beaty not only failed to provide any factual support for his claim, cf.Brewer v. Landrigan,562 U.S. ––––, 131 S.Ct. 445, 178 L.Ed.2d 346(2010)(“But speculation cannot substitute for...