Towery v. Brewer
| Decision Date | 23 February 2012 |
| Docket Number | No. CV-12-245-PHX-NVW,CV-12-245-PHX-NVW |
| Parties | Robert Towery, et al., Plaintiffs, v. Janice K. Brewer, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
DEATH PENALTY CASE
Before the Court is a motion for preliminary injunction filed by Plaintiffs Robert Towery and Robert Moormann, who are Arizona prisoners under sentence of death.1 (Doc. 19.) Moormann is scheduled to be executed on Wednesday, February 29, 2012, and Towery is scheduled to be executed on Thursday, March 8, 2012. On February 6, 2012, Plaintiffs filed a complaint pursuant to 42 U.S.C. § 1983, challenging the manner and means by which the Arizona Department of Corrections ("ADC") intends to execute condemned inmates by lethal injection. (Doc. 1.) An amended complaint was filed on February 10, and the instant motion was filed on February 14. (Docs. 8, 19.) The Court held a preliminary injunction hearing on February 22 and has also considered the complaint, the motion, and all responsive pleadings. This order states the Court's findings of fact and conclusions of law. For the reasons that follow, the Court denies the motion for stay of execution.
The facts underlying Plaintiffs' convictions and capital sentences are detailed in the Arizona Supreme Court's appellate decisions and will not be repeated here. See State v. Towery, 186 Ariz. 168, 174, 920 P.2d 290, 296 (1996); State v. Moormann, 154 Ariz. 578, 744 P.2d 679 (1987). Because Plaintiffs committed their crimes before November 23, 1992, under Arizona law they have the choice to be executed by either lethal injection or lethal gas. See Ariz. Rev. Stat. § 13-757(B). According to the complaint, Plaintiffs have declined to choose. Consequently, ADC must use lethal injection to execute them. Id.
In 2007, a group of Arizona death row prisoners filed a § 1983 complaint challenging numerous aspects of Arizona's then-in-effect lethal injection protocol.2 That protocol was based on Department Order 710, dated November 1, 2007, and as modified by an exhibit submitted by the parties as part of a joint report to the Court. See Dickens v. Brewer, No. CV-07-1770-PHX-NVW, 2009 WL 1904294, at*1& n.2 (D. Ariz. Jul. 1, 2009) (unpublished order). This Court granted summary judgment in favor of Defendants, concluding that Arizona's protocol was "substantially similar" to that approved by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), and thus did not subject inmates to a substantial risk of serious harm in violation of the Eighth Amendment. The Ninth Circuit Court of Appeals affirmed. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011).
The version of the protocol at issue in Dickens required sequential administration of: (1) sodium thiopental (pentothal), an ultra fast-acting barbiturate that induces unconsciousness; (2) pancuronium bromide, a paralytic neuromuscular blocking agent that prevents any voluntary muscle contraction; and (3) potassium chloride, which causes skeletal muscle paralysis and cardiac arrest. "It is uncontested that, failing a proper dose of sodium thiopental that would render [a] prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride." Baze, 553 U.S. at 53.
In October 2010, on the eve of his execution, Arizona prisoner Jeffrey Landrigan filed a § 1983 complaint describing a nationwide shortage of sodium thiopental and alleging that ADC had imported the drug from a non-FDA-approved foreign manufacturer. The district court granted a temporary restraining order to permit further discovery regarding efficacy of the drug. Landrigan v. Brewer, No. CV-10-2246-PHX-ROS, 2010 WL 4269559 (D. Ariz. Oct. 25, 2010) (unpublished order). The Supreme Court reversed, noting that there was "no evidence in the record to suggest that the drug obtained from a foreign source is unsafe" and "no showing that the drug was unlawfully obtained." Brewer v. Landrigan, 131 S. Ct. 445 (2010) (Mem.).
Subsequently, Arizona prisoner Daniel Cook filed a complaint similar to that of Landrigan, alleging an unconstitutional risk of serious pain from use of non-FDA approved sodium thiopental. The district court dismissed the complaint, finding that it failed to sufficiently state a claim for relief. Cook v. Brewer, No. CV-10-2454-PHX-RCB, 2011 WL 251470 (D. Ariz. Jan. 26, 2011) (unpublished order). The Ninth Circuit affirmed and noted that Arizona's protocol contains safeguards that would prevent the administration of the second and third drugs if the prisoner were not sufficiently anesthetized. Cook v. Brewer, 637 F.3d 1002, 1007-08 (9th Cir. 2011) (Cook I). Based on newly-discovered evidence surrounding the foreign-manufactured sodium thiopental and ADC's acquisition thereof, Cook refiled a complaint on the eve of his execution. The district court summarily dismissed the complaint, and the Ninth Circuit affirmed. Cook v. Brewer, No. CV-11-557-PHX-RCB, 2011 WL 1119641 (D. Ariz. Mar. 28, 2011) (unpublished order), aff'd, 649 F.3d 915 (9th Cir.) (Cook II), cert. denied, 131 S. Ct. 2465 (2011).
On May 24, 2011, the night before the scheduled execution of Arizona prisoner Donald Beaty, ADC notified Beaty and the Arizona Supreme Court that it intended to substitute pentobarbital for sodium thiopental in carrying out Beaty's execution but that the remaining aspects of the lethal injection protocol would be followed. In this notice, ADC also stated that the change was necessitated by information it had received that day from the United States Department of Justice, indicating that ADC's supply of sodium thiopental wasimported without compliance with the Controlled Substances Act and could not be used.
Beaty filed a § 1983 complaint, asserting a due process violation from insufficient notice and arguing that a last-minute drug substitution would make it impossible for ADC to comply with the protocol's training requirement, thus subjecting him to a substantial risk of pain and suffering. This Court denied injunctive relief, concluding that the lack of practice with pentobarbital was insufficient to demonstrate a risk of serious harm in light of the protocol's safeguards ensuring the prisoner's anesthetization prior to administration of pancuronium bromide and potassium chloride. Beaty v. Brewer, 791 F.Supp.2d 678, 684 (D. Ariz. 2011). The Ninth Circuit affirmed. Beaty v. Brewer, 649 F.3d 1071 (9th Cir.), cert. denied, 131 S. Ct. 2929 (2011).
On June 10, 2011, ADC amended Department Order 710 to provide for the administration of sodium thiopental or pentobarbital as the first of the three sequentially-administered drugs in its lethal injection protocol.
On July 15, 2011, Thomas West, along with the plaintiffs in Dickens, filed a § 1983 complaint challenging ADC's implementation of its lethal injection protocol. Specifically, the plaintiffs alleged that ADC's failure to follow its written protocol and addition of pentobarbital created a substantial risk of unnecessary pain and violated their rights to due process and equal protection. West also sought emergency injunctive relief to enjoin his impending execution, which was denied. See West v. Brewer, CV-11-1409-PHX-NVW, 2011 WL 2836754 (D. Ariz. Jul. 18, 2011) (unpublished order), aff'd, 652 F.3d 1060 (9th Cir.), cert. denied, 131 S. Ct. 3092 (2011). Thereafter, this Court denied a motion for summary dismissal and ordered expedited discovery.
Following a bench trial in December 2011, the Court entered judgment against the West plaintiffs, finding no constitutional infirmities from ADC's implementation of its lethal injection protocol. West v. Brewer, No. CV-11-1409-PHX-NVW, 2011 WL 6724628 (D. Ariz. Dec. 21, 2011) (unpublished order), appeal docketed, No. 12-15009 (9th Cir. Jan. 3, 2012). In particular, the Court determined that none of the complained-of deviations—default use of a femoral central intravenous ("IV") line; failure to conductrequired background checks of the IV team members, document their qualifications, and ensure IV-setting as part of their current professional duties; and failure to affix multiple labels on syringes and accurately document disposal of unused drugs—created a substantial risk the plaintiffs would be improperly anesthetized or otherwise suffer needless suffering and severe pain. The Court noted that ADC Director Charles L. Ryan has "discretion to deviate from the written protocol when safety, security, or medical issues in individual circumstances require temporary deviation from the written protocol." Id. at *11. However, the Court further observed that the written protocol should reflect actual practice and should be amended if "ADC no longer intends to follow the protocol as currently written." Id.
On January 25, 2012, ADC again amended Department Order 710 ("the January 2012 Protocol"). The revised protocol permits execution using either a three-drug or one-drug protocol and requires ADC's director to choose between these two protocols at least seven days prior to a scheduled execution. Ariz. Dep't Corr., Dep't Order 710, § 710.01, ¶ 1.1.2.4 & Attach. D, § C.1 (Jan. 25, 2012) (hereinafter "DO 710 (Jan. 2012)"). The protocol further directs that the director, upon consultation with the IV team leader, shall determine the catheter sites and that a central femoral venous line may not be utilized unless placed by a medically-licensed physician with relevant experience. DO 710 (Jan. 2012), § 710.02, ¶ 1.2.5.4 & Attach. D, § E.1.
The January 2012 Protocol also changed the composition and experience requirements for the IV (Medical) team:
The IV Team will consist of any two or more of the following: physician(s), physician assistant(s), nurse(s), emergency medical technician(s), paramedic(2), military corpsman, phlebotomist(s) or other appropriately trained personnel including those trained in the United States Military. All team...
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