Towery v. Brewer

Summary

The Ninth Circuit affirmed the denial of a preliminary injunction sought by Arizona death-row inmates challenging the State's 2012 lethal-injection protocol under the Eighth and Fourteenth Amendments. The court evaluated the one-drug protocol as modified by Arizona's representations and commitments concerning execution-team qualifications, backup drugs and catheters, and access to counsel. It held that the modified protocol did not present a substantial likelihood of success on the Eighth Amendment claim and that the asserted equal-protection and counsel-access claims did not warrant preliminary relief.

Holdings

1. The amended 2012 Protocol, as applied to Towery and Moormann and supplemented by the State's binding representations and commitments, did not present a substantial risk of serious harm and therefore did not give the plaintiffs a substantial likelihood of success on their Eighth Amendment claim.
2. The protocol's grant of discretion to the Arizona Department of Corrections Director did not violate the Equal Protection Clause under either a fundamental-rights theory or a class-of-one theory.
3. The plaintiffs did not satisfy the preliminary-injunction requirements, and the request for a stay of execution was denied.
4. The State's binding commitment to permit in-person visits between counsel and Towery and Moormann, including on the morning of execution, resolved the plaintiffs' access-to-counsel challenge for purposes of the appeal.

Questions Presented

1. Whether the modified 2012 Arizona lethal-injection protocol, as supplemented by the State's binding representations and undertakings, created a substantial risk of serious harm in violation of the Eighth Amendment.
2. Whether the protocol's discretionary authority granted to the Arizona Department of Corrections Director violated the Equal Protection Clause under a fundamental-rights or class-of-one theory.
3. Whether the restriction on in-person attorney visits before execution supported preliminary injunctive relief.
4. Whether Towery and Moormann satisfied the requirements for a preliminary injunction or stay of execution.

Disposition

affirmed