Joseph Wood, III v. Charles Ryan

Joseph Wood (“Wood”) is scheduled to die by lethal injection on July 23, 2014. Wood seeks information from the Arizona Department of Corrections (“Department”) regarding the method of his execution, which the Department has not provided. Wood argues that, by withholding this information, the Department has violated his First Amendment rights. He seeks a *1078 preliminary injunction delaying his execution until he receives the information. The district court denied Wood’s motion. Although we do not reach the ultimate merits of the case, we conclude that Wood has presented serious questions going to the merits of his claim, and that the balance of hardships tips sharply in his favor. We therefore reverse the district court’s denial of the motion for a preliminary injunction.

I

A

Wood was convicted and sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz. His conviction and sentence were affirmed on direct appeal by the Arizona Supreme Court. State v. Wood, 180 Ariz. 53 , 881 P.2d 1158, 1177 (1994). The United States Supreme Court denied Wood’s Petition for a Writ of Certiorari. Wood v. Arizona, 515 U.S. 1147 , 115…

dissenting from the denial of rehearing en banc:

I have little doubt that the Supreme Court will thwart this latest attempt to interfere with the State of Arizona’s efforts to carry out its lawful sentence and bring Wood to justice for the heinous crimes he committed a quarter century ago. There is little I can add to the irrefutable arguments in Judge Bybee’s dissent and Judge Callahan’s dissental. If Baze could not get a stay of execution under the Eighth Amendment, see Baze v. Rees, 553 U.S. 35, 62-63 , 128 S.Ct. 1520 , 170 L.Ed.2d 420 (2008), Wood certainly is not entitled to one under the First.

I take the occasion to point out how we got here. Until about three decades ago, executions were carried out by means designated for that purpose alone: electric chairs were the most common, but gas chambers, hanging and the occasional firing squad were also practiced. See generally Kirk Johnson, In Utah, Execution Evokes Eras Past, N.Y. Times, June 16, 2010, available at http://goo.gl/duIwV0 (discussing Gary Mark Gilmore’s execution by firing squad). Most of these means were challenged on Eighth Amendment grounds, but the challenges were largely unsuccessful. See Poyner v. Murray,…

with whom Chief Judge KOZINSKI, Judge O’SCANNLAIN, Judge McKEOWN, Judge TALLMAN, Judge BYBEE, Judge BEA, Judge M. SMITH, Judge IKUTA, Judge N.R. SMITH, and Judge OWENS join, dissenting:

I dissent from our decision not to take this case en banc. The panel’s opinion reversing the district court’s denial of an injunction based on the creation of a First Amendment right to government information 1 is contrary to Supreme Court precedent, 2 is not sound, and creates a circuit split. 3 Furthermore, the opinion’s limits— information “intrinsically intertwined” with this newly recognized right — are amorphous at best, and if not vacated, will be *1104 invoked every time a state sets an execution date.

My concerns are addressed in Judge Bybee’s compelling dissent. For example, he explains that the two “complementary considerations” set forth in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (“Press-Enterprise II”), are not met. 5 Executions historically have been open to the public, but this does not mandate revealing the manufacturer of the lethal drugs. Similarly, it is a stretch to argue that the identity of the manufacturer is critical to the public discussion of the…

dissenting:

Arizona intends to execute Joseph R. Wood III on July 23, 2014. On the eve of his execution, Wood asserts a generalized First Amendment right of public access to information in the government’s possession regarding the State’s supplier of lethal drugs, its execution personnel, and the manner in which the State developed its lethal-injection protocol. Wood asks this court to stay his execution pending the resolution of his request for information. The majority not only finds that Wood’s novel First Amendment argument will likely prevail, but also that he is entitled to a stay of his execution until the State complies. Both are unprecedented.

The majority’s newfound right of access is a dramatic extension of anything that we or the Supreme Court have previously recognized, and it is in direct conflict with a very recent decision of the Eleventh Circuit, Wellons v. Comm’r, Ga. Dep’t of Corr., No. 14-12663-P, 2014 WL 2748316 , 754 F.3d 1260 (11th Cir. June 17, 2014), and a recent decision of the Georgia Supreme Court, Owens v. Hill, 758 S.E.2d 794 (Ga.2014). The remedy is equally novel. Even if there were a First Amendment right of access, Wood would have no more right…

FILED

FOR PUBLICATION JUL 19 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH RUDOLPH WOOD, III, No. 14-16310

Plaintiff - Appellant, D.C. No. 2:14-cv-01447-NVW-

JFM

v.

CHARLES L. RYAN, Director of the OPINION Arizona Department of Corrections; RON CREDIO, Warden, ASPC-Eyman; LANCE R. HETMER, Warden, ASPC- Florence; UNKNOWN PARTIES, named as: John Does - unknown ADC Personnel, in their official capacities as Employees, Contractors, and/or Agents of the Arizona Department of Corrections,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted July 18, 2014 San Francisco, California

Before: THOMAS, GOULD, and BYBEE, Circuit Judges.

Opinion by Judge Sidney R. Thomas

THOMAS, Circuit Judge: Joseph Wood (“Wood”) is scheduled to die by lethal injection on July 23,

2014. Wood seeks information from the Arizona Department of Corrections

(“Department”) regarding the method of his execution, which the Department has

not provided. Wood…