Robert Charles Towery v Janice K Brewer

This appeal under 42 U.S.C. § 1983 challenges Arizona’s execution protocol, adopted as Order 710 of the Arizona Department of Corrections (“ADC”) on January 25, 2012. Robert Charles Towery, Robert Henry Moormann, Pete Rovogich, Thomas Arnold Kemp, Milo McCormick Stanley, and Samuel Villegas Lopez are death row inmates in Arizona who claim that ADC’s execution protocol violates the Eighth and Fourteenth Amendments. Towery and Moormann, two of the named plaintiffs with impending execution dates, moved the district court for a preliminary injunction against ADC’s use of its current lethal injection protocol. The district court denied the preliminary injunction, and Towery and Moormann appealed. Because the new protocol was adopted on the eve of the two planned executions, this appeal comes to us at the eleventh hour. We held oral argument less than 48 hours before the first scheduled execution.

Even after the appeal was filed and hours before the argument, Arizona yet again changed course as to its plans for the executions. It advised the court on February 27, 2012, that it was not proceeding under the three-drug protocol but instead under the one-drug protocol because it discovered…