Fierro

Opinion by Judge T.G. NELSON; Dissent by Judge PREGERSON.

The three plaintiffs in this case, all California inmates sentenced to death, brought this action under 42 U.S.C. § 1983 , alleging that California’s method of execution, lethal gas, constitutes cruel and unusual punishment and thus violates the Eighth and Fourteenth Amendments of the Constitution. The district court held that, to the extent that the relevant California statute, Cal.Penal Code § 3604, provides for execution by lethal gas, it is cruel and unusual punishment. We affirmed. Fierro v. Gomez, 77 F.3d 301 (9th Cir.1996). _ Subsequent to our decision, the California legislature amended its death penalty statute. The United States Supreme Court granted the State’s petition for a writ of certiorari, vacated our judgment, and remanded to us for further consideration in light of the amended statute. We now remand this case to the district court with instructions that the district court vacate its judgment subject to reinstatement on the motion of a death row inmate who has standing and presents a ripe claim.

*1159 BACKGROUND

On April 17, 1992, David Fierro, Alejandro Gilbert Ruiz, and Robert Alton Harris, the…

dissenting:

The law has pulled a fast one with the ripeness doctrine. Both the district court and this court found that execution by gas is cruel and unusual punishment. See Fierro v. Gomez, 865 F.Supp. 1387, 1415 (N.D.Cal.1994); Fierro v. Gomez, 77 F.3d 301, 309 (9th Cir.), cert. granted, vacated, — U.S. -, 117 S.Ct. 285 , 136 L.Ed.2d 204 (1996). By refusing to addi'ess the merits of this case, we are compounding the cruelty by precluding a condemned individual from challenging the legality of his punishment unless he first chooses an unconstitutional method of execution. This is a cruel hoax. I therefore dissent.