Samuel Lopez v. Janice Brewer

FILED

FOR PUBLICATION MAY 15 2012

MOLLY C. DWYER, CLERK

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

FOR THE NINTH CIRCUIT

SAMUEL VILLEGAS LOPEZ, No. 12-16084

Plaintiff - Appellant, D.C. No. 2:12-cv-00245-NVW

v.

OPINION

JANICE K BREWER, Governor of Arizona; CHARLES L. RYAN, Director, Arizona Department of Corrections; RON CREDIO, Warden, Arizona Department of Corrections - Eyman; LANCE R. HETMER, named as: Lance Hetmer/Warden, Arizona Department of Corrections - Florence; UNKNOWN PARTIES, named as: IV Team Leader; IV Team Members 1-5; Special Operations Team Leader; Special Operations Team Recorder; Special Operations Team Members 1-5; and Does 1-25,

Defendants - Appellees.

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

Argued and Submitted May 14, 2012 San Francisco, California Before: McKEOWN, BERZON, and RAWLINSON, Circuit Judges.

Opinion by Judge McKeown:

We embarµ upon this opinion with deja vu, the feeling that we have been

here before, but with the µnowledge that we will liµely be here again. We have

entertained,…

concurring in part and dissenting in part:

We find ourselves once again ruling on life and death issues on the eve of an *1079 execution. And once again, these issues arise on an appeal of the denial of an emergency motion for a stay of execution sought on the basis that the lethal injection mode of execution as the state will administer it will create such a substantial risk of serious pain as to violate the Eighth Amendment. See Towery v. Brewer, 672 F.3d 650 (9th Cir.2012); Beaty v. Brewer, 649 F.3d 1071 (9th Cir.2011); Landrigan v. Brewer, 625 F.3d 1144 (9th Cir.2010), vacated by — U.S. -, 131 S.Ct. 445 , 178 L.Ed.2d 346 (2010).

In this instance, I cannot help but concur in the majority’s conclusion that Lopez has not at this point in the litigation demonstrated the requisite “serious question” as to whether that his execution will violate the Eighth Amendment if allowed to proceed. I also concur in most of the majority’s reasoning. In particular, Lopez has not proven that during the Towery execution, the pain suffered by Towery— for there assuredly was considerable pain, as the majority’s account of the hour-long difficulty in setting IV lines illustrates— was sufficiently…

Opinion by Judge McKEOWN; Partial Concurrence and Partial Dissent by Judge BERZON.

OPINION

We embark upon this opinion with deja vu, the feeling that we have been here before, but with the knowledge that we will likely be here again. We have entertained, usually at the last minute, a number of challenges to Arizona’s execution protocol. No court has determined the constitutionality of Arizona’s current death penalty protocol, adopted in January 2012, yet we have been asked to address individual provisions of the protocol in the abstract, without a constitutionally firm base. Further complicating our task, in certain respects, the actual procedures followed during individual executions have not been consistent; instead, in the intervening two months since we issued Towery v. Brewer, 672 F.3d 650 (9th Cir.2012), there is uncertainty as to how the next execution will be carried out. The State continues to cling to its discretion, all the while urging us— during oral argument in the waning hours before execution — to trust that it will exercise its discretion in a constitutionally permissible manner. The State’s insistence “on amending its execution protocol on an ad hoc basis —…