Thomas West v. Janice Brewer

Opinion

FILED FOR PUBLICATION JUL 18 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

THOMAS PAUL WEST; GREGORY No. 11-16707 DICKENS; CHARLES M. HEDLUND; ROBERT W. MURRAY; THEODORE D.C. No. 2:11-cv-01409-NVW WASHINGTON; TODD SMITH, District of Arizona, Phoenix Plaintiffs - Appellants,

v. ORDER

JANICE K BREWER, Governor of Arizona; CHARLES L. RYAN, Director, Arizona Department of Corrections; ERNEST TRUJILLO; CARSON MCWILLIAMS, Warden, Arizona Department of Corrections- Florence; UNKNOWN PARTIES, named as Does 1- 50,

Defendants - Appellees.

Before: KLEINFELD, WARDLAW, and CALLAHAN, Circuit Judges.

Thomas Paul West is scheduled to be executed by the State of Arizona

tomorrow, July 19, 2011. Last night, the district court denied West's Emergency

Motion for Temporary Restraining Order or Preliminary Injunction in which West

sought to temporarily stay his execution. West filed a notice of appeal, and this morning filed an Emergency Motion Under Circuit Rule 27-3 for an Injunction.

We deny his emergency motion.

In order to obtain preliminary injunctive relief, West must show '(1) that he

is liµely to succeed on the merits of such a claim, (2) that he is liµely to suffer

irreparable harm in the absence of preliminary relief, (3) that the balance of

equities tips in his favor, and (4) that an injunction is in the public interest.' Beaty

v. Brewer, ÁÁÁ F.3d ÁÁÁ, 2011 WL 2040916, * 6 (9th Cir. May 25, 2011) (citing

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct 365, 374 (2008).

As we did in Beaty, '[w]e acµnowledge that [West] has a strong interest in being

executed in a constitutional manner, but he has not shown that this interest is

threatened in this case.' Id. West has not shown that the manner in which Arizona

intends to execute him 'creates a demonstrated risµ of severe pain. He must show

that the risµ is substantial when compared to the µnown and available alternatives.'

Baze v. Rees, 553 U.S. 35, 61 (2008).

The court heard telephonic oral argument on this matter today. At argument,

Arizona's counsel made several representations. First, he represented that

Arizona's protocol for carrying out executions, a relevant portion of which is

attached as Exhibit A to this order, had been followed in the past and, more

importantly, will be followed in West's execution. Specifically, he represented

2 that the drugs called for in the protocol are available in the State's possession, and

will be used in West's execution. Moreover, he represented that the protocol will

be followed regarding the locations and order of preference for insertion sites as

detailed in Paragraph G of the protocol.

For the reasons expressed by the district court, reinforced by the

representations made by Arizona's counsel at oral argument, we conclude West has

failed to satisfy his burden to demonstrate a substantial risµ of severe pain by the

method Arizona intends to use to execute him. Baze, 553 U.S. at 61. Accordingly,

West's motion is DENIED.

3 Counsel:

For Petitioner-Appellant West: Jon M. Sands, Arizona Federal Public Defender, Dale Baich (argued), Robin C. Konrad, Assistant Arizona Federal Public Defenders, Phoenix, Arizona

For Respondent-Appellant Ryan: Thomas C. Horne, Attorney General, Jonathan Bass (argued), Assistant Attorney General, Tucson, Arizona

4 EÈHIBIT A

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