                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SAMUEL VILLEGAS LOPEZ,                 
                Plaintiff-Appellant,
                v.
JANICE K BREWER, Governor of
Arizona; CHARLES L. RYAN,
Director, Arizona Department of               No. 12-16084
Corrections; RON CREDIO, Warden,
Arizona Department of                            D.C. No.
Corrections-Eyman; LANCE R.                  2:12-cv-00245-
HETMER, named as: Lance Hetmer/                  NVW
                                           District of Arizona,
Warden, Arizona Department of
Corrections-Florence; UNKOWN                     Phoenix
PARTIES, named as: IV Team                    AMENDED
Leader; IV Team Members 1-5;                     ORDER
Special Operations Team Leader;
Special Operations Team
Recorder; Special Operations
Team Members 1-5; and Does
1-25,
             Defendants-Appellees.
                                       
                    Filed May 18, 2012

        Before: Sidney R. Thomas, Circuit Judge and
                  Capital Case Coordinator.

                          Order;
           Concurrence by Chief Judge Kozinski;
               Dissent by Judge Pregerson;
               Dissent by Judge Reinhardt



                            5719
5720                   LOPEZ v. BREWER
                    AMENDED ORDER

   A panel of this Court issued an opinion affirming the dis-
trict court’s denial of petitioner’s motion for a preliminary
injunction and denying his motion for a stay of execution.
Petitioner filed a petition for rehearing and rehearing en banc.
The Warden elected not to file an optional response.

   Pursuant to the rules applicable to capital cases when an
execution date has been scheduled, a deadline was established
by which any judge could request a vote on whether the
panel’s opinion should be reheard en banc. A judge timely
requested a vote on the petition for rehearing en banc. A
majority of the judges eligible to vote did not vote in favor of
rehearing en banc. Judges Ikuta, Murguia, and Nguyen were
recused.

  Therefore, the Petition for Rehearing En Banc is DENIED.
En banc proceedings with respect to the panel opinion are
concluded.



Chief Judge KOZINSKI, with whom Judges O’SCANNLAIN
and BEA join, concurring:

   There is profound irony in Lopez’s insistence that his death
be painless. This is a description of his crimes, as related by
the Arizona Supreme Court:

       Overturned and broken furnishings in the blood-
    splattered apartment indicated that a tremendous
    struggle took place prior to the murder. A scarf had
    been stuffed into the victim’s mouth, and she had
    been blindfolded with her pajama pants. An autopsy
    revealed that her throat had been slashed, and she
    had been stabbed twenty-three times in her left
    breast and upper chest and three times in her abdo-
                       LOPEZ v. BREWER                       5721
    men. Seminal fluid was found in both her vagina and
    anus.

    ....

       When the officers arrived at the victim’s resi-
    dence, the apartment’s condition evinced that a
    bloody battle had raged throughout every room in
    the apartment. Blood was splattered throughout the
    apartment and there were blood drops on the bath-
    room and kitchen floors. A concentration of blood
    drops in the kitchen, as well as the stream of dried
    blood down the victim’s body and onto her blood-
    stained feet, indicated the victim stood for some time
    while being stabbed. The victim had three lacera-
    tions on her scalp and a stab wound to the left cheek.
    These injuries, although not fatal, caused a consider-
    able amount of bleeding. The victim had lacerations
    on her right arm and bruises and cuts on her left
    hand, all of which were characteristic of defensive
    wounds.

State v. Lopez, 786 P.2d 959, 962, 966 (Ariz. 1990). “[T]he
victim endured great physical and mental suffering over a rel-
atively protracted period of time while she struggled for her
life.” State v. Lopez, 857 P.2d 1261, 1271 (Ariz. 1993). Based
on what it found to be a vicious and prolonged beating, stab-
bing, rape and sodomy, the trial judge held that Lopez “mur-
dered the victim in an especially cruel, heinous, and depraved
manner.” Id.

   The panel delicately omits these facts, as did our previous
opinion, which merely referred to the crime as “brutal,” Lopez
v. Ryan, 630 F.3d 1198, 1201 n.1 (9th Cir. 2011), but com-
mon decency surely calls on us to acknowledge that Lopez is
not the victim here, and whatever pain he may suffer incident
to his execution pales in comparison to the agony and terror
he inflicted on a defenseless woman whose body he used to
5722                   LOPEZ v. BREWER
sate his lust. Judge Berzon’s dissent and Judges Pregerson’s
and Reinhardt’s dissentals obsess about the discomfort Lopez
might suffer during his execution, but say not a word about
the incomparable suffering the victim endured during the last
desperate minutes of her life.

   The dissenters describe with zest Towery’s execution, try-
ing hard to make it sound like some sort of horror show. But,
even if we accept the worst claims about that execution, it
doesn’t amount to a hill of beans. Towery was pricked several
times in an earnest effort to find a vein that supports a cathe-
ter. This is an unpleasant experience routinely borne by many
people who have deep-seated veins that aren’t easily catheter-
ized. See Anne Paxton, College of American Pathologists,
“Sticking Points—How To Handle Difficult Blood Draws,”
http://goo.gl/PGYVJ (last visited May 16, 2012).

   The procedure is unpleasant, to be sure, but no one—not
even Lopez’s advocates—claims it’s excruciating. The most
the dissenters can drag out of the record are mushy phrases
such as “great pain,” “severe pain” and “serious pain.” See
Reinhardt dissental at 5729; Lopez v. Brewer, No. 12-16084,
at 5592, 5598 (May 15, 2012) (Berzon, J., concurring in part
and dissenting in part). That’s how most people describe a
bad headache. This level of pain simply does not rise to an
Eighth Amendment violation. Towery’s discomfort, even if it
were replicated in Lopez’s case, comes nowhere near true suf-
fering, such as that endured by Estafana Holmes, who died
more than a quarter-century ago after twenty-six knife
wounds and multiple lacerations; being beaten, raped, sodo-
mized and degraded; and shedding liters of blood as she strug-
gled in vain to save her life. See Lopez, 857 P.2d at 1265.
Estafana had no chance to call her lawyer; there were no wit-
nesses to her agony; she did not get to say farewell to her
loved ones; she was allowed no last meal or final statement;
no Article III judges agonized over her ordeal. “The death-by-
injection which [my colleagues] describe[ ] looks pretty desir-
able next to that.” Callins v. Collins, 510 U.S. 1141, 1142
                        LOPEZ v. BREWER                     5723
(1994) (Scalia, J., wisely concurring in the denial of certio-
rari).

   Lopez is, of course, entitled to a humane execution; the
state may not subject him to “an objectively intolerable risk
of harm.” Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality op.)
(internal quotation marks omitted). But the risk of some pain
and discomfort, resulting from the subject’s own physiology,
is not intolerable. Many medical procedures cause pain and
discomfort, sometimes severe: tooth extraction; rabies vacci-
nations; knee surgery; skin grafts; cystoscopies, to name just
a few. People endure these nonetheless as part of ordinary
human existence. An execution need not be totally painless,
nor is the state required to go to extraordinary lengths to avoid
the possibility that the condemned criminal will suffer some
pain incident to procedures designed to carry out his lawful
sentence. See id.

   Lopez has presented no evidence that his execution will
involve “an objectively intolerable risk of serious harm.” Id.
(internal quotation marks omitted). Absent such evidence, I
don’t see where he has raised a viable Eighth Amendment
claim or any basis for enjoining his long delayed and richly
deserved execution.



PREGERSON, Circuit Judge, with whom Judges REIN-
HARDT, WARDLAW, W. FLETCHER, and PAEZ, join,
dissenting from the denial of rehearing en banc:

   The State of Arizona continues to ignore this court’s fre-
quent requests to adopt a clear protocol stating the procedures
it follows when executing its citizens. See Towery v. Brewer,
672 F.3d 650 (9th Cir. 2012)

  As Judge Berzon reminds us in her partial dissent concern-
ing the execution of Samuel Lopez, the simple fact remains
5724                   LOPEZ v. BREWER
that this court, the public, defense counsel, and inmates await-
ing execution lack a definite understanding of the procedures
and protocols the State of Arizona follows in executing its cit-
izens. Because Arizona: (1) does not make known a detailed,
written protocol; (2) limits the ability of counsel or witnesses
to observe critical stages of the execution process; and (3)
restricts its documentation of executions—prisoners awaiting
execution and their defense counsel are prevented from
obtaining information that could support a successful consti-
tutional challenge to Arizona’s use of lethal injection to exe-
cute death row prisoners.

   The March 8, 2012 execution of Robert Towery is perhaps
the starkest example of Arizona’s flawed procedures. During
that execution, Towery remained strapped to the execution
table for more than an hour while execution team members
repeatedly poked and prodded him in an effort to set up both
a primary and back-up IV line.

   According to the Arizona Department of Corrections’
(“ADC”) log notes, at 9:49 a.m., Towery was restrained and
secured to the execution table. At 9:52 a.m., the ADC Direc-
tor specified the locations for the catheter sites. Towery
remained strapped to the table for over thirty minutes, while
the execution team made “multiple attempts” to insert left and
right peripheral catheter IV lines. These attempts were unsuc-
cessful. At 10:28 a.m., after these failed attempts, the IV
Team Leader recommended a right femoral catheter as the
primary IV line. This procedure required the use of a larger
needle, a scalpel, and a “guide wire” to thread the needle into
Towery’s central femoral line.

  According to the ADC log notes, the implementation of the
central femoral line was completed at 10:50 a.m., nearly a full
hour after the execution team began its work. At 10:59 a.m.,
a catheter was placed in Towery’s right hand. Finally, at
11:17 a.m. Towery’s execution began. Towery’s autopsy
                        LOPEZ v. BREWER                     5725
revealed that both his femoral artery and femoral vein were
punctured during the insertion of the IVs.

   Because Towery is dead, we do not know how much pain
he suffered during the hour that he was strapped to the execu-
tion table. What we do know, however, comes from his attor-
ney, Dale Baich. Before his execution, Towery was told by
officials from the ADC that if he made any remarks during his
“last statement” that were critical of the ADC, his microphone
would be cut off. So Towery and his attorney devised a
“code” system for Towery to communicate to his attorney if
he experienced pain during his execution or was denied
access to counsel. Under this code system, if Towery was
denied access to his counsel, he would say during his last
statement, “Hey Dale I should have called you.” If there were
problems with the insertion of the IV lines, or if Towery suf-
fered pain during the insertion of the IV lines, he would utter
the word “mistake” as part of his last statement. During Tow-
ery’s last words, he said, “In the end, I should have called you
Dale.” Towery also said that he had made “mistake, after
mistake, after mistake.” (emphasis added).

   Another example of cruel and unusual punishment involved
the execution of Arizona prisoner Thomas Arnold Kemp on
April 25, 2012. Instead of receiving the traditional three drug
lethal injection mixture, Kemp was executed using only an
injection of pentobarbital. Soon after receiving the lethal
injection in his central femoral line, Kemp’s right arm and
torso began shaking “violently.” In the district court, the State
of Arizona argued that Kemp’s execution took place “without
incident,” but the district court recognized that these words
disregarded an eyewitness statement that Kemp convulsed for
at least five seconds. Dr. Eric Katz stated in a declaration that
this description “suggests a partial seizure which began
shortly after medication administration.” An autopsy report
revealed that despite Kemp’s good veins that were quite
prominent, Kemp had “at least three or more” punctures,
5726                       LOPEZ v. BREWER
including “at least one puncture in the right femoral area and
at least two punctures over the left upper extremity.”

   Justice and logic compel the conclusion that clearly
defined, written protocols are required when the state deter-
mines that it will execute one of its inmates. How would the
public — prohibited from attending Arizona’s executions —
know that an execution was carried out consistent with Con-
stitutional requirements without the disclosure of a written
protocol? And how could a reviewing court be confident that
Arizona is following constitutional procedures when taking
the life of one of its citizens?

   This court is not alone in its insistence that states who per-
form executions maintain a proper and consistent written pro-
tocol system. See Taylor v. Crawford, 457 F.3d 902 (8th Cir.
2006) (upholding the district court in directing the Missouri
Department of Corrections to adopt a revised written protocol
for lethal injections in Missouri, in light of the fact that the
majority of the protocol was unwritten); Clemons v. Craw-
ford, 585 F.3d 1119, 1122-23 (8th Cir. 2009) (summarizing
the procedural and factual history of Taylor v. Crawford).

   I would grant Samuel Lopez a stay of execution. The State
of Arizona must comport with the requirements of due pro-
cess of law and establish a clear and humane protocol that
gives the public, this court, and most importantly, inmates and
their defense counsel, notice of its execution procedures.

   Arizona has stubbornly refused to define the amorphous
and highly discretionary protocol it follows in executing its
citizens. Until the state adopts a clearly written and humane
execution protocol there exists a substantial risk that the con-
stitutional rights of those it executes will be violated. Accord-
ingly, I dissent.1
  1
   Chief Judge Kozinski tells us that there can be no Eighth Amendment
violation in this case because any pain that Lopez would suffer “pales in
                            LOPEZ v. BREWER                            5727
REINHARDT, Circuit Judge, with whom Judges PREGER-
SON, WARDLAW, W. FLETCHER, FISHER, PAEZ, and
BERZON join, dissenting from the denial of rehearing en
banc:

   On multiple occasions in recent months, the State of Ari-
zona has subjected prisoners whose lives it takes—and has
subjected this court—to a mockery of the constitutional
requirement of due process. In the case of Jeffrey Landrigan,
the state announced days before the execution that it planned
to use a foreign-source drug and refused “to comply with the
district court’s orders to provide . . . critical information about
the provenance and efficacy of the” drug. Landrigan v.
Brewer, 625 F.3d 1132, 1133 (9th Cir. 2010) (Wardlaw & W.
Fletcher, JJ., concurring in the denial of rehearing en banc).
In the case of Donald Beaty, the state announced eighteen
hours before the execution that it intended to switch to the use
of a drug that it had never tested and in the use of which it
had never trained its executioners. Beaty v. Brewer, 649 F.3d
1071, 1072 (9th Cir. 2011) (Reinhardt, J., dissenting from the
denial of rehearing en banc). In the cases of Robert Towery
and Robert Moormann, the state changed its written execution
protocol at the last minute, then changed course yet again,
informing the court just hours before argument that it was
switching the method of execution “because it discovered at
the last minute that the originally-planned drugs had expired”

comparison” to the pain he inflicted upon the woman he murdered. Con-
currence at 5721. I agree with Chief Judge Kozinski that Lopez’s crime
was senseless, brutal, horrible, and tragic. But I disagree with the proposi-
tion that the pain and horror inflicted upon a murder victim is relevant in
determining whether the state’s method of execution constitutes “cruel and
unusual punishment” in violation of the Eighth Amendment. To accept
this proposition would allow the state to turn the place of execution into
a torture chamber. The Supreme Court has instructed that the Eighth
Amendment requires courts to look to “evolving standards of decency.”
Kennedy v. Louisiana, 554 U.S. 407, 420 (2008). There is nothing “de-
cent” about what Lopez did to his victim. Such behavior should not be
replicated.
5728                    LOPEZ v. BREWER
a month before. Towery v. Brewer, 672 F.3d 650, 652-53 (9th
Cir. 2012). In case after case, we have been forced to rely on
the ad hoc representations of the state’s counsel in conducting
one of the gravest responsibilities that we are asked to per-
form: approving the state’s plan to take a human life. See,
e.g., West v. Brewer, 652 F.3d 1060, 1060-61 (9th Cir. 2011).
Over and over again, judges of this court have told the state
that its cavalier defiance of due process must end. See Landri-
gan, 625 F.3d at 1133 (Wardlaw & W. Fletcher, JJ., concur-
ring in the denial of rehearing en banc) (“The State’s
gamesmanship is unseemly at best, and inhumane at worst.”);
Beaty, 649 F.3d at 1072-73 (Reinhardt, J., dissenting from the
denial of rehearing en banc) (“The state’s last-minute action
serves, whether by design or otherwise, to deprive a capital
defendant of a fair opportunity to contest the constitutionality
of the new method of death to be used.”); Towery, 672 F.3d
at 653 (“Over time, the State of Arizona . . . has insisted on
amending its execution protocol on an ad hoc basis—through
add-on practices, trial court representations and acknowledg-
ments, and last minute written amendments—leaving the
courts with a rolling protocol that forces us to engage with
serious constitutional questions and complicated factual issues
in the waning hours before executions. This approach cannot
continue.”). The state either has not heard the message or it
has ignored it. It’s hard to believe that it could be the former.

   As Judge Berzon thoroughly explains in her partial dissent
from the panel’s refusal to stay the execution of Samuel
Lopez, the state’s mockery of due process goes far beyond the
mere fact of repeated and last-minute changes. The state has
systemically frustrated this court’s ability to determine the
constitutionality of its execution procedures by 1) refusing to
codify those procedures in a detailed, written protocol; 2) lim-
iting the ability of counsel or witnesses to observe critical
parts of the execution process, particularly the setting of intra-
venous lines; and 3) restricting its documentation of execu-
tions so that little useful information is available to counsel,
and to prisoners awaiting execution, even after the fact. I have
                        LOPEZ v. BREWER                     5729
nothing to add to Judge Berzon’s bill of indictment against the
state except the observation that if a skilled lawyer were
instructing the state on how best to avoid any meaningful
review of the constitutionality of its execution procedures, he
would be hard pressed to improve on the unconscionable
regime that the state has adopted.

    Let me close simply by reciting the facts of Robert Tow-
ery’s execution, as they are recounted in Judge Berzon’s opin-
ion. Fifty minutes elapsed before the execution team managed
to place a primary line in Towery’s groin. While the line
should have been placed in Towery’s femoral vein, an
autopsy later showed that his femoral artery was pierced; the
record shows that the administration of the execution drug
into the femoral artery can cause great pain. It took the team
fifty-nine minutes—just one minute short of the one-hour limit
approved in the Baze safe-harbor protocol, Baze v. Rees, 553
U.S. 35, 55 (2008)—to set a backup line. When that line was
finally placed, it was in Towery’s hand, even though the
state’s own doctor once testified that the administration of the
execution drug through the vein in a prisoner’s hand can
cause pain. During this prolonged ordeal, the Director of the
Department of Corrections contacted the state Attorney Gen-
eral’s office. Towery, too, apparently sought to contact his
lawyers, but the state refused his request. That brings us to the
most chilling part of this story: the only reason we even know
that Towery asked to speak with his lawyer is that he commu-
nicated that fact in code while speaking his last words. Why
in code? Because, “[a]ccording to the undisputed record in
this case, inmates have been told that their microphones will
be cut off if they make statements critical of the Arizona
Department of Corrections.” Berzon Dissent at 5599. As a
result, not only was Towery denied his right to counsel;
Lopez and all prisoners whom the state may seek to execute
in the future were denied their rights to litigate meaningfully
whether they, too, may suffer severe pain during the execu-
tion process. This is not due process. It is barely even process
at all.
5730                   LOPEZ v. BREWER
   If we are to continue the state-sanctioned killing of prison-
ers, in the United States in 2012, we must find a better way
than Arizona’s. The majority’s hollow warning to the state
that “Arizona’s ad hoc approach risks going beyond” what is
constitutional can only inspire chuckles in the Arizona Attor-
ney General’s and Governor’s offices. By now they must
know how feeble the authority of this court is in death penalty
cases, at least as we have interpreted it, and how unwilling the
Supreme Court is to enforce the Eighth Amendment. For that
reason this dissent is likely as pointless as the majority opin-
ion and its futile reminder of our pointless repeated remon-
strances to the state. Next time Arizona flouts the
Constitution, we might as well remain silent and not continue
to pretend that it matters what we say—unless we are willing
to take action rather than simply shed more futile tears.
