                                                                        FILED
                              FOR PUBLICATION                            MAY 27 2011

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




                           FOR THE NINTH CIRCUIT



DONALD EDWARD BEATY,                           No. 11-99007

             Plaintiff - Appellant,            D.C. No. 2:11-cv-01037-NVW
                                               District of Arizona,
  v.                                           Phoenix

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

             Defendants - Appellees.



Before: THOMAS, Circuit Judge and Capital Case Coordinator

       The Amended Order dated May 25, 2011, is amended to include the

attached concurrence by Chief Judge Kozinsµi and the additional dissent by Judge

Reinhardt.
                                                                             FILED
Beaty v. Brewer, No. 11-90007                                                 MAY 27 2011

                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S . CO U RT OF AP PE A LS

KOZINSKI, Chief Judge, with whom Judges GOULD and N.R. SMITH join,
concurring in the denial of rehearing en banc:

      Because I decided not to delay further the order denying en banc rehearing, I

did not file a concurral on the day of the execution. Nevertheless, I believe it's

important to lay out an argument that I found very persuasive when voting on the

en banc call. By the time Beaty asµed for a stay, his claim--that the state violated

his constitutional rights by substituting pentobarbital for sodium thiopental as the

first drug in its three-drug execution protocol--had already been rejected by two

other courts of appeals. The Tenth Circuit approved a protocol virtually identical

to Arizona's after allowing the inmate to conduct discovery, submit an expert

report and participate in an evidentiary hearing. See Pavatt v. Jones, 627 F.3d

1336, 1338-40 (10th Cir. 2010). The Eleventh Circuit approved the substitution of

pentobarbital for sodium thiopental just last weeµ. See Powell v. Thomas, No.

11-12238, 2011 WL 1899564, at *1-2 (11th Cir. May 19, 2011) (per curiam).

None of Beaty's filings--not his complaint, nor his motion for a TRO before the

district court, nor his emergency motion in our court--suggested any way in which

the Tenth or Eleventh Circuits' analyses were deficient, or that his case differed

materially from those of the inmates there.

      While these out-of-circuit cases aren't controlling, I found it significant that
                                                                                 page 2

the factual and legal issues in Beaty's claim had been fully considered by these

courts. Indeed, the inmate in the Eleventh Circuit had about a month's notice of

the planned drug substitution, yet the best evidence he could produce was the same

expert report the Tenth Circuit had rejected. See Powell, 2011 WL 1899564, at

*1-2. I didn't see how Beaty would come up with better evidence if we granted

him a stay, or how he'd clear the Supreme Court's high bar for finding a

constitutional violation. See Baze v. Rees, 553 U.S. 35, 49-50 (2008) (plurality

op.). It was therefore appropriate for the district court to rely on the Tenth and

Eleventh Circuits' analyses in denying Beaty a stay of his execution, and for the

three-judge panel to rely on the same reasoning. See Order Denying Mot. for TRO

or Prelim. Inj., Beaty v. Brewer, No. CIV 11-1037-PHÈ-NVW, at 7 (D. Ariz. May

25, 2011) (docµet entry ý9) ('[B]oth the Tenth and Eleventh Circuits have found

that use of pentobarbital does not create a substantial risµ of serious harm.'); see

also Beaty v. Brewer, No. 11-99007, Order at 2 (9th Cir. May 25, 2011) ('For the

reasons expressed by the district court, we conclude that Beaty has failed to satisfy

[the standard for a preliminary injunction].'). There was no reason to go en banc

and further delay the inevitable.
                                                                            FILED
                                                                             MAY 27 2011
Beaty v. Brewer, No. 11-99007                                            MOLLY C. DWYER, CLERK
                                                                          U.S . CO U RT OF AP PE A LS


REINHARDT, Circuit Judge, additional dissent from the denial of rehearing en

banc:

        Chief Judge Kozinsµi finds it 'very persuasive' that two circuits have

approved the use of the three-drug protocol that Arizona adopted less than twenty-

four hours before the scheduled execution. Again, I find it necessary to express my

disagreement.

        Conflicts among circuits are common. Indeed, one of the principal reasons

for the Supreme Court to hear cases is to resolve the numerous conflicts among

circuits. See Sup. Ct. R. 10. That other circuits have taµen a position on a

constitutional question does not relieve us of the responsibility to maµe a full and

independent judgment ourselves. This is the Ninth Circuit, not the Tenth or

Eleventh, and our views sometimes differ from those of other circuits. See, e.g.,

United States v. Gaudin, 28 F.3d 943 (9th Cir. 1994) (en banc), affirmed, 515 U.S.

506 (1995); id. at 955 (Kozinsµi, J., dissenting) (observing, prior to the affirmance

of our decision by the Supreme Court, that '[e]very other circuit to have

considered' the question presented has disagreed with the Ninth Circuit).

        This is a death penalty, not a slip-and-fall case. We have no greater duty

than to decide such cases fairly and properly. Constitutional challenges often turn

on their facts. We will never µnow whether with more time Beaty could have
successfully pleaded sufficient facts to satisfy the district court or the three judges

of this court to whom the case was assigned that a stay was warranted.

      When the State has created a constitutional issue by changing the method of

execution only eighteen hours before that ultimate and irreversible act is to taµe

place, we must permit the person to be executed adequate time to prepare his

challenge. That did not happen here. As a result, Beaty was deprived of due

process, and we as a court were compelled to fall bacµ on inadequate arguments

such as those advanced by Chief Judge Kozinsµi, rather than to maµe a fully

informed and independent decision of our own.
