                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JOSEPH RUDOLPH WOOD, III,               No. 14-16310
               Plaintiff-Appellant,
                                           D.C. No.
                v.                      2:14-cv-01447-
                                          NVW-JFM
CHARLES L. RYAN, Director of the
Arizona Department of Corrections;
et al.,                                    ORDER
             Defendants-Appellees.



                  Filed July 21, 2014

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

               Order by Judge Thomas;
           Dissent by Chief Judge Kozinski;
              Dissent by Judge Callahan
2                         WOOD V. RYAN

                           SUMMARY*


                         Habeas Corpus

   Judge Thomas, Circuit Judge and Capital Case
Coordinator, issued an order on behalf of the court denying
a petition to rehear en banc the panel’s July 19, 2014,
opinion.

    Chief Judge Kozinski dissented from the denial of
rehearing en banc. He wrote that if Baze could not get a stay
of execution under the Eighth Amendment, see Baze v. Rees,
553 U.S. 35, 62-63 (2008), Wood certainly is not entitled to
one under the First. While he believes the state should and
will prevail in this case, Chief Judge Kozinski wrote that if
the state wishes to continue carrying out executions, it would
be better to own up that using drugs is a mistake and come up
with something that will work, instead.

    Judge Callahan, joined by Chief Judge Kozinski and
Judges O’Scannlain, McKeown, Tallman, Bybee, Bea,
M. Smith, Ikuta, N.R. Smith and Owens, dissented from the
denial of rehearing en bqanc. She wrote that the panel’s
opinion reversing the district court’s denial of an injunction
based on the creation of a First Amendment right to
government information is contrary to Supreme Court
precedent, is not sound, and creates a circuit split. She wrote
further that the opinion’s limits – information “intrinsically
intertwined” with this newly recognized right – are


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       WOOD V. RYAN                          3

amorphous at best, and if not vacated, will be invoked every
time a state sets an execution date.


                          ORDER

    The full court has been advised of the petition for
rehearing en banc. Pursuant to the rules applicable to capital
cases in which an execution date has been scheduled, a
deadline was established by which any judge could request a
vote on whether the panel’s July 19, 2014 opinion should be
reheard en banc. A judge requested a vote on whether to
rehear the panel’s opinion en banc. A majority of the
non-recused active judges did not vote in favor of rehearing
en banc. Judges Graber, Murguia, and Hurwitz did not
participate in the deliberations or vote in this case. The
petition for rehearing en banc is denied. The Court’s July 19,
2014 opinion, granting a conditional stay of Wood’s
execution, remains in effect.



Chief Judge KOZINSKI, dissenting from the denial of
rehearing en banc:

    I have little doubt that the Supreme Court will thwart this
latest attempt to interfere with the State of Arizona’s efforts
to carry out its lawful sentence and bring Wood to justice for
the heinous crimes he committed a quarter century ago.
There is little I can add to the irrefutable arguments in Judge
Bybee’s dissent and Judge Callahan’s dissental. If Baze
could not get a stay of execution under the Eighth
Amendment, see Baze v. Rees, 553 U.S. 35, 62–63 (2008),
Wood certainly is not entitled to one under the First.
4                      WOOD V. RYAN

     I take the occasion to point out how we got here. Until
about three decades ago, executions were carried out by
means designated for that purpose alone: electric chairs were
the most common, but gas chambers, hanging and the
occasional firing squad were also practiced. See generally
Kirk Johnson, In Utah, Execution Evokes Eras Past, N.Y.
Times, June 16, 2010, available at http://goo.gl/duIwV0
(discussing Gary Mark Gilmore’s execution by firing squad).
Most of these means were challenged on Eighth Amendment
grounds, but the challenges were largely unsuccessful. See
Poyner v. Murray, 507 U.S. 981, 981 (1993) (denying stay of
execution by electric chair); Stewart v. LaGrand, 525 U.S.
1173, 1173 (1999) (vacating stay of lethal gas execution);
Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994)
(hanging); Wilkerson v. Utah, 99 U.S. 130, 131–36 (1879)
(firing squad). Nevertheless, starting in the late 1970s, states
began moving away from these traditional methods of
execution and towards using drugs as execution tools.
Perhaps this was done in the belief that it would forestall a
constitutional challenge to the method of execution; perhaps
it was thought to be more humane; and perhaps it was thought
to be less brutal. Whatever the reason, the federal
government and all states that retain capital punishment now
authorize the use of drugs for that purpose, and generally it is
the default method of execution.

    Whatever the hopes and reasons for the switch to drugs,
they proved to be misguided. Subverting medicines meant to
heal the human body to the opposite purpose was an
enterprise doomed to failure. Today’s case is only the latest
in an unending effort to undermine and discredit this method
of carrying out lawful executions. Another symptom of the
problem is the decade-long inability (or perhaps
unwillingness) of California state officials to come up with an
                       WOOD V. RYAN                           5

execution protocol, effectively putting the state’s death
chamber out of commission. See Jones v. Chappell, No. CV
09-02158-CJC, slip op. at 5 n.7 (C.D. Cal. July 16, 2014).
Old age, not execution, is the most serious risk factor for
inmates at the San Quentin death row. Then, again, you get
odd cases like that of Russell Bucklew, who obtained a stay
of execution on the ground that the drugs that would be used
to kill him would cause a lingering, painful death. See
Bucklew v. Lombardi, 134 S. Ct. 2333, 2333 (2014).

     Whatever happens to Wood, the attacks will not stop and
for a simple reason: The enterprise is flawed. Using drugs
meant for individuals with medical needs to carry out
executions is a misguided effort to mask the brutality of
executions by making them look serene and peaceful—like
something any one of us might experience in our final
moments. See Callins v. Collins, 510 U.S. 1141, 1143 (1994)
(Scalia, J., concurring in denial of certiorari) (“How enviable
a quiet death by lethal injection . . . .”). But executions are,
in fact, nothing like that. They are brutal, savage events, and
nothing the state tries to do can mask that reality. Nor should
it. If we as a society want to carry out executions, we should
be willing to face the fact that the state is committing a
horrendous brutality on our behalf.

    If some states and the federal government wish to
continue carrying out the death penalty, they must turn away
from this misguided path and return to more primitive—and
foolproof—methods of execution. The guillotine is probably
best but seems inconsistent with our national ethos. And the
electric chair, hanging and the gas chamber are each subject
to occasional mishaps. The firing squad strikes me as the
most promising. Eight or ten large-caliber rifle bullets fired
at close range can inflict massive damage, causing instant
6                      WOOD V. RYAN

death every time. There are plenty of people employed by the
state who can pull the trigger and have the training to aim
true. The weapons and ammunition are bought by the state in
massive quantities for law enforcement purposes, so it would
be impossible to interdict the supply. And nobody can argue
that the weapons are put to a purpose for which they were not
intended: firearms have no purpose other than destroying
their targets. Sure, firing squads can be messy, but if we are
willing to carry out executions, we should not shield
ourselves from the reality that we are shedding human blood.
If we, as a society, cannot stomach the splatter from an
execution carried out by firing squad, then we shouldn’t be
carrying out executions at all.

    While I believe the state should and will prevail in this
case, I don’t understand why the game is worth the candle.
A tremendous number of taxpayer dollars have gone into
defending a procedure that is inherently flawed and ultimately
doomed to failure. If the state wishes to continue carrying out
executions, it would be better to own up that using drugs is a
mistake and come up with something that will work, instead.



Judge CALLAHAN, with whom Chief Judge KOZINSKI,
Judge O’SCANNLAIN, Judge McKEOWN, Judge
TALLMAN, Judge BYBEE, Judge BEA, Judge M. SMITH,
Judge IKUTA, Judge N.R. SMITH, and Judge OWENS join,
dissenting:

    I dissent from our decision not to take this case en banc.
The panel’s opinion reversing the district court’s denial of an
injunction based on the creation of a First Amendment right
                              WOOD V. RYAN                              7

to government information1 is contrary to Supreme Court
precedent,2 is not sound, and creates a circuit split.3
Furthermore, the opinion’s limits – information “intrinsically
intertwined” with this newly recognized right – are
amorphous at best, and if not vacated, will be invoked every
time a state sets an execution date.4

         1
      Wood claims a First Amendment right to further information
concerning: (1) the manufacturer of his lethal injection drugs; (2) the
qualifications of those who will administer the execution; and (3) the
documents relied upon by the state to adopt its newest execution protocol.
     2
    See Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978); Los Angeles
Police Dep’t. v. United Reporting Publig Corp., 528 U.S. 32, 40 (1999).
 3
  See Wellons v. Comm’r, Ga. Dep’t of Corr., No. 14-12663-P, 2014 WL
2748316, — F.3d — (11th Cir. June 17, 2014).
         4
     The majority’s opinion does include the following penultimate
sentence:

             We grant a conditional preliminary injunction, staying
             Wood’s execution until the State of Arizona has
             provided him with (a) the name and provenance of the
             drugs to be used in the execution and (b) the
             qualifications of the medical personnel, subject to the
             restriction that the information provided will not give
             the means by which the specific individuals can be
             identified.

Opinion at page 25–26. Even assuming that the term “provenance of the
drugs” is understood by the parties, the second qualification is an
invitation to further litigation. Arizona has already informed Wood that
the medical personnel will meet the qualifications in its 2012 protocol.
Opinion at page 6. Whether Arizona could provide additional information
without giving “the means by which the specific individuals can be
identified” seems inherently debatable. It should be noted that Arizona
Revised Statute § 13-757(C) provides that “any information contained in
records that would identify those persons is confidential.” Furthermore,
8                              WOOD V. RYAN

    My concerns are addressed in Judge Bybee’s compelling
dissent.      For example, he explains that the two
“complementary considerations” set forth in Press-Enterprise
Co. v. Superior Court, 478 U.S. 1 (1986) (“Press-Enterprise
II”), are not met.5 Executions historically have been open to
the public, but this does not mandate revealing the
manufacturer of the lethal drugs. Similarly, it is a stretch to


the majority’s opinion may be read as an invitation to require courts to
fashion individual disclosure orders any time a capital defendant seeks (on
behalf of the public) further information concerning his execution.
    5
        In Press-Enterprise II, the Supreme Court stated:

             First, because, a “‘tradition of accessibility implies the
             favorable judgment of experiences’” Globe Newspaper,
             457 U.S., at 605, 102 S. Ct., at 2619 (quoting Richmond
             Newspapers, Inc. v. Virginia, 448 U.S. 555, 589, 100 S.
             Ct. 2814, 2834, 65 L. Ed.2d 973 (1980) (BRENNAN,
             J., concurring in judgment)), we have considered
             whether the place and process have historically been
             open to the press and general public.

             ...

             Second, in this setting the Court has traditionally
             considered whether public access plays a significant
             positive role in the functioning of the particular process
             in question. Globe Newspaper, supra, 457 U.S., at 606,
             102 S. Ct., at 2619. Although many governmental
             processes operate best under public scrutiny, it takes
             little imagination to recognize that there are some kinds
             of government operations that would be totally
             frustrated if conducted openly.

478 U.S. at 8–9. Here, the State of Arizona has given a compelling reason
why disclosure of the identities of both the drug manufacturer and
execution personnel will cause harm to its ability to carry out its lawful
judgments.
                       WOOD V. RYAN                           9

argue that the identity of the manufacturer is critical to the
public discussion of the process.

     Finally, the opinion’s approach to the standards for
injunctive relief is problematic. It recognizes that we review
the “denial of a preliminary injunction for abuse of
discretion.” Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1131 (9th Cir. 2011). It also states that to
obtain a preliminary injunction, Wood “must establish that he
is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is
in the public interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). However, the opinion then cites
Towery v. Brewer, 672 F.3d 650, 657 (9th Cir. 2012), for the
proposition that Wood need only demonstrate that “serious
questions going to the merits were raised and the balance of
hardships tips sharply in [his] favor.” Opinion at page 9. This
allows the panel to issue an injunction because the “balance
of equities here tips sharply in Wood’s favor,” Opinion at
page 23, even though the panel, in determining that Wood has
raised serious questions, states that it has not decided “with
certainty that a First Amendment right exists to the
information Wood seeks, nor do we resolve the merits of the
Plaintiffs’ underlying § 1983 claim.” Opinion at page 25.
This fails to appreciate the difference between Wood’s
personal interests and the “public’s” right to access, which is
the issue the panel found to be “serious.” The opinion thus
suggests that a defendant facing the death penalty never need
show any likelihood of success on a First Amendment claim
10                          WOOD V. RYAN

in order to obtain an injunction because the nature of his
sentence inherently tips the balance of hardship in his favor.6

    In adopting an unprecedented view of the First
Amendment and labeling it “serious” (while stating that it is
not deciding “with certainty” that such a right exists), the
panel has erected another hurdle to carrying out valid death
penalties: one that is unrelated to the defendant’s innocence
or the propriety of the sentence. I fear that absent firmer
guidance from the Supreme Court, it will be almost
impossible for any state in the Ninth Circuit to actually carry
out a constitutionally valid capital sentence. I dissent from
our decision denying rehearing en banc.




  6
     Moreover, the panel underestimates both the State’s interest and the
harm to the public. First, the panel’s assertion that “Wood’s execution
would likely not be delayed much, if at all, by giving him the information
he seeks,” Opinion at page 24, fails to recognize that the panel’s
conditions for lifting its injunction will most likely require further
litigation. See supra note 4. Second, the panel fails to appreciate that the
right which it finds “serious” only arises after the state sets an execution
date, and accordingly, must then be litigated prior to the scheduled
execution. Third, the panel fails to consider the interests of the public and
the friends and relations of Wood’s victims in closure. There is a
mismatch between the majority’s articulated public claim of access to
information and the remedy tied to the stay of execution.
