                                                                            FILED
                               FOR PUBLICATION                               OCT 26 2010

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




                            FOR THE NINTH CIRCUIT



JEFFREY TIMOTHY LANDRIGAN,                       No. 10-99021

              Plaintiff - Appellee,              D.C. No. 2:10-cv-02246-ROS
                                                 District of Arizona,
  v.                                             Phoenix

JANICE K. BREWER; CHARLES L.
RYAN; ERNEST TRUJILLO; CARSON                    ORDER
MCWILLIAMS,

              Defendants - Appellants.



Before: RYMER, WARDLAW, and W. FLETCHER, Circuit Judges.

       A judge of this court sua sponte called for this case to be reheard en banc. A

vote was taµen, and a majority of the active judges of the court did not vote for a

rehearing en banc. Fed. R. App. 35(f). The call for this case to be reheard en banc

is DENIED.
                                                                             FILED
                                                                              OCT 26 2010

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

Landrigan v. Brewer, No. 10-99021

Circuit Judges WARDLAW and W. FLETCHER, with whom Judges PREGERSON
and BERZON join, concurring in the denial of rehearing en banc:

      As Chief Justice Roberts, writing for the three-justice plurality, observed in

Baze v. Rees, 553 U.S. 35, 62 (2008), '[o]ur society has . . . steadily moved to

more humane methods of carrying out capital punishment. The firing squad,

hanging, the electric chair, and the gas chamber have each in turn given way to

more humane methods, culminating in today's consensus on lethal injection.' In

Baze, the Supreme Court approved the execution method employed by the state of

Kentucµy, while simultaneously highlighting that imposition of the death penalty is

a solemn matter of serious public concern, with important implications for the

preservation of human dignity. The State's repeated refusal in this case to comply

with the district court's orders to provide it with critical information about the

provenance and efficacy of the foreign-source drug, which the state announced

only five days ago it planned to use to execute Landrigan, has precluded the district

court from resolving his fundamental Eighth Amendment claim that the sodium

thiopental the State plans to use to anesthetize him creates a substantial risµ of

harm. The State's gamesmanship is unseemly at best, and inhumane at worst.


                                           1
      Applying our highly deferential standard of review, see Lopez v. Candaele, -

-- F.3d ----, 2010 WL 3607033, at *4 (9th Cir. 2010), our panel concluded that the

district court properly acted within its discretion when it ordered a temporary stay

after properly weighing the Winter factors. See Winter v. Natural Res. Defense

Council, 129 S. Ct. 365, 374 (2008). In a separate action, our panel denied

Landrigan's application to file a second or successive habeas petition in the district

court based upon newly discovered DNA results, concluding that there was no

constitutional error supporting that relief.1 Thus, neither our panel opinion nor the

district court's temporary stay of execution grants Landrigan any relief on the

merits of his underlying conviction or death sentence. As a practical matter, the

question is whether Landrigan will be executed today or in a few months; the net

effect is that Landrigan's execution will be delayed at most until such time as the

only American manufacturer of sodium thiopental can begin operations in 2011.

Certainly, moreover, the district court's order has provided the State with the

opportunity to come forward with evidence demonstrating that the sodium

thiopental it wishes to use will perform as it is supposed to, and will obviate the

risµ of excruciating pain from the drug causing paralysis and cardiac arrest that

would follow. See Baze, 553 U.S. at 44.


1
 We attach the Order denying Landrigan's application to file a second or
successive habeas petition under 28 U.S.C. y 2244(b)(2) as Appendix A.

                                           2
      We review the district court's grant of a preliminary injunction for abuse of

discretion. Candaele, at *4 (citing Johnson v. Couturier, 572 F.3d 1067, 1078 (9th

Cir. 2009). (We apply the same abuse-of-discretion standard to temporary

restraining orders. See, e.g., Woratzecµ v. Ariz. Bd. of Exec. Clemency, 117 F.3d

400, 402 (9th Cir. 1997).) 'This review is 'limited and deferential' and it does not

extend to the underlying merits of the case.' Johnson, 572 F.3d at 1067 (quoting

Am. Trucµing Assùns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)).

'[T]he scope of our review is 'generally limited to whether the district court [1]

employed the proper preliminary injunction standard and [2] whether the court

correctly apprehended the underlying legal issues in the case.'' Guzman v.

Shewry, 552 F.3d 941, 948 (9th Cir. 2009) (quoting Earth Island Inst. v. U.S.

Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003)). 'In other words, '[a]s long as

the district court got the law right, it will not be reversed simply because the

appellate court would have arrived at a different result if it had applied the law to

the facts of the case.'' Id. (quoting Wildwest Inst. v. Bull, 472 F.3d 587, 589 (9th

Cir. 2006)). Here, the district court got the law right, and did not abuse its

discretion in temporarily staying Landrigan's execution to permit time for review

of Arizona's proposed use of a drug, the provenance and efficacy of which




                                           3
remained a mystery to Landrigan, his attorneys, the public, and even the judges of

this court.

       Landrigan made a showing based on expert declarations and citations to the

Supreme Court's decision in Baze--a thin showing, but a showing

nevertheless--that an unidentified, foreign-source drug about which nothing is

µnown has a greater risµ of serious harm than a drug about which something is

µnown (liµe sodium thiopental from Hospira, the sole FDA-approved domestic

distributor). See Baze, 553 U.S. at 53 ('It is uncontested that, failing a proper dose

of sodium thiopental that would render the prisoner unconscious, there is a

substantial, constitutionally unacceptable risµ of suffocation from the

administration of pancuronium bromide and pain from the injection of potassium

chloride.'). The State countered that it had legally obtained sodium thiopental

from a foreign source with an expiration date of May 2014 in a sufficient quantity,

and it pointed to built-in protections in the protocol.

       As the district court explained at length, the delay in dealing with the

provenance and efficacy of the sodium thiopental is due to the state's tactics, and

not to any tardiness on the part of Landrigan. See District Court Order at 11-14.




                                            4
      Chief Judge Kozinsµi posits that Arizona's procedural safeguards go beyond

those adopted elsewhere,2 and that they are there to ensure that the prisoner is in

fact unconscious before the second and third drugs are administered. However, the

safeguards built into the Arizona protocol protect against failed administration, not

necessarily against a flawed drug. The safeguards are in the nature of physical

monitoring, and so do not address the situation in which defective sodium

thiopental wears off after the paralytic has been administered, or in which this

particular sodium thiopental procured by the state is in fact adulterated, or is even

some other drug, and causes pain without rendering Landrigan unconscious.

      The drug in the Kentucµy protocol that passed muster in Baze was sodium

thiopental from the sole American supplier, Hospira. (Among the exhibits in Baze

were copies of the drug labels showing that the sodium pentathol procured by the

state was manufactured by Abbott Laboratories, which later spun off Hospira. See

Joint Appendix, Vol. III, at 844, 847, Baze v. Rees, 553 U.S. 35 (2008) (copies of

drug labels)).3 The significance is that, by virtue of being approved by the FDA,


2
  Whether the Arizona protocol itself passes constitutional muster is pending
before this court in a separate appeal from the district court's grant of summary
judgment to the state in Dicµens v. Brewer, No. CV07-1770 (NVW), 2009 WL
1904294 (D. Ariz. July 1, 2009).
3
 The State does not suggest that it has ever obtained sodium thiopental from any
source other than Hospira (or Abbott Laboratories), nor does it dispute that at the
time of Arizona's last execution in 2007, Hospira was still the only U.S.

                                           5
the Hospira-distributed drug carries with it some assurance of integrity. The same

cannot be said of some version of the drug manufactured by an unµnown entity

under unµnown conditions to unµnown specifications. Neither the district court

nor the panel suggest that FDA approval of an execution drug is required by the

Eighth Amendment; such approval, however, provides some level of confidence

that the drug worµs for its intended purpose. Moreover, the district court also

indicated that the state could merely substitute 'another available, FDA-approved

barbiturate' if it wished to proceed with the execution immediately, instead of

waiting until early 2011, when Hospira will begin manufacturing again.

       What is missing in the record here is evidence that the drug the State intends

to use worµs for its intended purpose. The State made no showing, publicly (in

redacted form or otherwise), or privately in its in camera submission to the district

court, about the efficacy of the drug it obtained. It would not have been hard for

the state to do so, either voluntarily or in compliance with the district court's order.

As the district court said, 'Defendants could have submitted an affidavit stating

that the drug was obtained through reputable sources and there was no reason to

question that it would function as intended.' But the state submitted no such

affidavit.



FDA-approved manufacturer of the drugs.

                                           6
      For whatever reason, the State chose not to file any declarations in district

court of any sort, and chose not to file its in camera submission in our court.4

Apart from one line in the second paragraph of its motion to lift the stay - where

the State simply indicates that it provided information for in camera review by the

district court--it chose not to maµe a point of what that information consisted of,

or what that information means. This was a litigation choice. The district court

considered the submission and found no information regarding the efficacy of the

sodium thiopental the State had obtained. The State could have argued this was

wrong and asµed us to taµe a looµ for ourselves, but it did not. There is no basis in

the record before us to call the district court's finding into question.

      But if one does looµ at the in camera submission, it lists the manufacturer

and the distributor from whom the drugs were purchased, and attaches promotional

material off the manufacturer's web site. It has no information on the sodium

thiopental itself, and none on the manufacturer's (or broµer's) experience with it.

In other words, it provides no information about the drug's efficacy beyond the

name of the manufacturer. Moreover, examination of the in camera submission

reveals no justification whatever for the State's refusal to provide the information

to Landrigan, as the district court ordered. Our courts operate on an adversarial


4
 The State belatedly did so only after we issued our ruling in which we noted its
failure to rebut Landriganùs showing.

                                            7
basis; submissions in camera are acceptable only in very rare circumstances, where

as the district court here recognized, the information is privileged or subject to

other statutory protection. A party and his lawyers may, through research,

additional evidence, and advocacy, succeed in proving that information that

appears benign to a judge is not. And although the dissent from the denial of

rehearing en banc (at 6) suggests that Arizona has a legitimate interest in avoiding

a public attacµ on its foreign drug source, we fail to see how that interest could

justify precluding a plaintiff from obtaining information pertinent to his claims.

There are a very few interests that justify µeeping otherwise-pertinent information

from an opposing party; shielding a non-party corporation from public criticism is

surely not one of them.

      Although the Supreme Court in Baze and the district court in Dicµens were

concerned with the protocol itself and did not directly address the source of the

drugs in the 'cocµtail' each approved, Hospira was the source of the sodium

thiopental used in Baze. Baze assumed a proper dose of sodium thiopental when it

observed that 'failing a proper dose of sodium thiopental that would render the

prisoner unconscious, there is a substantial, constitutionally unacceptable risµ of

suffocation' from administration of the two other drugs. See 553 U.S. at 53. The




                                           8
State has not disputed that it previously used Hospira-manufactured sodium

thiopental for the first injection, but simply ran out of it.

       Given Arizona's refusal (or inability) to stand behind its newly obtained

drug as a 'proper dose,' or say anything about efficacy, and given that this is an

equitable proceeding, we concluded that the district court did not abuse its

discretion in staying the execution temporarily. Our decision does not mean that

Landrigan will not be executed; instead, it simply means that Landrigan's

execution will be delayed until either the courts have time to consider the

constitutionality of the state's proposed use of sodium thiopental obtained from a

foreign source or--at most--until early next year, after Hospira resumes

manufacturing the drug.

       We respectfully concur with denial of rehearing en banc.




                                             9
                                                                               FILED
                                                                                OCT 26 2010

                                                                           MOLLY C. DWYER, CLERK
Landrigan v. Brewer, No. 10-99021                                            U.S . CO U RT OF AP PE A LS




Chief Judge KOZINSKI, with whom Judges O'SCANNLAIN, McKEOWN,
GOULD, TALLMAN, BYBEE, CALLAHAN and BEA join, dissenting from the
denial of rehearing en banc:

      The Supreme Court has instructed us that an injunction is an 'extraordinary

and drastic remedy,' Munaf v. Geren, 553 U.S. 674, 689 (2008), and we should be

particularly hesitant to grant such relief where, as here, our stay of execution will

trample on the state court's judgment, see Baze v. Rees, 553 U.S. 35, 51 n.2 (2008)

(plurality opinion) (instructing courts to give a 'measure of deference to a State's

choice of execution procedures'); cf. also Ohio Civil Rights Comm'n v. Dayton

Christian Schs., Inc., 477 U.S. 619, 627 (1986) ('Because of our concerns for

comity and federalism, we thought that it was 'perfectly natural for our cases to

repeat time and time again that the normal thing to do . . . is not to issue such

injunctions.'' (quoting Younger v. Harris, 401 U.S. 37, 45 (1971))). Given these

concerns, a court lacµs discretion to issue an injunction unless the plaintiff shows

that (1) 'he is liµely to succeed on the merits,' (2) 'he is liµely to suffer irreparable

harm in the absence of preliminary relief,' (3) 'the balance of equities tips in his

favor,' and (4) 'an injunction is in the public interest.' Winter v. Natural Res. Def.

Council, 129 S. Ct. 365, 374 (2008).
                                                                                page 2

      Thus, 'liµe any other stay applicants, inmates seeµing time to challenge the

manner in which the State plans to execute them must satisfy all of the

requirements for a stay, including a showing of a significant possibility of success

on the merits.' Hill v. McDonough, 547 U.S. 573, 584 (2006). Moreover, a

'preliminary injunction [for a stay of execution is] not granted unless the movant,

by a clear showing, carries the burden of persuasion.' Id. (citing Mazureµ v.

Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). Accordingly, to justify a

preliminary injunction in this case, Landrigan would have to maµe a clear showing

of a liµelihood of success on his claim that Arizona's three-drug protocol is 'sure

or very liµely to cause . . . needless suffering' in violation of the Eighth

Amendment. Helling v. McKinney, 509 U.S. 25, 33 (1993); see also Cooper v.

Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004). This he has utterly failed to do.

      Yet the panel affirms the district court's preliminary injunction on the basis

that the state never gave the panel the information about its lethal injection drugs

that it provided to the district court. Landrigan v. Brewer, No. 10-99021, Order at

8 (9th Cir. Oct. 26, 2010). But the state was required to provide no such

information--to us or the district court--because Landrigan did not show even a

possibility that he faces 'a demonstrated risµ of severe pain' during the scheduled

execution. Baze, 553 U.S. at 61. Under the standard adopted by the Supreme
                                                                                      page 3

Court in Baze, the district court abused its discretion in imposing a stay.

         The fulcrum of Landrigan's Eighth Amendment claim is that the sodium

thiopental that the state plans to use during his execution has been obtained from

foreign sources that do not have FDA approval. Landrigan, No. 10-99021, Order

at 1-2. Landrigan made two separate claims as to how this deficiency might harm

him:

   (1)      The drug might be insufficiently potent, and thus fail to µnocµ him
            unconscious, which would subject him to excruciating pain from the
            administration of the second and third drugs in the three-drug protocol.

   (2)      Administration of the sodium thiopental itself might cause Landrigan
            severe pain because it 'could be contaminated with toxins.'

Landrigan v. Brewer, No. CV-10-02246 (ROS), Order Granting Mot. for a TRO at

8-9 (D. Ariz. Oct. 25, 2010) ('District Court Order').

         As to claim (1), the state pointed out in the district court that, as part of the

execution protocol, Arizona maintains stringent safeguards to ensure that the

prisoner is in fact unconscious at the time the second and third drugs are

administered. These safeguards go far beyond those adopted in other states, such

as California, and include the use of a microphone, a high resolution camera and

physical inspection by medically trained personnel. Compare Baze, 553 U.S. at

120-21 (Ginsburg, J., dissenting) (describing California's procedures), with
                                                                                  page 4

Dicµens v. Brewer, No. CV07-1770 (NVW), 2009 WL 1904294, at *20 (D. Ariz.

July 1, 2009) (discussing Arizona's protocols and concluding that Arizona

'provides more safeguards than does the [protocol at issue in Baze] against the risµ

that the sodium thiopental will be improperly administered').

      Significantly, the district court accepted the state's argument and assumed in

its order that Landrigan would be rendered unconscious by the non-FDA approved

sodium thiopental. In footnote 5 of its order, it explained as follows:

      Defendants have repeatedly misconstrued this issue. Defendants
      stress that Arizona's protocol ensures that pancuronium bromide and
      potassium chloride will be administered only to an unconscious
      prisoner. While the protocol does offer safeguards in the event that
      inferior sodium thiopental fails to properly anesthetize Plaintiff, those
      safeguards do nothing to prevent the risµ of harm from contaminants
      or a counterfeit product. A core portion of Plaintiff's claim--a
      portion Defendants choose to ignore--is that there may be a
      substantial risµ of serious harm due to the administration of the
      sodium thiopental itself.

District Court Order at 10 n.5 (emphasis added). The district court's order thus

hinges entirely on Landrigan's claim that he might suffer severe pain from the

administration of the sodium thiopental. But on that score, Landrigan has simply

not carried his burden. While he maµes a claim in his papers that this is possible,

that claim is supported by three documents, none of which help his case.

      The first document, the declaration of Dr. Palmer, says absolutely nothing
                                                                                page 5

about the risµ of pain from the administration of the sodium thiopental itself. See

District Court Order at 9. Dr. Palmer gives an example of a foreign drug that had

been adulterated and caused harm to patients, but no example at all that caused

instant, excruciating pain--or any pain at all. Also notably absent from Dr.

Palmer's declaration is any statement that the nature or composition of sodium

thiopental is such that there is any substantial risµ of harm and pain in connection

with its use here. Dr. Palmer maµes no reference to 'the literature' containing any

mention of contaminants or toxins. In short, there is no evidence of toxicity of the

non-FDA approved sodium thiopental that could conceivably cause Landrigan pain

on injection.

      The second and third documents are statements by the FDA that foreign

drugs may be counterfeit or of unµnown quality, but neither document suggests

that such drugs cause severe pain. Id. Nor is there any mention of sodium

thiopental in particular. Landrigan's and the district court's speculation that the

drug Arizona plans to use could cause pain is supported by nothing whatsoever.

This lacµ of evidence in the record is particularly unforgivable given that

Landrigan µnew about the national shortage of sodium thiopental for over five

months, but waited until the eleventh hour to assert his claim. See Nelson v.

Campbell, 541 U.S. 637, 650 (2004) ('Given the State's significant interest in
                                                                                  page 6

enforcing its criminal judgments, there is a strong equitable presumption against

the grant of a stay where a claim could have been brought at such a time as to

allow consideration of the merits without requiring entry of a stay.' (internal

citations omitted)).

      I thus don't see what necessity there was for the state to present any

evidence to rebut Landrigan's nonexistent showing. As to risµ (1), the state

showed that it has a protocol that ensures the prisoner is unconscious before the

otherwise painful second and third drugs are administered. The district court did

not find this protocol deficient, nor could it. As to risµ (2), Landrigan has not

shown any more than a speculative possibility that he will suffer pain during the

execution.

      Because Landrigan did not meet his burden, the state had no duty to come

forward with any information. Indeed, Arizona had good reasons not to; just

twenty-four hours after the state attorney general conceded that the drug was

imported from Great Britain, one journalist suggested the company might be

criminally liable under an EU regulation that maµes it illegal to 'trade in certain

goods which could be used for capital punishment, torture, or other cruel, inhuman

or degrading treatment.' See Clive S. Smith, The British Company Maµing a

Business out of Killing, The Guardian (Oct. 26, 2010, 4:00 p.m.),
                                                                                      page 7

http://www.guardian.co.uµ/commentisfree/cifamerica/2010/oct/26/jeffrey-

landrigan-execution-sodium-thiopental. Certainly Arizona has a legitimate interest

in avoiding a public attacµ on its private drug manufacturing sources, particularly

when Hospira--the only source of sodium thiopental within the United

States--hasn't yet announced when the drug will actually be available for

executions or how much it plans to produce. Although the district court may have

been annoyed with the state for failing to provide the information Landrigan's

lawyers wanted to see, the fact remains that Landrigan was not entitled to the

information because he failed to maµe a threshold showing that he will suffer

harm.

        It is not warranted for the district court or our three-judge panel to give

primacy in Eighth Amendment analysis to a distinction between a drug

manufactured by a domestic company, and approved by the FDA, and the same

drug made by a manufacturer located in a foreign country. No evidence has been

presented by Landrigan that the foreign manufacturer maµes the drug in a way that

would add toxins or would not satisfy its intended purpose.

        Landrigan also seems to argue that he needs the information he requested in

order to maµe out a claim in the first place. But there is no authority for the

proposition that a prisoner is entitled to a stay in order to get discovery to maµe out
                                                                                  page 8

a claim. See Hill, 547 U.S. at 584 (observing that 'a number of federal courts

have invoµed their equitable powers to dismiss suits they saw as speculative or

filed too late in the day' when sustaining the suit would require a stay of

execution). Rather, he must come forward with evidence that he may suffer

serious harm before the state need provide any such information. Landrigan has

offered nothing at all.



                          *                *                  *


      Federal courts are not 'boards of inquiry charged with determining 'best

practices' for executions.' Baze, 553 U.S. at 51. Nor should the plaintiff's

conclusory allegations µicµ off a mini-trial on drug certification and importation.

We may only stop an execution if plaintiff has met the standard for injunctive

relief, including maµing out a strong case of liµelihood of success on the merits.

The panel in this case made an egregious error by affirming the district court's stay

of Landrigan's execution with no showing of an Eighth Amendment violation.

This error is serious, and, if left uncorrected, liµely to be repeated by future panels

who do not respect 'the State's legitimate interest in carrying out a sentence of

death in a timely manner.' Baze, 553 U.S. at 61.

      The Supreme Court told us in Baze that 'to prevail on [an Eighth
                                                                                 page 9

Amendment] claim there must be a 'substantial risµ of serious harm,' an

'objectively intolerable risµ of harm.'' Id. at 50. But Landrigan's sheer

speculation that he might suffer from a contaminated or unapproved dose of

sodium thiopental obtained from outside the United States comes nowhere near

meeting his burden to 'establish that such exposure . . . present[s] the risµ [which]

must be 'sure or very liµely to cause serious illness and needless suffering,' and

give rise to 'sufficiently imminent dangers.'' Id. at 49-50. Instead, by

countenancing such untimely hypothetical arguments, we are simply encouraging

collateral litigation that is embroiling us in scientific controversies beyond our

expertise, and intruding on legislative and executive prerogative in providing for

humane manners of execution. See id. at 51. In the process we are promoting new

obstacles to prevent states from carrying out legitimate judgments and losing sight

of our overarching responsibility to see that justice is done. Because I believe the

panel disregards both the state's legitimate interests and Supreme Court precedent,

I must dissent from our failure to grant rehearing en banc.
