The Associated Press v. Otter

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE ASSOCIATED PRESS, a New 

York corporation; IDAHO

STATESMAN PUBLISHING, LLC, a

Delaware limited liability company

doing business as The Idaho

Statesman; LEE ENTERPRISES,

INCORPORATED, a Delaware

corporation doing business as The

Times-News; THE IDAHO PRESS

CLUB, INC., an Idaho corporation;

PIONEER NEWSPAPERS, INC., a

Nevada corporation doing business

as Idaho Press-Tribune, Idaho

State Journal, Standard Journal,

Teton Valley News, The News-

Examiner, The Preston Citizen,

and Messenger Index; TPC



HOLDINGS, INC., an Idaho

corporation doing business as

Lewiston Tribune and Moscow-

Pullman Daily News; BAR BAR

INC., an Idaho corporation doing

business as Boise Weekly; COWLES

PUBLISHING COMPANY, a

Washington corporation doing

business as The Spokesman-

Review; IDAHOANS FOR OPENNESS

IN GOVERNMENT, INC., an Idaho

non-profit corporation,

Plaintiffs-Appellants,

v.



6855

6856 ASSOCIATED PRESS v. OTTER

C.L. “BUTCH” OTTER, in his official 

capacity as the Governor of the

State of Idaho; ROBIN SANDY, in

her official capacity as Chairman

of the Idaho Board of Correction;

HOWARD G. “J.R.” VAN TASSEL, in

his official capacity as Secretary No. 12-35456

of the Idaho Board of Correction;

D.C. No.

JAY NIELSEN, in his official

capacity as Vice Chairman of the  1:12-cv-00255-EJL

Idaho Board of Correction; BRENT ORDER AND

REINKE, in his official capacity as AMENDED

the Director of the Idaho OPINION

Department of Correction; KEVIN

KEMPF, in his official capacity as

Division Chief of Operations of

the Idaho Department of

Correction,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted

June 7, 2012—Pasadena, California

Filed and Amended June 8, 2012

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Reinhardt

ASSOCIATED PRESS v. OTTER 6859

COUNSEL

Charles A. Brown, Lewiston, Idaho, for the plaintiffs-

appellants.

Lawrence G. Wasden, Attorney General; Steven L. Olsen,

Chief of Civil Litigation; Michael S. Gilmore, Deputy Attor-

ney General; Mark A. Kubinski, Lead Deputy Attorney Gen-

eral, Idaho Department of Correction; Thomas C. Perry,

Counsel to the Governor, Boise, Idaho, for the defendants-

appellees.

ORDER

The opinion filed on June 8, 2012 is hereby amended by the

insertion of a footnote after line 14 of page 3, reading as fol-

lows: “Although the State was at fault, the plaintiffs, as noted

by the district court, could have mitigated this situation by fil-

ing the lawsuit earlier, because they had notice as of February

2012 that the State believed it was in compliance with Cali-

fornia First Amendment Coalition.”

OPINION

REINHARDT, Circuit Judge:

Nearly a decade ago, we held in the clearest possible terms

that “the public enjoys a First Amendment right to view exe-

cutions from the moment the condemned is escorted into the

execution chamber, including those ‘initial procedures’ that

are inextricably intertwined with the process of putting the

condemned inmate to death.” California First Amendment

Coalition v. Woodford, 299 F.3d 868, 877 (9th Cir. 2002).

The State of Idaho has had ample opportunity for the past

decade to adopt an execution procedure that reflects this set-

6860 ASSOCIATED PRESS v. OTTER

tled law. It can hardly complain that it has been unaware of

the binding precedent, since the media coalition specifically

cited California First Amendment Coalition in asking the

State to alter its execution procedure prior to the November

2011 execution of Paul Rhoades. The State has nonetheless

failed to bring its procedure into compliance with the law—

either in the days prior to the Rhoades execution or in the suc-

ceeding months, when it met with the media coalition to dis-

cuss the matter. The State has persisted in its intransigence

even after we suggested at oral argument that a voluntary

amendment (like the one that Arizona recently adopted) might

avert the need for an injunction. The State’s complaints about

the last-minute nature of this litigation ignore this history. We

fault the State, not the media plaintiffs, for our need to con-

sider this question several days before an execution: the State

has missed opportunity after opportunity to bring its execution

procedures into compliance with the clear law of this Circuit.1

We reverse the district court’s denial of a preliminary

injunction and remand for the entry of such an injunction

forthwith, and in any event prior to the impending execution

of Richard Leavitt.

I

The dispute here is narrow. Under its current execution pro-

cedure, the State would allow witnesses to view the final por-

tion of Leavitt’s execution, beginning with the reading of the

death warrant and concluding with the pronouncement of

death. As in the Rhoades execution, however, the State does

not intend to allow witnesses to view the first part of the pro-

cedure, beginning with Leavitt’s entry into the execution

chamber, through the insertion of intravenous lines into his

body.

1

Although the State was at fault, the plaintiffs, as noted by the district

court, could have mitigated this situation by filing the lawsuit earlier,

because they had notice as of February 2012 that the State believed it was

in compliance with California First Amendment Coalition.

ASSOCIATED PRESS v. OTTER 6861

A coalition of media corporations filed this action under 42

U.S.C. § 1983 shortly after the issuance of the warrant for

Leavitt’s execution. The plaintiffs assert that, as surrogates for

the public, they have a right to witness all stages of the execu-

tions conducted by the State of Idaho, rather than just the final

portion, and that the State’s refusal to allow such access vio-

lates the First Amendment. They seek a preliminary injunc-

tion on the basis that, without such relief, they will be

irreparably damaged by the denial of their right to view

Leavitt’s execution in its entirety.

The State asserts what it considers to be four legitimate

penological objectives that, in its view, override the First

Amendment right of public access to executions in their

entirety. First, it says, it wishes to preserve the condemned

prisoner’s privacy and dignity. Second, it wishes to respect

the sensibilities of the condemned prisoner’s family. Third, it

wishes to do the same for his fellow death-row inmates.

Fourth, it wishes to protect the anonymity of the members of

the medical team who participate in the execution. Under Cal-

ifornia First Amendment Coalition, the State can prevail if the

limitation of the plaintiffs’ First Amendment right is “reason-

ably related to legitimate penological objectives,” rather than

“an exaggerated response to those concerns,” Turner v. Saf-

ley, 482 U.S. 78, 87 (1987) (internal quotation marks omit-

ted). See 299 F.3d at 879 (adopting the Turner standard).

[1] “A plaintiff seeking a preliminary injunction must

establish” four elements: “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). “We review a district court’s decision to grant or deny

a preliminary injunction for abuse of discretion. In deciding

whether the district court has abused its discretion, we employ

a two-part test: first, we ‘determine de novo whether the trial

court identified the correct legal rule to apply to the relief

6862 ASSOCIATED PRESS v. OTTER

requested’; second, we determine ‘if the district court’s appli-

cation of the correct legal standard was . . . illogical, . . .

implausible, or . . . without support in inferences that may be

drawn from the facts in the record.’ A decision based on an

erroneous legal standard or a clearly erroneous finding of fact

amounts to an abuse of discretion.” Pimentel v. Dreyfus, 670

F.3d 1096, 1105 (9th Cir. 2012) (citations omitted).

II

We hold that the district court abused its discretion with

respect to each of the four elements that the plaintiffs must

establish.

A

[2] First, the plaintiffs are quite likely to succeed on the

merits of their First Amendment claim. As discussed above,

California First Amendment Coalition makes clear that the

First Amendment protects the public’s right to witness all

phases of Leavitt’s execution, including the portion that the

State now shields from view. Although the State argued

below that California First Amendment Coalition’s interpreta-

tion of the First Amendment was premised in part on the his-

tory of public executions in California—a history that, the

State asserted, differed from Idaho’s—the district court

rejected this argument, and the State does not raise it on

appeal. The only question as to the merits, then, is whether the

State has asserted legitimate penological interests sufficient to

overcome the First Amendment right of public access. See

California First Amendment Coalition, 299 F.3d at 879

(adopting as the relevant inquiry “whether a prison regulation

that burdens fundamental rights is reasonably related to legiti-

mate penological objectives, or whether it represents an exag-

gerated response to those concerns” (internal quotation marks

omitted)).

[3] Here, the plaintiffs showed that they are likely to suc-

ceed on the merits simply by pointing to our prior opinion in

ASSOCIATED PRESS v. OTTER 6863

California First Amendment Coalition—an opinion that

appears squarely to govern this case. To the extent that the

State’s asserted interests in protecting the dignity of con-

demned prisoners and the sensibilities of their family and fel-

low inmates qualify as legitimate penological concerns in the

first place—a matter about which we harbor significant doubt,

see, e.g., Procunier v. Martinez, 416 U.S. 396, 413 (1974)

(recognizing the legitimate “governmental interests of secur-

ity, order, and rehabilitation”), overruled on other grounds by

Thornburgh v. Abbott, 490 U.S. 401 (1989)—the State has

failed to explain why the modest expansion of witness access

to include the insertion of intravenous lines would meaning-

fully affect them. The State of Idaho already offends the dig-

nity of condemned inmates and the sensibilities of their

families and fellow inmates by allowing strangers to watch as

they are put to death. It strains credulity for the State to assert

that these interests will be offended to a meaningfully greater

degree when witnesses are permitted to watch the insertion of

intravenous lines than when they are simply allowed to watch

the inmates die. The State also has not explained why these

interests were not equally at stake in California, although our

opinion in California First Amendment Coalition did not

explicitly consider them.

[4] The State’s interest in preserving the anonymity of

medical team members who participate in the execution is

more substantial. We considered this interest at length in Cali-

fornia First Amendment Coalition, however, characterizing

California’s “fear that execution team members [would] be

publicly identified and retaliated against” as “an overreaction,

supported only by questionable speculation,” 299 F.3d at 880,

and upholding the factual finding “that ‘[t]he use of surgical

garb is a practical alternative to restricting access to witness

lethal injection executions in order to conceal the identity of

such execution staff should security concerns warrant such

concealment,’ ” id. at 884. The State has made no serious

attempt to explain why medical team members in Idaho might

be less likely to remain anonymous than those in California

6864 ASSOCIATED PRESS v. OTTER

or why any risks that they might face upon public exposure

would be greater. At oral argument, the State’s counsel specu-

lated that because the populations of Idaho or of the metropol-

itan area where its executions take place are smaller than

those of California, medical team members in Idaho would be

more likely to be identified on the basis of their appearance

(even when shielded by surgical garb) than those in Califor-

nia. This is pure speculation; the State has presented no evi-

dence to support it.

[5] Nor has the State provided any support whatsoever for

its speculation that it may be unable to recruit and retain med-

ical team members to participate in executions. The declara-

tion of Jeff Zmuda, Deputy Chief of the Idaho Bureau of

Prisons, makes only a bare assertion to that effect. Given that

there are only five members of the current medical team, it

would have been a simple matter for the State to submit evi-

dence, such as a declaration filed under seal from a team

member or a declaration from an official who had spoken

with the team members, that any one of those members was

even considering withdrawing from participation in either

Leavitt’s execution or any future execution. At oral argument,

we invited the State to produce, even at this late date, any

such evidence that it might be able to obtain. We conclude

from the State’s failure to do so that no such evidence exists.

[6] The district court was correct to have “significant con-

cerns” regarding the State’s arguments. Dist. Ct. Order at 14-

15. The court abused its discretion, however, by failing to rec-

ognize, in light of these concerns, that the plaintiffs are likely

to succeed in showing that the State’s limitation on witness

access is not “reasonably related to legitimate penological

objectives” but rather “represents an exaggerated response to

those concerns,” Turner, 482 U.S. at 87 (internal quotation

marks omitted).

B

[7] The district court also held that the plaintiffs had failed

to show that they would suffer irreparable harm in the absence

ASSOCIATED PRESS v. OTTER 6865

of an injunction because “witnesses still [would] be allowed

to see the execution process from the time after the inmate is

restrained and IVs are placed” and because “there will most

likely be other executions in the future.” Dist. Ct. Order at 16-

17. Both rationales are contrary to law. The first ignores our

explicit holding in California First Amendment Coalition that

the First Amendment protects the right to witness executions

in their entirety. To say that the plaintiffs will not suffer harm

because they will be able to witness part of Leavitt’s execu-

tion is like saying that the public would not suffer harm were

it allowed to read only a portion of the New York Times. The

second rationale ignores the rule that “[t]he loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v. Burns,

427 U.S. 347, 373 (1976). That the plaintiffs may be able to

observe future executions in Idaho does not mean that they

are unharmed by the denial of their right to observe this exe-

cution. These legal errors constituted an abuse of the district

court’s discretion. Pimentel, 670 F.3d at 1105. The plaintiffs

will suffer irreparable injury in the absence of a preliminary

injunction.

C

[8] Our balancing of the equities—like the district court’s

—turns on whether there is any realistic possibility that a pre-

liminary injunction will delay Leavitt’s execution. We reject

each of the three premises on which the district court believed

that such a delay could occur. First, there is minimal chance

that the injunction will lead to a successful stay application by

Leavitt. Not only is the prospect of any such application spec-

ulative, but if filed, it would likely fail. Second, in light of the

minimal changes that an injunction might require and the

State’s failure to specify the nature of any such change, we

have trouble imagining why an alteration to the training pro-

cedures would be necessary. Even if such a change were

required, the State has not explained why it would delay the

execution. Third, as noted earlier, the State has failed to do

6866 ASSOCIATED PRESS v. OTTER

more than speculate that a member of the medical team might

decline to participate in Leavitt’s execution, and it advised us

at oral argument that it had made no attempt to contact any

member of the team in order to inquire whether there is any

basis for its speculation. We therefore see no realistic possi-

bility that a preliminary injunction requiring the State to com-

ply with California First Amendment Coalition will delay

Leavitt’s execution.

D

[9] For the same reason, we have no doubt that the entry

of a preliminary injunction promotes the public interest.

“Courts considering requests for preliminary injunctions have

consistently recognized the significant public interest in

upholding First Amendment principles.” Sammartano v. First

Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). The

district court relied instead on the public interest in the timely

enforcement of criminal judgments. Although we recognize

that interest as legitimate, it lacks any weight in light of our

conclusion that no delay will occur.

III

[10] We reverse the district court’s denial of a preliminary

injunction and remand for the entry of an order requiring the

State to allow witnesses to observe Leavitt’s entire execution,

“from the moment [he] enters the execution chamber through,

to and including, the time [he] is declared dead.” California

First Amendment Coalition, 299 F.3d at 886 (internal quota-

tion marks omitted).

The mandate shall issue forthwith.

REVERSED and REMANDED.