Ninth Circut Injunction in re Leavitt

News media companies, including the Associated Press, the Cowles Media Company, the Idaho Statesman and a number of smaller newspaper companies, obtained an injunction from the U.S. Ninth Circuit Court to compel the State of Idaho to allow journalists and other witnesses to observe the complete process of executing Richard Leavitt on June 12. Leavitt was convicted of the murder of Danette Elg in Blackfoot, Idaho in 1984.

The order for injunctive relief follows the Court’s earlier ruling on the same issue in California First Amendment Coalition v. Woodford, 299 F.3d 868, 877 (9th Cir. 2002).

Plaintiffs brought the action against Idaho’s governor, C.L. “Butch” Otter and officials of the Board of Correction under 42 U.S.C. § 1983. The federal statute specifically provides for injunctive relief against state officials who carry out or contemplate an act that would deprive a citizen of constitutional rights. Accordingly, the news media plaintiffs argued that, “as surrogates for the public, they have a right to witness all stages. of the executions conducted by the State of Idaho, rather than just the final portion, and that the State’s refusal to allow such access violates the First Amendment.” The Court agreed, reiterating its opinion in California First Amendment Coalition.

The Opinion, written by Circuit Judge Stephen Reinhardt and joined by Chief Judge Alex Kozinski and Circuit Judge Marsha Berzon, sharply criticized the state for its failure to adjust its policies and practices pursuant to the court’s ruling in California First Amendment Coalition, having had ten years to do so, and having apparently failed to comply with the law in its execution of Paul Rhodes in 2011. “The State has missed opportunity after opportunity to bring its execution procedures into compliance with the clear law of this Circuit.” Judge Reinhardt wrote.

Idaho’s procedure with respect to witnesses observing executions by lethal injection has previously involved the practice of shielding the initial actions of the medical execution personnel, that is when the condemned prisoner enters the execution chamber, is secured to the table upon which the execution takes place, and the medical personnel inserts the intravenous lines that deliver the lethal injection. The media group plaintiffs argued that this procedure prevents the media from monitoring and report the proceedings in their entirety and thus impairs the public’s First Amendment rights to observe the process.

Attorneys for the State of Idaho argued unsuccessfully that the procedures were in place to protect the dignity of the condemned and members of their family, and also to protect the identities of the medical personnel who conduct the execution, who might be subjected to acts of retaliation if recognized, without the security precautions.

The Court ruled that such concerns were not supported by any testimony or evidence, and thus amounted to an “exaggerated response to those concerns.”

The injunction was ordered to be effective immediately and prior to Idaho’s scheduled execution of Richard Leavitt on Tuesday, June 12, 2012, at 10:00 a.m. Leavitt had exhausted all appeals and most other avenues of potential stay of execution.

April Santos understands that court decisions like these are a difficult thing to go through. If you find you are facing a complex suit, there are people to help you.

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