Lopez v. Brewer

Under Arizona’s lethal injection protocol, difficulties in inserting the peripheral line in a prisoner’s hand, the femoral central line, and repeated abortive IV line placement efforts do not constitute an “objectively intolerable risk of pain,” and therefore do not violate the Eighth Amendment.

Samuel Lopez challenged the Arizona Department of Corrections’ (ADC) execution protocol on three grounds. Lopez alleged that: (1) the procedure for placing IV catheters violates the Eighth Amendment; (2) the January 25, 2012, amendment to the ADC’s protocol violates the Equal Protection Clause of the Fourteenth Amendment; and (3) ADC’s protocol violates the right of access to counsel and the courts. The district court denied Lopez’s request for a preliminary injunction, because Lopez failed to prove a substantial likelihood of success on the merits. On appeal, Lopez maintained the three original allegations and added that the non-evidentiary review by the district court ignored the “serious questions” test. The Ninth Circuit concluded that since “Lopez failed to demonstrate a likelihood of success on the merits, it follows that Lopez also failed to raise serious questions going to the merits.” The district court was correct in not conducting an evidentiary hearing. On the other issues, the Court held that: (1) the possibility of discomfort in inserting the IV catheters does not pose an “objectively intolerable risk of severe pain” that violates the Eighth Amendment; (2) death row inmates are physiologically different, so no two would be treated the same; therefore, no issue of equal protection exists; and (3) the unwritten ADC protocol restricting counsel’s visitation to 9:00 p.m. the night before an execution, and 7:00 a.m. on the day of execution, will be amended to permit in-person non-contact visitation until 9:00 a.m. on the morning of execution. AFFIRMED, subject to counsel visitation modifications.