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Philadelphia Inquirer v. Wetzel

United States District Court, M.D. Pennsylvania

November 6, 2012

The PHILADELPHIA INQUIRER, et al., Plaintiffs
John E. WETZEL, in his individual capacity as Secretary of the Pennsylvania Department of Corrections, et al., Defendants.

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H. Justin Park, Stephen J. Shapiro, Schnader, Harrison, Segal & Lewis LLP, Mary Catherine Roper, American Civil Liberties Union of Pennsylvania, Philadelphia, PA, Paul H. Titus, Schnader Harrison Segal & Lewis LLP, Witold J. Walczak, American Civil Liberties Union of Pennsylvania, Pittsburgh, PA, for Plaintiffs.

Timothy E. Gates, Office of General Counsel, Department of Corrections, Mechanicsburg, PA, Timothy P. Keating, Office of Attorney General of Pennsylvania, Harrisburg, PA, for Defendants.


YVETTE KANE, Chief Judge.

Before the Court is Plaintiffs' motion for a temporary restraining order and preliminary injunction directing officials of the Pennsylvania Department of Corrections

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to permit them, or other press members designated as witnesses, full visual and auditory access to executions conducted in the Commonwealth of Pennsylvania, including an execution scheduled for November 8, 2012. (Doc. No. 4.) Defendants have filed a brief in opposition. (Doc. No. 17.) At a hearing conducted on October 17, 2012, the Court heard argument and received testimony, documents and transcripts of testimony agreed to by the parties. (Doc. No. 32.) For the reasons that follow, the Court will grant Plaintiffs' motion.


On November 8, 2012, the Commonwealth of Pennsylvania will execute Hubert Michael by lethal injection pursuant to a detailed written protocol adopted in 2012. Because the protocol limits the ability of Plaintiffs, The Philadelphia Inquirer and The Patriot-News, and other witnesses to see and hear all phases of the execution, Plaintiffs request that the Court order Defendants, the Pennsylvania Department of Corrections (DOC) and its agents, to conduct all phases of Mr. Michael's execution in view of and audible to all witnesses present at the execution. (Doc. No. 4 at 2.) Plaintiff The Patriot-News has been selected to witness Mr. Michael's execution from the observation room adjoining the execution chamber. (Doc. No. 31.)

The parties have identified no factual dispute concerning the DOC Capital Case Procedure Manual's lethal injection protocols. (Doc. No. 5 at 5.) As written, the current protocol requires that a curtain between the injection chamber and the witness observation room be closed during three phases of the execution process: (1) the entry of the inmate and the lethal injection team's medical preparation of the inmate for the execution, (2) any necessary consciousness check after the administration of the first drug, and (3) the coroner's examination of the inmate following the administration of the final two lethal injection drugs. The curtain between the injection chamber and witness room is therefore opened and closed up to three times during the execution.

First, the curtain is closed while the inmate enters the execution chamber, and remains closed while the inmate is secured to the table, the lethal injection team (LIT) enters the chamber, the LIT connects the inmate to the EEG and ECG monitors, and the LIT inserts two intravenous catheters in the inmate's forearms to commence the flow of saline solutions. Upon completing all connections, the LIT returns to the injection control room. The Major-of-the-Guard or designee, who remains in the injection chamber to make a written record of all activity, will remove the surgical mask from the inmate, and cover the inmate with a sheet. Once the Capital Facility Manager gives the order to proceed with the execution, the Major-of-the-Guard opens the curtain between the lethal injection chamber and the witness room for the first time.

After the LIT completes their remote administration of the first drug from a separate room, the curtain may or may not close depending on whether an EEG monitor is being used for the execution. If an EEG monitor is used, the LIT checks the EEG monitors to determine whether the inmate is unconscious from effect of the first drug. If the EEG monitor does not conclusively show that the inmate is unconscious, the designee will close the curtains between the injection chamber and the witness room and the LIT will then enter the injection chamber to perform a consciousness check by tactile stimulation. If the LIT determines that the inmate is unconscious following this check, the LIT

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returns to the injection room and the curtains are again opened between the injection chamber and the witness room. If the EEG monitor is not being used for this particular execution, the designee closes the curtain to permit the LIT to enter the injection chamber and perform a manual consciousness check, at the conclusion of which the LIT leaves the injection chamber and the curtain is drawn open again. At this point, if the inmate appears to be unconscious, the LIT will administer the final two drugs remotely from the injection room.

Once the final two drugs have been administered, and the LIT observes an absence of electrical activity on the ECG monitor, an LIT member will notify the Capital Facility manager or designee that injection of the drugs has been completed. The designee will then draw the curtains closed for a third time, at which point the Coroner will enter the injection chamber to determine that the inmate died following the lethal injection. Following the conclusion of the Coroner's examination and his exit from the injection chamber, the curtain between the chamber and the witness room will be opened.

The dispute centers on whether these limitations comport with First Amendment standards. Plaintiffs maintain that the First Amendment guarantees them the right to observe the execution without visual or auditory obstructions. Plaintiffs contend that they should be allowed to observe and report on whether the inmate experiences pain during the execution, the content of any statement made by the inmate, any conversation that the medical team and the inmate engage in prior to the administration of the lethal injection drugs, and any complications resulting from the administration of the drugs. (Doc. No. 5 at 3.) Defendants argue that Plaintiffs have no First Amendment right to witness the portions of the process from which they are now excluded, and that Plaintiffs have not satisfied the standards of injunctive relief. (Doc. No. 17.)


A preliminary injunction is warranted when the moving party demonstrates: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) granting relief will not result in even greater harm to the non-moving party; and (4) that the public interest favors such relief. Stilp v. Contino, 613 F.3d 405, 409 (3d Cir.2010). Although the moving party must produce evidence to convince the Court that all four factors favor relief, as a practical matter, likelihood of success on the merits and irreparable injury are the most important elements. Am. Tel. & Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 n. 8 (3d Cir.1994).


Plaintiffs assert that they have satisfied all four elements necessary to grant a preliminary injunction. First, Plaintiffs argue they would likely prevail on the merits, arguing that the Court should recognize their First Amendment right to view executions under Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and the United States Court of Appeals for the Ninth Circuit's decision in California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir.2002). (Doc. No. 5 at 6-7.) Second, Plaintiffs maintain that the loss of their First Amendment right to view the execution, even for a minimal period of time, constitutes irreparable injury. ( Id. at 21.) Finally, Plaintiffs argue that granting the preliminary injunction would not result in harm to Defendants, and the requested relief would be in the

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public interest. ( Id. at 24-25.) The Court will address each of Plaintiffs' arguments and Defendants' ...

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