On May 22, 2012, several national and local news agencies filed a § 1983 lawsuit in the U.S. District Court for the District of Idaho, Southern Division, against the state of Idaho. The plaintiffs, represented by private counsel, asked the court for declaratory and injunctive relief, alleging a violation of the First and Fourteenth Amendments. Specifically, the plaintiffs claimed that the policy of the Idaho Department of Correction to prohibit public viewing of the preparatory phase of the execution process, during which the inmate is restrained and the IV is inserted, violates the First Amendment right to free speech and the Fourteenth Amendment right to due process.

Along with their complaint, plaintiffs filed an expedited motion for a preliminary injunction, seeking to have the procedures in question enjoined before the execution of Richard Leavitt on June 12. The District Court (Judge Edward J. Lodge) granted the motion to expedite on May 24, but on June 5 the court denied plaintiffs' motion for a preliminary injunction. Judge Lodge found that while the plaintiffs have a strong case on the merits and the public has an interest in viewing an execution in its entirety, the motion was not filed in a timely manner, and to allow it would disrupt a scheduled execution that the public has an even greater interest in seeing carried out.

Plaintiffs immediately filed an interlocutory appeal to the Ninth Circuit. On June 8, 2012, the Ninth Circuit reversed the District Court. A three-judge panel (Chief Judge Alex Kozinski, Judge Stephen R. Reinhardt, and Judge Marsha S. Berzon) stated in an opinion by Judge Reinhardt that its ruling in California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), had clearly indicated that Idaho's policy was unconstitutional for the reasons noted by the plaintiffs, that Idaho had had a decade to correct this policy, and thus that any problems of timing were the fault of the state and not of the plaintiffs. It further found that the District Court had abused its discretion in balancing the four elements the plaintiff must prove for a preliminary injunction. Accordingly, the appeals panel reversed the District Court and remanded for entry of an injunction prior to the execution of Richard Leavitt.

The District Court (Judge Lodge) entered an injunction on June 11 and directed the parties to submit a joint litigation plan by June 22.

On July 10, 2012, Judge Lodge entered a permanent injunction ordering the Idaho Department of Corrections, and responsible parties associated therewith, to modify their procedures to allow the witnesses to the execution of a condemned inmate to observe the entire execution from the moment the inmate enters the execution chamber through, to and including, the time the inmate is declared dead.

The case is now closed.

Christopher Schad - 06/12/2012
Ian Sander - 11/10/2016


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