Case Summary and Outcome

Facts

On April 29, 2014, the State of Oklahoma executed Clayton Lockett via lethal injection. Twelve witnesses, including members of the press chosen through a lottery system, observed the execution. Witnesses noted that prison personnel struggled to insert intravenous (IV) lines. When the viewing shade was raised, Mr. Lockett was already strapped to a gurney and prepared for injection. During the procedure, Mr. Lockett began moving, groaning, and attempting to speak. After an examination by a physician, the warden ordered the viewing shade lowered, preventing witnesses from observing the rest of the execution. Mr. Lockett ultimately died out of public view.

In response, the Oklahoma Department of Corrections (DOC) implemented new execution protocols. These included provisions requiring IV line insertions to occur outside the view of witnesses, cutting off the audio feed after the inmate’s final statement, authorising the director to lower the viewing shade if the inmate was not unconscious within five minutes of drug administration, and reducing the number of witnesses from twelve to five. The protocols also gave the DOC director discretion to deviate from established procedures.

The Plaintiffs, Arnold Hamilton (owner of the Oklahoma Observer), Katie Fretland (a freelance journalist who observed the Lockett execution), and the American division of The Guardian, filed suit against Robert Patton, the DOC Director, and Katie Trammell, Warden of the Oklahoma State Penitentiary, in their official capacities. The Plaintiffs sought a preliminary injunction to block the implementation of the new protocols, arguing they unlawfully restricted public and press access to executions. Specifically, they requested court orders ensuring full observer access from the inmate’s entry into the execution chamber until the process concluded, with uninterrupted audio throughout.

The Plaintiffs contended that the new protocols violated their rights under the First Amendment and the Oklahoma Constitution. The Defendants moved to dismiss the case, arguing that the Plaintiffs lacked standing and that their claims were barred by sovereign immunity.

Decision Overview

Judge Joe Heaton of the U.S. District Court for the Western District of Oklahoma delivered the opinion of the Court.

The primary issue before the Court was whether new execution protocols implemented by the Oklahoma Department of Corrections (DOC), limiting press access to certain stages of executions, violated the First Amendment’s protection of public access to government proceedings.

The Plaintiffs argued that the new protocols, including reduced witness numbers and restricted visual and audio access, violated their First Amendment rights. They relied on the Press-Enterprise Test and other precedents to assert a constitutional right to observe execution proceedings in full. The Plaintiffs based their claims on the First Amendment and referenced key precedents, including Press-Enterprise Co. v. Superior Court and Turner v. Safley, to argue for the public’s right to access execution proceedings.

The Defendants countered that no such First Amendment right existed for the press beyond public access, citing the absence of a broad constitutional right to access execution procedures. They further relied on sovereign immunity under the Eleventh Amendment, arguing that the protocols were justified by legitimate government interests.

The request for a preliminary injunction required the Plaintiffs to demonstrate that:
1. irreparable harm would occur if the motion were denied,
2. the movants’ threatened injury outweighed the harm the opposing party would suffer if the motion were granted,
3. the injunction was not adverse to the interests of the public, and
4. there was a substantial likelihood that the movants would prevail on the merits. [Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009)]

Furthermore, the Plaintiffs’ requests for mandatory relief “must satisfy a heightened burden” that requires “a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” [O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004)]

The Court examined the likelihood of success, as it was determinative of both the motion for a preliminary injunction and for mandatory relief.

The Court first ruled that the Plaintiffs were unlikely to succeed under the Press-Enterprise Test, which was developed in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9 (1986) (“Press-Enterprise II”), to examine both the historical openness (“experience”) and the functional value (“logic”) of determining a qualified public right of access. [p. 1324; Press-Enterprise II, at 8–9] Closures are allowed only if essential to preserve higher values and narrowly tailored to serve those interests. [Press–Enterprise Co. v. Superior Court, 464 U.S. 501, 510–11 (1984) (“Press-Enterprise I” at 510)]

The Court highlighted that the Plaintiffs were unlikely to succeed under this test for several reasons: The Supreme Court has historically applied the exception only to criminal adjudications, not to executions. [Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) at 577] Additionally, although other federal courts applied the Press-Enterprise Test to lethal injection proceedings, the Tenth Circuit’s view tended to be more restrictive, holding that this test could be applied only to criminal proceedings or instances to which it had been applied by the Supreme Court. [Smith v. Plati, 258 F.3d 1167 (10th Cir. 2001); United States v. McVeigh, 119 F.3d 806, 812 (10th Cir. 1997); United States v. McVeigh, 106 F.3d 325, 336 (10th Cir. 1997)]

The Court further noted that the “experience” element was lacking, as the historical record did not support a tradition of public access to executions in Oklahoma or the United States. Past laws and practices often limited attendance to a small, selected group rather than the general public. [p. 1326; Holden v. Minnesota, 137 U.S. 483 (1890); Section 2279 of the Oklahoma Criminal Procedure Code of 1908] The Court also emphasised that the “logic” argument, based on policy considerations, was insufficient on its own and inconsistent with “the appropriate limits on the judicial function” and would improperly place the court in the position of making legislative policy choices. [p. 1328; Houchins v. KQED, Inc., 438 U.S. 1, 12–14 (1978)]

The Court then rejected the Plaintiffs’ argument that the protocols imposed content-based restrictions by limiting access only to portions of executions that “show no improper government activity,” which would trigger the Lanphere Standard. This standard was developed by the Tenth Circuit in Lanphere & Urbaniak v. Colorado, subjecting content-based restrictions to First Amendment scrutiny but ultimately upholding them if they served legitimate state interests. [Lanphere, at 1515] In this case, the Court noted that the protocols did not meet the Lanphere Standard, highlighting that recognising a broad constitutional right to access government information based solely on potential “improper activity” would be inconsistent with precedent and could discourage disclosure, ultimately reducing public access to information.

The Court finally ruled that the Plaintiffs’ likelihood of success under the Turner Standard was deemed low. This Standard assesses whether prison regulations are reasonably related to legitimate penological interests. [Turner v. Safley, 482 U.S. 78 (1987)] The assessment involves evaluating factors such as the rational connection between the regulation and its goal, alternative ways to exercise the claimed right, the impact of accommodating the right, and alternative means to achieve the government’s aims. Although the Court acknowledged that this standard applies to both inmates and non-inmates, it noted that the Plaintiffs still fell short of establishing a constitutional right for the public to access execution proceedings unless the Press-Enterprise Exception applied, which it did not. The Court also indicated that the contested protocols, justified by the Defendants’ penological interests, would likely withstand scrutiny given the deference typically afforded to prison officials. [p. 1330–1331]

In conclusion, the Court denied the motion for a preliminary injunction, finding that the Plaintiffs had failed to demonstrate a likelihood of success on the merits. The case was dismissed without prejudice. Judge Heaton explicitly stated that the decision did not imply that the DOC’s protocols were desirable but that they did not violate constitutional rights.