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Towery v. Brewer – Ninth Circuit Court of Appeals

Towery v. Brewer, 12-15381, 2012 WL 627787 (9th Cir. Feb. 28, 2012) cert. denied, 11-9009, 2012 WL 638120 (U.S. Feb. 29, 2012)

Facts of the case:

Several prisoners on death row challenged Arizona’s new execution procedures (about a month old at the time of this ruling) under 42 U.S.C. §1983. the new procedure called for a change in how many drugs are administered in lethal injections from one originally to three. The inmates/plaintiffs argue the new execution procedures violate both the 8th Amendment and the 14th Amendment to the Constitution.

Part of the problem for the inmates was notice. The inmates claimed notice of the procedural changes were given at the 11th hour, and oral arguments in district court took place less than 48 hours within the first scheduled execution.

The other part of the problem was the new procedures called for the Arizona Department of Corrections to use a three drug cocktail during the lethal injection. The inmates objected to using three different drugs. However, on February 27, 2012, one day before the the 9th Circuit Court of Appeals decision was filed, the Arizona Department of Corrections notified the court it would go ahead and use one drug for lethal injections like they had under the old rules. It turns out, the originally planned drugs expired sometime in January, 2012, and the Arizona Department of Corrections did not realize it until six weeks later.

Plaintiffs: Robert Charles Towery, et al.,

Defendants: Janice K. Brewer, Governor of Arizona;et al.,

*This opinion was written per curiam, or by the whole 9th Circuit Court without the author of it being identified.


  • the issue is whether the last minute change of executions procedures, using three drugs for lethal injection, violates the 8th and 14th Amendments to the Constitution of the Untied States.
  • The second issue is whether the injunction should be granted against the executions of Charles Towery and Robert Henry Moorman.

Rules for the combination of the three lethal injection drugs:

  • Because the Arizona Department of Corrections reversed course on Feb. 27th and decided to only administer one drug during the lethal injection, instead of three like was argued in the district court and preliminary hearing for the Ninth Circuit. Since the Arizona Department of Corrections appears not to know when some of their drugs expire until halfway through the appeals process, the appeals court did not rule on issues affecting the three drug cocktail. Thus, there is no violation of the 8th or 14th Amendments because of the change of the lethal injection cocktail, because there is no change of the lethal injection cocktail.

Rules for Preliminary Injunction:

  • “To obtain preliminary injunctive relief, Towery and Moormann must demonstrate that: 1) they are likely to succeed on the merits of such a claim; 2) they are likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in their favor; and 4) an injunction is in the public interest.”


  • Since the Arizona Department of Corrections abandoned the three drug cocktail for lethal injection, the Ninth Circuit Court of Appeals looked at Arizona’s execution procedure for a single drug lethal injection. This left the plaintiffs with their constitutional claims applied to preliminary injunctions.
  • The first part to the analysis of the preliminary injunction is the court’s look to see if the 8th Amendment was violated in some way. The Arizona Department of Corrections argues that the personnel who administer the IV are sufficiently qualified, they have backup materials on-hand (in case it is found the drugs are expired again), and access to legal counsel the morning of is sufficient.The court finds this does not meet the definition of cruel and unusual punishment under the 8th Amendment.
  • The second part to establish the preliminary injunction is to look to see if the 14th Amendment was violated in some way. Based on the new 2012 execution procedures the plaintiffs argue that the Director of the Arizona Department of Corrections to choose the personnel (if they have sufficient training), how many drugs are in the lethal injection cocktail (one or three), and where to inject the drugs into the person’s body. The court decides it is rational for the Director of the Arizona Department of Corrections to choose who is, “best situated to select the execution team from those available who meet the criteria listed in the protocol.” Thus, court also rules against the equal protection claim.


  • The new procedures of the Arizona Department of Corrections do not violate the cruel and unusual section of the 8th Amendment.
  • The new procedures of the Arizona Department of Corrections do not violate the equal protection clause of the 14th Amendment.

Arizona Appellate Court Case – IN RE PIMA COUNTY MENTAL HEALTH NO. MH 3079-4-11


Facts of the case:

The defendant’s mother feared for the safety of her son and for others. She applied for an emergency medical evaluation of her son, and based on the findings the trial court issued a psychiatric evaluation for him. After the evaluation the psychiatrist suggested court-ordered treatment. During the hearing to set the treatment at the trial court, the son told the court he did not need legal representation. The court determined he “was not capable of representing himself,” despite the defendant’s wishes. The trial court reconvened the hearing two weeks later. The date of the hearing which was determined later was never relayed to either the defendant, nor his counsel. The trial court determined because of his absence he waived his right to a voluntary hearing. The trial court then ordered the defendant to undergo inpatient treatment. The defendant appealed the ruling of the trial court.

Issue: Whether an individual with suspected mental health problems waived his right to be present at an involuntary treatment hearing

Rules: The rule used by the court was if due process given to the defendant.

  • The court said that involuntary treatment is such “a serious deprivation of liberty” that due process must be served by, but is not limited to “a full and fair adversarial proceeding.”
  • The Arizona Legislature defines a patient’s due process rights to include: a “patient and the patient’s attorney shall be present at all hearings.”
  • “The right to be present, however, may be waived if done so voluntarily and intelligently.”

Reasoning: The defendant, nor his attorney were notified when the hearing would take place. Even though it is the defendant’s duty to keep in touch with his attorney, the appellate court cannot fault them for something they were not told.

Holding (ruling): Since the defendant did not know about the hearing he cannot be held responsible for his attendance at it. Furthermore, even if he did know about it, the trial court was wrong to conclude the defendant’s absence was voluntary without any supporting evidence.

Disposition: The appellate court cancelled the trial court’s order for the defendant to undergo inpatient treatment and sent the case back to the trial court to be re-decided while using the standards in decision.

Court of Appeals, State of Arizona, Division Two

Decided: November, 30, 2011

Read the entire case here.

Arizona Appellate Court Case – In re MH2010–002637

In re MH2010-002637, 228 Ariz. 74, 263 P.3d 82 (Ct. App. 2011)

Facts of the Case:

The Appellant (the party who appeals to an appellate court) is a diagnosed schizophrenic who suffered a dramatic weight loss in the preceding weeks and appeared ill when admitted to the hospital. The Appellant refused to accept treatment, and was transferred hospitals were his mental and physical health was evaluated. For the civil commitment hearing Appellant was appointed a public defender.

Appellant was not able to attend the civil hearing, nor have it brought to him because of a dangerously low white blood cell count. Instead, he was quarantined where only a medical staff would be around him. According to A.R.S. §36-535(B) the hearing must be held within six days of when the petition is filed. Appellant’s health would not improve before the deadline of the statute.

Affidavits submitted to the trial court by doctors “indicated that Appellant was persistently or acutely disabled and in need of involuntary commitment.”

The trial court ruled Appellant was “acutely disabled and in need of court-ordered mental health treatment.”


1. Whether a court may proceed with a hearing when a patient is absent from the evidentiary hearing, required by the A.R.S. §36-539(C), without first finding that the patient cannot appear through any other means.

2. Whether “a person facing civil commitment have the right to effective assistance of counsel, and if so, how is a claim of ineffective assistance of counsel to be resolved.”


1. Involuntary treatment involves a massive curtailment of liberty, “a patient facing civil commitment must be afforded due-process protection.”

2. In determining whether due process has been afforded in a civil commitment case, we look to the three-factor test set forth Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18, 1976 U.S. LEXIS 141, 41 Cal. Comp. Cas 920 (U.S. 1976).

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. – Id.


Alternative Means of Appearance

1. First, the court said: One’s liberty is reduced during confinement. To protect against unjust loss of liberty one of the procedural safeguards needed is the opportunity to be heard at civil commitments.

2. Second, it can be very difficult in the eyes of the law to come to a definite psychiatric diagnosis. Thus the procedures above must be used otherwise there is a high degree of erroneous deprivation of an individual’s liberty. In this case, the plaintiff asks the court to allow patients to appear telephonically before the court, which would give the proceedings a greater degree of accuracy.

3. The court cannot find a reason why to bar a patient from defending himself telephonically. Even though A.R.S. §36-539(c) allows the court to render a decision without the plaintiff, the court views that the patient should have every opportunity to defend himself. In the chance that he cannot be physically present other methods should be considered, like telephonically.

Effective Assistance of Counsel

The plaintiff argues his attorney was not effective in representing him. Among the list of things his lawyer did not do: “interviewed him (the plaintiff), did not seek to have him participate at the hearing, offered no evidence at the hearing to oppose the petition, cross-examined only one witness (which permitted that witness to testify about the need for mental health treatment) and made no closing argument.” In re MH2010-002637, 228 Ariz. 74, 263 P.3d 82 (Ct. App. 2011).

The court says that an effective attorney is a due process issue,and without a competent attorney there is a much higher chance that errors can be made in the process and decision.


The appellate court sent the case back to the trial court for it to be retried using the standards in this opinion.

Court of Appeals, State of Arizona, Division One

Decided: Sept. 27, 2011

U.S.A. v. Loughner – Ninth Circuit Court of Appeals

United States v. Loughner, 2012 U.S. App. LEXIS 4489 (9th Cir. Ariz. Mar. 5, 2012)

Facts of the Case:

Jared Lee Loughner is the accused shooter of the Tuscon, Arizona shooting killing six people including U.S. District Court Judge John Roll, and injuring 13 others including U.S. Congresswoman Gabrielle Giffords. Initially ruled incompetent to stand trial, the Bureau of Prisons tried for more than four months to see if he could be made competent. While Loughner was detained by the Bureau of Prisons, he was deemed to be a danger to himself and others. The District Court looked to 28 C.F.R. §549 .46(a) and later 28 C.F.R. §549 .46(b) 2010 to see if he could be involuntarily medicated. The District Court effectively ruled that he could be involuntarily medicated. It was deemed after the initial four months that he was still not competent to stand trial, so the District Court also ruled his condition warranted an extra four months in the Bureau of Prisons, to try to make him competent to stand trial. See 18 U.S.C.S. §4241.


  • Whether Jared Loughner should be involuntarily given emergency medication under 28 C.F.R. §549 .46(b) 2010 to restore his competency to stand trial, and if this violates his due process rights.
  • Whether Jared Loughner needed to be committed for an additional four months on top of the previous four months in an attempt to restore his competency, and if this violates his due process rights.
  • Rules:

    • Collateral order doctrine: (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.
    • [T]he substantive issue involves a definition of th[e] protected constitutional interest, as well as identification of the conditions under which competing state interests might outweigh it. The procedural issue concerns the minimum procedures required by the Constitution for determining that the individual’s liberty interest actually is outweighed in a particular instance. Washington v. Harper, 494 U.S. 210, 1035-36 (1990).
    • [W]hen an inmate is unwilling or unable to provide voluntary written informed consent for recommended psychiatric medication, the inmate will be scheduled for an administrative hearing.” 28 C.F.R. § 549.46
    • Some form of hearing is required before an individual is finally deprived of a property interest. – Wolff v. McDonnell, 418 U.S. 539, (1974).
    • Additional reasonable time for confinement may be granted if: “(a) his mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will
      attain the capacity to permit the proceedings to go forward; or (B) the pending charges against him are disposed of according to law; whichever is earlier.” – 18 U.S.C.S. §4241(D)
    • The district court must find that the defendant “is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C.S. §4241(A)


    • The Ninth Circuit court of appeals is looking at some of the issues in the Loughner case concurrently to what is happening at district court level. The Ninth Circuit Court said for them to have jurisdiction over the case that it would have to fall under the collateral order doctrine, see rule above. The court said involuntary medication falls within the scope of the collateral order doctrine. Since the involuntary medication helps get Loughner back to competency it conclusively determines the legal basis; the involuntary medication is a procedure of the Loughner case, and doesn’t deal with the shooting; the medication is unreviewable because he was medicated even before the trial.
    • As long as Loughner is a pretrial detainee, and lawfully held, his rights are limited by the facilities needs and policies, and his dangerousness to himself or to others may be judged by the same standard as convicted detainees.
    • Even though involuntary medication is dangerous there are procedural safeguards built into the process. The medication is prescribed by a psychiatrist then reviewed by another psychiatrist, which ensures the treatment is in the prisoner’s best interest.
    • Just because more process (due process) can be given doesn’t mean that it should Due process is weighed against “the cost of additional procedures against the risk of error in the existing procedures and the private interest at stake.”
    • Past Ninth Circuit Court opinions say that Due Process is generally gauged by three factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
    • There does not necessarily need to be a lawyer present for the individual at an involuntary medication hearing because lawyers are not versed in medicine. The exception is: “the provision of an independent lay adviser who understands the psychiatric issues involved is sufficient protection.”
    • The involuntary medication of an individual is in the best interests of the institution and of the individual. The first concerns are prison management, and medical concerns, and secondarily are legal concerns.
    • The administration of anti-psychotic drugs is a fluid process. If Loughner ceases to respond to his medications the doses can be increased, or the medications can be changed.


    1. “Loughner was provided with the substance and procedure demanded by the Due Process Clause before the government involuntarily medicated him.”
    2. “It is clear that Loughner has a severe mental illness, that he represents a danger to himself or others, and that the prescribed medication is appropriate and in his medical interest.”
    3. “There was no arbitrariness in the district court’s order denying the motion to enjoin Loughner’s emergency treatment. He may be involuntarily medicated.”
    4. “The district court did not commit legal error in its commitment rulings, and its finding that there is a substantial probability that Loughner will be restored to competency in the foreseeable future is supported by the evidence and not clearly erroneous.”
    5. “Loughner may be committed pursuant to the district court’s order and subject to its supervision.”