Tuesday, March 13, 2018

Eighth Circuit Says No First Amendment Right to Qualifications of Execution Team Medical Members

The Eighth Circuit today rejected a common-law and First Amendment claim to information relating to the professional qualifications of two members of a Missouri execution team. The ruling means that this information will stay under seal.

The case arose during the course of an omnibus Eighth Amendment challenge to Missouri's execution protocol. Larry Flynt successfully intervened in that litigation and sought information from depositions and other documents relating to the professional qualifications of two medical members of the execution team, which the court refers to only as "M2" and "M3." Flynt argued that common law and the First Amendment compelled disclosure. The district court disagreed, and the Eighth Circuit affirmed.

As to Flynt's common-law claim, the court ruled that the district court didn't abuse its discretion in concluding that "[t]he personal and professional safety of one or more members of the execution team, as well as the interest of the State in carrying out its executions, were sufficiently in jeopardy to overcome the common-law right of public access to the records."

As to the First Amendment claim, the court, drawing on circuit law, said that there was no "historical tradition of accessibility" of this kind of information, and that release of the information wouldn't play any "role for public access in the functioning of the judicial process," because "it would effectively eviscerate the State's ability to carry out executions by jeopardizing its ability to have medical professionals on the execution team."

Finally, the court ruled that the district court didn't err in denying Flynt's motion to review the state's in camera briefing on the issue of release. The court said that Flynt didn't object in a timely manner, and that in any event in camera review was the best way to accomplish the district court's mandate to consider whether redaction was possibly a less restrictive means (than sealing in the entirety) of protecting the information." The court noted,

At the bottom line, this dispute is about the identity of medical members of the execution team. Flynt's stated rationale for wanting this information--to check the professional credentials of these members--is in direct and perilous conflict with the State's superior rationale of protecting the identity of these parties. The district court thus did not abuse its discretion in electing to review the supplemental briefing in camera, and denying Flynt's subsequent request to review it.

http://lawprofessors.typepad.com/conlaw/2018/03/eighth-circuit-says-no-first-amendment-right-to-qualifications-of-execution-team-medical-members.html

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