Nevada Press Association Sues State for Full Access to Witness Executions

The Nevada Press Association has filed a federal lawsuit against Nevada state officials and the Nevada Department of Corrections challenging limitations the state’s execution protocol places on the media’s ability to witness and report on executions.

In a complaint filed in the United States District Court for the District of Nevada on July 23, 2021, the ACLU of Nevada, representing the press association, argued that the state’s execution protocol violates the media and the public’s First Amendment right “to observe and hear [an] execution in its entirety.” The complaint asks the court to direct Nevada to amend its execution procedures so that “witnesses will be able to observe [the condemned prisoner] from the moment he enters the Execution Chamber to his death” and “be able to hear all sounds in the Execution Chamber from the moment [the prisoner] enters the Chamber until his death.”

The press association filed the lawsuit against the backdrop of Nevada’s efforts to execute death-row prisoner Zane Floyd. Floyd’s execution, originally scheduled for July 26, 2021, has been stayed while the state courts rule on a motion to disqualify the Clark County District Attorney’s office from the case. Clark County prosecutors have asked the trial court to reconsider its order granting the stay.

“The press are the people’s representatives, and you need to ensure the press has complete access,” Nevada Press Association executive director Richard Karpel told the Associated Press. “It’s a huge deal when the state takes a life. It’s really important that everyone understand everything about the process.”

Nevada’s execution protocol calls for Floyd to be executed with a combination of drugs that has never been used before and that Floyd’s lawyers have argued would be unconstitutionally torturous. “The people of Nevada have a right to know if the state performs its executions humanely, and the press has a First Amendment right and responsibility to report it,” Karpel said in a news release. The state’s execution protocol, he said “is designed to limit what reporters can see and to prevent them from reporting if something goes wrong.”

Under the procedures in Nevada’s Execution Manual, the complaint says, “Floyd’s execution will begin with the ‘Execution Area Viewing Room blinds’ closed and the Viewing Room lights full[y] illuminated. The blinds will only be opened after (1) Floyd enters the Execution Chamber Room, (2) Floyd is secured to the execution table, (3) Floyd’s IV has been connected, and (4) the Warden is alone in the Execution Chamber with Floyd. It also suggests that witnesses will not be able to hear anything inside the Chamber until after the blinds open, and even then the witnesses will only hear Floyd’s last words.”

These restrictions on media access, the complaint said, violate federal court rulings that grant the public a First Amendment right “to view executions in their entirety.” Citing a litany of misrepresentations by state officials following problematic executions with never-before-used drug combinations, the complaint asserts that “statistics and history make clear that there is a high likelihood that Nevada, with its untried cocktail, will botch Floyd’s execution. Under these circumstances,” the complaint argues, “having the press present and able to report on the execution, including errors, is crucial.”

ACLU lawyer Christopher Peterson said in a statement, “[t]he state must not be allowed to move forward with an execution plan that allows them to hide the consequences of using experimental drug combinations to kill someone. … We’re fighting to make sure Nevada can’t close the curtain on such an event.”

The press association lawsuit also seeks an injunction against Nevada’s inclusion of the paralytic drug cisatracurium as part of its untested execution cocktail. Cisatracurium, the lawsuit states, “inhibits an inmate’s ability to communicate but does not affect an inmate’s consciousness, awareness, pain or anxiety during the execution.” It argues that the use of the drug “inevitably burdens” the public’s right to full information about the execution “by creating a chemical curtain that (1) obscures the symptoms that the prisoner is suffering from witnesses and (2) prevents the prisoner from describing what they are experiencing. … It is included in the [execution] cocktail for the sole purpose of obscuring the prisoner’s reaction to the drug[s] to create the illusion that death by lethal injection is painless.”

“We should know precisely what we are doing and what the condemned person feels or experiences,” Karpel said. “We should know what the state is doing in our name.”

Finally, the complaint seeks to block restrictions on who may witness executions for the media. Under Nevada’s current procedures, the director of the Department of Corrections has unfettered authority to designate which media representatives may witness an execution, and the director can refuse without explanation to allow an otherwise eligible reporter to serve as a witness. The lawsuit seeks to require Nevada to adopt “standards that the Director must follow in making the decision,” to provide “a written explanation as to why an invitation [to witness the execution] was denied,” and to provide the person who was denied an invitation to witness the execution an opportunity to appeal a denial.” It also asks the federal court to require Nevada to provide closed circuit television access to the media to otherwise eligible witness who are not granted access to witness the execution in person.