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March 11 — The ACLU's bid to publicly shame the pharmacies that provide drugs for use in lethal injections hit a roadblock March 11 at the U.S. Court of Appeals for the Eighth Circuit.
The court ruled that the American Civil Liberties Union of Missouri Foundation can't force the head of Missouri's corrections system to remove the pharmacy's name from the official “execution team” so that the group can publish the drug supplier's name without breaking the state law that shields the identities of those involved in the execution process (Balogh v. Lombardi, 2016 BL 75582, 8th Cir., No. 14-03603, 3/11/16).
The ACLU and one of its employees sued George Lombardi in his capacity as the director of the Missouri Department of Corrections claiming that the confidentiality shield violates the group's rights to free speech, free press and due process under the First and 14th Amendments. In its complaint seeking injunctive relief, the nonprofit group noted that Lombardi had the statutory authority to authorize disclosure of certain execution team members and argued that his refusal to do so operates as a prior restraint on speech in violation of the First Amendment.
The district court ruled that Lombardi wasn't immune from liability, but the court of appeals reversed because Lombardi has no authority to enforce the law that the ACLU claims is chilling its free speech.
That failed link not only means the ACLU's alleged injury can't be traced to him, it also means he is immune from lawsuit under the 11th Amendment, the court said in an opinion by Chief Judge William Jay Riley.
“Although the director's authority to delineate the members of the execution team does affect who might have a private right of action against the ACLU, it has nothing to do with an execution team member's potential prosecution of such an action,” the court said.
Judges Kermit E. Bye and Raymond W. Gruender joined the opinion.
The ACLU got the pharmacy's name and other documents related to Missouri's execution protocol in 2013, when it filed a request under the state's “Sunshine Law,” Mo. Rev. Stat. § 610.023.
The group immediately put those documents up on its website.
But it took the documents down a few days later when it discovered that, after turning the documents over, the MDOC redefined the confidential execution team to include “individuals who prescribe, compound, prepare, or otherwise supply the lethal chemicals.”
According to the ACLU, it took the documents off its website to avoid being sued under Mo. Rev. Stat. § 546.720.3, which gives execution team members a civil cause of action if someone—without the advance approval of the MDOC's director—knowingly discloses their identity.
In February, Lombardi told a state legislative committee that compounding pharmacies typically won't sell execution drugs to states unless they are guaranteed anonymity, and that states can't make that promise unless they pay for the drugs in cash so as not to leave a paper trail .
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