COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, HOLMAN CF WARDEN, DONALDSON CF WARDEN, Defendants - Appellants,
ADVANCE LOCAL MEDIA, LLC, d.b.a. Alabama Media Group, MONTGOMERY ADVERTISER, THE ASSOCIATED PRESS, Intervenors - Appellees.
from the United States District Court for the Northern
District of Alabama D.C. Docket No. 2:17-cv-02083-KOB
TJOFLAT, WILSON, and JORDAN, Circuit Judges.
WILSON, Circuit Judge.
appeal concerns the common law right of access to documents
upon which a court has relied to decide issues in a case. In
the underlying suit, death row inmate Doyle Lee Hamm brought
an as-applied challenge under 42 U.S.C. § 1983, arguing
that Alabama's attempt to execute him via lethal
injection would violate the Eighth Amendment. During the
litigation, Alabama submitted its lethal injection protocol
to the district court. The protocol was never formally filed
with the court, but was subjected to expert testimony,
debated at hearings, and relied upon by the court in denying
both Alabama's motion for summary judgment and Hamm's
request for a preliminary injunction. After Hamm's case
was dismissed, members of the press intervened, seeking
access to the protocol. The district court granted these
intervenors access to a redacted version of the protocol. The
Commissioner of the Alabama Department of Corrections now
appeals, arguing that the court erred in (1) allowing the
press to intervene and (2) determining that the protocol was
a judicial record subject to the common law right of access.
After careful consideration and the benefit of oral argument,
Factual and Procedural Background
Lee Hamm was sentenced to death in 1987 and, after a series
of unsuccessful direct and collateral challenges to his
sentence, was set to be executed in February 2018. In
December 2017, Hamm filed an action in the Northern District
of Alabama under 42 U.S.C. § 1983, challenging the
constitutionality of Alabama's lethal injection protocol
as applied to him, because he suffered from "severely
compromised veins" due to drug use, Hepatitis C, and
cancer. Hamm v. Dunn, 302 F.Supp.3d 1287 (N.D. Ala.
2018), vacated and remanded sub nom. by Hamm v.
Comm'r, Ala. Dep't of Corr., No. 18-10473 (11th
Cir. Feb. 13, 2018). Hamm sought to enjoin Alabama from using
the protocol to perform his execution.
January 2018, Alabama moved for summary judgment. The
district court ordered expedited briefing and scheduled an
evidentiary hearing for January 31 to address Alabama's
dispositive motions and Hamm's request for injunctive
relief. After the court entered a protective order to keep
the lethal injection protocol confidential, Alabama provided
a copy of the protocol to the court for in camera
review and gave Hamm a redacted copy of the protocol.
Likewise, the portion of the evidentiary hearing that focused
on the protocol was conducted in camera. Both
parties and the court discussed the contents of the lethal
injection protocol, but neither party moved to admit the
protocol into evidence or attach it as an exhibit to any
motion or pleading.
than three weeks before Hamm was set to be executed, the
district court denied Alabama's motion for summary
judgment and temporarily stayed Hamm's execution. In its
publicly available orders denying summary judgment, the
district court summarized Alabama's lethal injection
protocol and discussed how the protocol applied to Hamm's
specific medical conditions. This Court vacated the district
court's stay but directed the court to obtain an
independent medical examination and make any concomitant
factual findings by February 20-two days before Hamm's
execution date. The district court held another in
camera hearing on February 16 to hear testimony from the
independent medical examiner. The examiner testified that
Hamm had accessible and usable veins in his lower
days later, the district court denied Hamm's request for
a preliminary injunction, summarizing the contents of the
February 16 hearing and reasoning that Alabama's lethal
injection protocol, as applied to Hamm, did not present
"sufficiently imminent dangers" and was not likely
to result in serious illness or needless suffering that would
violate the Eighth Amendment. Hamm appealed. This Court
affirmed the district court but ordered Alabama to have
ultrasound technology and a doctor at the execution.
day of his execution-February 22, 2018-Hamm petitioned the
Supreme Court for a stay and writ of certiorari. His petition
was denied. Alabama then attempted to execute Hamm, but after
several unsuccessful efforts to insert a needle, called off
the execution an hour before its midnight deadline. The
botched execution attempt received national media coverage.
filed a second amended complaint describing Alabama's
failed efforts to execute him, but both parties agreed to
dismiss these claims (some with prejudice and some without
prejudice) on the same day that the claims were filed. Two
days later, the district court dismissed the action. On March
28, the same day the court dismissed the action, Alabama
Media Group,  the Montgomery Advertiser, and the
Associated Press (collectively, Intervenors) moved to
intervene in Hamm's case under Rule 24 of the Federal
Rules of Civil Procedure to unseal the records, transcripts,
and briefs discussing Alabama's execution protocol. On
March 30, the court granted intervention as a matter of right
under Rule 24(a),  but reserved ruling on the request for
access to the protocol and related documents. In response to
the request for access, Alabama asked the court to reconsider
its decision to allow intervention and, alternatively, argued
that the request for access should be denied because (1) the
lethal injection protocol was not a publicly accessible
judicial record, and (2) the Intervenors had no common law
right of access to the protocol.
district court denied Alabama's request to reconsider
intervention and granted Intervenors' motion to unseal
the protocol and related records. The court emphasized that
Hamm's case had occurred under rushed circumstances, and
concluded that failure to formally file the protocol did not
make it a non-judicial record because the court "needed
and relied upon the protocol to resolve [the State's]
motion for summary judgment and Mr. Hamm's request for
injunctive relief," and other judicial records referred
to the protocol. The court also found that Alabama failed
to show interests sufficient to overcome the public's
common law right of access to the protocol.
district court issued two orders. The first order clarified
what it unsealed, including redacted versions of (1) the
protocol, (2) the sealed transcript of the January 31 in
camera evidentiary hearing, (3) the sealed transcript of
the February 16 closed medical examiner hearing, and (4)
Hamm's motion for leave to supplement his first amended
complaint. The second order instructed Alabama to file, under
seal, a redacted copy of the protocol for the court to review
before releasing it. Alabama appealed and moved to stay the
release of the protocol pending this appeal. The district
court granted Alabama's motion to stay; we now consider
the state's appeal.
The Common Law Right of Access to Judicial Records
a document is a "judicial record" subject to the
common law right of access is a question of law we review de
novo. Accord In re U.S. for an Order Pursuant to 18
U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir.
2013). We review a decision to unseal documents for abuse of
discretion. FTC v. AbbVie Prods., LLC, 713 F.3d 54,
61 (11th Cir. 2013). Under the abuse of discretion standard,
a court has a range of choices available to it. See
McLane Co., Inc. v. EEOC, 137 S.Ct. 1159, 1169 (2017);
United States v. Frazier, 387 F.3d 1244, 1259 (11th
Cir. 2004) (en banc).
is clear that the courts of this country recognize a general
right to inspect and copy public records and documents,
including judicial records and documents." Nixon v.
Warner Commc'ns, Inc., 435 U.S. 589, 597, 98 S.Ct.
1306, 1312 (1978). The media and public presumptively have a
right to access judicial records. Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th
Cir. 2001) (per curiam). The common law right of access to
judicial records "'establish[es] a general
presumption that criminal and civil actions should be
conducted publicly' and 'includes the right to
inspect and copy public records and documents.' It is
'an essential component of our system of justice' and
'is instrumental in securing the integrity of the
process.'" AbbVie Prods., LLC, 713 F.3d at
62 (quoting Chicago Tribune, 263 F.3d at
1311). Access to public and judicial records
protects "the citizen's desire to keep a watchful
eye on the workings of public agencies, and . . . a newspaper
publisher's intention to publish information concerning
the operation of government." Nixon, 435 U.S.
At 597-98, 98 S.Ct. at 1312 (citations omitted); see also
Romero v. Drummond Co., Inc., 480 F.3d 1234, 1246 (11th
Cir. 2007) (finding that these public concerns were at the
"heart of the interest protected by the right of
access"). Judges should exercise discretion in deciding
to release judicial records and should exhibit a
"sensitive appreciation of the circumstances that led to
their production." Nixon, 435 U.S. at 603, 98
S.Ct. at 1315.