UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KEVIN COOPER; ALBERT No. 18-16547 GREENWOOD BROWN; RONALD LEE DEERE; ROBERT G. FAIRBANK; D.C. Nos. ANTHONY J. SULLY, 3:06-cv-00219-RS Plaintiffs-Appellees, 3:06-cv-00926-RS

v. OPINION GAVIN NEWSOM; SCOTT KERNAN, Secretary of the California Department of Corrections and Rehabilitation; RONALD DAVIS, Warden of San Quentin State Prison, Defendants-Appellees,

v. SAN BERNARDINO COUNTY DISTRICT ATTORNEY; SAN MATEO COUNTY DISTRICT ATTORNEY; RIVERSIDE COUNTY DISTRICT ATTORNEY, Applicants in Intervention; Proposed Intervenors, Movants-Appellants. 2 COOPER V. NEWSOM

Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding

Argued and Submitted September 16, 2020 San Francisco, California

Filed September 16, 2021

Before: William A. Fletcher, Danielle J. Forrest*,and Lawrence VanDyke, Circuit Judges.

Opinion by Judge W. Fletcher; Partial Concurrence by Judge Forrest; Dissent by Judge VanDyke

* Formerly known as Danielle J. Hunsaker. COOPER V. NEWSOM 3

SUMMARY**

Prisoner Civil Rights

The panel affirmed, in part, the district court’s denial of a motion to intervene by the District Attorneys of San Bernardino, San Mateo, and Riverside Counties, and dismissed, in part, the District Attorneys’ appeal in an action by death row inmates seeking a stay of execution on the ground that California’s execution protocol violates the Eighth Amendment.

In 2006, California death row inmate Michael Morales brought suit in federal district court against the Governor of California, the Secretary of the California Department of Corrections and Rehabilitation, and the Warden of San Quentin State Prison. Morales sought a stay of execution on the ground that California’s execution protocol violated the Eighth Amendment. The district court stayed the execution, and numerous death row inmates subsequently intervened as plaintiffs. After the State promulgated a new execution protocol in 2018, the District Attorneys of San Bernardino, San Mateo, and Riverside Counties sought to intervene as defendants. The district court denied intervention, and the District Attorneys timely appealed.

While the District Attorneys’ appeal was pending, newly elected Governor Newsom withdrew California’s new execution protocol, placed a moratorium on executions, and closed the execution chamber at San Quentin. Pursuant to a

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 COOPER V. NEWSOM settlement among the parties, plaintiffs voluntarily dismissed their suit subject to specified conditions.

The panel first held that this appeal was not mooted by Governor Newsom’s Executive Order or by the stipulated voluntary dismissal. The panel held that defendants had failed to carry their burden of demonstrating that the challenged conduct could not reasonably be expected to start up again. Nothing prevented Governor Newsom, or a future Governor, from withdrawing the Executive Order and proceeding with preparations for executions. It was thus entirely possible that in the future, defendants would seek to resume executions in California, and would seek to do so under the current or a successor protocol.

The panel also held that the parties’ stipulation did not render the appeal moot. First, the panel determined that this suit could be revived upon the occurrence of any of the three events