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Settlement in Lawsuit Against Missouri DOC’s Selection of Execution Witnesses

by Kevin Bliss

Christopher McDaniel, an investigative journalist for BuzzFeed News, sued the director of the Missouri Department of Corrections (DOC) for maintaining a policy of selecting witnesses for executions that constructively denied applicants based on their viewpoints. 

Represented by ACLU of Missouri legal director Anthony Rothert, McDaniel sought injunctive relief from the director’s policy of exercising unbridled discretion over the selection of execution witnesses. The case eventually settled, with the DOC agreeing to policy changes.

McDaniel was working for St. Louis Public Radio in January 2014 when he submitted a request to the DOC director to be an observer at an execution. He wrote in his application that he wanted “To ensure that this solemn task is carried out constitutionally.” Since that time, Missouri has carried out 17 executions while McDaniel has still not received a response to his request.

In his lawsuit, McDaniel said he had reported unfavorably about Missouri prison officials several times in the past. He reported on pharmacies selling execution drugs to the DOC without a license; the illegal, mandatory use of sedatives on prisoners prior to their execution; cash-stuffed envelopes changing hands between pharmacies and DOC officials; and execution drug suppliers committing hundreds of pharmaceutical violations.

“Executing inmates is the most serious power state governments have, and the public has a right to know the details of how government is using that power,” McDaniel said.

He filed a public records request in May 2014 for all applications submitted to the DOC for execution witnesses within a one-year period. He found that applicants who had viewpoints similar to his were all denied the opportunity to witness an execution.

His lawsuit alleged that the DOC director was discriminating against people based on their viewpoints and retaliating against those who were exercising their First Amendment rights. 

“The government cannot give or deny access to a reporter based on government officials’ feelings about an individual’s reporting,” McDaniel’s attorney stated. “A free press is vital to ensuring that the government remains accountable to the people. Allowing the government to pick and choose which reporters have access to government functions is a vital threat to fair and unbiased reporting.”

The district court denied the defendants’ motion to dismiss and they filed an interlocutory appeal. The Eighth Circuit affirmed in July 2018, finding that McDaniel had standing to bring the lawsuit; that the DOC director was not entitled to Eleventh Amendment immunity; and that McDaniel’s claims were not solely against the former director but rather against the office, and thus were not moot. See: McDaniel v. Precythe, 897 F.3d 946 (8th Cir. 2018).

Following remand, the case settled in November 2018; as part of the settlement the DOC agreed to change its execution witness selection policy. Designated reporters will now be appointed to witness each execution from the Associated Press, the Missouri Press Association and the Missouri Broadcasters Association. See: McDaniel v. Lombardi, U.S.D.C. (W.D. Mo.), Case No. 2:16-cv-04243-NKL. 


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Related legal case

McDaniel v. Lombardi