Emmett v. Johnson, 07-18.

Citation532 F.3d 291
Decision Date10 July 2008
Docket NumberNo. 07-18.,07-18.
PartiesChristopher Scott EMMETT, Plaintiff-Appellant, v. Gene M. JOHNSON, Director, Commonwealth of Virginia Department of Corrections; George M. Hinkle, Warden, Greensville Correctional Center; Loretta K. Kelly, Warden, Sussex I State Prison, Defendants-Appellees, and John Does 1-100, Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Matthew S. Hellman, Jenner & Block, Washington, D.C., for Appellant. Richard Carson Vorhis, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees.

ON BRIEF:

Jennifer L. Givens, Michele J. Brace, Virginia Capital Representation Resource Center, Charlottesville, Virginia, for Appellant. Robert F. McDonnell, Attorney General of Virginia, Richmond, Virginia, for Appellees.

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge TRAXLER wrote the majority opinion, in which Judge SHEDD joined. Judge GREGORY wrote a dissenting opinion.

OPINION

TRAXLER, Circuit Judge:

Christopher Scott Emmett brought this action under 42 U.S.C.A. § 1983 (West 2003), asserting that the Commonwealth of Virginia's method for lethal injection violates his right to be free of cruel and unusual punishment guaranteed by the Eighth Amendment to the United States Constitution. The district court granted summary judgment to the defendants. We affirm.

I.

Emmett was convicted by a jury of the robbery and capital murder of a coworker and sentenced to death in 2001. The Supreme Court of Virginia affirmed, and the United States Supreme Court denied certiorari. See Emmett v. Commonwealth, 264 Va. 364, 569 S.E.2d 39 (2002), cert. denied, Emmett v. Virginia, 538 U.S. 929, 123 S.Ct. 1586, 155 L.Ed.2d 324 (2003). After unsuccessfully challenging his conviction and sentence in state and federal habeas proceedings, see Emmett v. Kelly, 474 F.3d 154 (4th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 1, 169 L.Ed.2d 245 (2007), the state scheduled Emmett's execution for June 13, 2007.

Emmett no longer challenges the constitutionality of his capital murder conviction or sentence of death. However, on April 19, 2007, he initiated this action under § 1983, asserting that the lethal injection method used by Virginia constitutes cruel and unusual punishment prohibited by the Eighth Amendment. The district court denied Emmett a preliminary injunction against his impending execution, and the United States Supreme Court denied his request for a stay of execution. See Emmett v. Kelly, ___ U.S. ___, 127 S.Ct. 2970, 168 L.Ed.2d 289 (2007). However, because the Supreme Court had not yet acted upon Emmett's then-pending petition for certiorari review of his federal habeas petition, the Governor of Virginia granted Emmett a temporary reprieve from execution until October 17, 2007. The Supreme Court denied his certiorari petition on October 1, 2007.

In the meantime, the district court granted summary judgment to the defendants in Emmett's § 1983 action, which he appealed to this court. On the same day, the Supreme Court granted certiorari to review a similar § 1983 challenge to Kentucky's lethal injection method. See Baze v. Rees, ___ U.S. ___, 128 S.Ct. 34, 168 L.Ed.2d 809 (2007). The Supreme Court also granted Emmett a temporary stay of his scheduled October 17 execution pending final disposition of the appeal by our court or further order of the Supreme Court. See Emmett v. Johnson, ___ U.S. ___, ___ S.Ct. ___, 169 L.Ed.2d 327 (2007). On April 16, 2008, the Supreme Court issued its opinion in Baze, rejecting the challenge to Kentucky's procedure. See Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). On May 19, 2008, the Court granted the defendants' motion to vacate the October 17 stay of Emmett's execution in light of that decision, see Emmett v. Johnson, ___ U.S. ___, 128 S.Ct. 2498, ___ L.Ed.2d ___ (2008), and Emmett has now been scheduled for execution on July 24, 2008.

II.
A.

The Commonwealth of Virginia offers inmates convicted of capital murder and sentenced to death the choice of electrocution or lethal injection. See Va.Code § 53.1-234. If the condemned inmate refuses to make a voluntary choice at least fifteen days prior to the scheduled execution, lethal injection is imposed as the default method. See id.1 The Director of the Department of Corrections bears ultimate responsibility for providing and maintaining the state death chamber, including all equipment and substances necessary "for the proper execution of prisoners by ... continuous intravenous injection." Va. Code § 53.1-233.

The Director or assistants appointed by him "shall at the time named in the sentence ... cause the prisoner under sentence of death to be electrocuted or injected with a lethal substance," Va.Code § 53.1-234, which "shall be applied until the prisoner is pronounced dead by a physician licensed in the Commonwealth," Va. Code § 53.1-233. Beyond these broad directives, however, the statutory scheme leaves the development and implementation of the specific procedures for lethal injection to the discretion of the Director and those he appoints to assist him. See Va.Code § 53.1-234.

Virginia Department of Corrections' Divisional Operating Procedure (DOP) 426 has been developed to set forth the various responsibilities, procedures, equipment, and chemicals to be used for lethal injections, as well as provisions addressing the qualifications, training, and selection of the execution team.2 DOP 426 also contains a checklist for use during executions. However, the manual provides that "the procedures described in th[e DOP] may be amended as needed on a case by case basis when circumstances require special procedures to carry out the sentence of death." DOP 426.

Like most other states that have moved away from electrocution and towards lethal injection as the preferred means of assuring a humane death, Virginia's protocol calls for the sequential injection of three lethal chemicals into the bloodstream by intravenous (IV) catheters and lines. See Baze, 128 S.Ct. at 1526-27. The first chemical consists of a 2-gram dose of sodium thiopental ("thiopental" or "Pentathol"), a fast-acting barbiturate, which is divided between two syringes. When given in the amounts used for lethal injection of inmates, thiopental results in a deep, coma-like unconsciousness. It also results in the cessation of breathing, generally within a minute of its administration. It is followed by a syringe of normal saline to flush the IV line to ensure full delivery and eliminate the possibility of a chemical interaction between the thiopental and the next chemical. According to eyewitnesses, the administration of the thiopental is usually accompanied by a brief period of loud snoring, followed by the expected cessation of respiration.

The second chemical consists of 50 milligrams of pancuronium bromide (or "Pavulon"), a neuromuscular blocking agent that paralyzes the inmate, preventing all voluntary and involuntary movement of the skeletal muscles. The pancuronium bromide is followed by another syringe of normal saline to again flush the IV line.

The third chemical consists of 240 milliequivalents of potassium chloride, divided between two syringes. Potassium chloride interferes with the electrical signals that stimulate heart contractions, causing cardiac arrest and the "flat-line" electrocardiogram (EKG) reading that Virginia requires for the pronouncement of death. A third syringe of normal saline is also administered after the potassium chloride to flush the line.

By statute, "the Director or an assistant, a physician employed by the Department or his assistant, such other employees of the Department as may be required by the Director and ... at least six citizens who shall not be employees of the Department" shall be present at each execution. Va. Code § 53.1-234. In practice, the Director, Deputy Director, and Warden of Greensville Correctional Center (where the death chamber is located) are all present during lethal injections, along with an execution team designated and trained to carry out the procedure. The execution team is comprised of a security team responsible for transporting and securing the inmate, an IV team to establish the requisite IV lines, and an executioner who injects the chemicals into the IV lines. Additional persons are present as needed to keep the execution records and attend to the equipment. The physician charged with the task of declaring death is also present and continuously monitors the inmate's heart activity via a heart monitor. A second physician, who is charged with training the IV team, is usually present as an observer.3

All members of the execution team are trained in the lethal injection procedure on an ongoing basis. The IV team receives training in the insertion and maintenance of IV lines from a physician licensed to practice medicine by the Virginia Board of Medicine. At least two members of the IV team must "have received training as military corpsmen, cardiac emergency technicians, or should receive on-the-job training from a physician in receiving and dispensing medications, to include starting and administering IV fluids." DOP 426. The team members are trained over an initial period of at least twenty hours, but are not certified as proficient until the training physician is personally satisfied with their skill level. The executioner has been trained by his predecessor in the administration of the lethal drugs, including training on how to assess for obstructions or other problems with the IV catheters and lines. In addition, the entire execution team receives at least eight hours of monthly training, which includes participating in mock executions. In addition to refresher training conducted with the IV team members in the location and placement of IV catheters and lines, the team members are educated about how to assess for complications in the IV lines that...

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