Fears v. Morgan (In re Ohio Execution Protocol)

• Decision Date: 28 June 2017
• Docket Number: No. 17-3076,17-3076
• Citation: 860 F.3d 881
• Parties: IN RE: OHIO EXECUTION PROTOCOL. Angelo Fears, et al., Plaintiffs, Gary Otte; Ronald Phillips; Raymond Tibbetts, Plaintiffs-Appellees, v. Donald Morgan, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

860 F.3d 881

IN RE: OHIO EXECUTION PROTOCOL.

Angelo Fears, et al., Plaintiffs,

Gary Otte; Ronald Phillips; Raymond Tibbetts, Plaintiffs-Appellees,

v.Donald Morgan, et al., Defendants-Appellants.

No. 17-3076

United States Court of Appeals, Sixth Circuit.

Argued: June 15, 2017

Decided and Filed: June 28, 2017

REARGUED EN BANC: Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Mark E. Haddad, SIDLEY AUSTIN LLP, Los Angeles, California, for Appellees. ON SUPPLEMENTAL BRIEF: Eric E. Murphy, Peter T. Reed, Hannah C. Wilson, Thomas E. Madden, Jocelyn K. Lowe, Charles L. Wille, Katherine E. Mullin, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Mark E. Haddad, Joshua E. Anderson, Alycia A. Degen, Katherine A. Roberts, Collin P. Wedel, Adam P. Micale, SIDLEY AUSTIN LLP, Los Angeles, California, Allen L. Bohnert, Erin G. Barnhart, Adam M. Rusnak, Nadia Wood, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, James A. King, PORTER, WRIGHT, MORRIS & ARTHUR LLP, Columbus, Ohio, Vicki Werneke, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, Lisa M. Lagos, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, for Appellees.

Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, and THAPAR, Circuit Judges.^*

KETHLEDGE, J., delivered the opinion of the court in which BATCHELDER, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, and THAPAR, JJ., joined, and WHITE, J., joined in the analysis of judicial estoppel. MOORE, J. (pp. 892–909), delivered a separate dissenting opinion in which COLE, C.J. and CLAY, STRANCH, and DONALD, JJ., joined, and WHITE, J., joined in all except part II.C. regarding judicial estoppel. STRANCH, J. (pp. 909–11), delivered a separate concurrence to Judge Moore's dissent.

OPINION

KETHLEDGE, Circuit Judge.

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed. See State v. Phillips , 74 Ohio St.3d 72, 656 N.E.2d 643, 650-52 (1995). Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head. Two nights later, Otte pushed his way into a woman's home and did the same things to her. After each murder Otte went out partying. See State v. Otte , 74 Ohio St.3d 555, 660 N.E.2d 711, 715-16 (1996). Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back. His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts , 92 Ohio St.3d 146, 749 N.E.2d 226, 237-39 (2001).

Phillips, Otte, and Tibbetts now claim that Ohio's Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment. In a sense the claim is unprecedented: the Supreme Court "has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment." Glossip v. Gross , ––– U.S. ––––, 135 S.Ct. 2726, 2732, 192 L.Ed.2d 761 (2015) (internal quotation marks omitted). The State's chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court upheld in Glossip. Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here. See McGehee v. Hutchinson , 854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied , ––– U.S. ––––, 137 S.Ct. 1275, 197 L.Ed.2d 746 (2017) ; Glossip , 135 S.Ct. at 2739-40 (collecting cases); Brooks v. Warden , 810 F.3d 812, 818-22 (11th Cir. 2016) ; cf. Jordan v. Fisher , 823 F.3d 805, 811-12 (5th Cir. 2016). Yet here the district court thought the same procedure is likely invalid. We respectfully disagree and reverse the court's grant of a preliminary injunction.

I.

The litigation that produced this appeal began in 2004, when death-row inmates challenged Ohio's then-existing three-drug protocol under 42 U.S.C. § 1983. That protocol called for the injection of sodium thiopental

(which anesthetizes the prisoner) followed by pancuronium bromide (which paralyzes the prisoner's muscles) and finally potassium chloride (which stops the prisoner's heart). By 2008, 30 of the 36 states with the death penalty had adopted that three-drug protocol. See Baze v. Rees , 553 U.S. 35, 42-44, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). Yet the Ohio inmates argued that the protocol created an unacceptable risk that, if the sodium thiopental were improperly administered, inmates would feel the painful effects of the second and third drugs. In 2008, the Supreme Court rejected that argument and upheld Kentucky's nearly identical three-drug protocol. See id . at 41, 128 S.Ct. 1520.

Nevertheless, the next year, Ohio announced that it was switching to the same one-drug protocol favored by the losing plaintiffs in Baze : a massive, lethal dose of either sodium thiopental or another barbiturate, pentobarbital. From 2010 to 2013, Ohio executed 20 inmates using those barbiturates. Meanwhile, opponents of the death penalty successfully pressured the pharmaceutical companies who make the drugs to stop selling them to states. See Glossip , 135 S.Ct. at 2733-35. Ohio's supplies soon ran out, as did other states'. See id . ; R. 941 at 31942-44.

The shortage led some states with three-drug protocols to turn to midazolam

, a sedative in the same family of drugs as Valium. See Glossip , 135 S.Ct. at 2733-34. In 2014, Oklahoma adopted a protocol that called for the administration of 500 milligrams of midazolam—about 100 times the usual therapeutic dose—followed by a paralytic agent (pancuronium bromide, rocuronium bromide, or vecuronium bromide ) and potassium chloride. Death-row inmates filed a § 1983 action alleging that Oklahoma's protocol violated the Eighth Amendment. As relief, the inmates sought a stay, which the district court denied. The Supreme Court affirmed the denial for two "independent reasons": that the district court "did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution"; and that Oklahoma was unable to acquire either pentobarbital or sodium thiopental. Id . at 2731, 2738-39.

In October 2016, Ohio adopted a lethal-injection protocol using the same three drugs that Oklahoma uses. Like the Oklahoma protocol, the Ohio protocol contains several procedural safeguards to ensure that executions are carried out humanely, including guidelines for identifying viable IV sites, detailed requirements for training execution team members, and a "consciousness check" after the 500-milligram injection of midazolam

. If the prisoner is found to be conscious, a qualified drug administrator can inject another 500 milligrams of midazolam. After confirming that the prisoner is unconscious, the team can then administer the second and third drugs. See R. 667-1 at 19828-29.

Ohio planned to use this protocol to execute Phillips, Otte, and Tibbetts during the first four months of this year. The three inmates then filed complaints and moved for a preliminary injunction, claiming among other things that Ohio's three-drug protocol violates the Eighth Amendment's ban on "cruel and unusual punishments." The plaintiffs' theory here is the same one the Court rejected in Glossip : that the first drug—a massive dose of midazolam—will not prevent them feeling severe pain after injection of the second and third drugs.

After an evidentiary hearing, the district court found that "use of midazolam

as the first drug" in Ohio's three-drug protocol would create a "substantial risk of serious harm" under Baze and Glossip . The court separately held that Ohio was estopped from using the paralytic and heart-stopping drugs because of Ohio's putative representations when it switched from its original three-drug protocol to the one-drug protocol in 2009. Thus, the court held that the plaintiffs had demonstrated a likelihood of success on their claims, and stayed the plaintiffs' executions. This appeal followed.

II.

A.

The plaintiffs first argue that Ohio's three-drug protocol violates their Eighth Amendment right to be free from cruel and unusual punishment. As to that claim, we begin with two areas of common ground. First, we agree with the plaintiffs and the district court that the protocol's second and third drugs—the paralytic and potassium chloride

, which stops the inmate's heart—would cause severe pain to a person who is fully conscious. (Hence the need for the first drug—the 500-milligram dose of midazolam.) Second, we reject the State's argument that the Supreme Court's holding in Glossip categorically bars the plaintiffs' claim here. The Court's holding—that the district court there "did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution [,]" 135 S.Ct. at 2739 —is couched expressly in terms of a standard of review that cuts the other way here. But neither, as the plaintiffs suggest, is Glossip irrelevant here. Quite the contrary: the Court's opinion contains plenty of reasoning that was not confined to the record there—and which therefore binds us just as much as the reasoning in any other opinion of the Supreme Court.

1.

Yet here the district court's opinion was seriously flawed nonetheless. To begin with, that opinion did not apply the relevant legal standard, which by now the Supreme Court and our court have recited a total of four times. Specifically, to challenge successfully a State's chosen method of...