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In re Ohio Execution Protocol

United States Court of Appeals, Sixth Circuit

April 6, 2017

In re: Ohio Execution Protocol.
v.
Donald Morgan, et al., Defendants-Appellants. Angelo Fears, et al., Plaintiffs, Gary Otte; Ronald Phillips; Raymond Tibbetts, Plaintiffs-Appellees,

          Argued: March 7, 2017.

         Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:11-cv-01016-Michael R. Merz, Magistrate Judge.

         ARGUED:

          Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants.

          Erin G. Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellees.

         ON BRIEF:

          Eric E. Murphy, Peter T. Reed, Hannah C. Wilson, Thomas E. Madden, Jocelyn K. Lowe, Katherine E. Mullin, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants.

          Erin G. Barnhart, Allen L. Bohnert, Adam M. Rusnak, 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 DENDER, Cleveland, Ohio, Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, Lisa M. Lagos, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, Mark E. Haddad, Joshua E. Anderson, Alycia A. Degen, Katherine A. Roberts, Collin P. Wedel, SIDLEY AUSTIN LLP, Los Angeles, California, for Appellees.

          Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.

          MOORE, J., delivered the opinion of the court in which STRANCH, J., joined. STRANCH, J. (pp. 31-32), delivered a separate concurring opinion. KETHLEDGE, J. (pp. 33- 44), delivered a separate dissenting opinion.

          OPINION

          KAREN NELSON MOORE, Circuit Judge.

         Ohio's current execution protocol allows for execution by lethal injection using a three-drug combination of (1) midazolam; (2) either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and (3) potassium chloride, which stops the heart. R. 667-1 (Ohio DRC Execution Protocol, 01-COM-11 at 2) (Page ID #19813). The purpose of the first drug is to ensure that the person being executed is insensate to the pain that the second two drugs cause. It is undisputed that if the first drug does not "render the prisoner unconscious, " then "there is a substantial, constitutionally unacceptable risk of suffocation . . . and pain" from the second two drugs. Baze v. Rees, 553 U.S. 35, 53 (2008) (plurality op.). The ultimate question in this case is whether use of midazolam as the first drug in this three-drug protocol "entails a substantial risk of severe pain" as compared to "a known and available alternative." Glossip v. Gross, 135 S.Ct. 2726, 2731 (2015). The question before us at this preliminary stage, however, is much narrower. We ask only whether the district court abused its discretion by granting a preliminary injunction to allow for further litigation regarding midazolam's efficacy before Ohio executes Ronald Phillips, Raymond Tibbetts, and Gary Otte. For the reasons discussed below, we AFFIRM the judgment of the district court granting the preliminary injunction.

         I. BACKGROUND

         A. Procedural history

         The litigation challenging the constitutionality of Ohio's lethal injection procedures spans several years, and we will not attempt to outline the entire procedural history. We do note that this litigation has involved different versions of Ohio's lethal injection protocol. In 2009, Kenneth Biros, among others, challenged a three-drug protocol consisting of thiopental sodium, pancuronium bromide, and potassium chloride. In November 2009, Ohio changed from that three-drug protocol to a one-drug protocol consisting of a five-gram dose of thiopental sodium. At that time, Ohio represented to the district court and this court that the State would no longer use pancuronium bromide or potassium chloride for executions. This court held that Biros's challenge to the old three-drug protocol was moot. See Cooey v. Strickland, 588 F.3d 921 (6th Cir.), reh'g en banc denied, 588 F.3d 924 (6th Cir. 2009). Ohio executed Biros using its new one-drug protocol.

         At a December 9, 2009 district court hearing, at the court's suggestion, the parties agreed that they would withdraw their pending motions, that the condemned inmates would file amended complaints addressing the new protocol, and that the State would not challenge the amended complaints on statute of limitations or other procedural grounds. R. 966-10 (Dec. 9, 2009 Hr'g Tr. at 44-46) (Page ID #34472-74). But after adopting the one-drug protocol, Ohio encountered difficulty obtaining the designated single drug, thiopental sodium. On October 7, 2016, the State adopted a new execution protocol. R. 667-1 (Ohio DRC Execution Protocol, 01-COM-11 at 2) (Page ID #19813). That protocol is the subject of this appeal.

         The protocol at issue in this appeal provides for execution by lethal injection using a three-drug combination of (1) midazolam; (2) either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and (3) potassium chloride, which stops the heart. Id. (Page ID #19813). Plaintiffs allege that the first drug, midazolam, does not render the person being executed insensate to pain, and, as a result, death by this lethal injection protocol is excruciatingly painful. They raise several challenges to the new protocol. Most relevant here, they raise an Eighth Amendment challenge under Baze and Glossip, and they also argue that Defendants are judicially estopped from using pancuronium bromide or potassium chloride.

         In the district court, the parties unanimously consented to the jurisdiction of Magistrate Judge Merz, giving him the authority to rule on Plaintiffs' dispositive motion for a preliminary injunction. Magistrate Judge Merz held a five-day evidentiary hearing beginning on January 3, 2017, after which he enjoined Defendants from executing Phillips, Tibbetts, or Otte using "the three-drug protocol embodied in the October 7, 2016, version" of the Ohio execution protocol or "any lethal injection method which employs either a paralytic agent or potassium chloride." Decision & Order at 118. The magistrate judge held that although Plaintiffs were not likely to succeed on their Eighth Amendment "Wilkerson/Kemmler Claim, " Eighth Amendment "Evolving Standards of Decency/Devolution Claim, " Equal Protection Claim, or Judicial Admissions Claim, see Decision & Order at 8-9, 111, 115, Plaintiffs were likely to succeed on their Eighth Amendment "Baze/Glossip Claim" and their Judicial Estoppel Claim, see id. at 105, 107, 114. Defendants timely appealed the preliminary injunction, arguing that Plaintiffs are not likely to succeed on either their Baze/Glossip claim or their judicial estoppel claim. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1292(a)(1).

         B. Evidence presented at five-day evidentiary hearing

         Over the course of the five-day hearing, the district court heard testimony from four experts: Dr. Craig Stevens, PhD., a Professor of Pharmacology at Oklahoma State University who testified as an expert witness for Plaintiffs; Dr. Sergio Bergese, M.D., a Professor of Anesthesiology and Neurological Surgery and practicing anesthesiologist at The Ohio State University Wexner Medical Center who testified as an expert witness for Plaintiffs; Joseph Antognini, M.D., a retired anesthesiologist and faculty member at University of California, Davis who testified as an expert witness for Defendants; and Dr. Daniel Buffington, Pharm.D, a pharmacologist in private practice who testified as an expert witness for Defendants. The district court also heard testimony from: Edwin Voorhies, the Managing Director of Operations for the Ohio Department of Rehabilitation and Correction; Gary Mohr, the Director of the Ohio Department of Rehabilitation and Correction; and two Ohio Department of Rehabilitation and Correction Execution Team members (who testified anonymously). A reporter, Alan Johnson, testified as an eyewitness to the execution of Dennis McGuire by the State of Ohio. Five legal professionals testified as eyewitnesses to out-of-state executions in which midazolam was part of a multi-drug execution protocol.

         In its 119-page Decision and Order Granting in Part and Denying in Part Plaintiffs' Motions for Preliminary Injunction, the district court discussed this testimony and set out its findings of fact. First, the district court discussed the testimony of three eyewitnesses to Ohio's execution of Dennis McGuire: ODRC Director Gary Mohr, Execution Team Member No. 10, and reporter Alan Johnson. All three testified that after McGuire appeared to be unconscious, McGuire's stomach began repeatedly to knot up and then relax, and McGuire began to snort. Decision & Order at 20-21. According to Johnson, "McGuire began coughing, gasping, choking in a way that I had not seen before at any execution." Id. at 21. Johnson also testified that McGuire gasped "in a way that almost seemed to be choking, " clenched and unclenched his hands, and "attempted to kind of lift up off the table." Id. Johnson testified that McGuire gasped fifteen or sixteen times, and that the gasping or choking went on for twelve to thirteen minutes. Id. Johnson has witnessed twenty Ohio executions, and had never previously seen anything like the intensity or duration of McGuire's reaction. Id. Mohr has overseen eleven executions, and testified that he had not previously seen a reaction like McGuire's. Id. at 20.

         Next, the district court discussed the testimony of five eyewitnesses to midazolam-involved executions that took place outside of Ohio. We focus first on testimony about the two out-of-state executions that occurred after the Supreme Court's Glossip decision. Spencer Hahn, an Assistant Federal Defender in the Capital Habeas Unit in the Middle District of Alabama, witnessed the December 8, 2016 execution of Ronald Smith by the State of Alabama. Like Ohio's current execution protocol, the protocol used to execute Smith called for 500 milligrams of midazolam. It also called for a 600-milligram dose of a paralytic drug, and 240 milliequivalents of potassium chloride. Decision & Order at 22. Hahn testified that "[t]here were two periods in which [Smith] appeared to rest somewhat briefly" but then he began "coughing, heaving, flailing, or attempting to flail arms, clenching and unclenching of fists, movement of lips . . . and then doing this asthmatic cough, barking-type cough." Id. at 22. Terry Alang, an attorney employed as an investigator in the Capital Habeas Unit in the Middle District of Alabama, witnessed the January 20, 2016 execution of Christopher Brooks by the State of Alabama. Alabama used the same execution protocol that it used in the Smith execution, most notably 500 milligrams of midazolam. According to Alang's testimony, after the execution team members administered midazolam, Brooks began heaving. Id. at 24.

         The district court also discussed testimony about three executions that occurred before the Supreme Court's Glossip decision. Id. at 22. First, Sonya Rudenstine, a Florida lawyer who specializes in capital post-conviction work, witnessed the execution of Paul Howell by the State of Florida. Like Ohio's current execution protocol, the protocol used to execute Howell called for 500 milligrams of midazolam in two separate injections of 250 milligrams each. Id. at 23. The protocol then called for 200 milligrams of vecuronium bromide in two 100-milligram injections, followed by 240 milliequivalents of potassium chloride. Id. Rudenstine observed Howell open his eyes after the consciousness check. Id.

         Second, Dale Baich, a supervisor in the Federal Defender Capital Habeas Unit in Arizona, witnessed the execution of Joseph Wood by the State of Arizona. Id. The protocol used to execute Wood called for injection of a mixture of 50 milligrams of midazolam and 50 milligrams of hydromorphone. Id. During Wood's execution, the State injected this mixture fifteen separate times. Id. "Wood continued to gasp and try to breathe until his death almost two hours after the process began." Id. In a settlement agreement entered on December 19, 2016, Arizona agreed to "never again use midazolam, or any other benzodiazepine, as part of a drug protocol in a lethal injection execution." R. 976-2 (Stipulated Settlement Agreement at 2) (Page ID #36214); see also id. at 23.

         Third, Dean Sanderford, an Assistant Federal Defender in Colorado, witnessed the execution of Clayton Lockett by the State of Oklahoma. Decision & Order at 24. The protocol used to execute Lockett called for 100 milligrams of midazolam followed by a paralytic agent and potassium chloride. Id. According to Sanderford, three or four minutes after the administration of the paralytic, Lockett began writhing and attempted to speak. Id.

         The district court then discussed, at great length, the testimony of the four expert witnesses. We summarize very briefly. Dr. Stevens discussed sedation and general anesthesia. He explained that there are different levels of sedation: minimal sedation (i.e., the sedation that would be appropriate for a root canal); moderate sedation; and deep sedation. General anesthesia is beyond the deepest level of sedation, and is the state appropriate for surgery. Only at the state of general anesthesia is someone unconscious. Dr. Stevens explained that midazolam can bring someone to the state of deep sedation, but not to general anesthesia or unconsciousness. Decision & Order at 78. Similarly, Dr. Bergese testified that he would never use midazolam alone as an anesthetic. He also testified that when midazolam is used as an anesthetic, it is for relatively minor procedures, such as colonoscopies, as opposed to more invasive surgeries. Id. at 47.

         To explain why midazolam cannot render someone unconscious, Dr. Stevens explained midazolam's ceiling effect. Id. at 31-32. Midazolam acts on a receptor called GABAA (GABA is short for gamma-aminobutyric acid), and can decrease neural activity only when GABAA is present. Once there is no GABAA left for midazolam to act on, midazolam cannot decrease neural activity anymore and the drug reaches its maximum potency, or ceiling. At this point, administering more midazolam does not increase midazolam's effect.

         Dr. Stevens explained that midazolam's reliance on GABAA, and consequential ceiling effect, is a distinction between benzodiazepines like midazolam and barbiturates like thiopental sodium. Id. at 31-32. Although both benzodiazepines and barbiturates work on the central nervous system and can be used as sedatives, barbiturates can decrease neural activity without GABAA present. According to Dr. Stevens, because barbiturates do not depend on GABA, they do not have a ceiling effect. Dr. Bergese agreed generally that midazolam has a maximum impact, but he emphasized that his main concern is that midazolam is simply the wrong drug. Id. at 87.

         In response to Dr. Stevens's discussion of ceiling effects, Dr. Antognini testified that midazolam's ceiling effect is not germane. In his view, a 500-milligram dose of midazolam is sufficient to render a person unconscious. Whatever ceiling effect midazolam may have beyond the amount necessary to render someone unconscious is irrelevant. Decision & Order at 70. He also testified that data on midazolam's ceiling effect is unclear. Id. at 71. Taking an entirely different tack, Dr. Buffington disputed that midazolam has a ceiling effect at all. Id. at 93. However, he also testified that when midazolam is used alone, it is usually in situations where general anesthesia is not required, such as resetting bones, vasectomies, or placement of tubes or implanted devices. Id. at 92.

         Dr. Antognini and Dr. Stevens disagreed strongly about whether midazolam possesses any analgesic (painkilling) properties. Dr. Antognini testified that midazolam does possess some analgesic properties, at least in massive doses. Dr. Stevens, by contrast, was adamant that midazolam does not treat pain. Decision & Order at 75. Dr. Bergese agreed with Dr. Stevens. Id. at 47. Without addressing midazolam's analgesic properties, Dr. Buffington said that midazolam would sedate someone sufficiently to render them insensate to the pain caused by a paralytic and potassium chloride. Id. at 94. Dr. Antognini testified that the risk that someone would experience pain after receiving a 500-milligram dose of midazolam is "very, very low." Id. at 66. Dr. Stevens, by contrast, concluded that "'the use of midazolam as the first drug in a three-drug protocol is highly likely to cause intolerable pain and suffering, ' stemming from the administration of the second and third drugs." Id. at 40. Again, Dr. Bergese agreed with Dr. Stevens. Id. at 47.

         II. DISCUSSION

         A. Legal Standards

         "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Glossip, 135 S.Ct. at 2736. "The preliminary injunction posture of the present case thus requires petitioners to establish a likelihood that they can establish both that [Ohio's] lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives." Id. at 2737.

         An appellate court must review a district court's decision granting or denying a preliminary injunction for an abuse of discretion. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 664 (2004). "Under this standard, the court reviews the district court's legal conclusions de novo and its factual findings for clear error." Babler v. Futhey, 618 F.3d 514, 520 (6th Cir. 2010); see also Glossip, 135 S.Ct. at 2739. "[A] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). The clearly erroneous standard "plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently." Id. "In particular, when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error." Id. at 575. "[I]f the underlying constitutional question is close, " an appellate court "should uphold the injunction and remand for trial on the merits." Ashcroft v. Am. Civil Liberties Union, 542 U.S. at 664-65.

         B. Eighth Amendment Baze/Glossip Claim

         1. Likelihood of success on the merits

         The district court found that Plaintiffs were likely to succeed on the merits of their Eighth Amendment Baze/Glossip claim because they had satisfied both prongs of Baze and Glossip- first, that use of midazolam as the first drug in a three-drug protocol created a substantial risk of severe pain, and, second, that Plaintiffs identified a known and available alternative.

         a. Substantial risk of severe pain

         Under Glossip, to establish that a method of execution violates the Eighth Amendment, prisoners must "establish that the method presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers. To prevail on such a claim, there must be a substantial risk of serious harm, an objectively intolerable risk of harm." Glossip, 135 S.Ct. at 2737 (internal quotation marks omitted) (emphasis in original). Moreover, "prisoners cannot successfully challenge a State's method of execution merely by showing a slightly or marginally safer alternative. Instead, prisoners must identify an alternative that is feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain." Id. (internal quotation marks omitted) (alteration in original).[1]

         The district court found that Plaintiffs were likely to succeed on their claim that the use of midazolam as the first drug in a three-drug protocol creates a substantial risk of severe pain. Decision & Order at 104. There is no dispute that the suffocation caused by the paralytic and the intense burning sensation caused by potassium chloride are excruciatingly painful, just as in Baze it was "uncontested that . . . there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride" if a proper dose of an effective anesthetic is not administered first. Baze, 553 U.S. at 53 (plurality op.). This case, like Baze, "hinges on" the efficacy of the first drug in the three-drug protocol. Id. The district court's finding that Plaintiffs are likely to succeed on their claim that there is a substantial risk that midazolam does not effectively anesthetize against this pain was not clearly erroneous.

         Defendants have made two separate arguments for why we should not credit the district court's factual findings. During oral argument, Defendants denied that the district court found facts at all. They argued that the district court made an ultimate legal conclusion that use of midazolam creates a substantial risk of severe pain but did not make any factual findings to support that (purported) legal conclusion. They urged us to review the district court's finding under a less deferential standard of review. Oral Argument at 1:45-2:58. This argument fails because its premise is false. In Glossip, the Supreme Court states that the Oklahoma district court "did not commit clear error when it found that the prisoners failed to establish that Oklahoma's use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain." Glossip, 135 S.Ct. at 2731 (emphasis added). This statement indicates that the determination about whether midazolam entails a substantial risk of severe pain is a finding of fact because clear error is the standard of review applicable to findings of fact, not legal conclusions. Moreover, the Supreme Court's statement is explicit that the district court's determination as to whether midazolam entails a substantial risk of severe pain must be reviewed for clear error. Id. Based on this instruction, we must review for clear error the district court's determination that midazolam entails a substantial risk of severe pain, and we must follow the Supreme Court's instruction to review the district court's determination for clear error even if the determination is an ultimate legal conclusion rather than a finding of fact.

         We agree, and Plaintiffs concede, see Oral Argument at 47:20-48:50, that ideally the district court would have made more specific findings of fact. Yet while we recognize that the district court could have been more specific, we are also mindful that the State of Ohio has pushed for this litigation to move as quickly as possible. The district court's opinion noted that the State has a valid interest in proceeding expeditiously, and the magistrate judge currently presiding over the case appears to have made every effort to ensure that the case does proceed expeditiously. Decision & Order at 117-18. Its effort to proceed expeditiously likely explains why the district court's 119-page opinion, which it issued about two weeks after the five-day hearing, does not painstakingly lay out each finding of fact at the level of detail all would prefer. Most importantly, we reiterate that any imperfections in the district court opinion do not amount to a total failure to find facts.

         In their briefs, Defendants make a separate argument for why we should set aside the district court's findings of fact. They argue that the district court clearly erred because they believe that Glossip held that the use of midazolam as the anesthetic drug in a multi-drug execution protocol is per se constitutional. Appellant Br. at 22. In support of this argument, Defendants posit that in Glossip, the Supreme Court decided "legislative facts" rather than "adjudicative facts" because the efficacy of midazolam is "a matter of legislative fact involving a medical judgment." Id. at 22. Defendants further posit that this is significant because "[l]ower courts accept the Supreme Court's legislative fact findings because of our hierarchical judicial system." Id. at 21. As a result, Defendants' argument continues, because Glossip did not invalidate Oklahoma's execution protocol, the district court in this case was forbidden from finding that Ohio's three-drug protocol created a substantial risk of severe pain and from issuing its preliminary injunction, and we are forbidden from affirming the district court's findings. Id. at 23.

         Putting aside their language about the distinction between legislative facts and adjudicative facts, Defendants' general point is that the Supreme Court sometimes issues broad rulings rather than narrow ones, and that, when the Supreme Court issues broad constitutional rulings, all state and federal courts are bound by those broad rulings. This point, while undoubtedly correct, is also irrelevant to the operative question in this case, which is how broad the Supreme Court's ruling in Glossip actually is.

         The answer is that the Glossip ruling is narrow, or at least much narrower than Defendants suggest. In Glossip, the Supreme Court went out of its way to emphasize the deferential standard of review applicable to the district court's findings of fact, and that the Court's decision was based on these findings. See Glossip, 135 S.Ct. at 2731, 2739-40. The Supreme Court did not say that use of midazolam is per se constitutional such that no district court may ever conduct fact-finding and find otherwise. Id. Defendants' argument that "Glossip decided legislative facts, " established a per se rule, and ...


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