In re: Ohio Execution Protocol.
Donald Morgan, et al., Defendants-Appellants. Angelo Fears, et al., Plaintiffs, Gary Otte; Ronald Phillips; Raymond Tibbetts, Plaintiffs-Appellees,
Argued: March 7, 2017.
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:11-cv-01016-Michael R.
Merz, Magistrate Judge.
E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellants.
G. Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellees.
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.
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.
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.
NELSON MOORE, Circuit Judge.
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.
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.
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.
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.
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).
Evidence presented at five-day evidentiary hearing
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
Eighth Amendment Baze/Glossip Claim
Likelihood of success on the merits
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
Substantial risk of severe pain
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).
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.
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.
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.
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
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.
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