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January 18, 2015
  Warner v. Gross- Tenth Circuit
Case Name: Warner v. Gross -- Tenth Circuit

Headline: Tenth Circuit Rules Oklahoma Death Penalty Procedures Not Cruel and Unusual Punishment

Areas of Law: Constitutional Law

Issue Presented:

Is the use of midazolam as part of a three-drug lethal injection procedure violative of the Eighth Amendment's ban on cruel and unusual punishment?

Brief Summary:

The plaintiffs filed a Section 1983 lawsuit challenging the constitutionality of Oklahoma's lethal injection procedures. Plaintiffs sought a preliminary injunction to stay their executions until the district court was able to issue a ruling on the merits of their claims. The district court denied the injunction, and plaintiffs appealed. The Tenth Circuit affirmed the district court's ruling, stating that the plaintiffs were unable to show a likelihood of success on the merits of their claims sufficient for the court to issue a preliminary injunction.

Extended Summary:

Plaintiffs Charles Warner, Richard Glossip, John Grant, and Benjamin Cole are Oklahoma state prisoners that were convicted of first-degree murder and sentenced to death. Plaintiffs filed a 42 U.S.C. ยง 1983 lawsuit challenging Oklahoma's lethal injection procedures as part of a group of twenty-one inmates. The plaintiffs sought a preliminary injunction to stop the State of Oklahoma from carrying out their executions pending a ruling from the district court on the merits of their claims. After the district court denied their request for preliminary injunction, the plaintiffs appealed. The Tenth Circuit affirmed the ruling of the district court, holding that plaintiffs had not demonstrated a likelihood of success on the merits of their claims.

The majority began by stating the factual basis for the plaintiffs' murder convictions. Warner was convicted of the first degree rape and first degree murder of the eleven-month-old daughter of his girlfriend. Glossip was convicted of first degree malice murder for hiring a coworker to kill the owner of the hotel where he worked. Grant was convicted of first degree murder for stabbing a food service supervisor with a shank at the correctional facility where he was incarcerated. Cole was convicted of first-degree murder for causing the death of his nine-month-old daughter.

The State of Oklahoma has scheduled execution dates for each of the plaintiffs over the course of the next few months (Plaintiff Warner was executed on January 15, 2015). All of the plaintiffs have exhausted their state and federal remedies.

The State of Oklahoma used to use three drugs for its lethal injection procedure, including sodium thiopental, pancuronium bromide, and potassium chloride. Sodium thiopental was used to induce unconsciousness, panucronium bromide was used as a paralyzing agent, and potassium chloride was used to induce cardiac arrest. However, in 2010, the State of Oklahoma had been unable to obtain sodium thiopental for use in its executions, and has since implemented the use of midazolam hydrochloride to render an inmate unconscious for the lethal injection procedure.

The first inmate to be executed using midazolam was Clayton Lockett on April 29, 2014. Although Lockett's execution was successful, the execution team ran into a variety of issues when attempting to complete the execution procedure. In addition to a number of errors regarding the IV access, Lockett appeared to regain consciousness during the administration of the potassium chloride and began to move and speak during the procedure.

After discovering that the IV had not properly entered Lockett's blood stream, and noting that there were no viable veins left in Mr. Lockett's body to administer the drugs through, the execution team stopped the procedure. Ten minutes later, Mr. Lockett was pronounced dead. An autopsy revealed later that the amount of midazolam in Mr. Lockett's body should have been more than enough to render an individual unconscious.

After the complications surrounding Mr. Lockett's execution, the State of Oklahoma provided for alternative execution procedures designed to prevent similar situations from happening in future executions. The new procedures, in particular require primary and backup IV catheters, and allow for postponement of an execution if the execution team encounters trouble regarding the establishment of an IV line within one hour. The new procedures also allow for four different drug combinations for the lethal injection process: (1) 5,000 milligrams of pentobarbital; (2) 5,000 milligrams of sodium pentothal; (3) 500 milligrams of midazolam and 500 milligrams of hydromorphone or (4) 100 milligrams of vecoronium bromide, and 240 milliequivalents of potassium chloride. Officials must notify inmates of the method to be used in their execution in writing, ten days before the scheduled execution. The plaintiffs have been notified that the fourth alternative has been selected for their executions.

Plaintiffs alleged eight counts in their Section 1983 suit, two of which are at issue in this appeal. In Count 2, plaintiffs allege that the use of midazolam in the lethal injection protocol violates the Eighth Amendment, because the "ceiling effect" and risk of paradoxical reactions make it an unsuitable anesthetic, thus exposing inmates to the risk of pain, suffering, and lingering death. Further, plaintiffs allege the risk that the drug will be negligently administered. In Count 7, the plaintiffs allege that the changes in the drug combinations amount to biological experimentation on unwilling human subjects.

The Tenth Circuit started its analysis by stating that the standard of review for the denial of a preliminary injunction is abuse of discretion. It also noted that a preliminary injunction is a drastic remedy, and explained that a plaintiff must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm without the injunction, that the "balance of equities tips in his favor," and that the injunction is in the public interest in order to succeed. Winter v. Natural Res. Def. Council., 555 U.S. 7, 20 (2008).
The court then stated the rules on which it relies in addressing constitutional challenges to State execution methods. First, that capital punishment in and of itself is not cruel and unusual punishment under Baze v. Rees, 533 U.S. 35, 47 (2008). Next the court noted that the Supreme Court has never ruled that a State's execution procedure is cruel and unusual punishment. Id. at 48. Finally, the Supreme Court has explained that the risk of some pain is inherent in any method of execution. Id. at 47.

The court explained that subjecting individuals to a risk of future harm might qualify as cruel and unusual punishment. Baze, 533 U.S. at 49. The harm must be sure or very likely to cause needless suffering and imminent danger. Id. at 49-50. It then reviewed the district court's analysis of plaintiff's claims regarding midazolam. The district court found that midazolam, in the dosage recommended by the lethal injection protocol, was highly likely to render the individual unconscious and to keep him unconscious during the administration of the second and third drugs. The district court made findings of fact after hearing the testimony of the defendant's expert witnesses that 500 milligrams of midazolam can paralyze the brain by shutting down respiration and making the individual unaware of pain. It also found that there is only a "speculative" risk that midazolam could cause a paradoxical reaction. Finally, with respect to the negligent administration claim, the district court concluded that the revised lethal injection protocol is facially constitutional.

Next, the court recounted the district court's findings regarding sodium thiopental. Plaintiffs stated that using sodium thiopental as a single-drug procedure would be possible. The district court noted that the defendants showed that sodium thiopental and pentobarbital are not available to the state for use in lethal injection procedures.

The court then addressed the plaintiffs' allegations in Count 7. The district court noted that successful executions with midazolam in a three-drug combination has occurred 12 times in the United States. Thus, plaintiffs' claim that the lethal injection protocol involves human experimentation fails. Further, the district court stated that the plaintiffs failed to establish that Oklahoma's lethal injection protocol involves a risk of severe pain that is substantial compared to available alternatives.

The plaintiffs argued that the district court misapplied Baze. Plaintiffs stated that they did not need to provide an alternative remedy to succeed under Baze; that the grounds asserted in this case were not similar to Baze; that the district court erred in finding that the potential risk was cured by the three factors built in to the revised lethal injection protocol; and that the court did not consider evolving standards of decency. The court noted that the difference in Baze is that the petitioners agreed that the drugs used in their executions would result in a humane death if properly administered.

The court responded to plaintiffs' assertion that the requirement that proof of known and available alternatives is irrelevant when challenging the characteristics of a drug used in lethal injection by stating that it had already decided the opposite in Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010), where the plaintiff challenged the use of pentobarbital as a replacement for sodium thiopental.

The court noted that they were bound by Pavatt, but that even if they were not, the plaintiffs had failed to establish that the use of midazolam in a lethal injection procedure caused a risk of severe pain. Additionally, the court disagreed with plaintiffs' assertion that the principles from Baze do not apply to the present case. The court also found no error with the district court's reliance on the three factors in the revised lethal injection protocol. Such a finding, it held, was not contrary to Baze.

Next, the court addressed the plaintiffs' "evolving standards of decency" argument. Plaintiffs stated that Florida was the only other state that uses a three-drug procedure using midazolam, which makes the revised lethal injection protocol "objectively intolerable." The court responded by stating that this was not a requirement from Baze, and that if it were, no state would ever be able to revise its execution protocol.

The plaintiffs also challenged the district court's reliance on Dr. Evans, an expert witness provided by the defendants, stating that the findings based on his testimony were clearly erroneous. The majority found no issue with the district court's reliance on Dr. Evans' testimony or the gatekeeping procedure in which it engaged in allowing him to testify as an expert witness.

Finally, the court rejected the plaintiffs' argument that the district court erred in analyzing count 7 by using the risk-analysis test in Baze as opposed to the "evolving standards of decency" analysis. The court stated that it rejected the same argument earlier, and stated that it rejected the plaintiffs' argument.

Thus, because the plaintiffs did not demonstrate to the panel a likelihood of success on the merits, the decision of the district court was affirmed. The court found it unnecessary to engage in an analysis of the other factors needed to obtain a preliminary injunction.

The plaintiffs also made an emergency motion for a stay of execution pending appeal. That motion was denied because the argument for the stay of execution was the same as those for the preliminary injunction.

To read the full opinion, please visit:

Panel: Briscoe, Gorsuch, Matheson

Date of Issued Opinion: January 12. 2015

Docket Number: No. 14-6244

Decided: The holding of the district court was affirmed.

Patti Palmer Ghezzi and Randy A. Bauman, Assistant Federal Public Defenders, Western District of Oklahoma, Oklahoma City, Oklahoma, and Mark Henricksen and Lanita Henricksen, Henricksen & Henricksen, Oklahoma City, Oklahoma, and Dale A. Baich and Robin C. Konrad, Assistant Federal Public Defenders, Phoenix, Arizona, for Plaintiffs-Appellants.

John D. Hadden, Jeb E. Joseph, and Aaron J. Stewart, Assistant Attorneys General, Oklahoma Attorney General's Office, Oklahoma City, Oklahoma, for Defendants-Appellees.

Author: Briscoe

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 01/18/2015 06:09 PM     10th Circuit  

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