Brown v. Beck

PUBLISHED

Filed: April 20, 2006

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIE BROWN, JR., 

Plaintiff-Appellant,

v.

THEODIS BECK, Secretary, North

Carolina Department of Corrections;  No. 06-9

(5:06-ct-03018-H)

MARVIN POLK, Warden, Central

Prison, Raleigh, North Carolina;

UNKNOWN EXECUTIONERS,

Defendants-Appellees.



ORDER

By order dated April 17, 2006, the district court denied the motion

of Willie Brown, Jr. for a preliminary injunction enjoining the defen-

dants from carrying out his execution which is scheduled for Friday,

April 21, 2006. Brown has filed a notice of appeal to this Court from

that order, a motion for preliminary injunction and a brief in support.

Appellees filed a brief opposing appellant’s motion for preliminary

injunction.

The Court affirms the district court’s denial of a preliminary

injunction and directs the clerk to issue the mandate forthwith.

Entered at the direction of Judge Luttig with the concurrence of

Judge Traxler. Judge Michael wrote the attached dissent.

For the Court

/s/ Patricia S. Connor

Clerk

2 BROWN v. BECK

MICHAEL, Circuit Judge, dissenting:

I respectfully dissent from the majority’s affirmance of the district

court’s denial of a preliminary injunction to temporarily block the

execution of Willie Brown, Jr. Brown is a North Carolina death row

inmate scheduled to be executed by lethal injection on April 21, 2006,

at 2:00 a.m. He filed a § 1983 action seeking to enjoin the warden and

others ("the State") from executing him by lethal injection under the

procedures the State intended to employ. Specifically, Brown con-

tends that the State will use an inadequate protocol for anesthesia as

a precursor to carrying out his death sentence, and that as a result he

faces an unacceptable and unnecessary risk of suffering excruciating

pain during his execution in violation of the Eighth Amendment. See

Gregg v. Georgia, 428 U.S. 153, 173 (1976) (recognizing, in the con-

text of executions, that the Eighth Amendment prohibits punishment

"involv[ing] the unnecessary and wanton infliction of pain"); In re

Kemmler, 136 U.S. 436, 447 (1890) (recognizing that the Eighth

Amendment prohibits "torture or a lingering death"). The district

court, in its final order, denied Brown’s motion for a preliminary

injunction enjoining his execution on the ground that the State’s

revised protocol ensures that Brown will be rendered unconscious

during the execution and will not feel pain. Because this finding is not

supported by the clear weight of the evidence, I would reverse.

In its April 7, 2006, order the district court determined that there

were "substantial questions as to whether North Carolina’s execution

protocol creates an undue risk of excessive pain." (Order, 13-14, Apr.

7, 2006.) Specifically, the court found that inadequate administration

of anesthesia prior to execution would undisputedly make Brown

"suffer excruciating pain as a result of the administration of

pancuronium bromide and potassium chloride." (Id. at 12.) The court

further determined that any difficulties could be addressed if

there are present and accessible to [Brown] throughout the

execution personnel with sufficient medical training to

ensure that [Brown] is in all respects unconscious prior to

and at the time of the administration of any pancuronium

bromide or potassium chloride. Should [Brown] exhibit

effects of consciousness at any time during the execution,

such personnel shall immediately provide appropriate medi-

BROWN v. BECK 3

cal care so as to insure [Brown] is immediately returned to

an unconscious state.

(Id. at 14.)

On April 12, 2006, the State responded by proposing a revised pro-

tocol that uses a bispectral index (BIS) monitor, a device that, accord-

ing to the State, can monitor Brown’s level of consciousness during

the execution procedure. Over Brown’s objections, the district court

determined that the revised protocol will ensure that Brown is ren-

dered unconscious prior to and throughout the period during which

lethal drugs are injected into his bloodstream, so that he will not per-

ceive pain during his execution. The court stated,

[The State] will not administer lethal drugs until after total

unconsciousness of the plaintiff has been verified through

use of the BIS monitor. Thus, [Brown’s] concerns about

human error are greatly mitigated by the use of this indepen-

dent check on [his] level of consciousness before the poten-

tially pain-inducing injections . . . begin. Whatever concerns

might be raised about this "machine" or about the propriety

of using it in executions, it is apparent to this court that the

BIS monitor has been used reliably for a decade and is used

in many anesthesia procedures across the country to deter-

mine an individual’s level of consciousness.

(Final Order, 6, Apr. 17, 2006). Because these findings are not sup-

ported by the clear weight of the evidence in the record, the district

court abused its discretion in denying Brown’s motion for a prelimi-

nary injunction. See Bryte v. Am. Household, Inc., 429 F.3d 469, 475

(4th Cir. 2005) ("A district court abuses its discretion if its conclusion

. . . rests upon a clearly erroneous factual finding."); Jiminez v. Mary

Washington Coll., 57 F.3d 369, 379 (4th Cir. 1995) (recognizing that

a district court conclusion that is "contrary to the clear weight of the

evidence considered in light of the entire record" is clearly errone-

ous).

First, the district court’s finding that the BIS monitor alone will

accurately verify Brown’s level of consciousness is contrary to the

clear weight of the evidence considered in light of the entire record.

4 BROWN v. BECK

Brown presents an impressive array of evidence that although a BIS

monitor may be helpful in assessing the effectiveness of anesthesia,

it is not suitable as the State intends to use it — as the sole indicator

of Brown’s level of consciousness. "It is virtually universally

accepted and understood by all anesthesiologists that the BIS monitor

and other brain function monitors cannot be used as the sole method

for assessing anesthetic depth," but must be used alongside other

markers of consciousness (such as purposeful reflex movement, blood

pressure, and heart rate). (Third Aff. of Dr. Mark Heath ¶¶ 8-9.) In

addition to offering testimony to this effect from three leading medi-

cal experts, Brown offers persuasive evidence from independent,

authoritative sources. For instance, Aspect Medical Systems, the man-

ufacturer of the BIS monitor purchased by the State, warns that

"[c]linical judgment should always be used when interpreting the BIS

in conjunction with other available clinical signs. Reliance on the

BIS alone for intraoperative anesthetic management is not recom-

mended." Aspect Medical Systems, Considerations for Using BIS, at

http://www.aspectmedical.com/resources/proc_cards/or/components_

anesthesia.htm. Likewise, the American Society of Anesthesiologists

(ASA) and the American Association of Nurse Anesthetists have pro-

mulgated standards that counsel against the use of brain functioning

technology, such as BIS monitors, in isolation without other monitor-

ing methods or interpretation by personnel with appropriate training

in anesthesia. Most notably, the ASA has observed:

The general clinical applicability of [BIS monitors] in the

prevention of intraoperative awareness has not been estab-

lished. Although a single randomized clinical trial reported

a decrease in the frequency of awareness in high-risk

patients, there is insufficient evidence to justify a standard,

guideline, or absolute requirement that these devices be used

to reduce the occurrence of intraoperative awareness in

high-risk patients [or any other group of patients] undergo-

ing general anesthesia.

American Society of Anesthesiologists, Practice Advisory for

Intraoperative Awareness and Brain Function Monitoring, 104 Anes-

thesiology 847, 855 (2006) (attached as Ex. 1 to Third Heath Aff.).

Likewise, a recent study on the reliability of BIS monitors in the med-

ical journal Anesthesiology concludes that "[a]nesthesia providers

BROWN v. BECK 5

should not rely exclusively on the BIS reading when assessing depth

of anesthesia." See Dagmar J. Niedhart et al., Intrapatient Reproduc-

ibility of the BISxp® Monitor, 104 Anesthesiology 242, 242 (2006)

(attached as Ex. 2 to Third Heath Aff.)

The State offers scant evidence to rebut Brown’s compelling prof-

fer. The State relies solely on the conclusory assertion of its expert,

Dr. Mark Dershwitz, that in his opinion, "beyond a reasonable degree

of medical certainty, . . . the utilization of the BIS monitor as part of

the execution protocol . . . will prevent the possibility of [Brown]

being awake during the administration of pancuronium or potassium

chloride." (emphasis added) (Third Aff. of Dr. Mark Dershwitz ¶ 11.)

Even if Dr. Dershwitz opined that Brown would not be conscious

(rather than simply not awake), the basis for his opinion is question-

able: the State offers no evidence to counter Brown’s persuasive argu-

ment that the BIS monitor cannot be used in isolation to determine an

individual’s level of consciousness. Furthermore, Dr. Dershwitz’s

opinion on this point is particularly suspect because just two months

ago he opined in another case that, absent further testing, "it would

not be prudent to recommend the use of the BIS monitor during lethal

injections." Dershwitz Rebuttal Report, Walker v. Johnson, No.

1:05cv934, at 4-5 (E.D. Va. Feb. 3, 2006) (attached as Ex. B to

Brown’s Objection to Def.’s Notice and Response to 7 April 2006

Order). In finding that the BIS monitor will adequately verify

Brown’s unconsciousness during his execution, the district court dis-

regarded substantial evidence, unrebutted by the State, that casts seri-

ous doubt on the reliability of the BIS monitor as the sole means of

assessing consciousness.

In addition, there is no support in the record for the district court’s

finding that if Brown remains conscious (or regains consciousness)

during the execution, medical professionals will be able to bring

about the injection of additional sodium pentothal until Brown is ren-

dered fully unconscious. Under the revised protocol, only if the BIS

monitor displays a value below 60 will the State proceed to adminis-

ter the pancuronium bromide (the second drug in the lethal injection

protocol which causes paralysis) and the potassium chloride (the third

drug in the lethal injection protocol which causes the heart to stop

beating). (Second Aff. of Marvin Polk ¶¶ 2-4.) In the event the BIS

value reading remains at 60 or above, "additional sodium pentothal

6 BROWN v. BECK

[will] be given until the value reading on the BIS monitor does fall

below 60." (Id. ¶ 4.) Although the protocol provides that "[t]he BIS

monitor will be located such that it can be observed and its values

read by [the licensed registered nurse and the licensed physician who

observe the Cardiac Monitor Defibrillator]," it makes no provision for

these medical professionals to actually do anything in the event the

reading does not fall below 60. (Def.’s Notice and Response to 7

April 2006 Order, 3.) Thus, if Brown’s BIS reading exceeds 60 or he

otherwise is conscious during the execution, the State will take the

same inadequate steps to secure Brown’s unconsciousness that it

would have taken under the original protocol. Even if the revised pro-

tocol could be construed as requiring the medical professionals to take

some action to ensure Brown’s unconsciousness, undisputed evidence

in the record establishes that, based on the execution chamber’s phys-

ical set-up, neither the warden nor any other member of the execution

team can observe or respond to a malfunction in the lethal injection

process. (First Aff. of Nancy Bruton-Maree ¶ 10.) Moreover, even if

a medical professional could respond, there is no evidence in the

record to support the district court’s finding that the professional

would possess the skills necessary to ensure Brown’s unconscious-

ness.

Also problematic is the lack of evidence to show that the BIS mon-

itor will accurately measure consciousness after pancuronium bro-

mide and potassium chloride are administered. Dr. Heath opines that

the administration of pancuronium bromide can lead to an inaccurate

indication of anesthetic depth on a BIS monitor. He bases this opinion

on a study finding that BIS readouts far below 60, the value proposed

by the State as indicating an inmate’s unconsciousness, can be

observed in fully conscious individuals who have been administered

paralysis-inducing drugs similar to pancuronium bromide. M. Mess-

ner et al., The Bispectral Index Declines During Neuromuscular

Block in Fully Awake Patients, 97 Anesthesia & Analgesia 488

(2003) (attached as Ex. 5 to Third Heath Aff.) In addition, Dr. Dersh-

witz, the State’s expert, has recently hypothesized that a BIS monitor

cannot assess the level of consciousness once potassium chloride is

administered. See Dershwitz Rebuttal Report, Walker v. Johnson, No.

1:05cv934, at 4-5 (E.D. Va. Feb. 3, 2006) (attached as Ex. B to

Brown’s Objection to Def.’s Notice and Response to 7 April 2006

Order). Indeed, the revised protocol does not indicate whether the BIS

BROWN v. BECK 7

monitor will be used after administration of the second drug,

pancuronium bromide, and nothing else in the record indicates that

Brown’s consciousness will be monitored after this point in the exe-

cution. The district court’s finding that the revised protocol will

ensure that Brown is rendered unconscious "throughout the period

during which lethal drugs are injected into his bloodstream" is there-

fore clearly erroneous. (See Final Order, 2, Apr. 17, 2006.)

Before the State revised its execution protocol, the district court

concluded that the preliminary injunction hardship-balancing test

favored Brown: that "the likelihood of irreparable harm to Brown far

exceeds the likelihood of harm to Defendants." (Order, 12, Apr. 7,

2006.) If Brown does, in fact, regain consciousness at any point dur-

ing his execution, "there is no dispute that [he] will suffer excrucia-

ting pain as result of the administration of pancuronium bromide and

potassium chloride" and that he, having suffered a tortuous death, will

have no meaningful retrospective relief. (Id. at 11-12.) The district

court conditionally denied Brown’s motion for preliminary injunction

with the requirement that the State add safeguards to ensure that

Brown is in fact unconscious during his execution. In an effort to

comply with the district court’s order, and thereby shift the balance

of hardships, the State incorporated use of the BIS monitor. The clear

weight of evidence, however, reveals that the State’s use of the BIS

monitor will not adequately ensure that Brown will remain uncon-

scious throughout his execution. The balance of hardships therefore

remains weighted in Brown’s favor. Accordingly, I would reverse the

district court’s denial of Brown’s motion for a preliminary injunction

and direct that court to enter the preliminary injunction and conduct

further proceedings, which would allow to State to further revise its

protocol.