Petition for Writ of Certiorari — Russell Bucklew, Petitioner v. Anne L. Precythe, Director, Missouri Department of Corrections, et al.

Supreme Court briefMar 15, 2018

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No. 17IN THE

Supreme Court of the United States

___________

RUSSELL BUCKLEW,

ANNE PRECYTHE, et al.,

___________

Petitioner,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

EXECUTION SCHEDULED FOR MARCH 20, 2018

___________

CHERYL A. PILATE

MORGAN PILATE LLC

926 Cherry Street

Kansas City, MO 64106

(816) 471-6694

ROBERT N. HOCHMAN *

RAECHEL J. BIMMERLE

KELLY J. HUGGINS

MATTHEW J. SALDAÑA

HEATHER B. SULTANIAN

DANIEL R. THIES

SIDLEY AUSTIN LLP

One South Dearborn Street

Chicago, IL 60603

(312) 853-7000

rhochman@sidley.com

Counsel for Petitioner

March 15, 2018

* Counsel of Record

CAPITAL CASE

QUESTIONS PRESENTED

Should a court evaluating an as-applied challenge

to a state’s method of execution based on an inmate’s

rare and severe medical condition assume that medical personnel are competent to manage his condition

and that the procedure will go as intended?

Must evidence comparing a state’s proposed method

of execution with an alternative proposed by an inmate be offered via a single witness, or should a court

at summary judgment look to the record as a whole to

determine whether a factfinder could conclude that

the two methods significantly differ in the risks they

pose to the inmate?

Does the Eighth Amendment require an inmate to

prove an adequate alternative method of execution

when raising an as-applied challenge to the state’s

proposed method of execution based on his rare and

severe medical condition?

(i)

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioner is Russell Bucklew. Respondents are

Anne L. Precythe, David Dormire, and Troy Steele,

personnel with the Missouri Department of Corrections. No party is a corporation.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ............................................

TABLE OF AUTHORITIES .................................

OPINIONS BELOW .............................................

JURISDICTION ...................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .......................................

STATEMENT OF THE CASE..............................

I. FACTUAL BACKGROUND .........................

A. Bucklew’s Rare Medical Condition...........

B. Missouri’s Execution Procedure ...............

C. The Known Risks Bucklew Faces From

Lethal Injection In Missouri .....................

D. The Medical Team.....................................

E. The Lethal Gas Alternative ......................

II. PROCEEDINGS BELOW .............................

A. Procedural History And Discovery ...........

B. The Lower Court Decisions ......................

REASONS FOR GRANTING THE PETITION ...

I. THIS CASE PRESENTS URGENT QUESTIONS REGARDING LITIGATION OF

AS-APPLIED CHALLENGES TO A

METHOD OF EXECUTION .........................

(iii)

TABLE OF CONTENTS—continued

A. Whether Courts Evaluating An AsApplied Method-Of-Execution Claim

Should Assume That Medical Personnel

Are Competent To Handle An Inmate’s

Rare And Severe Medical Condition,

And That The Execution Will Go As Intended, Warrants Review .........................

Page

B. Whether The Evidence Comparing The

Risks Of Proposed Methods Of Execution Must Come From A Single Witness

Warrants Review ......................................

C. Whether An Inmate Raising An AsApplied Challenge To A Method Of Execution Must Prove An Available Alternative Method That Will Substantially Reduce His Risk Of Suffering Also Warrants Review .............................................

II. THIS CASE IS A STRONG VEHICLE FOR

ADDRESSING THESE ISSUES ..................

CONCLUSION .....................................................

APPENDICES

APPENDIX A: Bucklew v. Precythe, No. 173052 (8th Cir. Mar. 15, 2018) ............................

APPENDIX B: Bucklew v. Precythe, No. 173052, 2018 WL 1163360 (8th Cir. Mar. 6,

2018) ...................................................................

APPENDIX C: Bucklew v. Lombardi, No. 148000-CV-W-BP (W.D. Mo. June 15, 2017) ........ 26a

APPENDIX D: Bucklew v. Lombardi, No. 148000-CV-W-BP (W.D. Mo. Aug. 21, 2017) ........ 39a

TABLE OF CONTENTS—continued

Page

APPENDIX E: Bucklew v. Lombardi, No. 148000-CV-W-BP (W.D. Mo. Aug. 11, 2017) ........ 44a

APPENDIX F: Bucklew v. Lombardi, No. 148000-CV-W-BP (W.D. Mo. Apr. 11, 2017) ......... 53a

APPENDIX G: Bucklew v. Lombardi, No. 142163 (8th Cir. Mar. 6, 2015) .............................. 72a

APPENDIX H: Affidavit of Alana Boyles ........... 89a

APPENDIX I: Hamm Expert Report .................. 91a

APPENDIX J: Zivot Supplemental Report ......... 106a

APPENDIX K: Medical Summary ...................... 144a

APPENDIX L: Missouri Execution Protocol ....... 145a

CASES

TABLE OF AUTHORITIES

Page

Anderson v. Dep’t of Transp., FAA, 827 F.2d

1564 (Fed. Cir. 1987)..................................

Arthur v. Dunn, 137 S. Ct. 725 (2017).......... 7, 31

Baze v. Rees, 553 U.S. 35 (2008) ............... passim

Bucklew v. Lombardi, No. 14-1800-CV-WBP, 2014 WL 2736014 (W.D. Mo. May 9,

2014), rev’d, 565 F. App’x 562 (8th Cir.

2014) ...........................................................

Bucklew v. Lombardi, 565 F. App’x 562 (8th

Cir. 2014), vacated on rehearing (May 20,

2014) ...........................................................

Bucklew v. Lombardi, 134 S. Ct. 2333

(2014) ..........................................................

In re Campbell, 874 F.3d 454 (6th Cir.

2017) ...........................................................

Correll v. State, 184 So. 3d 478 (Fla. 2015) ..

DG&G, Inc. v. FlexSol Packaging Corp. of

Pompano Beach, 576 F.3d 820 (8th Cir.

2009) ...........................................................

Dixon v. Penn Cent. Co., 481 F.2d 833 (6th

Cir. 1973) ....................................................

Estelle v. Gamble, 429 U.S. 97 (1976)........... 5, 22

Ford v. Wainwright, 477 U.S. 399 (1986) ..... 7, 31

Gissendaner v. Comm’r, Ga. Dep’t of Corr.,

803 F.3d 565 (11th Cir. 2015) ....................

Glossip v. Gross, 135 S. Ct. 2726

(2015) ................................................. 3, 6, 23, 30

Hall v. Florida, 134 S. Ct. 1986 (2014).........

Hamm v. Dunn, 138 S. Ct. 828 (2018).......... 5, 25

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574 (1986) ......................... 6, 28

Moore v. Texas, 137 S. Ct. 1039 (2017) .........

Ricci v. DeStefano, 557 U.S. 557 (2009) ....... 6, 28

vii

TABLE OF AUTHORITIES—continued

Page

Ringo v. Lombardi, No. 09-4095-BP (W.D.

Mo. filed May 17, 2009)..............................

Trademark Props., Inc. v. A&E TV

Networks, 422 F. App’x 199 (4th Cir.

2011) ...........................................................

United States v. Boone, 279 F.3d 163 (3d

Cir. 2002) ....................................................

United States v. Candie, 974 F.2d 61 (8th

Cir. 1992) ....................................................

United States v. Clevenger, 733 F.2d 1356

(9th Cir. 1984) ............................................

United States v. Crowder, 543 F.2d 312

(D.C. Cir. 1976) ..........................................

United States v. Gonzalez-Velez, 587 F.3d

494 (1st Cir. 2009) ......................................

United States v. Merida, 765 F.2d 1205 (5th

Cir. 1985) ....................................................

United States v. Norman, 776 F.3d 67 (2d

Cir. 2015) ....................................................

United States v. Prince, 883 F.2d 953 (11th

Cir. 1989) ....................................................

United States v. Ransom, 691 F. App’x 504

(10th Cir. 2017) ..........................................

United States v. Rollins, 544 F.3d 820 (7th

Cir. 2008) ....................................................

Zink v. Lombardi, No. 12-4209-BP (W.D.

Mo. filed Aug. 1, 2012) .............................. 15, 17

CONSTITUTION AND STATUTE

U.S. Const. amend. VIII ................................

Mo. Stat. Ann. § 546.720.1 ............................ 1, 10

viii

TABLE OF AUTHORITIES—continued

OTHER AUTHORITIES

Page

AMA Code of Medical Ethics (2016),

https://www.ama-assn.org/sites/default/

files/media-browser/code-of-medicalethics-chapter-9.pdf ...................................

Minhua Wang, MD et al., Cavernous

Hemangioma of the Uvula: Report a Rare

Case with Literature Review, 8 N. Am. J.

of Med. & Sci. 56 (2015) .............................

PETITION FOR A WRIT OF CERTIORARI

Russell Bucklew petitions for a writ of certiorari to

review the decision of the Eighth Circuit.

OPINIONS BELOW

The opinion of the Eighth Circuit is reported at —

F.3d —, No. 17-3052, 2018 WL 1163360 (8th Cir.

Mar. 6, 2018) and is reproduced in the appendix to

this petition at Pet. App. 3a–25a. The opinion of the

district court is not reported and is reproduced at Pet.

App. 26a–38a.

JURISDICTION

The Western District of Missouri had jurisdiction

over Bucklew’s Section 1983 claim pursuant to 28

U.S.C. § 1343. The Eighth Circuit had jurisdiction

pursuant to 28 U.S.C. § 1292(a)(1).

The Eighth Circuit entered judgment on March 6,

2018, Pet. App. 3a, and denied Mr. Bucklew’s petition

for panel rehearing or rehearing en banc on March

15, 2018, Pet. App. 1a–2a. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment of the U.S. Constitution

provides that “[e]xcessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII.

Missouri’s death penalty statute, Mo. Stat. Ann.

§ 546.720.1, provides in relevant part:

The manner of inflicting the punishment of

death shall be by the administration of lethal gas

or by means of the administration of lethal injection. And for such purpose the director of the department of corrections is hereby authorized and

directed to provide a suitable and efficient room

or place, enclosed from public view, within the

walls of a correctional facility of the department

of corrections, and the necessary appliances for

carrying into execution the death penalty by

means of the administration of lethal gas or by

means of the administration of lethal injection.

STATEMENT OF THE CASE

Russell Bucklew is scheduled to be executed on

March 20 by a method that is very likely to cause him

needless suffering. Neither the district court nor the

court of appeals denies that. Bucklew’s very likely

suffering stems from an exceedingly rare disease

called cavernous hemangioma. The disease is progressive, and has caused unstable, blood-filled tumors

to grow in his head, neck, and throat. Those highly

sensitive tumors easily rupture and bleed. The tumor

in his throat often blocks his airway, requiring frequent, conscious attention from Bucklew to avoid suffocation. His peripheral veins are also compromised.

That means that the lethal drug cannot be administered in the ordinary way, through intravenous access in his arms. An expert who examined Bucklew

concluded that while undergoing Missouri’s lethal injection protocol, Bucklew is “highly likely to experience … the excruciating pain of prolonged suffocation

resulting from the complete obstruction of his airway.” Pet. App. 109a ¶ III.E. As he struggles to

breathe through the execution procedure, Bucklew’s

throat tumor will likely rupture. “The resultant

hemorrhaging will further impede Mr. Bucklew’s

airway by filling his mouth and airway with blood,

causing him to choke and cough on his own blood dur-

ing the lethal injection process.” Id. ¶ III.F. Bucklew’s execution will very likely be gruesome and painful far beyond the pain inherent in the process of an

ordinary lethal injection execution.

In a 2-1 decision, a panel of the Eighth Circuit concluded that this execution is not cruel and unusual

solely because, in its view, Bucklew failed to prove

that his alternative method would substantially reduce his risk of needless suffering. (The full Eighth

Circuit denied rehearing en banc, with 4 judges dissenting.) That ruling is based on three distinct misreadings and dangerous extensions of this Court’s decisions in Baze v. Rees, 553 U.S. 35 (2008) (plurality

opinion), and Glossip v. Gross, 135 S. Ct. 2726 (2015).

First, the panel believed that when evaluating the

risks posed by the state’s method of execution in light

of an inmate’s rare and complicating medical condition, Glossip and Baze require courts to assume that

state personnel are competent to deal with the condition and that all will go as intended. Pet. App. 17a.

Nothing in Glossip or Baze warrants such an assumption. And such a rule makes no sense in an asapplied challenge. The whole point of such a challenge is that a generally lawful method of execution,

when applied to someone with a particular medical

condition, will very likely involve needless suffering.

The claim does not assert that state officials, when

they designed the protocol, intended to make the inmate suffer needlessly. When drawing up the protocol, state officials surely did not think about an inmate with cavernous hemangioma in the throat plus

compromised veins. Nor does the claim assert that

an “isolated mishap” in implementing the protocol

might produce harm that does not qualify as cruel

within the meaning of the Eighth Amendment. Baze,

553 U.S. at 50 (plurality opinion). The claim asserts

that following the protocol will, in light of the inmate’s medical condition, very likely produce needless suffering.

The issue arises here in the context of a discovery

dispute. The Eighth Circuit approved the district

court’s decision to close off discovery into whether the

medical professionals charged with administering the

execution have the training and knowledge to handle

the known complications that will arise in light of

Bucklew’s rare medical condition. The medical team

has the authority under Missouri’s execution protocol

to make discretionary judgments about how to attempt venous access and other details directly relevant to Bucklew’s risk of suffering. Bucklew sought

such discovery (allowing for necessary safeguards to

preserve the anonymity of the medical personnel involved) to establish how the skill and expertise of the

medical team will impact the known risks of suffering

that his condition creates. But he was denied any access to the medical personnel and thereby foreclosed

from presenting to the court the full extent of his

risks. The Eighth Circuit agreed that foreclosing

discovery was proper because the court had to assume “that the procedure will go as intended.” Pet.

App. 17a.

Such an assumption is at odds with this Court’s decisions. The plurality opinion in Baze specifically

stated that a claim asserting a known, “objectively

intolerable risk of harm” is, unlike a claim based on

the prospect of a mere mistake, cognizable as a challenge to a method of execution under the Eighth

Amendment. 553 U.S. at 50 (plurality opinion) (quoting Farmer v. Brennan, 511 U.S. 825, 846 (1994)).

The Eighth Circuit’s ruling here prevents an inmate

from proving such a claim.

In so doing, it authorizes what amounts to “deliberate indifference” to an inmate’s needless suffering.

Estelle v. Gamble, 429 U.S. 97, 104-06 (1976) (deliberate indifference to inmate’s medical condition violates the Eighth Amendment). As detailed below, the

record establishes that Missouri’s execution medical

team will be unaware of petitioner’s condition and

will take steps that will cause petitioner to experience needless pain and a prolonged sense of suffocation. The record already establishes that the execution will not go as intended. As Justice Ginsburg recently noted, in advance of the botched execution of

Doyle Lee Hamm, there is no substitute for adversarial testing of the skills and qualifications of the

state’s medical team to handle problems that we already know will arise. Hamm v. Dunn, 138 S. Ct. 828

(2018) (Ginsburg, J., dissenting). To assume that all

will go as intended is to altogether assume away asapplied challenges to methods of execution. This

Court should accept review to clarify how inmates

can prove the risks they face when raising an asapplied challenge to a method of execution.

Second, the Eighth Circuit understood Glossip to

impose a novel burden at summary judgment in a

method-of-execution case that is at odds with summary judgment law. As Judge Colloton’s dissent

makes clear, a reasonable factfinder could conclude

on this record that a lethal gas protocol proposed by

Bucklew will substantially reduce Bucklew’s suffering. Pet. App. 22a. Bucklew’s expert opined that

Bucklew will very likely experience a sense of suffocation for several minutes under the lethal injection

protocol. Respondents’ expert opined that Bucklew

would likely experience a sense of suffocation for

merely 20–30 seconds if lethal gas was used. The

panel majority refused to accept this as evidence

comparing the two methods because no single witness

said one method would be better than the other. Id.

at 14a. That is, the panel believed Glossip not only

requires an as-applied challenge to present evidence

comparing the state’s method with an alternative, but

the evidence must come in the form of a single witness who believes one method is significantly better

than the other.

That is not and should not be the law. The question is not whether any one witness compared and

distinguished the risks of lethal injection with the

risks of lethal gas but, as Judge Colloton observed,

whether there is evidence in the record that distinguishes between the two. Pet. App. 22a. Judge Colloton’s view follows logically from this Court’s repeated statements that evidence at summary judgment is

evaluated in light of the record as a whole. Ricci v.

DeStefano, 557 U.S. 557, 586 (2009); Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). The panel majority read Glossip to change

that rule exclusively for method-of-execution claims.

Nothing in Glossip suggests such a unique procedural

burden is appropriate. And allowing it to stand

would cripple many method-of-execution claims because experts for an inmate will often labor under

ethical obligations that preclude them from designing

a “better” way to kill someone.

Third, petitioner respectfully submits that this

Court should not require inmates raising an asapplied challenge to their methods of execution to design an alternative “that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’” Glossip, 135 S. Ct. at 2737

(quoting Baze, 553 U.S. at 52). The Court imposed

that burden on inmates in cases raising facial challenges to their methods of execution. The Eighth Cir-

cuit (in a 6-4 en banc ruling) and the Eleventh Circuit

have imposed that burden on inmates raising asapplied challenges to their methods of execution, and

the Sixth Circuit (in a habeas case) suggested such a

burden exists. Pet. App. 85a–88a; Gissendaner v.

Comm’r, Ga. Dep’t of Corr., 803 F.3d 565 (11th Cir.

2015) (per curiam); In re Campbell, 874 F.3d 454 (6th

Cir. 2017) (per curiam). The Florida Supreme Court

has done so as well. Correll v. State, 184 So. 3d 478

(Fla. 2015) (per curiam). Several judges dissented in

these cases. The reasons for imposing such a burden

in a case presenting a facial challenge do not and

should not apply to inmates presenting an as-applied

challenge based on an exceedingly rare medical condition. This Court should accept review here and

clarify that inmates presenting an as-applied challenge need not custom-design their own method of

execution in light of the idiosyncratic reasons the

state’s generally lawful method of execution will

prove cruel as applied to them.

This Court is well aware of the number of attempted but failed executions that have not gone according

to plan. See Arthur v. Dunn, 137 S. Ct. 725, 733

(2017) (Mem.) (Sotomayor, J., dissenting). Some of

the problems that have arisen in the past and produced excruciating and gruesome results are, as here,

predictable. Only this Court can establish uniform

national standards that will reduce the frequency of

these horrible events. In doing so, this Court would

not only protect the irreducible human dignity of the

inmates bringing such claims. It would also protect

the essential dignity of the society that administers

the death penalty. The Eighth Amendment protects

“the dignity of society itself from … barbarity.” Ford

v. Wainwright, 477 U.S. 399, 410 (1986). We refuse

to punish with cruelty to protect ourselves against

being party to cruelty. We do so even when the temptation is powerful because the crime we are punishing was itself barbaric and cruel, as respondents will

no doubt detail in their opposition. The wisdom of

the Eighth Amendment is that it recognizes the

temptation to be indifferent to the needless suffering

of those society condemns, and demands we resist it.

A society that tolerates stripping any man of his irreducible dignity, even one who merits the ultimate

punishment, takes a fateful step. This Court is

uniquely positioned to defend this sacred value. And

it should do so in this case.

I. FACTUAL BACKGROUND

In 1998, Bucklew was convicted of first degree

murder, kidnapping, burglary, forcible rape, and

armed criminal action. He was sentenced to death.

He does not challenge the validity of his conviction or

death sentence.

A. Bucklew’s Rare Medical Condition

Bucklew suffers from an exceedingly rare medical

condition—cavernous hemangioma—that causes inoperable, blood-filled tumors to grow in his throat

and around his face, head, and neck. Pet. App. 6a.

Cavernous hemangiomas occur in only .2% of the

general population, and cavernous hemangiomas in

the oral cavity (affecting the lips, tongue, and palate)

are prevalent in less than 1% of those who have cavernous hemangioma (only .002% of the general population). Minhua Wang, MD et al., Cavernous Hemangioma of the Uvula: Report a Rare Case with Literature Review, 8 N. Am. J. of Med. & Sci. 56 (2015). A

case like Bucklew’s, involving the uvula, is “extremely rare.” Id. at 56.

Bucklew’s tumors are extremely sensitive and susceptible to rupture. Pet. App. 6a. Merely touching

his airway can cause the delicate tissue of his airway

and uvula to leak blood. Pet. App. 111a ¶ V.A.1–4,

113a ¶ V.B.8. Bucklew’s condition is progressive; his

tumors continue to grow, and his risk of experiencing

a catastrophic hemorrhage increases. Id. at 113a–

114a ¶ V.B.10; APP0324 at 48:6–24; APP0328. 1 In

May 2014, Bucklew’s medical expert, Dr. Zivot, examined him and determined that his condition had significantly progressed to the extent that his tumors

posed an imminent risk of life-threatening hemorrhage. See APP0186–87.

Bucklew’s “grossly enlarged uvula” partially obstructs his airway, making it difficult for him to

breathe and causing him to choke and bleed. Pet.

App. 112a ¶ V.B.1–3. On the Mallampati classification, a scale used to describe how difficult it is to secure a patient’s airway in a medical setting, Bucklew’s airway rates a “Class IV,” meaning that his

airway is “very difficult.” Indeed, when Bucklew was

put under general anesthesia during previous surgeries, he underwent a tracheotomy to ensure that his

airway would remain secure during the procedures.

Id. at 108a ¶ III.B, 110a ¶ IV.B–C. Bucklew’s difficulty breathing is exacerbated when he lies supine,

and, to prevent suffocation, he must consciously monitor and mechanically adjust his breathing to shift his

uvula and permit airflow. Indeed, Bucklew sleeps on

his side and upright to avoid choking and hemorrhaging, and yet still experiences frequent hemorrhages

severe enough that he typically needs to clean blood

off his face in the morning. Id. at 112a ¶ V.B.1–2.

Bucklew also has compromised peripheral veins in

his hands and arms, which make his veins difficult to

1 APP citations are from the Appendix to Brief, Bucklew v.

Lombardi, No. 14-3052 (8th Cir. filed Dec. 1, 2017).

visualize. Pet. App. 6a. Accordingly, it would likely

take multiple attempts to set an intravenous (IV)

line, and setting an IV in Bucklew’s arms likely will

not be possible at all. Id. at 114a–115a ¶VI.E; see also APP0346 at 77:3–21.

B. Missouri’s Execution Procedure

Missouri law authorizes execution by both lethal

gas and lethal injection. Mo. Stat. Ann. § 546.720.1.

Missouri has a written execution procedure for lethal

injection only. Nonetheless, respondents have conceded that lethal gas is a feasible and readily implemented alternative to lethal injection in Missouri.

Pet. App. 13a.

The medical technicians responsible for the execution, who have been designated “M2” and “M3” to

preserve their anonymity, have substantial discretion

in the execution chamber. APP0341–42 at 43:11–

44:22. Under the execution protocol, medical personnel determine the most appropriate locations for IV

lines to inject the lethal drug. The protocol authorizes accessing the vein via a central line, such as the

femoral vein, but only if the medical personnel involved in the execution “have appropriate training,

education, and experience for that procedure.” Pet.

App. 145a.

Not all state medical personnel, and indeed not all

anesthesiologists, are qualified or skilled at performing a central line procedure. APP0347 at 81:22–24;

APP0362 at 237:11–19. In the past, after failing to

gain peripheral vein access, the medical members of

the execution team have employed an outdated procedure known as a “cut-down” in the leg. APP0311–

12 at 55:12–56:17. (A cut-down involves slicing into

the leg to visualize the vein; it is extremely painful.

See APP0350 at 92:23–93:13.) Both Dr. Zivot, Buck-

lew’s medical expert, and Dr. Antognini, respondents’

medical expert, agree that a “cut-down” is not the

current preferred method of establishing central line

access. APP0352 at 98:8–23; APP0374 at 71:12–16.

After the medical team gains venous access, a nonmedical member of the execution team will inject the

lethal drug, during which time Bucklew will lose the

ability to consciously manage his airway. Pet. App.

145a–146a; id. at 115a–116a ¶ VI.I–J.

C. The Known Risks Bucklew Faces From

Lethal Injection In Missouri

Bucklew’s execution will not go smoothly. He faces

identifiable severe risks from the procedure both before and after the medical team gains venous access

and the non-medical team begins to administer the

lethal drug.

As noted above, attempts to access Bucklew’s peripheral veins will very likely fail. Pet. App. 114a–

115a ¶ VI.E; see also APP0346 at 77:3–21. But it is

very likely that medical personnel will try, and repeatedly so. Pet. App. 114a–115a ¶ VI.E; APP0352 at

99:7–20. The discomfort of repeated failed efforts to

gain venous access will increase Bucklew’s stress,

raising the pace of his breathing and blood pressure,

increasing the risk that his sensitive tumors will rupture. Pet. App. 115a ¶ VI.G.

Eventually, the medical team will stop trying to

gain peripheral access, and will turn to a central line,

likely the femoral vein. To access the femoral vein,

the record indicates that M3 will perform a cut-down

procedure; that is what M3 has done in the past when

attempts at peripheral access failed. APP309 at

28:11-22; APP311-12 at 55:20-56:3. During a cutdown, Bucklew will have to lie flat, at least while the

medical team attempts to access his femoral vein,

and possibly throughout the remainder of the execution. Id. at 29a; id. at 21a & n.5. He will gag on his

tumor, causing him to struggle and convulse in an

effort to breathe. Id. at 115a ¶ VI.H, 116a ¶ VI.L.

His convulsions will increase the risks associated

with the attempt to gain access through the femoral

vein. Among the risks of attempting femoral vein access is piercing the femoral artery. APP0350 at 90:3–

92:22. That risk was recently made especially vivid

during the failed execution of Doyle Lee Hamm in Alabama on February 22, 2018. Even though Alabama

certified that it would use personnel qualified to access the femoral vein, the medical team punctured

Hamm’s artery. Pet. App. 98a. That execution had to

be abandoned. If, as is likely, Bucklew is violently

struggling to breathe while the team attempts femoral access, his risk of a similar failure increases.

The painful cut-down procedure and struggles to

breathe will further increase the stress of the execution and further increase the likelihood of Bucklew

rupturing his tumor. There is a significant likelihood

that Bucklew will be choking on his tumor and gagging on his own blood for the (unknown) duration of

the cut-down procedure, before the injection of the

lethal drug even begins. Pet. App. 115a ¶ VI.G;

APP0352 at 100:1–12.

After the lethal drug begins to flow, Bucklew will

soon lose the ability to manage his airway. This is

true whether he remains laying flat or whether he is

upright or anything in between. Pet. App. 115a–116a

¶ VI.I. He will begin to experience a sense of suffocation and the extreme pain associated with suffocation. Id. at 28a–29a. In the unlikely event he has not

already begun choking on his own blood as a result of

struggling while lying flat throughout the cut-down

procedure, the violence of his choking as he slips into

unconsciousness will likely cause his tumors to rupture and lead him to aspirate his own blood. Id. at

116a ¶ VI.M).

The parties disagree over how long Bucklew will be

unable to manage his airway while remaining aware

of the sense of suffocation. Bucklew’s expert opines

that Bucklew could be in this state for between 52

and 240 seconds, while respondents’ expert opines

that he would be conscious of suffocation for 20 to 30

seconds. Pet. App. 29a. These estimates are on top of

any period of time Bucklew is suffocating prior to the

administration of the lethal drug.

D. The Medical Team

Any judgments concerning how to handle an inability to gain venous access, an inmate choking, gagging, or hemorrhaging blood, or any of the other predictable complications arising from Bucklew’s condition are left to the sole discretion of the medical

members of the execution team. APP0339–40 at

36:11–37:9; APP0299–300 at 93:11–96:9. Nothing in

the record suggests they will be anticipating what

Bucklew will likely experience.

The medical personnel who perform the execution

will not be provided any information concerning

Bucklew’s medical condition beyond a single-page

document summarizing his medical history. In 2014,

as Missouri prepared to execute Bucklew, a one-page

form summarizing Bucklew’s medical issues was prepared. Pet. App. 144a. As relevant here, it reported

his cavernous hemangioma, but only with respect to

his jaw and upper lip. It said nothing about his compromised veins, and nothing about the tumor in his

throat that will inhibit his breathing during the execution and will very likely rupture and cause him to

choke on his blood. Indeed, whoever prepared the

form shockingly reported “No” in response to the

question “Does the offender have Asthma, bronchitis,

or any other breathing problem?” Id. (emphasis added). The medical team will not be provided with any

other medical records, including the MRI images that

reveal the size of the tumors in Bucklew’s airway.

APP0292 at 43:20–44:6.

Missouri has never executed an inmate who suffers

from cavernous hemangioma, APP0448 at Resp. No.

4, and there is no reason to believe that the medical

members of the execution team have ever seen a patient with cavernous hemangioma, or have ever seen

one with tumors in his throat. Even if they are alerted to the fact of the disease by the medical form,

there is no reason to believe they will be alert to the

rare tumor in Bucklew’s throat and the special suffocation risk it creates.

E. The Lethal Gas Alternative

Bucklew has proposed death by nitrogen hypoxia as

an alternative method of execution. APP0085–87.

Lethal gas requires no venous access at all. So, all the

risks posed by the difficulties of gaining venous access, including the painful cut-down procedure, would

vanish. Likewise, lethal gas can be administered

while Bucklew is seated upright, so all the risks of

struggling to breathe and choking on the blood flowing from his throat tumor while lying flat during the

cut-down procedure would also vanish. APP0547;

APP0898–99.

Dr. Antognini opined that, if administered correctly, lethal gas would lead to a quick death. APP0362

at 234:12-21. Specifically, he testified that inhalation

of nitrogen gas “would quickly achieve hypoxia and

cause an inmate to become quickly unconscious”

within about 20 to 30 seconds of breathing pure ni-

trogen. APP0362 at 234:12–21. In addition, there is

reason to believe that breathing 100% nitrogen does

not produce a sense of suffocation. The sense of suffocation is caused by a buildup of carbon dioxide in

the blood when a person is unable to expel air.

APP0899. If one breathes in pure nitrogen while expelling air, death is caused by an absence of oxygen

unaccompanied by a sense of suffocation. APP0899;

APP0911. Reports of high altitude pilots who lost

consciousness while breathing air low in oxygen and

high in nitrogen is consistent with this view.

APP0547.

Dr. Zivot did not opine on whether lethal gas would

result in significantly less suffering than Missouri’s

lethal injection protocol because he is ethically barred

from proposing a method of execution at all. Pet.

App. 108a ¶ II.B. So, no evidence in the record disputes respondents’ expert’s view that death by lethal

gas would be substantially quicker and less painful

than Bucklew’s expert’s view of the likely suffering

that lethal injection will cause Bucklew.

II. PROCEEDINGS BELOW

A. Procedural History And Discovery

In a Fourth Amended Complaint filed on October

13, 2015, Bucklew challenged the constitutionality of

Missouri’s execution protocol as applied to him.

Among other things, he alleged that Missouri’s lethal

injection protocol “presents a substantial risk of causing excruciating or tortuous pain and inflicting needless suffering” and therefore violates the Eighth

Amendment’s prohibition on cruel and unusual punishment. 2 APP0136-37 ¶¶ 148, 151. He further al2 Bucklew was also party to an earlier case styled Zink v.

Lombardi, No. 12-04209-BP (W.D. Mo. filed Aug. 1, 2012), in

leged that his “blood-filled tumors are prone to rupture under stress or any rise in blood pressure. When

this occurs, Mr. Bucklew bleeds through his facial orifices and in his throat, further obstructing his airway

and causing him to choke.” APP0086. Bucklew alleged that “the risks arising from Mr. Bucklew’s airway are even greater if he is lying flat.” APP0119

¶ 102. Bucklew’s initial complaint was filed on May

9, 2014, and on May 14, 2014, Bucklew moved for a

stay of his execution, then scheduled for May 21,

2014, to provide adequate time to litigate his claims.

The district court denied Bucklew’s motion for a stay,

and dismissed his complaint, sua sponte. Bucklew v.

Lombardi, No. 14-1800-CV-W-BP, 2014 WL 2736014

(W.D. Mo. May 9, 2014).

With only two days remaining until his scheduled

execution, Bucklew immediately appealed the dismissal of his complaint. An Eighth Circuit panel granted

a stay. Bucklew v. Lombardi, 565 F. App’x 562, 569–

71 (8th Cir. 2014). After the Eighth Circuit, sitting

en banc, vacated the stay on the same day, this Court

entered a stay of execution pending Bucklew’s appeal.

Bucklew v. Lombardi, 134 S. Ct. 2333 (2014) (Mem.).

Roughly ten months later, the en banc Eighth Circuit reversed the dismissal of Bucklew’s Complaint

and remanded for further proceedings. Pet. App.

72a–88a. The full Eighth Circuit, split 6–4, rejected

Bucklew’s argument that he need not propose an alternative method of execution because he raised an

as-applied challenge only. Id. at 75a, 84a. On remand, Bucklew amended his complaint to assert that

lethal gas is a “feasible and available alternative

which he and other inmates raised a facial challenge to Missouri’s lethal injection execution protocol.

method that will significantly reduce the risk of severe pain.” APP0137 ¶ 150.

Discovery began and Bucklew sought, among other

things, information about the skills and training of

M2 and M3 to handle the risks that his rare condition

would likely present. APP0224–26. Bucklew indicated that identifying information in any documents

produced concerning M2 and M3 could be redacted.

APP0224–25. The district court refused to allow

Bucklew any access to the medical team and any information regarding their skills and training. Pet.

App. 44a–52a.

After additional discovery revealed the extent of

discretionary authority granted to M2 and M3 during

an execution, Bucklew filed a Motion to Compel outlining the need for discovery concerning the training

and qualifications of M2 and M3. The district court

again denied Bucklew access to this discovery. Pet.

App. 57a, 71a.

M2 and M3 have been deposed in prior capital litigation, specifically in 2010 in Ringo v. Lombardi, No.

09-4095-BP (W.D. Mo. filed May 17, 2009), and in

2013 and 2014 in Zink v. Lombardi, No. 12-4209-BP

(W.D. Mo. filed Aug. 1, 2012). Bucklew’s appointed

counsel, Ms. Pilate, represented Bucklew in those

proceedings (which raised facial challenges, not asapplied challenges to Missouri’s execution protocol),

and she believes that the contents of those depositions are directly relevant to disputed factual issues

in this case. APP0278. The district court, however,

refused to permit Ms. Pilate to share the deposition

transcripts with Sidley Austin or to use the transcripts in connection with this case. APP0285–86.

B. The Lower Court Decisions

The district court granted respondents summary

judgment on June 15, 2017. The district court assumed that the record demonstrated “a substantial

risk that [Bucklew] will experience choking and an

inability to breathe for up to four minutes.” Pet. App.

34a. The court also noted that “Defendants do not

argue that [Bucklew’s proposed alternative] method

of execution is not feasible or readily implemented.”

Id. However, the district court concluded that the

record did not present a triable dispute concerning

whether execution by nitrogen gas would significantly reduce Bucklew’s risk of needless suffering, as

compared to Missouri’s lethal injection protocol. Id.

at 35a. The district court also denied a motion to reconsider. Id. at 39a–43a.

On November 21, 2017, while Bucklew’s appeal was

pending and before the parties had fully briefed the

issues, at the state’s urging, the Missouri Supreme

Court reset Bucklew’s execution date to March 20,

2018. Shortly thereafter, the Eighth Circuit set the

appeal for argument on February 2, 2018.

On March 6, 2018, a divided panel of the Eighth

Circuit affirmed the district court. The panel majority concluded that Bucklew provided no evidence proving that lethal gas would substantially reduce his

risk of severe pain. It acknowledged evidence from

Bucklew’s expert that lethal injection would cause

him to experience a sense of suffocation for several

minutes. Pet. App. 14a. It also acknowledged that it

was undisputed that lethal gas would cause him to

experience a sense of suffocation for, at most, 20–30

seconds. Id. And it nowhere disputed that the difference would be significant enough to warrant relief.

Instead, the panel declared that Bucklew’s claim

failed because the evidence showing a difference be-

tween the two methods had not come from any one

witness. Id. That is, the panel interpreted this

Court’s requirement of “comparative” evidence to

mean that an inmate must point to a single witness

who does the comparison. Id.

Judge Colloton dissented. In surveying the evidence and interpreting it in the light most favorable

to Bucklew, Judge Colloton concluded: “If the factfinder accepted Dr. Zivot’s testimony as to the effect

of pentobarbital, and Dr. Antognini’s uncontroverted

testimony as to the effect of nitrogen gas, then Bucklew’s proposed alternative method would significantly

reduce the substantial risk of severe pain ....” Pet.

App. 22a. Judge Colloton observed that the general

rule allows the trier of fact to accept all or just a part

of any witness’ testimony, and that on summary

judgment one party can rely on a portion of the opposing party’s expert’s testimony to create a genuine

issue of material fact. Id. Accordingly, Judge Colloton would have remanded the case to the district

court to hold a trial and make factual findings.

The panel majority also affirmed the district court’s

denial of any discovery into the qualifications of the

medical personnel who will participate in Bucklew’s

execution. The panel majority, interpreting Bucklew’s argument as resting on the “premise that M2

and M3 may not be qualified for the positions for

which they have been hired,” refused to “assume that

Missouri employs personnel who are incompetent or

unqualified” or to permit discovery into “[t]he potentiality that something may go wrong in an execution.”

Pet. App. 17a. Instead, the panel majority insisted

that the court’s analysis must be based on the assumption “that those responsible for carrying out the

sentence are competent and qualified to do so, and

that the procedure will go as intended.” Id.

Three days after the decision, Bucklew petitioned

for a panel rehearing or rehearing en banc, and

moved for an emergency stay. In opposing the stay

request, Respondents submitted a new factual affidavit from Alana Boyles, which stated that, during

Bucklew’s execution, “the Department will adjust the

gurney so that Mr. Bucklew is not lying fully supine

at the time the Department administers the lethal

chemicals.” Pet. App. 89a. The affidavit was prepared after the Eighth Circuit panel had already issued its decision, and was thus submitted without

any opportunity for Bucklew to investigate Ms.

Boyle’s role in the execution protocol or her authority

to make decisions concerning how that protocol will

be applied to Bucklew. The affidavit made no representations about how Bucklew would be positioned

prior to the time the Department administers the lethal chemicals, including during a cut-down procedure.

On March 15, 2018, the Eighth Circuit declined to

rehear Mr. Bucklew’s appeal. Pet. App. 1a.

REASONS FOR GRANTING THE PETITION

This case presents an opportunity to resolve three

important questions arising out of the Eighth Circuit’s misinterpretation of this Court’s decisions in

method-of-execution cases. First, this Court can confirm that courts evaluating an as-applied challenge to

a state’s method of execution should not assume that

an execution will go as intended for an inmate with a

rare and severe medical condition, and should allow

discovery into the training and skills of relevant medical personnel. Second, this Court can reaffirm that

the traditional summary judgment standard applies

in challenges to methods of execution, and that an

inmate need not present a single witness to provide

comparative evidence distinguishing the state’s

method of execution from the inmate’s proposed alternative. Third, this Court can declare that inmates

need not propose an alternative execution procedure

when raising an as-applied challenge to a state’s

method of execution. These questions are critical to

the fairness of procedures for inmates facing execution protocols that, as applied to them, pose known

and severe risks of needless suffering.

I. THIS CASE PRESENTS URGENT QUESTIONS REGARDING LITIGATION OF ASAPPLIED CHALLENGES TO A METHOD

OF EXECUTION.

A. Whether Courts Evaluating An AsApplied Method-Of-Execution Claim

Should Assume That Medical Personnel

Are Competent To Handle An Inmate’s

Rare And Severe Medical Condition,

And That The Execution Will Go As Intended, Warrants Review.

The Eighth Circuit affirmed the denial of discovery

into the training and qualifications of the medical

personnel who will make critical decisions affecting

the length and severity of Bucklew’s suffering during

the execution. It did so because it concluded that the

training and qualifications of the medical team are

irrelevant. It ruled that a court evaluating an inmate’s as-applied challenge under Baze and Glossip

“must … assum[e] that those responsible for carrying

out the sentence are competent and qualified to do so,

and that the procedure will go as intended.” Pet.

App. 17a. A challenge to a method of execution based

on the inmate’s medical condition necessarily asserts

that the procedure will not go as intended. If such

claims are cognizable at all, the Eighth Circuit’s rule

cannot stand.

This Court has already indicated that such claims

are cognizable.

The plurality opinion in Baze

acknowledged the possibility that some executions

might entail an “objectively intolerable risk of harm

that officials may not ignore.” Baze, 553 U.S. at 50

(plurality opinion) (internal quotation marks omitted). Nothing in Glossip undermines that view. And

for good reason. The rule follows logically from this

Court’s longstanding view that “deliberate indifference” to an inmate’s medical condition can rise to the

level of cruel and unusual punishment within the

meaning of the Eighth Amendment. Gamble, 429

U.S. at 104. Here, medical personnel charged with

administering Missouri’s execution protocol on an

inmate with a rare and severe medical condition will

be ignorant of material details about that condition,

yet empowered to make critical decisions during the

procedure that will increase the inmate’s suffering.

Respondents refuse even to provide access to those

medical professionals for discovery. All of this evinces

deliberate indifference to Bucklew’s condition and the

risks that lethal injection poses to him.

Importantly, Bucklew does not claim, as the Eighth

Circuit suggested, that “M2 and M3 may not be qualified for the positions for which they have been hired.”

Pet. App. 17a. Bucklew presently has no reason to

believe they lack the qualifications to do what the execution protocol demands: “prepare the lethal chemicals,” “determine the most appropriate locations for

intravenous (IV) lines,” “monitor the prisoner during

the execution,” among other things. Id. at 145a–146a

¶¶ B, C.1, D.2. But the execution protocol also empowers the medical team to attempt to access the

femoral vein “provided they have appropriate training, education, and experience for that procedure.”

Id. at 145a ¶ C.1. That is, the execution protocol does

not assume the training and experience of the medical team members to handle one of the procedures

that the experts agree will likely be required here:

obtaining access to the femoral vein. Assuming that

medical team members will do so and all will go “as

intended,” as the Eighth Circuit has done here, is not

only contrary to law, but is contrary to the protocol

itself.

The execution protocol at issue here is nothing like

the protocols this Court had before it in Baze and

Glossip. Both of those protocols included “several

important safeguards,” Baze, 553 U.S. at 55 (plurality

opinion), to protect against the possibility of error in

administering the drugs. Indeed, Oklahoma’s standards considered in Glossip, adopted after the horrific

execution of Clayton Lockett, included “detailed provisions with respect to the training and preparation

of the execution team.” 135 S. Ct. at 2735. Not only

does Missouri’s protocol lack any details regarding

the training and preparation of the execution team,

but Bucklew was wrongfully denied the chance to fill

that critical gap through discovery.

That denial is all the more egregious in light of the

testimony that makes clear how much discretionary

authority medical team members have during the execution. Anne Precythe, who as Director of Corrections is nominally in charge, repeatedly stated during

her deposition that she knows nothing about Bucklew’s medical condition and would defer to M2 and

M3 regarding how to handle any issues that arise

during the execution. APP0338–40 at 35:12–37:9;

APP0341–42 at 43:11–44:22. This includes not only

the decision whether to attempt venous access

through a central line like the femoral vein, but also

how many attempts will be made on peripheral veins,

and what procedure will be used to attempt femoral

vein access. It also includes how to position Bucklew

during attempts to gain venous access and beyond.

See Pet. App. 20a–21a & n.5.

Under Missouri’s vague procedures, and Precythe’s

deference to medical team members, the risk of trying

and failing to gain venous access through a peripheral vein, and then likely attempting access through

the outdated cut-down procedure that medical personnel previously performed, is not the prospect of a

mere “isolated mishap,” as the Eighth Circuit supposed. Pet. App. 17a (quoting Baze, 553 U.S. at 50).

This risk is all but certain. It will lengthen the execution procedure. It will increase the stress of the

procedure on Bucklew, which increases the risk that

his tumors will rupture and he will begin to bleed

from them, likely gagging on his own blood even before the lethal drug can be administered. Id. at 114a–

115a ¶ VI.E–G, 109a ¶ III.F. Convulsing uncontrollably during a cut-down procedure surely increases

the risk that the femoral artery will be punctured, or

that the IV line will be positioned so that the lethal

drug leaks into neighboring tissue, causing intense

pain.

Even though we know these risks are substantial,

we have no reason to believe medical team members

will be alert to them. There is no reason to believe

M2 or M3 have ever seen a patient with cavernous

hemangioma, or have ever seen one with tumors in

his throat. There is reason to believe that neither M2

nor M3 will be alerted to Bucklew’s compromised

veins, the tumor in Bucklew’s throat, or the nature

and extent of the risk of suffocation Bucklew faces.

The single page form previously prepared in anticipation of an earlier execution date for Bucklew failed to

report any of these known problems. Pet. App. 144a.

Respondents tacitly conceded that the record inadequately supports their assurances that all will go

smoothly by submitting, at the rehearing stage in the

Eighth Circuit, a new affidavit of a new witness purporting to provide minimal (and inadequate) assurance that Bucklew will not be “fully supine at the

time the Department administers the lethal chemicals.” Pet. App. 89a. The affidavit makes no representation about Bucklew’s position during the painful

cut-down procedure he will endure. There remains

every reason to believe Bucklew will be forced to lie

“fully supine” during that procedure, which necessarily occurs before the lethal chemicals are administered. Bucklew had no opportunity to investigate Ms.

Boyles’ role in the execution protocol or her authority

to make decisions concerning how that protocol will

be applied to Bucklew. And the respondents’ gesture

reflects their mistaken insistence that Bucklew’s risk

of suffocating is present only when “fully supine.”

That is wrong. Id. at 115a–116a ¶ VI.I–J); id. at 20a.

In the end, the affidavit only underscores respondents’ deliberate indifference to the full range of risks

Bucklew faces. It illustrates why “[a]n adversarial

process should … test[] the risk of ‘serious illness and

needless suffering.’” Hamm, 138 S. Ct. at 828–29

(Ginsburg, J., dissenting).

That adversarial process can include safeguards to

protect the anonymity of execution team members.

Bucklew has never asserted otherwise. See, e.g.,

APP0224–25 at IV.I.1.3. Indeed, such safeguards

have been used in the past when similar discovery

was allowed. The fact that the court barred Ms. Pilate, who has seen that discovery and believes it is

relevant here, from using it in this case, dramatically

demonstrates the fundamental unfairness of the discovery ruling. This Court’s review is warranted.

B. Whether The Evidence Comparing The

Risks Of Proposed Methods Of Execution Must Come From A Single Witness

Warrants Review.

The Eighth Circuit has ruled that an inmate raising an as-applied challenge to a method of execution

must plead and prove that a feasible and readily

available alternative method of execution would substantially reduce his risk of needless suffering. Pet.

App. 75a, 84a. For the reasons discussed below,

Bucklew maintains that ruling was error. But even

assuming that is correct, the Eighth Circuit has layered an additional evidentiary burden on inmates

challenging a state’s proposed method of execution.

According to the panel majority, and over the dissent

of Judge Colloton, the Eighth Circuit now requires

inmates to present a single witness who compares the

risks posed by the two methods of execution and who

concludes that the inmate’s proposal substantially

reduces the risks posed by the state’s method. Id. at

13a–14a. This novel evidentiary standard, at odds

with settled summary judgment law, warrants review.

What the parties’ experts concluded is clear regarding the risks Bucklew faces after the lethal drug is

administered. Bucklew’s expert (Dr. Zivot) opines

that Bucklew will experience a sense of suffocation

for several minutes if lethal injection is used. Respondents’ expert (Dr. Antognini) thinks Bucklew will

experience a sense of suffocation for 20-30 seconds if

lethal injection is used. Dr. Zivot did not opine on

how long Bucklew would experience pain if executed

by lethal gas. Dr. Antognini opined that lethal gas

would leave Bucklew insensate to pain within 20-30

seconds.

The Eighth Circuit panel majority correctly stated

Bucklew’s argument: “the district court should have

compared Dr. Zivot’s opinion [about lethal injection]

with Dr. Antognini’s testimony [about lethal gas.]”

Pet. App. 14a. Judge Colloton, in dissent, did just

that: “If the factfinder accepted Dr. Zivot’s testimony

as to the effect of pentobarbital, and Dr. Antognini’s

uncontroverted testimony as to effect of nitrogen gas,

then Bucklew’s proposed alternative method would

significantly reduce the substantial risk of severe

pain ….” Id. at 22a. The panel majority does not deny that the difference between experiencing suffocation for 20-30 seconds, and experiencing suffocation

for several minutes, is significant and would warrant

relief. Instead, it refused to compare Dr. Zivot’s opinion about lethal injection with Dr. Antognini’s opinion

about lethal gas. Put simply, the panel majority rejected Bucklew’s argument because “his expert” did

not compare the two methods himself. Id. at 13a–

14a. 3

This was legal error. Glossip requires a comparison

between the state’s method and a petitioner’s alternative method. But it nowhere requires that a single

witness compare the two. As Judge Colloton explained, a witness’s testimony may be credited in

whole or in part, and a plaintiff may rely on the defendant’s evidence, including the defendant’s expert

witness, if that evidence is helpful. Pet. App. 22a (cit-

3 The panel majority also erroneously stated Bucklew’s concern about suffocation “rests on” whether he will be forced to lie

supine. Pet. App. 15a. In fact, Dr. Zivot notes that Bucklew’s

choking is worse when lying flat. Id. at 112a ¶ V.B.1–2). Dr.

Zivot also clearly stated that once Bucklew loses full consciousness, he will be unable to manage his airway and will choke. Id.

at 115a–116a ¶ VI.I.

ing cases). Petitioner is aware of no federal court of

appeals that has ruled to the contrary. 4

The panel majority provided no citation for its novel

rule. The previously unquestioned rule of law relied

upon by Judge Colloton follows logically from the

standard for summary judgment: only when “the record taken as a whole” creates no genuine issue of material fact should a court enter summary judgment.

Ricci, 557 U.S. at 586; Matsushita, 475 U.S. at 587.

Evidence is evidence, whether proffered by the party

seeking or opposing summary judgment. At summary judgment, a party may rely upon an opponent’s

expert to support or defeat the motion. DG&G, Inc. v.

FlexSol Packaging Corp. of Pompano Beach, 576 F.3d

820, 826-27 (8th Cir. 2009). There is and should be

no special burden placed on inmates under sentence

of death challenging a method of execution in light of

a rare medical condition. The panel majority misread

Glossip and improperly imposed a proffer-all-thecomparative-evidence-yourself rule on Bucklew.

Indeed, it is especially inappropriate to impose this

special burden in an as-applied method of execution

4 Every Circuit agrees with Judge Colloton. United States v.

Gonzalez-Velez, 587 F.3d 494, 504 (1st Cir. 2009); United States

v. Norman, 776 F.3d 67, 78 (2d Cir. 2015); United States v.

Boone, 279 F.3d 163, 189 (3d Cir. 2002); Trademark Props., Inc.

v. A&E TV Networks, 422 F. App’x 199, 212 (4th Cir. 2011);

United States v. Merida, 765 F.2d 1205, 1220 (5th Cir. 1985);

Dixon v. Penn Cent. Co., 481 F.2d 833, 837 (6th Cir. 1973); United States v. Rollins, 544 F.3d 820, 836 (7th Cir. 2008); United

States v. Candie, 974 F.2d 61, 65 (8th Cir. 1992); United States

v. Clevenger, 733 F.2d 1356, 1359 (9th Cir. 1984); United States

v. Ransom, 691 F. App’x 504, 506 (10th Cir. 2017); United States

v. Prince, 883 F.2d 953, 959 n.3 (11th Cir. 1989); United States

v. Crowder, 543 F.2d 312, 326 (D.C. Cir. 1976) (en banc); Anderson v. Dep’t of Transp., FAA., 827 F.2d 1564, 1570 (Fed. Cir.

1987) (per curiam).

case. Dr. Zivot explained why he could not opine on a

method of execution that would result in significantly

less suffering than the lethal injection protocol proposed by the State: he is ethically barred from proposing a method of execution at all. Pet. App. 108a

¶ II.B. The law should not require an inmate to find

an expert who is willing to violate his or her oath by

custom-designing a method of execution that will

substantially reduce the inmate’s idiosyncratic reasons for excessive suffering.

This Court should grant this petition and restore

the generally applicable rules for evaluating evidence

at summary judgment to inmates bringing an asapplied challenge to their methods of execution.

C. Whether An Inmate Raising An AsApplied Challenge To A Method Of Execution Must Prove An Available Alternative Method That Will Substantially Reduce His Risk Of Suffering Also Warrants Review.

The Eighth Circuit requires an inmate raising an

as-applied, method-of-execution challenge to propose

a “feasible, readily implemented alternative procedure that will significantly reduce a substantial risk

of severe pain and that the State refuses to adopt.”

Pet. App. 84a. Its 6-4 en banc ruling on this issue

mis-applied a rule announced in cases raising facial

challenges to the critically different context of an asapplied challenge. The extension of the rule to asapplied challenges, also adopted by the Eleventh Circuit, the Florida Supreme Court, and suggested by

the Sixth Circuit, is unwarranted. The reasons justifying the alternative method requirement are linked

with the character of facial challenges.

Both Baze and Glossip start from the premise that

because the Constitution permits capital punishment,

it must also permit a method of carrying out the

death sentence. Baze, 553 U.S. at 48–49 (plurality

opinion); Glossip, 135 S. Ct. at 2739. The implications

for that premise are broader when the Court is considering a facial challenge than when it is considering

an as-applied challenge.

A facial challenge asks the Court to declare a method of execution unconstitutional for use against anyone. Such a challenge runs the risk of being a disguised effort to render the death penalty itself unconstitutional. See Glossip, 135 S. Ct. at 2739. But that

risk is not present at all when the inmate raises an

as-applied challenge. Such a claim implicates the

lawfulness of the state’s method for no other inmate.

Bucklew’s claim is rooted in his idiosyncratic medical

condition and the risks posed specifically to him. He

does not seek a judgment that would require Missouri

to alter its execution protocol as to any other inmate.

Nothing about his claim even implicitly questions the

lawfulness of capital punishment.

And nothing about Bucklew’s claim seeks to “transform courts into boards of inquiry charged with determining ‘best practices’ for executions.” Baze, 553

U.S. at 51 (plurality opinion). Because only Bucklew’s execution is at stake, his claim does not ask the

courts to displace state officials from their task as designers of a state’s protocol for carrying out capital

punishment. State legislatures would continue to

evaluate the best scientific evidence available to approve the most humane methods of execution. Id.

Courts would remain focused on a task for which they

are well suited: evaluating whether a general state

rule (the state’s execution protocol) applied to particular facts (the medical condition of the inmate) satis-

fies the Constitution’s legal standard (the Eighth

Amendment’s prohibition of cruelty).

Practical considerations also weigh in favor of relieving inmates with rare, complicating medical conditions from having to design their own execution

protocol. State officials naturally have a firmer grasp

of the modifications to a protocol that the state can

accommodate. State officials will also have greater

experience with the complications that can arise during executions, and thus will have better knowledge

of what practices are likely to provide relief, at least

in circumstances that can recur. And inmates will often be frustrated in their efforts to obtain expert

guidance in custom-designing a method of execution

that accounts for their particular medical issues.

Most professionals with medical training are barred

by ethical standards from “participating in” an execution, which includes a bar on designing a method of

execution that is “better” than the one proposed by

the state. See, e.g., AMA Code of Medical Ethics, tit.

9.7.3 “Capital Punishment” (2016), https://www.amaassn.org/sites/default/files/media-browser/code-ofmedical-ethics-chapter-9.pdf.

This Court has already ruled that certain individuals, based on their mental health, are categorically

ineligible for the death penalty. Ford, 477 U.S. at

410 (plurality opinion) (“The Eighth Amendment

prohibits the State from inflicting the penalty of

death upon a prisoner who is insane.”); Moore v. Texas, 137 S. Ct. 1039, 1048 (2017) (holding that individuals with certain mental deficiencies cannot be

constitutionally executed); Hall v. Florida, 134 S. Ct.

1986, 1992 (2014) (“[P]ersons with intellectual disability may not be executed.”). It should not be surprising, then, that the Eighth Amendment prohibits

the execution of some individuals by a particular

method based on their physical condition. That is all

Bucklew asserts here. Bucklew’s physical condition

should not condemn him to state indifference to his

suffering, even if Bucklew is unable to design an alternative that convincingly shows the promise of substantially reduced suffering. Rather, his proof that

his idiosyncratic condition means the state will impose unconstitutional suffering on him should lead to

a court order preventing the state from doing so. The

law should not “bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment …. even if [he] can prove that the State plans to

kill him in an intolerably cruel manner.” Arthur, 137

S. Ct. at 729 (Mem.) (Sotomayor, J., dissenting).

Such a judgment would leave Missouri free to design

a lethal gas protocol that meets Eighth Amendment

standards.

II. THIS CASE IS A STRONG VEHICLE FOR

ADDRESSING THESE ISSUES.

This case is on direct appeal from final judgment.

The Eighth Circuit’s decision adopts novel rules of

law that frustrate method-of-execution claims. The

issues are cleanly presented.

Throughout this litigation, respondents have persistently suggested otherwise. They have asserted

that Bucklew failed to plead his claim, and that his

claim is barred by res judicata and the statute of limitations because he could have and should have

brought his claim earlier, in a proceeding that raised

a facial challenge. No judge has agreed with respondents. Judge Colloton thoroughly and accurately

rejected their arguments. Bucklew need not repeat

those reasons in full here. But, in brief: (1) Bucklew

specifically pleaded that lethal injection would cause

him to experience a prolonged sense of suffocation,

and (2) Bucklew was repeatedly denied the resources

to investigate the severity of the risks he faced from

lethal injection in light of his condition, and did not

learn the facts necessary to assert his claim until it

was too late to include his as-applied challenge in the

case raising a facial challenge to lethal injection.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

CHERYL A. PILATE

MORGAN PILATE LLC

926 Cherry Street

Kansas City, MO 64106

(816) 471-6694

/s/ Robert N. Hochman

ROBERT N. HOCHMAN *

RAECHEL J. BIMMERLE

KELLY J. HUGGINS

MATTHEW J. SALDAÑA

HEATHER B. SULTANIAN

DANIEL R. THIES

SIDLEY AUSTIN LLP

One South Dearborn Street

Chicago, IL 60603

(312) 853-7000

rhochman@sidley.com

Counsel for Petitioner

March 15, 2018

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.