Reply Brief — Russell Bucklew, Petitioner v. Anne L. Precythe, Director, Missouri Department of Corrections, et al.

No. 17-8151

IN THE

Supreme Court of the United States

___________

RUSSELL BUCKLEW,

v.

ANNE PRECYTHE, et al.,

___________

Petitioner,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

___________

REPLY BRIEF FOR PETITIONER

___________

CHERYL A. PILATE

MORGAN PILATE LLC

926 Cherry Street

Kansas City, MO 64106

(816) 471-6694

ROBERT N. HOCHMAN *

LAWRENCE P. FOGEL

STEVEN J. HOROWITZ

KELLY J. HUGGINS

SUZANNE B. NOTTON

MATTHEW J. SALDAÑA

HEATHER B. SULTANIAN

SIDLEY AUSTIN LLP

One South Dearborn St.

Chicago, IL 60603

(312) 853-7000

rhochman@sidley.com

Counsel for Petitioner

September 14, 2018

*Counsel of Record

TABLE OF CONTENTS

Page

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

iii

INTRODUCTION .................................................

1

I. COURTS

SHOULD

NOT

ASSUME

BUCKLEW’S EXECUTION WILL GO AS

PLANNED ....................................................

3

II. AN AS-APPLIED CHALLENGER TO A

METHOD OF EXECUTION NEED NOT

PROVE AN AVAILABLE ALTERNATIVE

METHOD ......................................................

10

III. THE RECORD SUPPORTS THE CONCLUSION THAT LETHAL GAS WILL

SUBSTANTIALLY REDUCE THE RISKS

BUCKLEW FACES FROM MISSOURI’S

LETHAL INJECTION PROTOCOL............

13

IV. BUCKLEW MET HIS BURDEN TO DEFEAT RESPONDENTS’ MOTION FOR

SUMMARY JUDGMENT REGARDING

ANY COMPARISON OF LETHAL GAS

AND LETHAL INJECTION ........................

16

A. Respondents Did Not Dispute That Lethal Gas Was A Feasible And Readily

Available Alternative Method When

Moving For Summary Judgment .............

16

B. An Inmate Challenging His Method Of

Execution Need Not Detail The Protocols For His Execution ..............................

17

V. BUCKLEW’S

CLAIMS

ARE

NOT

BARRED BY THE STATUE OF LIMITATIONS OR RES JUDICATA .......................

21

(i)

ii

TABLE OF CONTENTS – CONTINUED

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

Page

23

iii

CASES

TABLE OF AUTHORITIES

Page

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

19

In re Blodgett, 502 U.S. 236 (1992) ..............

18

Brown v. Plata, 563 U.S. 493 (2011) ...........

19

Bucklew v. Lombardi, 783 F.3d 1120 (8th

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

18

Coppedge v. United States, 369 U.S. 438

(1962) .........................................................

1

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

11

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

10

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

9

Holland v. Florida, 560 U.S. 631 (2010) .....

13

Hutto v. Finney, 437 U.S. 678 (1978)...........

18

Jackson v. Fair, 846 F.2d 811 (1st Cir.

1988) .......................................................

18

Johnson v. Precythe, No. 17-2222, 2018 WL

4055908 (8th Cir. Aug. 27, 2018) .............. 17, 19

La. ex rel. Francis v. Resweber, 329 U.S.

459 (1947) ..................................................

10

Schiro v. Farley, 510 U.S. 222 (1994) ..........

17

Taylor v. Illinois, 484 U.S. 400 (1988) .........

9

Trop v. Dulles, 356 U.S. 86 (1958) ...............

1

United Props. Inc. v. Emporium Dep’t

Stores, Inc., 379 F.2d 55 (8th Cir. 1967) ..

16

United States v. Am. Ry. Express Co., 265

U.S. 425 (1924) ..........................................

16

Wallace v. Kato, 549 U.S. 384 (2007) ...........

22

Whole Woman’s Health v. Hellerstedt, 136

S. Ct. 2292 (2016) ......................................

22

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

Mo. Filed Aug. 1, 2012) .............................

22

STATUTES

Mo. Rev. Stat. § 217.075 ..............................

Mo. Rev. Stat. § 516.120(4) ..........................

19

21

iv

TABLE OF AUTHORITIES—continued

Mo. Rev. Stat. § 546.720 ..............................

Page

19

RULES

Fed. R. Civ. P. 8 ............................................

Sup. Ct. R. 15.2.............................................

Sup. Ct. R. 24................................................

8

16

16

INTRODUCTION

The Eighth Amendment commits state officials to

take the steps reasonably necessary to avoid predictable cruelty when administering punishment. It does

so not only for the benefit of those whom we punish.

Just as importantly, it preserves the basic human

dignity and decency of society itself. Coppedge v.

United States, 369 U.S. 438, 449 (1962) (“The methods we employ in the enforcement of our criminal law

have aptly been called the measures by which the

quality of our civilization may be judged.”); Trop v.

Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)

(the “basic concept underlying the Eighth Amendment is nothing less than the dignity of man”).

Respondents ask this Court to endorse procedural

and substantive rules of law that shirk their responsibilities to avoid needless suffering in carrying out

executions. As a matter of procedure, respondents go

beyond the Eighth Circuit’s erroneous view that

courts should assume that an execution of an inmate

with a rare medical condition will go as planned.

They advocate standards that will conceal, from both

courts and the state officials charged with administering humane punishment, the readily available

facts that demonstrate an intolerably high and objective risk of suffering. As a matter of substance, they

would reward the ignorance of state officials by requiring an inmate to prove state officials’ “subjective

culpability” in carrying out an execution. Resp. 45; id.

39 (arguing that any unplanned event in an execution

with “safeguards” cannot be cruel because such

events are not intended or the result of bad faith); id.

46 (arguing that the Constitution prohibits only the

infliction of pain for pain’s sake).

2

This is a recipe for all-too-frequent catastrophe. It

encourages state officials to remain ignorant of the

particular risks an inmate’s medical condition presents and then rely on the fact that they would be

“surprised” by any (in fact predictable and even likely) “mishap” as reason to allow the execution to proceed. This Court should not endorse such indifference

to grave risks and cripple the capacity of inmates to

demand that state officials do anything about them.

Under respondents’ view, botched executions, while

not certain, will not be surprising either. Our Constitution demands more.

Respondents would also shirk their responsibilities

when it comes to designing an alternative method of

execution. They offer no reason to place the burden

on an inmate raising an as-applied challenge to his

method of execution. And they ask this Court not only

to impose the requirement on such inmates, but also

to construe it to require the inmate to propose a protocol at a level of detail that exceeds Missouri’s own

protocol. Inmates cannot and should not be required

to bear such a heavy burden.

Once again, the result of respondents’ view would

be predictably cruel executions. As respondents

would have it, state officials can know that an inmate’s medical condition means that executing him

by the state’s generally applicable method would produce excruciating pain, yet those same officials nonetheless will not be deemed to intend that suffering

unless the inmate proves a readily available (highly

detailed) alternative. Resp. 44–47. In respondents’

hands, the alternative method requirement amounts

to cruelty-laundering. Our Constitution demands

more.

If this Court chooses to extend the alternative

method requirement to as-applied challengers, then it

3

should conclude that petitioner has produced enough

evidence to warrant a trial. Respondents have repeatedly failed to seek summary judgment on the

ground that lethal gas is not readily available, and

this Court should not rule on that basis now. In any

event, lethal gas is readily available to respondents.

The fact that they have chosen not to undertake serious efforts to design a protocol for it does not make it

any less readily available to them. And the record

reasonably supports the conclusion that lethal gas

would pose substantially fewer risks to someone with

petitioner’s condition than would lethal injection.

I. COURTS SHOULD NOT ASSUME BUCKLEW’S

EXECUTION

WILL

GO

AS

PLANNED.

The Eighth Circuit assumed a lethal injection execution of Bucklew would go as planned, and so refused to allow discovery into M2’s and M3’s

knowledge, experience, and ability to respond to the

predictable and serious risks Bucklew faces. J.A. 871.

Respondents defend that legal standard by defining

any unintended event in an execution as the kind of

“isolated mishap[]” that does not implicate the Eighth

Amendment. Resp. 38. That is not and should not be

the law.

It makes no sense to assume all will go as planned

when considering an as-applied challenge based on

an inmate’s rare medical condition. Bucklew’s challenge is not that Missouri’s protocol cannot work humanely for anyone, and it is not that the protocol

lacks safeguards that reduce risks to healthy inmates. Resp. 39–40. Bucklew argues that what we

know about his medical condition and what we know

from Missouri’s execution protocol combine to raise a

constitutionally intolerable risk of needless suffering

for him that respondents must address. Br. 27–28.

4

Respondents never confront that argument. They offer no reason to follow their implicit suggestion to

treat Bucklew’s as-applied challenge the same as a

facial challenge: simply evaluate Missouri’s “safeguards” in a vacuum and declare them “adequate.”

Respondents’ approach would endorse studied indifference to readily knowable risks of executing an inmate with a rare medical condition. Br. 28–30. Respondents point out that Bucklew has not pursued

the “deliberate indifference” count in his complaint.

Resp. 51. But that is irrelevant. The claim he has

pursued asserts that respondents cannot disregard

the knowable and known risks his condition presents.

1. Respondents unreasonably disregard the risks to

Bucklew. — Respondents confirm that their position

depends on an unrealistic view of the risks Bucklew

faces when they describe the record concerning those

risks. For example, respondents claim that the medical professionals on the execution team “‘receive the

inmate’s medical records’ before the execution, not

just a one-page summary of his health condition.”

Resp. 6 (alterations and citation omitted). Put aside

that this stray comment, even if true, says nothing

about how much time medical team members would

have to review Bucklew’s voluminous records; the

comment provides no reason to believe M2 and M3

can meaningfully process the records before carrying

out the execution. J.A. 627. More fundamentally,

there is no reason to believe the statement is true.

Respondents quote an official who did not know

“what information is shared between the [medical]

staff and the execution team members.” J.A. 622. By

contrast, the official who actually “meet[s] with the

execution team members in advance,” J.A. 511, testified that he provides the execution team the one-page

medical summary and nothing else, J.A. 528.

5

Respondents also pretend there is no evidence that

gaining venous access poses serious risks to Bucklew.

Resp. 12, 53. Respondents now claim peripheral venous access is likely, even though both experts who

examined Bucklew’s veins acknowledged reasons to

doubt successful peripheral access. J.A. 231, 332. Respondents assert, based on generic testimony about

human anatomy and not any evidence regarding

Bucklew, that access through his foot might be possible. J.A. 337. Respondents also note that Bucklew

had an IV inserted for medical procedures, including

for a recent tracheotomy this past summer. Resp. 12–

13. This Court should not mistake this for reason to

believe that medical professionals recently gained

stable access to Bucklew’s vein without incident and

substantial delay. Bucklew’s medical records from

this summer’s treatment would show whether that is

so. Respondents, who opposed Bucklew’s request to

lodge a relevant portion of those records, had not reviewed them when they wrote their brief, and believe

this Court should not review them either. Wishful

thinking is not evidence, and no basis to allow a risky

execution to proceed.

Respondents also assert that all anesthesiologists

can access central veins, and that even inexperienced

anesthesiologists access central veins successfully on

the first try 90 percent of the time. Resp. 6, 53.1 Yet

the State’s own execution protocol contemplates that

medical personnel may not have the training or expe1 There is no evidence that inexperienced anesthesiologists

can access a central vein “on the first attempt 90 percent of the

time.” Resp. 53. Dr. Zivot testified that when he was a trainee,

he failed to access a central line approximately 33 percent of the

time; as he grew more experienced, his failure rate dropped to

approximately 10 percent, but even then a “success” might involve up to ten attempts. J.A. 185–86.

6

rience to do so. J.A. 214 (authorizing medical personnel to access a central line if they “have appropriate

training, education, and experience”). Witnesses confirmed that not all medical personnel, or even all anesthesiologists, are qualified and skilled at performing the central line procedure. J.A. 336, 462. Respondents also deny any concern about using the

painful and outdated cut-down procedure. Resp. 53.

But the particular medical personnel who would be

charged with obtaining venous access in Bucklew’s

execution have resorted to a cut-down in the past.

J.A. 615–16. And a medical kit to perform a cut-down

is in the execution chamber, presumably in case the

execution team decides to do one. J.A. 616–18.

Finally, respondents assert that once the lethal

drug is pushed, there is no evidence Bucklew faces a

substantial risk of suffering. Respondents write as if

their expert’s testimony was undisputed. Resp. 37.

But not even Dr. Antognini shares respondents’ confidence. Even he testified that it could be longer than

20 to 30 seconds. J.A. 432. More importantly, Dr. Zivot disagrees with Dr. Antognini’s 20 to 30 second estimate. And Dr. Zivot’s view is not simply based on a

study about horses; he cited that study only to explain why Dr. Antognini’s view should be doubted.

J.A. 195. When it comes to the basis for his prediction

that Bucklew will remain sensate to pain for several

minutes, he relied on his decades of experience as an

anesthesiologist. J.A. 222. Moreover, respondents ignore substantial evidence from Dr. Zivot that the

pain Bucklew will face includes choking and gagging

on his own blood, which is likely to begin even before

the lethal drugs are pushed. J.A. 226, 232–33.

Respondents also point to “witness accounts of executions,” but these, too, undermine respondents’ assertion. Many witnesses observed that it took

7

minutes, and not seconds, for the drug to take effect.

J.A. 324–25. There is ample reason to believe Bucklew faces a substantial risk of severe pain and suffering.

Respondents’ one-sided presentation of the record

underscores why denial of discovery into the skills,

training, and abilities of M2 and M3 was so wrongful.

Only M2 and M3 can explain how much about an inmate’s medical history they know when they begin an

execution or whether they know anything about cavernous hemangioma as Bucklew presents it. Only M2

and M3 can explain whether and under what circumstances they will use a cut-down. Only M2 and M3

can explain what they would do during an execution

when an inmate began choking on blood leaking from

a tumor in his throat. The record makes clear that

the risks Bucklew faces of being executed by a poorly

informed and unprepared execution team is substantial. Discovery will further illuminate the full extent

of those risks.

While respondents wrongly assert that “additional

discovery” regarding M2 and M3 was unjustified,

they never even try to explain why Bucklew could not

use discovery of M2 and M3 from prior cases. Bucklew’s appointed counsel, who has seen that evidence,

has made clear that she believes it is germane to the

issues here. Barring use of that testimony in this case

is indefensible.

Finally, the assertion that Bucklew never proposed

a suitable fact-finding procedure regarding M2 and

M3 that would preserve their anonymity is baseless.

APP0224–25 (stating documents needed could be

produced “with identifying information redacted”).

2. Respondents’ view short-circuits the adversarial

process where it is needed most. — The discovery

8

Bucklew seeks is critical to ensure that the adversarial process achieves its truth-seeking function. Respondents suggest that Bucklew has been abusing

the litigation process by constantly revising his claim.

Resp. 9–14. But their view reflects a misunderstanding of the litigation process, Bucklew’s claim, and

their legal obligations to avoid inflicting cruelty upon

him.

The operative complaint identified Bucklew’s risk of

choking on blood leaking from his tumors during the

execution, especially when lying flat. J.A. 43–48, 52,

56–59, 66–67, 69–71, 73–74, 78, 85. It is not surprising, in fact it is routine, for plaintiffs to obtain information through discovery that fills out details not included in the “short and plain statement” of their

claims. Fed. R. Civ. P. 8. It is also routine for plaintiffs to obtain information through discovery that results in abandoning theories of liability pled in the

complaint. It is likewise routine for plaintiffs and defendants to find ways to resolve disputes with respect

to parts of a claim while continuing to litigate others.

Respondents suggest that the unfolding of the litigation process here somehow reflects Bucklew shifting

his theories of liability. See generally Resp. 9–14.

That is wrong.

It is also ironic. The occasional (inadequate) effort

by respondents to acknowledge Bucklew’s concerns

has been the result of litigation. Respondents abandoned the use of methylene blue during this litigation. Dkt. 199-1.2 Respondents’ late and inadequate

assurance, offered by someone with unclear authority

and only in response to Bucklew’s Eighth Circuit rehearing petition, that Bucklew will not be required to

2 “Dkt.” citations refer to entries on the district court’s docket,

No. 4:14-cv-08000 (W.D. Mo. filed May 9, 2014).

9

lie “fully supine” during the execution was a product

of this litigation. Moreover, Bucklew’s condition is

progressive. J.A. 229, 647–48; Br. 6. So it is not at all

surprising that the risks he faces have changed over

time.

This case is about whether the “adversarial process” will be permitted to “test[ ] the risk” that Bucklew’s serious illness will lead to needless suffering

during his execution. Hamm v. Dunn, 138 S. Ct. 828,

828–29 (2018) (Mem.) (Ginsburg, J., dissenting); see

also Taylor v. Illinois, 484 U.S. 400, 410–11 (1988)

(adversary process cannot “function effectively without adherence to rules of procedure that . . . provide

each party with a fair opportunity to assemble and

submit evidence”). This Court should reject respondents’ effort to create a second-class litigation process

that fails to adequately probe the severity of risks an

inmate with a serious illness faces from the state’s

preferred method of execution.

3. Respondents’ “subjectively culpable” test amounts

to studied indifference to risks. — Respondents no

doubt hope all will go well. That much is clear from

their one-sided view of the record. But this Court

must not allow respondents’ hope for a smooth execution to play any role in the adjudication of Bucklew’s

claim.

Respondents suggest that because they do not intend to bring about what Bucklew fears will happen

during the execution, Bucklew’s fears reflect only the

prospect of isolated mishaps that do not concern the

Eighth Amendment. Resp. 38. According to respondents, unless respondents have a “subjectively culpable” state of mind, the planned execution can proceed.

Id. 45. Put together, these arguments amount to an

ostrich defense for risky methods of execution. This

Court should reject it.

10

Glossip v. Gross made clear that the “subjectively

culpable” state of mind that warrants judicial intervention is an “objectively intolerable” risk of needless

suffering. 135 S. Ct. 2726, 2737 (2015). That is, a

court should evaluate what is objectively known and

knowable to a reasonable official. Allowing state officials to maintain studied ignorance about risks

known to others (by, for example, preventing medical

personnel in the execution chamber from learning

about them) would serve no Eighth Amendment value. And letting prison officials cling to subjective

hope that all will go well based on the state’s own expert’s opinion in the face of contrary expert evidence

would short-circuit the fundamental purpose of litigation: a neutral arbiter who determines the objectively

knowable risk of suffering that a method of execution

presents in light of the inmate’s medical condition.

This Court recognizes the distinction between an

“unforeseeable accident,” La. ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (plurality opinion),

and an objectively knowable and substantial risk,

Glossip, 135 S. Ct. at 2740. The former is not blameworthy precisely because it is unpredictable. The latter is blameworthy precisely because, though not certain, it is entirely predictable. The Eighth Amendment does not allow executions to proceed that pose

an objectively intolerable risk of needless suffering,

no matter how subjectively convinced prison officials

are that all will go well.

II. AN AS-APPLIED CHALLENGER TO A

METHOD OF EXECUTION NEED NOT

PROVE AN AVAILABLE ALTERNATIVE

METHOD.

Respondents offer little reason to impose on asapplied challengers the requirement of pleading and

proving an available alternative. Instead, they pri-

11

marily assert that the Court has already decided the

question. Resp. 43–44. But, as respondents

acknowledge, this Court has addressed the issue only

in facial challenges. Id. 43. The issue remains open.

This Court has already rejected the primary reason

respondents offer to extend the requirement to asapplied challengers. They argue that the rationale

motivating Baze and Glossip—that because capital

punishment is constitutional there must be a lawful

means of carrying it out—applies equally to asapplied challengers. Resp. 44. As respondents would

have it, “[b]ecause capital punishment is constitutional, there must be a means of executing an individual prisoner lawfully sentenced to death.” Id. But

that is not true. The Eighth Amendment prohibits

the execution of an insane man, even if he developed

his mental defect after lawfully being tried and sentenced. Ford v. Wainwright, 477 U.S. 399, 401–02,

409–10 (1986). It is no threat to the death penalty to

acknowledge that a man lawfully sentenced to death

has mentally deteriorated to the point that executing

him violates the Eighth Amendment. Likewise, it is

no threat to the death penalty to acknowledge that a

man lawfully sentenced to death has physically deteriorated to the point that executing him, at least by

the means the state prefers, violates the Eighth

Amendment.

Respondents compound their error when they argue

that there can be no moral culpability in choosing to

execute a lawfully sentenced inmate by the only

means available. Resp. 44–47. Respondents appear to

be suggesting that, if they have no choice about how

to execute an inmate, then the fact that the only

available choice will involve excruciating pain does

not matter. But the unspoken premise of respondents’

argument remains that the state must be able to car-

12

ry out an execution if the inmate was lawfully sentenced to death. Because that premise is false, state

officials are always choosing between an execution

that violates constitutional standards of cruelty and

not executing the inmate at all. They remain culpable

for choosing to make the inmate suffer.

Respondents’ practical concerns about the length of

litigation should not occupy this Court. Resp. 47–49.

Respondents assert that Bucklew’s claim has been

frivolous from the outset. Id. 48. But even they have

made (inadequate) changes to their plans to execute

him in light of Bucklew’s arguments and evidence.

And their complaints that inmates’ medical conditions change over time is remarkably callous. Id.

They treat as an annoyance what should be a central

concern: how an inmate’s serious and progressive

medical condition will affect what happens inside the

execution chamber.

Respondents have thus unwittingly conceded their

indifference to the challenges of executing an inmate

with Bucklew’s rare condition. Respondents never respond to Bucklew’s argument that “indifference to an

inmate’s serious medical needs—and what those

needs entail in connection with a method of execution—‘constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.’”

Br. 44 (quoting Estelle v. Gamble, 429 U.S. 97, 104

(1976)). Instead, they complain about having to defend their overconfidence that the execution will proceed without incident. The Eighth Amendment’s respect for dignity, both the inmate’s and society’s, requires more.

In the end, imposing on the seriously ill inmate the

burden of pleading and proving an alternative method serves no constitutional values and offers no practical benefit. Indeed, inmates face serious practical

13

obstacles that state officials do not. See Br. 52–54; see

also infra IV.B. Respondents, not seriously ill inmates, retain the obligation to design an appropriate

method of execution that is not cruel. If they fail to do

so, they should not remain free to inflict an excruciating method on the inmate.

III. THE RECORD SUPPORTS THE CONCLUSION THAT LETHAL GAS WILL SUBSTANTIALLY REDUCE THE RISKS BUCKLEW FACES FROM MISSOURI’S LETHAL

INJECTION PROTOCOL.

If this Court extends the alternative method requirement to as-applied challengers, it should still

reverse the Eighth Circuit’s decision for either of two

reasons.

First, respondents do not (because they cannot) defend the Eighth Circuit’s actual reasoning. The

Eighth Circuit applied a novel “single-witness” requirement under which Bucklew could not prevail

unless the evidence about the likely duration of his

suffering from both the state’s method and his alternative came through a single expert witness. Br. 47;

J.A. 867–68. Respondents dodge the legal error by attempting to relitigate the facts. This Court is under

no obligation to reweigh the facts. It would be entirely appropriate to correct the Eighth Circuit’s legal error and remand for reconsideration under the proper

standard. See Holland v. Florida, 560 U.S. 631, 653–

54 (2010).

Second, the record supports a reasonable factfinder’s conclusion that lethal gas substantially reduces

the risks Bucklew faces from Missouri’s lethal injection protocol. Respondents’ argument to the contrary

repeats its selective disregard of evidence unfavorable to its view.

14

Respondents first attack Dr. Zivot for not providing

evidence of the risks of lethal gas. Resp. 30. But as

Dr. Zivot made clear, he is ethically prohibited from

opining on an alternative method of execution, including whether a different form of execution would

be feasible. J.A. 219–20. See also Brief of American

Medical Association, Amicus Curiae in Support of

Neither Party, at 3. Regardless, there is no reason to

disregard his testimony about lethal injection merely

because he did not testify about lethal gas.

Respondents next turn to their own expert and try

to cast doubt on his assertion that lethal gas would be

“just like” lethal injection, meaning that Bucklew

would experience a sense of suffocation for approximately 20-30 seconds. J.A. 456, 458, 460. Respondents strangely claim that the testimony should not be

credited because Dr. Antognini did not “know how

quickly a gas is introduced,” which could affect the

level of suffering. Resp. 30 (citing J.A. 460). But Missouri’s lethal injection protocol, upon which Dr. Antognini relied, provides no information about the rate

at which the drug is injected. J.A. 313–14. And, as

Dr. Antognini himself testified, the actual injection

rate can vary by execution because “[t]here may be

issues with how fast they can inject the drug.” J.A.

325. So if a reasonable factfinder could credit Dr. Antognini regarding lethal injection, as respondents

concede, the factfinder could also credit him regarding lethal gas. Even more fundamentally, respondents cannot seriously be suggesting that state officials would choose a rate at which to administer the

gas that would cause needless suffering. But see

Resp. 31. Surely a reasonable factfinder could conclude that Dr. Antognini’s testimony rightly assumes

the state will at least try to minimize suffering.

15

Respondents have also ignored significant evidence

indicating that lethal gas will substantially reduce

the risks Bucklew faces from a lethal injection protocol before the lethal drug is administered. As Dr. Zivot explained, Bucklew faces a number of severe risks

that stem from the difficulty the execution team will

have in gaining venous access. See supra 5–6; Br. 10–

12; J.A. 231–35. This is in addition to the risks posed

by Bucklew most likely having to lie supine, strapped

to a gurney. J.A. 232–33. Respondents’ own expert

agreed that each of these risks increases the possibility that Bucklew would experience a sense of suffocation. J.A. 442–43. All of these risks would be eliminated or at least substantially reduced through a lethal gas protocol that would require neither venous

access nor that Bucklew lay supine. Respondents

never acknowledge these comparative benefits.

Lastly, respondents argue that Bucklew failed to

provide evidence showing that he is sure or very likely to suffer severe pain during lethal injection. Resp.

33–38. As discussed above, respondents are simply

selectively presenting the evidence upon which they

base their subjective hope that all will go well. See

supra 3–7, 9–10. The district court recognized that,

given the procedural posture, it would be inappropriate to simply credit respondents’ evidence and reject

Bucklew’s. The issue warrants a trial. J.A. 827.

16

IV. BUCKLEW MET HIS BURDEN TO DEFEAT

RESPONDENTS’ MOTION FOR SUMMARY

JUDGMENT REGARDING ANY COMPARISON OF LETHAL GAS AND LETHAL INJECTION.

A. Respondents Did Not Dispute That Lethal Gas Was A Feasible And Readily

Available Alternative Method When

Moving For Summary Judgment.

Both the district court and Eighth Circuit ruled

that respondents did not contest the feasibility and

availability of lethal gas. J.A. 827, 866. Both courts

were correct.

Respondents’ summary judgment briefing focused

solely on whether Bucklew established that lethal gas

would significantly reduce his risk of severe pain, not

on whether lethal gas was available. Dkt. 182 at 8–9;

Dkt. 200 at 6–7. So, too, did their appellate brief.

Brief of Appellees at 57–61, No. 17-3052 (8th Cir.

Jan. 3, 2018). On appeal, respondents also let the district court’s statement on the issue stand without objection. When it came time to oppose Bucklew’s petition for certiorari, they again remained silent, this

time in the face of two court rulings stating that they

did not advance the argument. BIO at i; id. at 31–34.

This argument has been waived, repeatedly. See

Sup. Ct. R. 15.2; id. R. 24 (merits briefs may not raise

additional questions or change the substance of questions presented); United Props. Inc. v. Emporium

Dep’t Stores, Inc., 379 F.2d 55, 60 n.12 (8th Cir.

1967). Although respondents may generally advance

any properly preserved argument in support of a

judgment without taking a cross-appeal, United

States v. Am. Ry. Express Co., 265 U.S. 425, 435

(1924), this Court has declined to reach an argument

17

raised by the state as respondent where that argument was not made in the lower courts or in the petition stage. See Schiro v. Farley, 510 U.S. 222, 228–29

(1994). Put simply, respondents are raising a new

ground for the first time in this Court. This is not a

properly preserved alternative ground for affirmance.3

In any event, even assuming Bucklew must plead

and prove a feasible and available alternative, the

record contains ample evidence creating a triable issue of fact. Br. 51–52; J.A. 866 (Eighth Circuit noting

that lethal gas is authorized in Missouri, other states

have ongoing studies of the method, and “at least preliminary indications that Missouri will undertake to

develop a protocol”); Johnson v. Precythe, No. 172222, 2018 WL 4055908, at *4 (8th Cir. Aug. 27,

2018) (describing Oklahoma report on nitrogen hypoxia and concluding, “[t]hat researchers have yet to

decide which is the best among several feasible methods of implementation does not definitively refute

[petitioner’s] allegation that Missouri could feasibly

implement this alternative without undue delay.”).

B. An Inmate Challenging His Method Of

Execution Need Not Detail The Protocols For His Execution.

Respondents try an end-run around the evidence

that lethal gas is feasible and readily available by arguing that Bucklew never proposed a detailed protocol for how to implement the method. Resp. 25. Bucklew did not because there is no legal basis for impos3 Bucklew does not deny that, if the Court decides to extend

the alternative method requirement to as-applied challengers,

respondents may argue at trial that lethal gas is not a reasonably available alternative. The point is that they never denied

that a reasonable factfinder could conclude that lethal gas is an

available alternative.

18

ing that requirement on him. Indeed, the Eighth Circuit, when remanding his claim for litigation beyond

the pleadings, specifically instructed that Bucklew

“may not be permitted to supervise every step of the

execution process.” Bucklew v. Lombardi, 783 F.3d

1120, 1128 (8th Cir. 2015) (en banc). Respondents are

criticizing Bucklew for failing to propose details the

Eighth Circuit’s mandate barred him from proposing.

Regardless, there is no basis for imposing such a

burden on an inmate. Setting aside the practical constraints on inmates in developing detailed protocols,

Br. 52–53, Bucklew has no constitutional right to be

executed in a particular way. But he has the right,

and has consistently asserted his right, not to be executed in an unconstitutionally cruel manner. See

Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988)

(“Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the

treatment of his choice.”). To the extent the requirement is imposed on as-applied challengers at all, they

should be required to do no more than identify an alternate method of execution that the state can reasonably implement. Whether and how the state

chooses to do so, consistent with constitutional

standards, is not a matter for the inmate to dictate.

Principles of state sovereignty support Bucklew’s

view. See In re Blodgett, 502 U.S. 236, 239 (1992) (per

curiam). The state should retain the prerogative to

determine what resources it wishes to devote to executions and how it will live up to its constitutional

obligation to ensure humane executions. A court

should not, at an inmate’s direction and without giving the state an opportunity to devise a constitutional

alternative, dictate one particular path. See Hutto v.

Finney, 437 U.S. 678, 683 (1978) (noting that federal

19

district court “did not immediately impose a detailed

remedy of its own,” but instead “offered prison administrators an opportunity to devise a plan of their own

for remedying the constitutional violations”); Brown

v. Plata, 563 U.S. 493, 511 (2011). In addition, some

states, including Missouri, prefer to keep a portion of

their protocols secret. See Mo. Rev. Stat. § 546.720;

id. § 217.075. Requiring inmates to detail their own

protocol would undermine that sovereign prerogative

as well.

This Court has never held that an alternate method

must be available by statute or immediately available

to the state. Arthur v. Dunn, 137 S. Ct. 725, 729

(2017) (Sotomayor, J., dissenting). And for good reason. Such a requirement would lead to arbitrary applications of the Eighth Amendment and give states

the power to violate a capital inmate’s constitutional

rights by limiting the methods that are statutorily

available or by refusing to develop or maintain the

ability to carry out particular methods. Brief of

Scholars and of Academics of Constitutional Law as

Amicus Curiae in Support of Petitioner, at 16.

Here, Bucklew has proposed lethal gas as an alternate method, which Missouri allows by statute. Missouri previously employed lethal gas but has not

maintained its gas chamber, nor has it developed a

new protocol for lethal gas employing modern equipment. That has been Missouri’s choice. But it cannot

and should not be Missouri’s excuse. Among other evidence, Bucklew demonstrated that other states are

in the process of developing detailed protocols for execution by nitrogen hypoxia. The method is available

to Missouri, should it choose to try to develop a protocol for it. See Johnson, 2018 WL 4055908, at *4 (“We

cannot accept, however, that a State’s unwillingness

to employ a method that would significantly reduce a

20

substantial risk of severe pain makes the method infeasible.”). Bucklew should be required to prove no

more. Respondents’ suggestion that research on lethal gas is insufficient to develop a protocol, Resp. 15,

rings hollow in light of the fact that they made no

meaningful effort to develop one. J.A. 489–93 (testimony that Department of Corrections employee who

was previously tasked with revising Missouri’s lethal

injection protocol “did a little bit of research” and

“read a few articles” on lethal gas because he wanted

“a working knowledge” of what lethal gas “could entail,” and then decided he had “hit a wall” and chose

not to “really dig deeper”); id. 503 (testimony that

Department of Corrections is capable of undertaking

investigation of viability of lethal gas).

Whatever Bucklew is required to prove, it should

not be more detail than Missouri provides for its lethal injection protocol. Yet respondents would require

Bucklew to provide “specific details about the method, rate, quantity, quality, concentration, delivery,

and timing of its administration.” Resp. 26. Missouri’s protocols provide no information about the

rate at which the drug is injected, which Dr. Antognini opined would affect how quickly it would take

effect. J.A. 313.4 Respondents also refused to provide

information on the quality and concentration of pentobarbital to avoid revealing whether Missouri uses

manufactured or compounded pentobarbital. J.A.

1004. Respondents are unfairly demanding detail

from Bucklew that they refuse to provide. Brief of

Former Judges and Prosecutors Amici Curiae in Support of Petitioner, at 28–29 (describing “information

4 Variations in speed of administration of lethal injection may

cause an inmate to react violently to the drugs. Brief of Scholars

and of Academics of Constitutional Law as Amicus Curiae in

Support of Petitioner, at 6–7.

21

imbalance” in requiring plaintiff to allege an alternative method where state secrecy laws prohibit disclosure of execution procedures).

V. BUCKLEW’S CLAIMS ARE NOT BARRED

BY THE STATUTE OF LIMITATIONS OR

RES JUDICATA.

Respondents’ efforts to avoid this litigation through

preclusion and the statute of limitations have failed

at every turn. They should not short circuit this litigation now.

Bucklew did not raise his claims too late. The statute of limitations for Bucklew’s as-applied challenge

is five years. Mo. Rev. Stat. § 516.120(4). Respondents contend that the limitations period began to run

in June 2008—before Missouri even implemented its

current single-drug protocol—because Bucklew

sought funding for an expert to conduct a medical examination. Resp. 54. However, that request was denied. So, too, were all seven of Bucklew’s subsequent

requests over the next six years. Dkt. 12 at 8–12. Only after Dr. Zivot started examining Bucklew’s medical condition in April 2014 did Bucklew obtain the

factual basis for his claim. J.A. 108–09.

Respondents note that Dr. Zivot did not physically

examine Bucklew until May 12, 2014, three days after Bucklew filed his initial complaint. Resp. 55–56.

But that physical examination was just one piece of

Dr. Zivot’s review. Before Bucklew filed his initial

complaint, Dr. Zivot examined Bucklew’s medical

records through February 2014. Zivot Decl. ¶ 8, Dkt.

1-1. Those records showed that Bucklew’s condition,

which is progressive, J.A. 328, 648–49, had sufficiently deteriorated to support a viable Eighth Amendment claim challenging Missouri’s lethal injection

plan. Compare J.A. 644–46 (in April 2012, Bucklew

22

was not yet at risk of serious hemorrhage) with J.A.

647–48 (in October 2013, Bucklew’s hemangioma had

increased in size). Dr. Zivot’s subsequent physical examination both reaffirmed the viability of Bucklew’s

claim and strengthened it. Bucklew’s claim was timely filed in May 2014. Wallace v. Kato, 549 U.S. 384,

388 (2007).

Respondents’ res judicata argument similarly fails.

Respondents contend that Bucklew should have

raised his as-applied challenge in an earlier case,

Zink v. Lombardi, No. 2:12-cv-04209 (W.D. Mo. filed

Aug. 1, 2012), which involved a facial challenge to

Missouri’s lethal injection protocol. Resp. 56–57.

However, the deadline to amend the pleadings in that

case was in January 2014, before Dr. Zivot examined

Bucklew’s medical condition. Zink v. Lombardi, No.

2:12-cv-04209 (W.D. Mo. filed Jan. 13, 2014) (ECF

271). Moreover, an as-applied challenge is not the

same thing as a facial challenge, especially where, as

here, the two claims are based on different facts.

Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,

2305 (2016). Bucklew’s as-applied claim, based on

new facts and a different legal theory, was properly

brought in a new action. J.A. 878–81.

23

CONCLUSION

The judgment of the Court of Appeals should be reversed.

Respectfully submitted,

CHERYL A. PILATE

MORGAN PILATE LLC

926 Cherry Street

Kansas City, MO 64106

(816) 471-6694

ROBERT N. HOCHMAN *

LAWRENCE P. FOGEL

STEVEN J. HOROWITZ

KELLY J. HUGGINS

SUZANNE B. NOTTON

MATTHEW J. SALDAÑA

HEATHER B. SULTANIAN

SIDLEY AUSTIN LLP

One South Dearborn St.

Chicago, IL 60603

(312) 853-7000

rhochman@sidley.com

Counsel for Petitioner

September 14, 2018

*Counsel of Record