Application — Earlene Branch Peterson, et al., Applicants v. William P. Barr, Attorney General, et al.

Supreme Court briefJul 13, 2020

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No. 20A-____

IN THE

Supreme Court of the United States

EARLENE PETERSON, KIMMA GURREL, AND MONICA VEILLETTE,

Petitioners,

WILLIAM P. BARR, ATTORNEY GENERAL, et al.,

Respondents.

On Application for Stay

APPENDIX TO

EMERGENCY APPLICATION TO STAY THE MANDATE AND VACATE

THE DECISION OF THE SEVENTH CIRCUIT COURT OF APPEALS

PENDING A WRIT OF CERTIORARI

H. Baker Kurrus

H. BAKER KURRUS, PLLC

10816 CRESTDALE LANE

Little Rock, AR 72212

Tel: (501) 831-0325

MATTHEW M. COLLETTE

COUNSEL OF RECORD

JONATHAN S. MASSEY

KATHRYN A. ROBINETTE

MASSEY & GAIL LLP

1000 Maine Ave. SW, Suite 450

Washington, D.C. 20024

Tel: (202) 652-4511

mcollette@masseygail.com

Counsel for Petitioners

July 13, 2020

Case: 20-2252

Document: 15

Filed: 07/12/2020

Pages: 10

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-2252

EARLENE BRANCH PETERSON,

KIMMA GUREL, and MONICA VEILLETTE,

Plaintiffs-Appellees,

WILLIAM P. BARR, Attorney General

of the United States, MICHAEL CARVAJAL,

and T. J. WATSON, Warden,

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 2:20-cv-00350-JMS-DLP — Jane Magnus-Stinson, Chief Judge.

____________________

SUBMITTED JULY 11, 2020 — DECIDED JULY 12, 2020

____________________

Before SYKES, Chief Judge, and EASTERBROOK and BARRETT,

Circuit Judges.

SYKES, Chief Judge. In 1996 Daniel Lewis Lee murdered an

Arkansas family of three in pursuit of funds to support the

racketeering activities of a white supremacist organization.

The crimes were particularly heinous. Lee and his codefend-

(Appx1)

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No. 20-2252

ant were members of the Aryan Peoples’ Republic, a white

supremacist group that sought to establish an independent

nation in the Pacific Northwest. In January 1996 they traveled from the State of Washington to the Arkansas home of

firearms dealer William Mueller; his wife, Nancy; and their

eight-year-old daughter Sarah. After stealing a cache of

weapons and a large amount of cash and coins, they shot the

three victims with a stun gun, duct taped plastic bags over

their heads to asphyxiate them, weighed their bodies down

with rocks, and threw them in a bayou. The bodies washed

up in an Arkansas lake about six months later.

In 1999 a federal jury in the Eastern District of Arkansas

convicted Lee of three counts of capital murder in aid of

racketeering, 18 U.S.C. § 1959(a)(1), and sentenced him to

death. Now more than two decades later, Lee has exhausted

all appeals, including multiple rounds of postconviction

review, and is scheduled to be executed on Monday, July 13,

2020, at the United States Penitentiary in Terre Haute,

Indiana. The execution was originally scheduled to take

place on December 9, 2019, but was enjoined by two district

judges, one in the Southern District of Indiana (where the

prison is located) in connection with Lee’s petition for

habeas corpus under 28 U.S.C. § 2241, and another in the

District of Columbia who was hearing a challenge to the

federal execution protocol brought by Lee and other deathrow inmates at the Terre Haute prison. We described this

litigation history in our opinion two days ago affirming the

Indiana judge’s final order denying § 2241 relief. Lee v.

Watson, No. 20-2128, slip op. at 3–6 (7th Cir. July 10, 2020).

For present purposes, it’s enough to say that on December 6,

2019, we vacated the stay in the § 2241 habeas proceeding,

Lee v. Watson, No. 19-3399, 2019 WL 6718924 (7th Cir. Dec. 6,

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Pages: 10

2019), and the Court of Appeals for the District of Columbia

Circuit vacated the injunction in the execution-protocol case

on April 7, 2020, In re Fed. Bureau of Prisons’ Execution Protocol Cases, 955 F.3d 106 (D.C. Cir. 2020). The Bureau of Prisons

(“BOP”) thereafter rescheduled Lee’s execution for July 13,

2020, at 4 p.m. EDT.

On July 7, 2020, three family members of the victims filed

a complaint in the Southern District of Indiana seeking to

enjoin the BOP from carrying out Lee’s execution. The

plaintiffs—Earlene Peterson, age 81 (Nancy’s mother);

Kimma Gurel, age 61 (Nancy’s sister); and Monica Veillette,

age 43 (Nancy’s niece)—want to attend the execution even

though they oppose it. The Warden has authorized them to

be witnesses, but they object to the BOP’s decision to carry

out the execution during the COVID-19 pandemic. They

raise health concerns due to age, underlying medical conditions, the need to travel interstate to reach the Terre Haute

prison, and the current degree of COVID-19 spread

throughout the country. They seek to delay the execution

until the pandemic is suppressed by widespread vaccination

or effective treatment. The suit names the Attorney General,

the BOP Director, and the Warden as defendants; we refer to

them collectively as “the government.” The plaintiffs allege

that the agency’s decision to schedule Lee’s execution for

July 13 failed to adequately account for the effect of the

pandemic on their right to attend and thus is arbitrary,

capricious, and contrary to law in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).

Late in the day on Friday, July 10, a district judge in the

Southern District of Indiana issued a preliminarily injunction

enjoining the defendants “from carrying out the execution of

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Pages: 10

No. 20-2252

Daniel Lewis Lee on July 13, 2020, or on any future date,

pending final resolution of the merits of this case or until

further order of this [c]ourt.” Order Granting Plaintiffs’

Motion for Preliminary Injunction at 14, ECF. No. 20. The

judge ruled that “the plaintiffs have shown a strong likelihood of prevailing on their claim that the defendants’ setting

of Mr. Lee’s execution date without considering their right to

be present was arbitrary and capricious and not in accord[ance] with [the] law.” Id. at 11.

The government immediately appealed and sought a

stay from the district court. That request was promptly

denied. On Saturday morning, July 11, the government filed

an emergency motion asking us to summarily stay or vacate

the preliminary injunction. We ordered a response from the

plaintiffs by 6 p.m. CDT. They complied. The government

filed a reply late last night.

We vacate the preliminary injunction. The plaintiffs’

APA claim lacks any arguable legal basis and is therefore

frivolous.

First, the challenged agency action—setting a date for execution—may not be judicially reviewable at all. The APA

does not permit judicial review of an action “committed to

agency discretion by law.” 5 U.S.C. § 701(a)(2); Heckler v.

Chaney, 470 U.S. 821, 829–33 (1985). The government argues

that scheduling an execution date is such an action. “When

deciding whether a decision is committed to agency discretion, we first review the applicable statutes and regulations.”

Menominee Indian Tribe of Wis. v. EPA, 947 F.3d 1065, 1072

(7th Cir. 2020). The object is “to see if they contain ‘judicially

manageable standards … for judging how and when an

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No. 20-2252

Pages: 10

agency should exercise its discretion.’” Id. (quoting Chaney,

470 U.S. at 830) (omission in original).

As relevant here, the Federal Death Penalty Act directs

that “[a] person who has been sentenced to death” must be

“committed to the custody of the Attorney General until

exhaustion of the procedures for appeal of the judgment of

conviction and for review of the sentence.” 18 U.S.C.

§ 3596(a). It continues: “When the sentence is to be implemented, the Attorney General shall release the person

sentenced to death to the custody of a United States

[M]arshal, who shall supervise implementation of the sentence in the manner prescribed by the law of the [s]tate in

which the sentence [was] imposed”—here, Arkansas. Id. (If

the forum state does not have a death penalty, the Act

directs the district court to designate another state. Id.)

The applicable regulations delegate broad discretion to

the BOP Director to set execution dates:

(a) Except to the extent a court orders otherwise, a sentence of death shall be executed:

(1) On a date and at a time designated by

the Director of the Federal Bureau of Prisons, which date shall be no sooner that

60 days from the entry of the judgment of

death. If the date designated for execution

passes by reason of a stay of execution, then

a new date shall be designated promptly by

the Director … when the stay is lifted.

28 C.F.R. § 26.3(a)(1).

Another regulation provides:

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No. 20-2252

Except to the extent a court orders otherwise:

(a) The Warden of the designated institution

shall notify the prisoner under sentence of

death of the date designated for execution at

least 20 days in advance, except when the date

follows a postponement of fewer than 20 days

of a previously scheduled and noticed date of

execution, in which case the Warden shall notify the prisoner as soon as possible.

Id. § 26.4(a).

Perhaps the minimal constraints imposed by these regulatory requirements—the 60-day postjudgment waiting

period and the 20-day notice to the prisoner—are enough to

preclude a conclusion that the BOP Director’s scheduling

decisions are entirely unreviewable under § 701(a)(2). For

example, if a prisoner sued for inadequate notice of an

execution date, a court could review that decision. But if the

BOP observes the minimal requirements in the regulations—

as it did here—then it has the unconstrained discretion to

choose a date for the execution.

The plaintiffs’ claim is frivolous for another reason: they

have no statutory or regulatory right to attend the execution.

Judicial review under the APA is limited to persons who are

“adversely affected or aggrieved by agency action within the

meaning of a relevant statute.” 5 U.S.C. § 702. Accordingly, a

plaintiff must establish that “the injury he complains of …

falls within the zone of interests sought to be protected by

the statutory provision whose violation forms the legal basis

for his complaint.” Air Courier Conference of Am. v. Am. Postal

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No. 20-2252

Pages: 10

Workers Union AFL-CIO, 498 U.S. 517, 523–24 (1991) (quotation marks omitted).

The plaintiffs cannot satisfy this basic requirement. No

federal statute or regulation gives them a right to attend

Lee’s execution. Needless to say, executions are not public

proceedings. The Federal Death Penalty Act makes no

mention of witnesses, whether members of the victims’

family or others. In their complaint and motion for a preliminary injunction, the plaintiffs relied on the following regulation:

following persons shall be present at the execution:

(1) Necessary personnel selected by the

Marshal and Warden;

(2) Those attorneys of the Department of

Justice whom the Deputy Attorney General

determines are necessary;

(3) Not more than the following numbers of

person[s] selected by the prisoner:

(i) One spiritual adviser;

(ii) Two defense attorneys; and

(iii) Three adult friends or relatives; and

(4) Not more than the following numbers of

persons selected by the Warden:

(i) Eight citizens; and

(ii) Ten representatives of the press.

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No. 20-2252

(d) No other person shall be present at the execution, unless leave for such person’s presence

is granted by the Director of the Federal

Bureau of Prisons. No person younger than

18 years of age shall witness the execution.

28 C.F.R. § 26.4(c)–(d) (emphasis added).

The plaintiffs argued below that subsection (c)(4)(i) of

§ 26.4 gives them a legally enforceable right to attend the

execution. It does not. The regulation specifies who may be

permitted by the Warden to attend an execution. It is a limitation on, not an entitlement to, witness attendance. It is not

designed to protect the plaintiffs; the regulation does not

even mention victims’ family members. Nothing in the

regulation gives the plaintiffs a right to require the BOP to

schedule Lee’s execution at a time when they are willing or

able to attend. Nor does the regulation require their attendance before the execution may proceed.

Indeed, the district judge did not credit this argument.

Instead, she developed her own theory of the case. Setting

aside the impropriety of this maneuver, see United States v.

Sineneng-Smith, 140 S. Ct. 1575, 1582 (2020), the judge’s

theory is no more viable than the one raised by the plaintiffs.

Recall that the Federal Death Penalty Act provides that

an execution shall be implemented “in the manner prescribed by the law of the [s]tate in which the sentence is

imposed,” § 3596(a)—again, Arkansas. Relying on the D.C.

Circuit’s decision in Execution Protocol Cases, the judge

concluded that § 3596(a) incorporates Arkansas law governing execution witnesses—more specifically, section 16-90-

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502(e)(1) of the Arkansas Code. That reasoning seriously

misreads the D.C. Circuit’s decision and federal law.

By its terms, § 3596(a) incorporates the forum state’s law

regarding the “manner” of implementing a death sentence.

At issue in Execution Protocol Cases was whether this provision incorporates only “a [s]tate’s choice among execution

methods such as hanging, electrocution, or lethal injection,”

or whether it also requires the federal government to adhere

to the “subsidiary details” of the state’s chosen execution

method. 955 F.3d at 108. The D.C. Circuit split three ways.

Judge Katsas concluded that § 3596(a) incorporates only the

“top-line choice among execution methods such as hanging,

electrocution, or lethal injection.” Id. at 113 (Katsas, J., concurring). Judge Rao interpreted the incorporation language

more broadly to include the procedures governing the

manner of execution formally established by state statute or

regulation, but not informal protocols or procedures. Id. at

130 (Rao, J., concurring). As relevant here, Judge Rao identified section 5-4-617 of the Arkansas Code—the provision

specifying the state’s lethal-injection procedures—as the

incorporated state law in Lee’s case. Id. at 142. Judge Tatel

dissented. He agreed with Judge Rao that § 3596(a) incorporates state procedures for effectuating death as contained in

statutes and regulations. Id. at 146 (Tatel, J., dissenting). But

he concluded that the statute also incorporates informal

protocols if “issued by state prison officials pursuant to state

law.” Id.

Nothing in any of the separate opinions in Execution Protocol Cases supports the judge’s conclusion that § 3596(a)

incorporates the Arkansas Code provision governing execution witnesses. To the contrary, the debate among the D.C.

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No. 20-2252

Circuit judges was limited to state laws, regulations, and

protocols governing procedures for effectuating death. Indeed,

even the dissenting judge accepted that § 3596(a) does not

require the BOP to follow “every nuance” of state execution

procedure, but rather only “those procedures that effectuate

the death, including choice of lethal substances, dosages,

vein-access procedures, and medical-personnel requirements.” Id. at 151 (alteration and citations omitted). Section

3596(a) cannot be reasonably read to incorporate every

aspect of the forum state’s law regarding execution procedure. We do not understand the word “manner” as used in

§ 3596(a) to refer to details such as witnesses. The word

concerns how the sentence is carried out, not who watches.

In short, section 16-90-502(e)(1) of the Arkansas Code, the

provision governing execution witnesses, is irrelevant here.

The judge was wrong to insert it into this case.

INJUNCTION VACATED

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Appx11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

EARLENE PETERSON,

KIMMA GUREL,

MONICA VEILLETTE,

)

Plaintiffs,

WILLIAM P. BARR,

MICHAEL CARVAJAL,

T.J. WATSON,

Defendants.

No. 2:20-cv-00350-JMS-DLP

Order Granting Plaintiffs' Motion for Preliminary Injunction

Federal death row inmate Daniel Lee Lewis is scheduled to be executed on July 13, 2020,

at United States Penitentiary − Terre Haute (USP − Terre Haute) in Terre Haute, Indiana.

Plaintiffs Earlene Peterson, Kimma Gurel, and Monica Veillette are members of Mr. Lee's

victims' families and have been selected by the Warden of USP-Terre Haute to attend the

execution. The plaintiffs seek to enjoin Mr. Lee's execution on the basis that defendants have

violated the Administrative Procedure Act (APA) by scheduling Mr. Lee's execution during the

COVID-19 pandemic without adequate measures in place to protect them. The defendants oppose

the motion on the bases that the decision of when to set an execution is an unreviewable agency

action, the plaintiffs are outside the zone of interests, and the government's decision to promptly

schedule the executions was not arbitrary and capricious.

Case 2:20-cv-00350-JMS-DLP Document 20 Filed 07/10/20 Page 2 of 14 PageID #: 229

Appx12

Factual and Procedural Background

Mr. Lee's Crimes, Sentence, and Procedural History

In 1999, a jury in the United States District Court for the Eastern District of Arkansas

convicted Mr. Lee of conspiring to violate and violating the Racketeer Influenced and Corrupt

Organizations (RICO) statute, 18 U.S.C. § § 1962(c) and (d), and of three murders. United States

v. Lee, 374 F.3d 637, 641 (7th Cir. 2004). Mr. Lee's murder victims were William Mueller,

Nancy Mueller, and Nancy Mueller's eight-year-old daughter, Sarah Powell. Id. at 641–42.

Mr. Lee was sentenced to death. Id. at 643.

Mr. Lee's conviction was affirmed on appeal, id. at 641, and his petition for certiori was

denied, 545 U.S. 1141 (2005). He has unsuccessfully sought post-conviction relief pursuant to 28

U.S.C. § 2555 and has exhausted all appeals as to his § 2255 proceedings. See United States v.

Lee, No. 4:97-CR-00243-(2), 2008 WL 4079315, at *1 (E.D. Ark. Aug. 28, 2008), aff'd, 715 F.3d

215 (8th Cir. 2013), rehearing denied, 811 F.3d 272 (8th Cir. 2015), cert. denied, 135 S. Ct. 72

(2014); United States v. Lee, No. 4:97-cr-00243-02, 2014 WL 1093197, at *1 (E.D. Ark. Mar.

18, 2014), aff'd, 792 F.3d 1021 (8th Cir. 2015), rehearing denied, 811 F.3d 272 (8th Cir. 2015),

cert denied, 137 S. Ct. 1577 (2017).

On July 25, 2019, the Attorney General announced that capital executions would resume

after nearly two decades without any executions in the federal system. See The United States

Department of Justice, "Federal Government to Resume Capital Punishment After Nearly Two

Decade Lapse," July 25, 2019, https://www.justice.gov/opa/pr/federal-government-resumecapital-punishment-after-nearly-two-decade-lapse. The Bureau of Prisons (BOP) adopted a

revised addendum to its lethal injection protocol that replaced the previous three-drug procedure

with the use of a single drug, pentobarbital sodium, as the lethal agent. Id. In announcing the

change to the injection protocol, DOJ also established execution dates for five condemned federal

inmates, including Mr. Lee. Id. Mr. Lee's execution was scheduled for December 9, 2019.

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Appx13

Mr. Lee filed suit challenging BOP's single-drug protocol and on November 20, 2019,

the district court issued a preliminary injunction staying the executions. In re Federal Bureau of

Prisons' Execution Protocol Cases, 955 F. 3d 106, 111 (D.C. Cir. 2020) ("Execution Protocol

Cases"). That injunction was vacated by the D.C. Circuit on April 7, 2020. Id. at 108.

On June 29, 2020, the Supreme Court denied an application for a stay of the mandate. Bourgeois

v. Barr, 19-1348, --- S. Ct. ---, 2020 WL 3492763.

The Novel Coronavirus and Mr. Lee's Scheduled Execution

The novel coronavirus ("COVID-19") has been spreading in the United States since early

2020. As of July 9, 2020, there were 3,047,671 reported cases in the United States, including

368,441 cases in the past week. Centers for Disease Control and Prevention, Covid Data Tracker,

https://www.cdc.gov/covid-data-tracker/#cases (last visited July 10, 2020). 132,056 people have

died from the virus in the United States. Id. In Indiana, there have been 49,063 confirmed cases and

2,732 resulting deaths. Indiana COVID-19 Dashboard, https://www.coronavirus.in.gov/2393.htm

(last visited July 10, 2020). Due to COVID-19, the Bureau of Prisons has limited inmate movement

and suspended social and legal visits. See "BOP Implementing Modified Operations,"

https://www.bop.gov/coronavirus/covid19_status.jsp (last accessed July 10, 2020).

Nevertheless, on June 15, 2020, with the COVID-19 pandemic well underway, the

Department of Justice announced four execution dates, including Mr. Lee's on July 13, 2020. See

Press Release, Dep't of Justice, "Executions Scheduled for Four Federal Inmates Convicted of

Murdering Children" (June 15, 2020), https://www.justice.gov/opa/pr/executions-scheduledfourfederal-inmates-convicted-murdering-children.

Case 2:20-cv-00350-JMS-DLP Document 20 Filed 07/10/20 Page 4 of 14 PageID #: 231

Appx14

The Plaintiffs

The plaintiffs in this action are relatives of the victims:

Plaintiff Earlene Branch Peterson is Nancy Mueller's mother and Sarah Powell's

grandmother. 1 Dkt. 1 at ¶ 5. She is 81 years old and lives in Hector, Arkansas, more than 500 miles

from Terre Haute. Id. at ¶ 13. She suffers from congestive heart failure and has other underlying

health conditions that put her at increased risk for developing COVID-19-related complications.

Dkt. 17-1, ¶ 4. Pursuant to her doctor's directions, she has remained at home since March 10, 2020,

receiving deliveries for groceries and medicine. Id. at ¶¶ 4, 6.

Plaintiff Kimma Gurel is Nancy Mueller's sister and Sarah Powell's aunt. Id. at ¶ 6. She is

61 years old and lives in Spokane Valley, Washington, nearly 2,000 miles from Terre Haute. Id.

at ¶ 14. She also has underlying health conditions that put her at an increased risk for COVID-19related complications. Id.

Plaintiff Monica Veillete is Nancy Mueller's niece and Sarah Powell's cousin. Id. at ¶ 7.

She is 43 years old and lives in Deer Park, Washington, nearly 2,000 miles from Terre Haute. Id.

at ¶ 15.

28 C.F.R. § 26.4 provides that up to eight "citizens" "selected by the Warden" shall be

present at the execution. The BOP Execution Protocol states that the Warden will select up to eight

citizens and that "in identifying these individuals, the Warden, no later than 30 days after the

setting of an execution date, will ask the United States Attorney for the jurisdiction in which the

inmate was prosecuted to recommend up to eight individuals who are victims or victim family

The defendants refer to the plaintiffs merely as "extended family members of Mr. Lee's victims."

Dkt. 10 at 3. This insensitivity reflects the defendants' pervasive indifference for the plaintiffs'

legal and personal interests in Mr. Lee's scheduled execution.

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Appx15

members to be witnesses of the execution." Dkt. 9 at 10. All three plaintiffs were selected by the

Warden to witness Mr. Lee's execution.

On July 2, 2020, Dale Hartkemeyer (aka Seigen) filed a complaint in this Court.

Hartkemeyer v. Barr, et al., No. 2:20-cv-00036-JMS-DLP. Mr. Hartkemeyer is the spiritual

advisor to inmate Wesley Purkey, whose execution is scheduled for July 15, 2020.

Mr. Hartkemeyer alleged that the government's plan to execute Mr. Purkey violated his rights

under the Religious Freedom Restoration Act (RFRA) and the APA in light of the risks posed by

COVID-19. Id. at 1. On July 7, 2020, the plaintiffs moved to intervene in Mr. Hartkemeyer's case.

Dkt. 35. The Court denied their request, finding that although both cases accuse the defendants of

violations of the APA, the facts underlying the claims were different. Dkt. 54 at 4. The Court

directed the clerk to open a new action based on the plaintiffs' proposed complaint. Id. at 4–5.

The plaintiffs argue that the government violated the APA by scheduling Mr. Lee's

execution during the ongoing COVID-19 pandemic, making it dangerous for them to attend.

II.

Preliminary Injunction Standard

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The plaintiff must satisfy a four-prong

test, establishing "that he is likely to succeed on the merits, that he is likely to suffer irreparable

harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest." Id.

"'A party moving for preliminary injunctive relief need not demonstrate a likelihood of

absolute success on the merits. Instead, he must only show that his chances to succeed on his

claims are better than negligible.'" Valencia v. City of Springfield, 883 F.3d 959, 966 (7th Cir.

2018) (quoting Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046

Case 2:20-cv-00350-JMS-DLP Document 20 Filed 07/10/20 Page 6 of 14 PageID #: 233

Appx16

(7th Cir. 2017). But if it is clear that the party cannot show a likelihood of success on the merits,

the Court should refuse the injunction regardless of the balance of harms. Id. at 966.

Finally, "before granting a stay, a district court must consider not only the likelihood of

success on the merits and the relative harms to the parties, but also the extent to which the [movant]

has delayed unnecessarily in bringing the claim." Nelson v. Campbell, 541 U.S. 637, 649−50

(2004).

III.

Discussion

Likelihood of Success on the Merits

The defendants argue that the plaintiffs are unlikely to succeed on the merits for three

reasons: 1) judicial review is unavailable under the APA; 2) the plaintiffs do not fall within the

"zone of interests" of any relevant law to challenge an execution date; and 3) the Attorney General's

decision was not arbitrary or capricious, nor was it "not in accordance with law." The Court

addresses each argument in turn.

The Plaintiffs Have a Strong Likelihood of Showing Their Claim Is

Reviewable under the APA.

"The APA 'sets forth the procedures by which federal agencies are accountable to the public

and their actions subject to review by the courts.'" Dep't of Homeland Sec. v. Regents of the Univ.

of California, 140 S. Ct. 1891, 1905 (2020) (quoting Franklin v. Massachusetts, 505 U.S. 788, 796

(1992)). "A person suffering legal wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review

thereof." 5 U.S.C. § 702.

"The APA establishes a 'basic presumption of judicial review [for] one suffering legal

wrong because of agency action.'" Regents of the Univ. of California, 140 S. Ct. at 1905 (quoting

Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)). The agency may rebut that presumption by

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Appx17

establishing that its action falls into one of two exceptions set out in 5 U.S.C. § 701. See id.

First, the APA does not permit judicial review where "statutes preclude judicial review" of the

agency action. 5 U.S.C. § 701(a)(1). Second, the APA does not permit judicial review where the

action "is committed to agency discretion by law." 5 U.S.C. § 701(a)(2).

The defendants argue that their decision to schedule an execution is committed to agency

discretion by law. But courts are directed to read § 701(a)(2)'s exception "quite narrowly,

restricting it to those rare circumstances where the relevant statute is drawn so that a court would

have no meaningful standard against which to judge the agency's exercise of discretion." Dep't of

Commerce v. New York, 139 S. Ct. 2551, 2568 (2019) (internal quotation omitted). And contrary

to the defendants' suggestion, agency decisions regarding implementation of the death penalty are

not categorically off limits. See generally Execution Protocol Cases, 955 F. 3d 106 (reviewing

claims regarding agency's execution protocol under the APA). Indeed, in the Execution Protocol

Cases, neither the Supreme Court nor any of the opinions in the D.C. Circuit Court of Appeals

embraced the defendants' argument here that such claims are unreviewable. Id.; see Bourgeois v.

Barr, --- S. Ct. ----, 2020 WL 3492763 (Mem.) (denying certiorari).

Here, the Federal Death Penalty Act of 1994 (FDPA) provides the relevant standards. The

FDPA provides that a person sentenced to death "shall be committed to the custody of the Attorney

General until exhaustion of the procedures for appeal of the judgment of conviction and for review

of the sentence." 18 U.S.C. § 3596(a). "When the sentence is to be implemented, the Attorney

General shall release the person sentenced to death to the custody of a United States marshal, who

shall supervise implementation of the sentence in the manner prescribed by the law of the State in

which the sentence is imposed." Id.

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The "law of the State in which the sentence is imposed" includes state statutes and binding

regulations that govern the execution process. Execution Protocol Cases, 955 F.3d at 134 (Rao, J.,

concurring) ("federal government [must] follow all procedures prescribed by state statutes and

formal regulations, but no more."). 2 As relevant here, Arkansas law provides a fairly robust

statutory scheme governing the conduct of executions. See Ark. Code §§ 4-5-617, 16-90-502.

Thus, the FDPA does not commit the choice of scheduling an execution to agency

discretion. The agency's discretion is bound by the language of the FDPA and by "the law of the

State in which the sentence is imposed." 18 U.S.C. § 3596(a).

The plaintiffs Have a Strong Likelihood of Showing They State a Claim

Within the FDPA's Zone of Interests.

The Court may review the plaintiffs' APA claim only if they are "aggrieved by agency

action . . . within the meaning of a relevant statute." 5 U.S.C. § 702. To satisfy this requirement,

the plaintiffs' claim must at least be "arguably within the zone of interests" that Congress sought

to protect or regulate under the statute in question. Ass'n of Data Processing Serv. Orgs. v. Camp,

397 U.S. 150, 153 (1970).

The defendants assert that the FDPA "makes no provision for witnesses such as Plaintiffs

to attend an execution, much less provides them a private cause of action to protect their rights."

Dkt. 10 at 13−14 (emphasis in original). True, the FDPA itself does not explicitly mention victims,

but it does provide that an execution must proceed "in the manner prescribed by the law of the

State in which the sentence is imposed." 18 U.S.C. § 3596(a); See Execution Protocol Cases, 955

F.3d at 134 (Rao, J., concurring). And Arkansas law provides significant rights to victims' family

members in the context of an execution.

The D.C. Circuit's decision in Execution Protocol Cases does not bind this Court, but the Court

recognizes Judge Rao's concurrence, which provides the narrower basis for the result, as the

controlling opinion. Cf. Marks v. United States, 430 U.S. 188, 193 (1976).

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Under Arkansas law, a spouse, parent, adult sibling, or adult child of the victim "shall be

present" for the execution "if he or she chooses to be present." Ark. Code § 16-90-502(e)(1)(C).

Two of the three plaintiffs here qualify, as Ms. Peterson is Nancy Mueller's mother, and Ms. Gurel

is Nancy Mueller's adult sibling. The same statute provides that "[t]he director may prohibit a

person who otherwise would be eligible to witness or view an execution under this subsection if

he or she determines the person to be a security risk." Ark. Code § 16-90-502(e)(2). This suggests

that eligible persons cannot be prohibited for any reason whatsoever. Unless they are a security

risk, Arkansas law provides them a right to be present for the execution.

Even if not a spouse, child, sibling, or parent, "[a]ny other adult relative with a close

relationship to the victim" also has rights under the statute. Ark. Code § 16-90-502(e)(2)(D)

(defining "Close relative of the victim"). Specifically, "[a] closed-circuit audiovisual monitor

dedicated to viewing a live broadcast of the execution shall be placed in a location chosen by the

director for the benefit of any close relative of the victim . . . who desires to view the execution

and who is not witnessing the execution as allowed under subdivision (e)(1)(C)." Ark. Code § 1690-502(e)(5)(A). Ms. Veillette satisfies the definition of a "[c]lose relative of the victim."

The FDPA directs federal authorities to follow state law in implementing an execution, and

state law provides rights to victims' family members. The plaintiffs therefore have a strong

likelihood of showing that their claim is "arguably within the zone of interests" Congress intended

to protect with the FDPA.

The plaintiffs Have a Strong Likelihood of Showing that the Defendants'

Setting Execution Dates During a Pandemic Without Adequately

Considering Whether the Victims' Family Could Safely Attend Was

Arbitrary and Capricious or Not in Accordance With Law.

The APA "instructs reviewing courts to set aside agency action that is 'arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.'" Dep't of Commerce, 139 S. Ct.

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at 2567 (quoting 5 U.S.C. § 706(2)(A)). The reviewing court must limit its inquiry to whether the

agency "examined 'the relevant data' and articulated 'a satisfactory explanation' for its decision,

'including a rational connection between the facts found and the choice made.'" Id. at 2569

(quoting Motor Vehicle Mfrs. Assn. of United States v. State Farm Mut. Automobile Ins. Co., 463

U.S. 29, 43 (1983)). "Under this highly deferential standard, an administrative decision should be

upheld if the agency's path may be reasonably discerned." Sierra Club v. U.S. EPA, 774 F.3d

383, 393 (7th Cir. 2014) (internal quotation omitted).

"But even deferential review should 'be searching and careful' when considering 'whether

the decision was based on a consideration of the relevant factors and whether there has been a clear

error of judgment.'" Boucher v. United States Dep't of Agric., 934 F.3d 530, 547 (7th Cir. 2019)

(quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989)). "An agency

decision will be found 'arbitrary and capricious' if it 'relied on factors which Congress has not

intended it to consider, entirely failed to consider an important aspect of the problem, offered an

explanation for its decision that runs counter to the evidence before the agency, or is so implausible

that it could not be ascribed to a difference in view or the product of agency expertise.'" State

Farm, 463 U.S. at 43). "If a reviewing court is faced with 'such deficiencies,' it 'should not attempt

itself to make up' for those gaps by 'supply[ing] a reasoned basis for the agency's action that the

agency itself has not given.'" Id. (quoting State Farm, 463 U.S. at 43).

Even applying the deferential standard, the plaintiffs have a strong likelihood of showing

that the defendants' actions were arbitrary and capricious or not in accordance with law.

The defendants assert that the plaintiffs have no right to be present for the execution. Dkt. 10 at 4

("The fact that Plaintiffs are victims of Lee's crime means that the government has made efforts to

accommodate their attendance, but in terms of legally enforceable rights vis-à-vis Lee's capital

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sentence, they stand in the shoes of any member of the public."). This assertion alone underscores

that the defendants "entirely failed to consider an important aspect of the problem," see Boucher,

934 F.3d at 547 (internal quotation omitted)—namely, victims' family members' rights to be

present for the execution under Arkansas law.

The agency record, such as it is, offers no help to the defendants. They have produced no

evidence to show that their decision to conduct an execution during a pandemic accounted for the

victims' family's right to be present. To be sure, they have produced evidence that the family

members—like any other member of the public who attends the execution—will have access to

personal protective equipment, soap, and hand sanitizer while on prison grounds. See Hartkemeyer

v. Barr, et al., No. 2:20-cv-336-JMS-DLP, dkt. 51-1, ¶ 11 (Declaration of Rick Winter (July 8,

2020)). But there is no evidence that the defendants considered whether these measures give

adequate protection to the plaintiffs, who have a right to be present under Arkansas law (and thus

the FDPA). The defendants also gave no consideration to whether Ms. Peterson, who must travel

more than 500 miles from Arkansas, and Ms. Gurel, who will travel by plane from Washington,

can safely get to Terre Haute for the execution. See dkt. 10 at 8 (conceding that the government has

no control over the safety of the plaintiffs' travel). And they apparently gave no consideration to

the requirement that closed-circuit viewing be made available for close relatives of the victim. Ark.

Code § 16-90-502(e)(5)(A). Indeed, given the defendants' argument that the plaintiffs are "outside

the zone of interests" it appears they gave no consideration to their rights whatsoever.

Accordingly, the plaintiffs have shown a strong likelihood of prevailing on their claim that

the defendants' setting of Mr. Lee's execution date without considering their right to be present was

arbitrary and capricious and not in accord with law.

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Irreparable Harm

The defendants argue that the only potential harm to the plaintiffs is "the mere 'possibility'

that the plaintiffs will be exposed to COVID-19 if they attend the execution." Dkt. 10 at 19. Not so.

The harm to Ms. Peterson, for example, is being forced to choose whether being present for the

execution of a man responsible for the death of her daughter and granddaughter is worth defying

her doctor's orders and risking her own life.

If there were any doubt about the seriousness of this harm, Ms. Peterson's declaration puts

it to rest:

I am now faced with an impossible choice of either not exercising my right to attend

the execution, or traveling in dangerous conditions which could cause me to become

very sick, or even die.

I want to attend this execution at a time when it is safe for people to travel. Although

I have some medical issues, I can travel if the conditions are not especially

dangerous.

I pray every day for my lost daughter and granddaughter. As a mother I feel very

sorry for Daniel Lewis Lee's mother. I hope somehow by attending I can find some

peace. Right now I am not at peace.

Dkt. 17-1 at 4.

The plaintiffs have shown irreparable harm absent the grant of a preliminary injunction.

Balance of Harms

The government has an interest in the prompt and orderly execution of Mr. Lee's death

sentence. See Bucklew v. Precythe, 139 S. Ct. 1112, 1133 (2019) (the government has "an important

interest in the timely enforcement of a sentence" (internal quotation omitted)); Calderon v.

Thompson, 523 U.S. 538, 556 (1998) (after years of litigation, the government "is entitled to the

assurance of finality"). But the government's interest is intertwined with—and based in part upon—

the victim's interest in timely justice. See Bucklew, 139 S. Ct. at 1133 (ascribing "important interest"

in finality to "[b]oth the [government] and the victims of crime"); Calderon, 523 U.S. at 556 ("Only

Case 2:20-cv-00350-JMS-DLP Document 20 Filed 07/10/20 Page 13 of 14 PageID #: 240

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with real finality can the victims of crime move forward knowing the moral judgment will be carried

out.").

At least three family members of Lee's victims—Ms. Peterson, Ms. Gurel, and

Ms. Veillette—have expressed a greater interest in safely attending the execution than in having the

execution proceed on the government's timetable. The defendants suggest that other family

members may have different priorities. Dkt. 10 at 19 ("[Ms. Peterson] is not the lone family member

of a victim of Mr. Lee's crimes."). But the defendants present no evidence to support that

suggestion. The balance of harms weighs in the plaintiffs' favor.

Public Interest

The public, like the government, has an interest in prompt and orderly execution of

Mr. Lee's death sentence. But the public also has an interest—codified by Congress—in ensuring

that crime victims are "treated with fairness and with respect for the victim's dignity." 18 U.S.C.

§ 3771(a)(8). In this case, the public's interest in a prompt, orderly execution should give way to

their interest in treating Ms. Peterson, Ms. Gurel, and Ms. Veillette with fairness, respect, and

dignity.

Unnecessary Delay

The defendants do not argue that a stay should be denied based on the plaintiffs' unnecessary

delay in bringing the claim. Any such argument is therefore waived.

In any event, the plaintiffs did not unnecessarily delay in bringing their claim. While they

did not file a complaint immediately after Mr. Lee's execution date was announced, they did try to

obtain assurances about safety measures from Bureau of Prisons staff member Steve Markle.

Dkt. 17-2 at ¶¶ 6, 8 (Monica Veillette Affidavit). Ms. Veillette spoke with Mr. Markle several

times, and he informed her that "it would be impossible to maintain social distancing at the witness

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room, in the hallways, in the transport vans, at checkpoints and at other areas in the prison." Id. at

¶ 8. When Ms. Veillette asked for a written description of the safety measures the Bureau of Prisons

had in place, he responded that he could not provide anything in writing "because it would be

'discoverable.'" Id. at ¶ 10.

The plaintiffs will not be penalized for seeking an informal remedy before filing this lawsuit.

IV. Conclusion

The plaintiffs' motion for preliminary injunction, dkt. [2], is granted to the extent that

the Court enjoins the defendants from carrying out the execution of Daniel Lewis Lee on July 13,

2020, or on any future date, pending final resolution of the merits of this case or until further order

of this Court. The Court will vacate the injunction upon a showing by the defendants of an

agency action setting a date for Mr. Lee's execution in accord with the FDPA and

demonstrating reasonable consideration of the plaintiffs' right to be present for the execution.

The clerk is directed to correct the name of plaintiff Monica Veillette on the docket.

IT IS SO ORDERED.

Date: 7/10/2020

Distribution:

Howard Baker Kurrus

H. Baker Kurrus, PLLC

bkurrus@aol.com

Shelese M. Woods

UNITED STATES ATTORNEY'S OFFICE (Indianapolis)

shelese.woods@usdoj.gov

Case 2:20-cv-00350-JMS-DLP Document 1 Filed 07/08/20 Page 1 of 29 PageID #: 1

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

EARLENE BRANCH PETERSON, KIMMA GUREL,

and MONICA VEILLETTE,

Plaintiffs,

Case No. ____________

WILLIAM P. BARR, in his official capacity as

Attorney General of the United States; MICHAEL

CARVAJAL, in his official capacity as Director of the

Federal Bureau of Prisons; and T.J. WATSON, in his

official capacity as Complex Warden for Terre Haute

Federal Correction Complex,

Defendants.

[PROPOSED] COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs Earlene Branch Peterson, Kimma Gurel, and Monica Veillette (collectively

“Plaintiffs”), by and through their undersigned counsel, bring this Complaint and in support thereof

they allege as follows:

Nature of Action

This action is for declaratory relief, pursuant to 28 U.S.C. § 2201 and Fed. R. Civ.

P. 57, and related injunctive relief, pursuant to 28 U.S.C. § 2202 and Fed. R. Civ. P. 65, and it

arises out of Defendants’ ongoing and future violation of the Administrative Procedure Act, 5

U.S.C. § 551 et seq. (the “APA”).

As alleged below, Defendants are egregiously violating the APA because they have

announced their intention to execute Daniel Lewis Lee on July 13, 2020 at the United States

Case 2:20-cv-00350-JMS-DLP Document 1 Filed 07/08/20 Page 2 of 29 PageID #: 2

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Penitentiary in Terre Haute (USP Terre Haute), even though the COVID-19 pandemic is

worsening and currently ravaging the federal prison system, including USP Terre Haute.

Plaintiffs, who are all members of Mr. Lee’s victims’ families, have been selected to attend the

execution and they have a well-established right to do so. Defendants, however, have placed

Plaintiffs in an untenable position because Plaintiffs cannot exercise those rights unless they put

their own lives at grave risk by traveling to USP Terre Haute and being exposed to COVID-19

while there,

There is no legitimate reason for Defendants to go forward with Mr. Lee’s

execution on July 13, 2020 as opposed to a later date. Defendants have arbitrarily and capriciously

set that execution date, despite the COVID-19 pandemic, without adequately taking into account

Plaintiffs’ health and safety. Thus, Plaintiffs’ rights to attend Mr. Lee’s execution have been

subverted, and the agency action in setting the execution violates the APA because it is “arbitrary

and capricious” and “not in accordance with law.” 28 U.S.C. § 706(2)(A).

Accordingly, through this Complaint, Plaintiffs seek (1) a declaration that

Defendants’ action is unlawful and should be set aside; and (2) an injunction barring Defendants

from setting an execution date for Mr. Lee until such time as Plaintiffs are able to exercise their

right to attend Mr. Lee’s execution without endangering their own lives. 1

Parties

Plaintiff Earlene Branch Peterson is the mother of victim Nancy Mueller and the

grandmother of victim Sarah Powell.

The spiritual advisor for another prisoner, Wesley Purkey, has also filed an action in this

Court regarding the risks posed to him by attending Mr. Purkey’s execution, which is scheduled

for July 15, 2020. See Hartkemeyer v. Barr et al., 20-cv-00336 (S.D. Ind.) (the “Hartkemeyer

Action”).

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Plaintiff Kimma Gurel is Nancy Mueller’s sister and Sarah Powell’s aunt.

Plaintiff Monica Veillette is Nancy Mueller’s niece and Sarah Powell’s cousin.

Defendant William P. Barr is the Attorney General of the United States. He

scheduled Mr. Lee’s execution for July 13, 2020 and has responsibility over carrying out death

sentences against federal prisoners. Defendant Barr maintains an office in Washington, D.C. and

is sued in his official capacity for the purpose of obtaining declaratory and injunctive relief.

Defendant Michael Carvajal is the Acting Director the Federal Bureau of Prisons

(“BOP”). He is responsible for the supervision and operation of all federal prisons, including USP

Terre Haute, where Mr. Lee is scheduled to be executed on July 13, 2020. Defendant Carvajal

maintains an office in Washington, D.C. and is sued in his official capacity for the purpose of

obtaining declaratory and injunctive relief.

10.

Defendant T.J. Watson is the Complex Warden for the Federal Correctional

Complex, Terre Haute (FCC Terre Haute). Defendant Watson maintains an office in Terre Haute,

Indiana and is sued in his official capacity for the purpose of obtaining declaratory and injunctive

relief.

Jurisdiction and Venue

11.

This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331

because Plaintiffs seek relief pursuant to 28 U.S.C. §§ 2201 and 2202.

12.

Venue lies in the Southern District of Indiana, where FCC Terre Haute, which

includes USP Terre Haute, is located. Venue is also appropriate under 28 U.S.C. § 1391, as venue

is proper in any district in which a defendant resides.

Statement of Facts

Case 2:20-cv-00350-JMS-DLP Document 1 Filed 07/08/20 Page 4 of 29 PageID #: 4

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Plaintiffs Suffer from A Variety of Ailments.

13.

Plaintiff Earlene Branch Peterson is 81 years old. She lives in Hector, Arkansas, a

distance of more than 500 miles from Terre Haute, Indiana. She suffers from congestive heart

failure and, in addition to her age being a risk factor, also has other underlying conditions, that put

her at increased risk for developing COVID-19-related complications. She attended Mr. Lee’s

capital trial on a daily basis. She has been contacted over the years by members of the prosecution,

who have updated her on the status of proceedings in the case.

14.

Plaintiff Kimma Gurel is 61 years old. She lives in Spokane Valley, Washington,

a distance of nearly 2,000 miles from Terre Haute, Indiana. In addition to her age being a risk

factor, she suffers from underlying health conditions that put her at increased risk for developing

COVID-19-related complications. She attended Mr. Lee’s capital trial on a daily basis.

15.

Plaintiff Monica Veillette is 43 years old. She lives in Deer Park, Washington, a

distance of nearly 2,000 miles from Terre Haute, Indiana. She suffers from asthma and other

underlying conditions that put her at increased risk for developing COVID-19-related

complications. She attended Mr. Lee’s capital trial on a daily basis, and she testified as a witness

for the prosecution.

II.

Plaintiffs Will Be Exposed to Unnecessary and Life-Threatening Risks by Attending

Mr. Lee’s Execution.

16.

Defendants have relied on 28 C.F.R. Part 26 in announcing their intent to execute

Mr. Lee on July 13, 2020. 28 C.F.R. § 26.4 lists the persons who “shall be present” during an

execution and it includes “[e]ight citizens” selected by the Warden. 28 C.F.R. § 26.4(c)(4)(i).

17.

The BOP Execution Protocol (2019) (the “Protocol”), attached hereto as Exhibit A,

repeats the requirement from 28 C.F.R. § 26.4 that the Warden must select eight citizens to attend

Case 2:20-cv-00350-JMS-DLP Document 1 Filed 07/08/20 Page 5 of 29 PageID #: 5

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an execution. See Ex. A, Ch. 1, III.G.1.c.(1), 10-11. The Protocol further provides that, in

identifying those individuals, the Warden “will ask the United States Attorney for the jurisdiction

in which the inmate was prosecuted to recommend up to eight individuals who are victims or

victim family members to be witnesses of the execution.” Id.

18.

The process set forth in the Code of Federal Regulations and Protocol has taken

place and Plaintiffs are among the witnesses selected to attend Mr. Lee’s execution. Therefore,

pursuant to 28 C.F.R. § 26.4, Plaintiffs have the right to attend Mr. Lee’s execution.

III.

COVID-19 is a serious, debilitating and potentially lethal disease, which hits

vulnerable populations with particular severity.

19.

The SARS-CoV-2 virus, and the human infection it causes – COVID-19 – is a

global pandemic, was designated a global health emergency by the World Health Organization,

and was declared a national emergency on March 13, 2020, by President Donald Trump.

20.

In his Proclamation, declaring this national state of emergency, President Trump

noted that “[t]he spread of COVID-19 within our Nation’s communities threatens to strain our

Nation’s healthcare systems. As of March 12, 2020, 1,645 people from 47 States have been

infected with the virus that causes COVID-19.”

Proclamation on Declaring a National

Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (issued on March

13, 2020). 2

21.

Those numbers have increased dramatically over the past four months. According

to the Centers for Disease Control and Prevention (“CDC”), as of July 4, 2020, there have been

Available at: https://www.whitehouse.gov/presidential-actions/proclamation-declaringnational-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last visited July

5, 2020).

Case 2:20-cv-00350-JMS-DLP Document 1 Filed 07/08/20 Page 6 of 29 PageID #: 6

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2,789,678 total confirmed cases of COVID-19 in the United States, and 129,305 deaths. Cases,

Date & Surveillance: Cases in the U.S. (July 4, 2020). 3

22.

As of July 4, 2020, the number of new confirmed cases reported compared to July

3, 2020, was 57,718, including 661 new deaths. Id.

23.

The number of new deaths tends to lag by two weeks or more behind the number

of new COVID cases.

24.

COVID-19 is a serious, debilitating, and sometimes deadly disease. Although it is

often compared to influenza, the overall case fatality rate is 5-35 times the fatality rate associated

with influenza infection. And unlike influenza, overall, some 20% of cases will have more severe

disease requiring medical intervention and support.

25.

There is currently no vaccine or known cure for COVID-19.

26.

The virus enters the body when someone inhales respiratory droplets containing

SARS-CoV-2, or when these droplets enter via the eyes. The coronavirus then enters cells in the

nose and throat where it invades them by latching onto a receptor at the cell surface. It then

proliferates by using the invaded cell’s own machinery. From there, the virus can spread from the

nose and throat to the lungs, where the virus—and the body’s immune response—can disrupt the

flow of oxygen into the blood, causing coughing and shortness of breath. SARS-CoV-2 can invade

many other organs in the body with a wide range of effects: seizures and strokes in the brain; blood

clots and cardiac inflammation in the vessels and heart; and liver and kidney damage. 4

Available at: https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html (last visited July 5, 2020).

Wadman, Couzin-Frankel, Kaiser, Matacic, How does coronavirus kill? Clinicians

trace a ferocious rampage through the body, from brain to toes, Science, April 17, 2020.

Case 2:20-cv-00350-JMS-DLP Document 1 Filed 07/08/20 Page 7 of 29 PageID #: 7

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27.

The course of illness in any particular person is unpredictable. Some individuals

with COVID-19 may have no symptoms or only mild symptoms, while others may develop severe

illness.

28.

The “mild” symptoms for COVID-19 are fever, chills, cough, shortness of breath,

fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or

runny nose, nausea or vomiting, and diarrhea. Many COVID-19 infections resolve within a few

weeks. However, a subset of individuals has enduring symptoms that last months. Many of these

individuals are young and previously healthy. 5

29.

Once contracted, COVID-19 can cause severe damage to lung tissue, including a

permanent loss of respiratory capacity.

30.

It can also permanently damage tissues in other vital organs, as well, such as the

heart, central nervous system, and liver.

31.

There are multiple ways in which COVID-19 can be deadly. Among patients who

have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome

(ARDS), a condition in which oxygen levels in the blood and blood pressure falls dramatically.

Available at: https://www.sciencemag.org/news/2020/04/how-does-coronavirus-kill-clinicianstrace-ferocious-rampage-through-body-brain-toes. (last visited July 6, 2020).

Symptoms of Coronavirus, Centers for Disease Control and Prevention, (noting “This

list does not include all possible symptoms.”) https://www.cdc.gov/coronavirus/2019ncov/symptoms-testing/symptoms.html (last visited July 6, 2020); Ed Young, COVID-19 can

last for several months, The Atlantic, June 4, 2020 Available at:

https://www.theatlantic.com/health/archive/2020/06/covid-19-coronavirus-longterm-symptomsmonths/612679/ (last visited July 6, 2020).

Case 2:20-cv-00350-JMS-DLP Document 1 Filed 07/08/20 Page 8 of 29 PageID #: 8

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ARDS has a 30% mortality rate overall, higher in those with other health conditions. Some 13%

of these patients will require mechanical ventilation. 6

32.

COVID-19 can also cause heart damage, blood clots, and constriction of blood

vessels, all of which can play a role in causing death. Kidney failure can also be involved in

COVID-19 mortality.

33.

Even when it does not kill, COVID-19 can severely damage lung tissue, which

requires an extensive period of rehabilitation, and in some cases, cause permanent loss of breathing

capacity. COVID-19 may also target the heart, causing a medical condition called myocarditis, or

inflammation of the heart muscle. Myocarditis can reduce the heart’s ability to pump.

34.

An exaggerated response of the immune system called a “cytokine storm” can come

from a COVID-19 infection. When that occurs, a flood of inflammatory signaling molecules are

unleashed onto the body. These molecules cause blood vessels to become leaky, resulting in a drop

in blood pressure. Blood clots become more likely to form and obstruct vessels. Organs may not

get the oxygen they need to function. This is a complication of grave concern. 7

35.

Age is a critical risk factor for the severe illness and potential fatality associated

with COVID-19. There are multiple estimates of the ratio between all known cases and known

Sinha, Matthay & Calfee, Is a “cytokine storm” relevant to COVID-19?, JAMA

Internal Medicine, June 30, 2020. Available at:

https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2767939 (last visited July 6,

2020).

Id.

Case 2:20-cv-00350-JMS-DLP Document 1 Filed 07/08/20 Page 9 of 29 PageID #: 9

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deaths (the “case-fatality ratio”) for COVID-19 but risk for severe illness and mortality rises

steeply above 60-70 years of age. 8

36.

A number of underlying conditions, other than age, create higher risk and influence

the course of symptoms and mortality rate. For example, people with type 2 diabetes are nearly 4

times more likely to develop serious disease or die from COVID-19. 9 Heart disease, COPD,

hypertension, and cancer are all risk factors for ICU admission, ventilation, or death. 10

37.

The COVID-19 mortality rate is twelve times higher among those with underlying

conditions. Specifically, 19.5% of people with COVID-19 who had underlying health conditions

died as compared to 1.6% of those without underlying conditions. 11

38.

Epidemiologists have collected additional demographic data on populations of

COVID sufferers. Individuals with obesity are about twice as likely to be hospitalized with

Older Adults, Centers for Disease Control and Prevention, updated June 25, 2020.

Available at: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/olderadults.html (last visited July 6, 2020).

Zheng Z, Peng F, Xu B, et al. Risk factors of critical & mortal COVID-19 cases: A

systematic literature review and meta-analysis [published online ahead of print, 2020 Apr 23]. J

Infect. 2020;S0163-4453(20)30234-6. doi:10.1016/j.jinf.2020.04.021

Guan WJ, Liang WH, Zhao Y, et al. Comorbidity and its impact on 1590 patients with

COVID-19 in China: a nationwide analysis. Eur Respir J. 2020;55(5):2000547. Published 2020

May 14. doi:10.1183/13993003.00547-2020.

Stokes EK, Zambrano LD, Anderson KN, et al. Coronavirus Disease 2019 Case

Surveillance – United States, January 22-May 30, 2020, MMWR Morb Mortal Wkly Rep

2020;69:759-765. DOI: http://dx.doi.org/10.15585/mmwr.mm6924e2. Available at:

https://www.cdc.gov/mmwr/volumes/69/wr/mm6924e2.htm?s_cid=mm6924e2_w#T1_down

(last visited July 6, 2020).

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COVID-19. Younger patients with obesity are more likely to require hospital admission and ICU

care when infected than their non-obese counterparts. 12

39.

To be classified as a confirmed case of COVID-19, an individual must meet

confirmatory laboratory evidence. 13 A viral test identifies people with current SARS-CoV-2

infection. Additionally, antibody tests can be used to identify people with a previous viral

infection.

40.

To be determined a confirmed case, an individual must have undergone diagnostic

testing, which is often limited in availability.

41.

If diagnostic testing is limited, either by availability or by choice, the number of

actual infected individuals may greatly exceed the number of reported confirmed cases.

42.

The Indiana State Department of Health confirmed its first case of COVID-19 on

March 6, 2020 and recorded its first death due to the virus on March 16.

Petrilli Christopher M, Jones Simon,

A. Yang Jie, Rajagopalan Harish, O’Donnell Luke, Chernyak Yelena et al. Factors associated

with hospital admission and critical illness among 5279 people with coronavirus disease 2019 in

New York City: prospective cohort study BMJ 2020; 369 :m1966; Jennifer Lighter, Michael

Phillips, Sarah Hochman, Stephanie Sterling, Diane Johnson, Fritz Francois, Anna Stachel,

Obesity in Patients Younger Than 60 Years Is a Risk Factor for COVID-19 Hospital

Admission, Clinical Infectious Diseases, , ciaa415, https://doi.org/10.1093/cid/ciaa415; Kass

DA, Duggal P, Cingolani O. Obesity could shift severe COVID-19 disease to younger

ages. Lancet. 2020;395(10236):1544-1545. doi:10.1016/S0140-6736(20)31024-2

Coronavirus Disease 2019 (COVID-19) 2020 Interim Case Definition, approved April

5, 2020, Centers for Disease Control and Prevention.

https://wwwn.cdc.gov/nndss/conditions/coronavirus-disease-2019-covid-19/casedefinition/2020/ (Last visited July 6, 2020)

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43.

Children, while initially thought to be safe from effects of the virus, are now

recognized as being susceptible to multisystem inflammatory syndrome (MIS-C) associated with

COVID-19.

44.

On May 18, 2020, Indiana confirmed its first case of MIS-C in a child.

45.

As of July 5, 2020, the Indiana State Department of Health (ISDU) announced that

522 additional Indiana residents had been diagnosed with COVID-19 from the previous day,

bringing to 47,432 the total number of Indiana residents known to have the novel coronavirus. On

July 6, 2020, the ISDU reported 596 additional state residents diagnosed with COVID-19 over the

previous day’s count, bringing the state total to 48,008. 14 This represents a 14% increase over the

number of cases added the previous day.

46.

This number represents a jump in the State of Indiana of almost 11,000 new cases

reported since June 5, 2020. Compare Health Department Updates Statewide COVID-19 Case

Counts, June 5, 2020, 15 with Health Department Updates Statewide COVID-19 Case Counts, July

4, 2020. 16

47.

As of July 4, 2020, the ISDU reported that a total of 2,494 Indiana residents were

confirmed to have died from COVID-19, and that an additional 193 probable deaths had been

reported based on clinical diagnoses in patients for whom no positive test was on record.

Health Department updates statewide COVID-19 case counts, Indiana State

Department of Health, IN.gov. Available at: https://calendar.in.gov/site/isdh/event/healthdepartment-updates-statewide-covid-19-case-counts-65/ (last visited July 6, 2020).

Available at: https://calendar.in.gov/site/isdh/event/health-department-updatesstatewide-covid-19-case-counts-36/ (last visited July 5, 2020).

Available at: https://calendar.in.gov/site/isdh/event/health-department-updatesstatewide-covid-19-case-counts-64/ (last visited July 5, 2020).

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48.

On July 1, 2020, Indiana Governor Eric Holcomb renewed the COVID-19 public

health emergency to extend from July 4 (the then-current expiration date) to August 3, 2020,

“unless further renewed.”

Executive Order 20-34, for: Fourth Renewal of Public Health

Emergency Declaration for the COVID-19 Outbreak, ¶ 2, State of Indiana Executive

Department. 17

49.

COVID-19 cases continue to rise in the United States. Just in the past week, rates

in some states and counties that had previously seen little disease have risen dramatically.

50.

For example, COVID-19 has continued to spread in Arkansas. In the last month,

the number of cases has almost tripled (5,644 cases reported on May 21st; 15,142 cases reported

June 21st). In response to the climbing cases, on June 18, 2020, the Governor extended the Public

Health Emergency Order for another forty-five days. Pulaski County, which includes Little Rock,

has one of the highest number of cases in Arkansas and reported 1,499 positive cases and 52 deaths

from COVID-19 as of June 21, 2020.

IV.

COVID-19 is highly transmissible.

51.

COVID-19 passes from person to person primarily through respiratory droplets.

This can happen whenever a person expels droplets into the air, and increases when an infected

individual speaks, shouts, sings, coughs, or sneezes.

52.

COVID-19 can survive on hard surfaces for hours to days. It can live for 72 hours

on plastic and metal, 48 hours on stainless steel, and 24 hours on cardboard. 18

Available at: https://www.in.gov/gov/files/Executive%20Order%202034%20Extention%20of%20the%20Public%20Health%20Emergency.pdf (last visited, July 5,

2020.)

Neeltje van Doremalen et al., “Aerosol and Surface Stability of SARS-CoV-2 as

Compared with SARS-CoV-1,” letter, New England Journal of Medicine (Massachusetts

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53.

New information indicates that COVID-19 may also be transmissible through

aerosolized fecal contact.

54.

The longer the time a person spends in an environment that harbors the virus increases

his or her chance of contracting it. While a very short period of time may be enough for someone to

contract it if the viral load is heavy, a longer period of time in the presence of even a small amount of

virus increases the chance of infection.

55.

For contact tracing purposes to determine a high likelihood of exposure, “close contact”

is defined by the CDC as “any individual who was within 6 feet for more than 15 minutes of an infected

person starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to a positive

specimen collection) until the time the patient is isolated.19

56.

The most dangerous transmission scenarios are indoor environments with poor

ventilation in which people are close together. Research suggests that speech droplets which carry the

virus that causes COVID-19 can linger in the air in closed environments for 8 to 14 minutes.20 A study

currently under review found that among 1,245 cases during the COVID-19 outbreak in China, there

Medical Society, March 17, 2020), Available at:

https://www.nejm.org/doi/10.1056/NEJMc2004973 (last visited July 6, 2020). See also,

COVID-19 basics: symptoms, spread and other essential information about the new coronavirus

and COVID-19, Harvard Health Publishing, Harvard Medical School, updated July 2, 2020. (last

visited July 6, 2020).

Contact tracing for COVID-19, Centers for Disease Control and Prevention, Updated

June 17, 2020. Available at: https://www.cdc.gov/coronavirus/2019-ncov/php/contacttracing/contact-tracing-plan/contact-tracing.html (last visited July 6, 2020).

Valentyn Stadnytskyi, Christina E. Bax, Adriaan Bax, Philip Anfinrud. The airborne

lifetime of small speech droplets and their potential importance in SARS-CoV-2 transmission.

PNAS. May 2020, 202006874; DOI: 10.1073/pnas.2006874117

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was only one case of COVID-19 transmission that was in an outdoor environment, highlighting the

overwhelming predominance of COVID-19 transmission in indoor environments.21

57.

Wearing face masks helps to mitigate transmission of SARS-CoV-2, but does not

guarantee full protection. Even surgical masks, for example, block 75% of airborne particles, but not

all. 22 This is why medical personnel wear full coverage Personal Protective Equipment (PPE).

58.

When wearing non-N95 face masks, social distancing must be maintained to avoid

acquiring the virus. The two measures must be taken in combination – wearing a mask and social

distancing.

59.

Poorly ventilated spaces increase the likelihood of COVID-19 transmission. Some

airflow studies have found that respiratory droplets can travel between people even from 10 feet away,

suggesting that even the social distancing recommendation of 6 feet may be insufficient depending on

ventilation. 23 The Indiana State Department of Health warns that droplets expelled when a person

Hua Qian, Te Miao, Li Liu et al. Indoor transmission of SARS-CoV-2, medRxiv. April

2, 2020. Available at: https://doi.org/10.1101/2020.04.04.20053058 (last visited July 6, 2020).

Amy Mueller and Loretta Fernandez, Assessment of fabric masks as alternatives to

standard Masks in terms of particle filtration efficiency, medRxiv. April 17, 2020. Available at:

https://www.medrxiv.org/content/10.1101/2020.04.17.20069567v2.full.pdf (last visited July 6,

2020).

Feng Y, Marchal T, Sperry T, Yi H. Influence of wind and relative humidity on the

social distancing effectiveness to prevent COVID-19 airborne transmission: A numerical study

[published online ahead of print, 2020 May 18]. J Aerosol Sci. 2020;147:105585. Available at:

www.sciencedirect.com/science/article/pii/S0021850220300744?via%3Dihub (last visited July

6, 2020).

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infected with COVID-19 speaks, coughs, sneezes or speaks can travel up to 25 feet.24 Airflow direction

may also influence transmission.25

60.

Wearing a mask helps keep the person wearing it from spreading disease to another

(“source control”) but it does not confer much protection on the person wearing it unless it is an N95

mask.26

61.

N95 masks with vents, however, expel air so the wearer is protected but can still transmit

the virus.

62.

Because the virus can also enter one’s body through his or her eye membranes, no mask

confers complete protection.

63.

The onset and duration of viral shedding, which propagates spread, and the period

of infectiousness for COVID-19, are not well understood, and therefore, cannot be easily

prevented. Epidemiologists report that individuals who are contagious do not necessarily show

symptoms, either because they are asymptomatic (i.e. has a mild enough case of the virus that they

are unaware they have it) or because they are pre-symptomatic. A pre-symptomatic person will

go on to develop symptoms but can be infectious for up to 3 days before symptoms first develop.

State encourages Hoosiers to wear masks to help curb COVID-19, Indiana State

Department of Health, IN.gov. July 1, 2020. Available at:

https://calendar.in.gov/site/isdh/event/state-encourages-hoosiers-to-wear-masks-to-help-curbcovid-19/ (last visited July 6, 2020).

Lu J, Gu J, Li K, et al. COVID-19 Outbreak Associated with Air Conditioning in

Restaurant, Guangzhou, China, 2020. Emerging Infectious Diseases. 2020;26(7):1628-1631.

Available at: https://wwwnc.cdc.gov/eid/article/26/7/20-0764_article (last visited July 6, 2020).

Considerations for wearing cloth face coverings, Centers for Disease Control and

Prevention, updated June 28, 2020. Available at: https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/cloth-face-cover-guidance.html (last visited July 6, 2020).

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64.

The combined effect of asymptomatic and pre-symptomatic carriers is thought to

account for a substantial portion of SARS-CoV-2 transmission, with some estimates putting it at

between 50 to 80% of all transmission. 27

65.

Because asymptomatic and pre-symptomatic carriers are infectious at early stages

of infection, screening measures that do not include testing, such as restricting access to buildings

if someone has a fever or symptoms, do little to prevent the introduction of the virus into any

environment.

66.

The State of Missouri is the only jurisdiction in the United States that has carried

out an execution since the President declared COVID-19 a national emergency on March 13, 2020.

The Missouri prison where that execution occurred on May 19, 2020, experienced an outbreak of

21 COVID-19 infections in the weeks after the execution. 28

67.

Upon information and belief, the COVID-19 screening measures employed by BOP

at FCC Terre Haute, including USP Terre Haute, have been and continue to be inadequate.

Widespread testing of staff and inmates has not taken place at the correctional complex, and

asymptomatic individuals are not tested. In March 2020, the BOP employed a screening tool for

visitors, volunteers and contractors seeking entrance to a prison that asked the individual to selfreport if she had fever or chills, cough, or shortness of breath, and required a temperature check.

Gandhi, Yokoe, & Havlir, Asymptomatic transmission, the Achilles’ heel of current

strategies to control COVID-19, N Engl J Med 2020; 382:2158-2160. May 28, 2020. Available

at: https://www.nejm.org/doi/full/10.1056/NEJMe2009758?query=recirc_curatedRelated_article

(last visited July 6, 2020).

Bobby Radford, COVID-19 Outbreak Confirmed at Prison in Bonne Terre, Daily

Journal Online (June 19, 2020), https://dailyjournalonline.com/news/local/govt-andpolitics/covid-19-outbreak-confirmed-at-prison-in-bonne-terre/article_c7222072-e242-513d871a-c63a9c30cfbc.html (last visited July 7, 2020)

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The form also asked if the person had traveled within the previous 14 days to China, Iran, South

Korea, Italy, or Japan, or had had close contact with anyone “diagnosed” with the COVID-19

illness with the last 14 days. According to the BOP website, this remains the screening tool being

used for visitors to BOP prisons. See BOP Visitor/Volunteer/Contractor COVID-19 Screening

Tool 29 and BOP Implementing Modified Operations. 30

68.

The BOP also employs an inadequate staff screening tool that requires a

temperature check, and an employee self-report as to whether he or she has a “new on-set cough,”

“new onset trouble speaking because of needing to take a breath,” or “stuffy/runny nose.” With a

temperature above a certain designated point, the staff member is to be denied access. But with a

yes answer to the other screening questions, the staff member is only instructed to “contact the

medical officer on call for the Institution to provide Disposition.” See Coronavirus Disease 2019

(COVID-19) Staff Screening Tool, March 27, 2020. 31

69.

Based on data collected in a study conducted by the Indiana University Richard M.

Fairbanks School of Public Health, researchers estimated that 43% of all Indiana residents who

were currently infected showed no symptoms. IUPUI, ISDH release findings from 2nd phase of

COVID-19 testing in Indiana, June 17, 2020. 32

Available at: https://www.bop.gov/coronavirus/docs/covid19_screening_tool.pdf (last

visited July 5, 2020).

Available at: https://www.bop.gov/coronavirus/covid19_status.jsp (last visited July 5,

2020).

Available at:

https://www.bop.gov/coronavirus/docs/covid19_staff_screening_tool_v2.8_20200327.pdf (last

visited July 5, 2020.)

Available at: https://calendar.in.gov/site/isdh/event/iupui-isdh-release-findings-from2nd-phase-of-covid-19-testing-in-indiana/ (last visited July 5, 2020).

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70.

This number strongly suggests that a large percentage of those people who would

successively pass the BOP’s screening test and be admitted in its prisons would nevertheless have

an active case of COVID-19.

71.

Because individuals without symptoms transmit COVID-19, until a vaccine is

developed, the only effective screening measure is regular, rapid-result COVID testing for

everyone entering the facility. 33

In Order to Travel to Attend Mr. Lee’s Execution, Plaintiffs Will Be Exposed to

Considerable Risk of contracting COVID-19.

72.

In order to participate as witnesses to Mr. Lee’s execution, Plaintiffs will have to

undertake long distance interstate travel to and from Terre Haute, Indiana, where the execution

will take place. Because the execution is scheduled for the afternoon of Monday, July 13, 2020,

Plaintiffs will have to spend two nights in hotels. Plaintiffs Veillette and Gurel will have to travel

by air and will be riding in a small van provided by the Government, in which their ability to

maintain social distancing—from the driver, from each other, and from anyone else in the van—

will not be feasible. Plaintiffs Veillette and Gurel have been practicing social distancing during

the pandemic, both generally and from each other as well. Neither has been with Plaintiff Peterson

during the pandemic. Plaintiff Peterson will be driven to Terre Haute by her son who has multiple

sclerosis.

Gandhi, Yokoe, & Havlir, supra at n.27.

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73.

Travel has the potential to cause new outbreaks across the country. The outbreak of

COVID-19 in New York is estimated to be responsible for 60-65% of cases nationwide, and travel from

Seattle spread the virus to at least 12 different states.34

74.

The CDC has published “Considerations for Travelers – Coronavirus in the US,” which

cautions “staying home is the best way to protect yourself and others from getting sick.” (emphasis in

original). The list of considerations includes the following: “(a) You can get infected while traveling.

(b) Even if you don’t have symptoms, you can spread COVID-19 to others while traveling. (c) Being

within 6 feet of others increases your changes of getting infected and infecting others. (d) Individuals

who have an increased risk of severe illness from COVID-19 should limit their travel. (e) If you get

infected while traveling you can spread COVID-19 to loved ones when you return, even if you don’t

have symptoms.”35

75.

Every stage and mode of travel involves significant risks of exposure for the traveler.

According to the CDC, “airports, bus stations, train stations, and rest stops are all places travelers can

be exposed to the virus in the air and on surfaces. These are also places where it can be hard to social

distance (keep 6 feet apart from other people).”36

Benedict Carey and James Glanz, Travel from New York City Seeded Wave of U.S.

Outbreaks, The New York Times, May 7, 2020. Available at:

https://www.nytimes.com/2020/05/07/us/new-york-city-coronavirus-outbreak.html (last visited

July 6, 2020).

Considerations for Travelers – Coronavirus in the US, Centers for Disease Control and

Prevention, Updated June 28, 2020. Available at: https://www.cdc.gov/coronavirus/2019ncov/travelers/travel-in-the-us.html (last visited July 6, 2020).

Id.

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76.

Travel by car involves “[m]aking stops along the way for gas, food, or bathroom breaks

[which] can put you and your traveling companions in close contact with other people and surfaces.” 37

77.

All airports pose a risk of COVID-19 due to the need to stand in security lines, as well

as exposure to high contact surfaces, close proximity to others, and spending extended periods of time

in an indoor environment.38

78.

The amount of time spent in airports in cities with higher cases counts increases one’s

risk of exposure to an infected person or surface.

79.

This means traveling from, laying over, and arriving into cities with higher case counts

increases one’s risk of exposure, as well.

80.

Air travel itself, separate from the hazards of being in airports, can lead to numerous

risks of transmission.

81.

The risk of transmission inside an airplane depends in small part on the number of

individuals on a plane, and the amount of space left between them, but, according to at least one airline

executives, social distancing is largely impossible on planes.39

Id.

Where some airlines have promised to block middle seats as a safety precaution, Josh

Earnest, United’s chief communications officer, said on July 1 that blocking middle seats is just

a public relations strategy. “When you’re onboard the aircraft, if you’re sitting in the aisle, and

the middle seat is empty, the person across the aisle is within six feet from you, the person at the

window is within six feet of you, the people in the row in front of you are within six feet of you,

the people in the row behind you are within 6 feet of you.” Chris Fuhrmeister, Delta reiterates

middle-seat policy after criticism from United, Atlanta Business Chronicle, July 1, 2020.

Available at: https://www.bizjournals.com/atlanta/news/2020/07/01/delta-blocking-middle-seatunited-criticism.html (last visited July 5, 2020). In other words, there is no way to social

distance on commercial airlines.

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82.

Universal mask wearing, especially on long flights during which passengers must

remove their masks to eat or drink, is largely unenforceable. Air circulation on planes may not be

uniform or subject to the control of an individual passenger. A fellow traveler, for example, may choose

to increase the air flow from his personal vent or point it away from himself, towards another passenger.

83.

Taking cabs and other car services leads to close contact with the driver, who may

spread the virus. A study from Zhuhai, China found that sharing a car with someone infected

significantly increased the risk of that person then becoming infected. 40 In addition, if cab owners

do not wipe down the interior after each passenger, there may be residual risk of infection from

the prior trip.

84.

The risk of infection from using public restrooms varies, depending on how often

and how thoroughly they are cleaned. However, the distance between bathroom stalls and sinks

may not provide adequate distancing, especially in an environment that may seem private enough

for one to remove his or her mask. And, as noted earlier, new information indicates that COVID19 may also be transmissible through aerosolized fecal contact.

85.

The risks from staying in a hotel includes the virus remaining on surfaces if rooms

were not properly cleaned. This may occur if staff who clean the rooms are infected but are not

taking proper precautions (wearing a mask, washing their hands, etc.) or are engaging in any

improper cleaning practices (using cleaners that are too weak, for instance). 41

Jian Wu et al., “Household Transmission of SARS-CoV-2, Zhuhai, China, 2020,”

Clinical Infectious Diseases: An Official Publication of the Infectious Diseases Society of

America, May 11, 2020, Available at: https://doi.org/10.1093/cid/ciaa557 (last visited July 6,

2020).

Maggie O’Neill, Is it safe to stay in a hotel during COVID-19? What you need to know

before you plan a vacation, Health, May 22, 2020. Available at:

https://www.health.com/condition/infectious-diseases/coronavirus/is-it-safe-to-stay-in-a-hotel21

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86.

During check-in, as well, it may be difficult to remain 6 feet or more from others,

including guests and staff. It may also be difficult to avoid elevators which present a risk of

infection, as they are a close, confined space. Individuals who are infected may touch the buttons

or join others in the elevator, thus exposing others to the virus.

87.

It is presumably for these reasons that federal government agencies, including the

DOJ and the BOP suspended most official travel. See Federal Bureau of Prisons COVID-19

Action Plan: Agency-wide Modified Operations, March 13, 2020; 42 Memorandum from Lee

Lofthus, Assistant Attorney General for Administration to Heads of Department Components and

United States Attorneys, U.S. Department of Justice, Justice Management Division, May 18,

2020. 43 See also, Federal Judiciary COVID-19 Recovery Guidelines, at p. 9, April 24, 2020

during-covid-19 (last visited July 6, 2020). See also Coronavirus Disease 2019 (COVID-19)

Personal and Social Activities, Centers for Disease Control and Prevention, updated June 15,

2020. Available at: https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/personalsocial-activities.html#hotel (last visited July 6, 2020).

Available at: https://www.bop.gov/resources/news/20200313_covid-19.jsp (last

visited July 5, 2020).

Available at: https://www.justice.gov/doj/page/file/1284406/download (last visited

July 5, 2020). In this memorandum, it was announced that “[o]nly essential travel is permissible

in Phase 1. Staff traveling to areas that still have significant levels of COVID-19 cases must

follow the CDC quarantine guidelines before returning to the office. … [T]ravel to significant

outbreak areas should be considered only in light of the state/locality operating announcements

and, as noted above, travelers are subject to the CDC post-travel isolation guidelines. As a

general matter, routine travel for discretionary training, events, conferences, speeches and the

like should continue to be postponed in Phase 1 and Phase 2 (considering both departure points

and destinations). … In July we will assess whether we can more broadly return to in-person

even scheduling and travel.” (emphasis added.)

In this same memorandum, DOJ “recognizes that some employees are in vulnerable

populations or may be at higher risk for severe illness, or are caring for family members or others

in these groups. . . . Those at higher risk for severe illness include individuals who are over 65

years of age and people of all ages with underlying medical conditions, particularly if not well

controlled, including those who suffer from chronic lung disease, moderate to severe asthma,

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(requiring employees to maximize physical distance from others; instructing all vulnerable

individuals so continue teleworking, including employees who live with or provide care for

vulnerable individuals to “reduce chances that they could carry the virus to these vulnerable

individuals,” and notably, “MINIMIZE PERSONAL TRAVEL (i.e., leisure travel, non-business

related) and adhere to CDC guidelines and local state orders regarding travel destination and

potential for self-isolation upon return.” 44

VI.

Attending Mr. Lee’s Execution Will Place Plaintiffs at Great Risk of Contracting

COVID-19.

88.

Plaintiff Earlene Branch Peterson is 81 years old and has congestive heart failure.

She lives in Hector, Arkansas, at a distance of roughly 500 miles from FCC Terre Haute.

89.

Plaintiff Kimma Gurel is over 60 years old and has underlying health conditions

that put her at increased risk. She lives in Spokane Valley, Washington, a distance of more than

2,000 miles from FCC Terre Haute.

90.

Plaintiff Monica Veillette has asthma. She lives in Deer Park, Washington, a

distance of roughly 2,000 miles from FCC Terre Haute.

91.

As noted above, the greatest risks for transmission of COVID-19 result from

spending time in an enclosed indoor space without the ability to maintain social distancing and

where one is in contact with someone who has the virus. Wearing masks does not protect the

serious heart conditions, immune disorders, obesity, diabetes, or chronic kidney or liver disease

should work with supervisors to continue telework.” These employees are to be afforded

workplace flexibilities to “help reduce the chances that they could carry the virus to these

vulnerable individuals.”

Available at: https://www.fedbar.org/wp-content/uploads/2020/04/Federal-JudiciaryCOVID-19-Recovery-Guidelines.pdf (last visited July 5, 2020).

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wearer, and one’s eye membranes are an entry point for the virus. Sharing toilet facilities creates

additional risk, as fecal matter may be aerosolized when one flushes a toilet, and surfaces within a

bathroom may become contaminated.

92.

For the Plaintiffs to witness Mr. Lee’s execution, they would of necessity be in

contact with many other people in close proximity to them.

93.

Upon information and belief, Plaintiffs will not be permitted to come to the prison

grounds on their own but will be escorted there by BOP personnel.

94.

Upon information and belief, Plaintiffs will be brought into the main prison and

kept there for some period of time before being escorted to the execution facility.

95.

Prisons are known to have poor infection control mechanisms available, and are

often hotspots for infectious diseases, including SARS-CoV-2, as well as HIV, tuberculosis,

hepatitis viruses, influenza, and others. 45

96.

As with other contaminate environments, like nursing homes, to receive basic

necessities, prisoners are required to interact with numerous correctional officers daily: to receive

food, receive medication, be let outside into recreational facilities. One infected correctional

officer can spread infections between different areas of the prison.

Joseph A. Bick, “Infection Control in Jails and Prisons,” Clinical Infectious Diseases:

An Official Publication of the Infectious Diseases Society of America 45, no. 8 (October 15,

2007): 1047–55, https://doi.org/10.1086/521910; C. Raina MacIntyre et al., “Impact of

Tuberculosis Control Measures and Crowding on the Incidence of Tuberculous Infection in

Maryland Prisons,” Clinical Infectious Diseases 24, no. 6 (June 1, 1997): 1060–67,

https://doi.org/10.1086/513632; Masoud Dara et al., “Tuberculosis Control in Prisons: Current

Situation and Research Gaps,” International Journal of Infectious Diseases, Special Issue:

Commemorating World Tuberculosis Day 2015, 32 (March 1, 2015): 111–17,

https://doi.org/10.1016/j.ijid.2014.12.029.

Case 2:20-cv-00350-JMS-DLP Document 1 Filed 07/08/20 Page 25 of 29 PageID #: 25

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97.

As noted above, the screening of staff conducted at FCC Terre Haute, including

USP Terre Haute, does not provide adequate measures to detect infected staff members or other

personnel with whom Plaintiffs might have to interact.

98.

It is evident the screening measures at FCC Terre Haute, including USP Terre

Haute, have permitted the virus to gain entry there because prisoners have contracted the virus,

and at least one inmate has died of COVID-19. 46

99.

The Government’s plan for the execution involves “activation of the execution

team, which consists of 40 BOP staff members,” who normally conduct a “wide range of

correctional and administrative positions” and who will spend several days before the execution

practicing and preparing for the execution. 47

100.

In addition to the 40 members of the execution team, the BOP protocol involves

approximately 200 FCC Terre Haute staff who will perform security and support for the

execution. 48 These staff are “pulled away from their normal duties,” including, for example,

preparation of prisoners’ meals. 49 The plans for the execution also involve specialized BOP teams

with 50 individuals traveling to FCC Terre Haute from other prisons. 50 Approximately 300 BOP

COVID-19 Cases, BOP.gov, July 5, 2020. Available at:

https://www.bop.gov/coronavirus/ (July 6, 2020).

See In re Matter of Federal Bureau of Prisons’ Execution Protocol Cases, No. 1:19mc-145-TSC, Declaration of Rick Winter (“Winter Dec.”), ECF No. 54 (D.D.C. No. 21, 2019),

¶5.

Id. at ¶8.

Id.

Id. at ¶10.

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and FCC Terre Haute staff will be supplemented by additional staff from various federal, state,

and local law enforcement agencies to provide additional security. 51 Many of these individuals

will be traveling by air and staying in local hotels. 52

101.

The execution protocol requires the Director of the BOP to select eight witnesses

to the execution, including members of the victim’s family. 53 Plaintiffs will thus presumably be in

the company of any other individuals selected, who will likely also have been involved in interstate

transit to attend the execution, and who will not have been in quarantine prior to being in close

quarters with Plaintiffs.

102.

The execution “house,” which consists of several small, cramped rooms, is located

on the FCC Terre Haute grounds. 54 It is a small, single story building, like a small home. 55 For the

execution, witnesses, including the Plaintiffs, are shuttled in a small van to the facility from the

main correctional complex, to clear a security checkpoint. 56 They are then escorted by BOP

personnel through separate entrances to four small, cramped viewing rooms for each of the various

groups of witnesses, including a room for media, a room for Government witnesses, and a room

for the victims’ family members—to witness the execution. 57

Id. at ¶7.

Id. at ¶5.

See Exh. A, Ch. 1, III.G.1.c.(1), 10-11.

See Motion for Preliminary Injunction, Hartkemeyer v. Barr, et al., No. 2:20-cv-0036JMS-MJD (S.D. Ind. July 2, 2020), Exh. D, Declaration of Timothy Floyd, ¶¶ 4-5.

Id.

Id. at ¶¶ 4, 9.

Id. at ¶9.

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103.

At each stage of these proceedings, which are likely to last several hours, Plaintiffs

will be in the company of Defendants’ staff and other witnesses in circumstances during which

social distancing is not possible.

104.

At each stage of these proceedings, which are likely to last several hours, Plaintiffs

will be captive participants, unable to walk away if their escorts, other personnel, or other witnesses

remove their masks, and/or potentially exposed to COVID-19 due to its being on hard surfaces.

105.

At each stage of these proceedings and their travel to participate in them, Plaintiffs

face grim risks of exposure to COVID-19, a disease which for these vulnerable Plaintiffs, could

prove lethal.

Cause of Action

Agency Action in Violation of 5 U.S.C. § 706(2)(A)

106.

Plaintiffs reallege and incorporate by references all of the preceding paragraphs of

the Complaint as if they were set forth fully below.

107.

The APA states that a reviewing court “shall … hold unlawful and set aside agency

action” that is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.SC. §706(2)(A).

108.

The agency action here — the setting of Mr. Lee’s execution date for July 13, 2020

— is both (1) arbitrary and capricious; and (2) “not in accordance with law.”

109.

Defendants acted arbitrarily and capriciously because, in setting Mr. Lee’s

execution date, they failed to consider important issues, including the effect of COVID-19 on

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Plaintiffs’ rights to attend the execution. As alleged above, Defendants have directly impaired

such rights because Plaintiffs can attend the execution only if they put their own lives at risk.

110.

Defendants’ action is also “not in accordance with law” because it effectively

nullifies 28 U.S.C. § 26.4, which, in combination with the Protocol, states that Plaintiffs are

entitled to attend Mr. Lee’s execution. As a result of Defendants’ action, Plaintiffs’ rights to the

attend the execution have been rendered illusory.

111.

Defendants easily could have avoided the foregoing violations of the APA by

delaying the setting of Mr. Lee’s execution date until such time as the COVID 19 abates

sufficiently so as to allow for safe travel and indoor gathering or there is an effective vaccine.

However, without good cause, Defendants have refused to change Mr. Lee’s execution date.

112.

An actual controversy exists between the parties regarding Defendants’ action and,

pursuant to 28 U.S.C. § 2201 and Fed. R. Civ. P. 57, Plaintiffs request that the Court declare their

rights in connection with the setting of Mr. Lee’s execution date.

113.

Accordingly, the Court should hold that Defendants have acted unlawfully, in

violation of 5 U.S.C. § 706(2)(A), and it should issue a declaratory judgment setting aside

Defendants’ selection of July 13, 2020 as Mr. Lee’s execution date.

114.

In addition, the Court should enter injunctive relief, pursuant to 28 U.S.C. § 2202

and Fed. R. Civ. P. 65, barring Defendants and their agents from establishing a new execution date

until they demonstrate to the Court that Plaintiffs will not be exposed to an undue health risk by

attending Mr. Lee’s execution.

Request for Relief

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their

favor and that the Court:

Case 2:20-cv-00350-JMS-DLP Document 1 Filed 07/08/20 Page 29 of 29 PageID #: 29

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a. Grant a declaratory judgment finding that carrying out Mr. Lee’s execution during a

pandemic caused by SARS-CoV-2 and national health emergency without a vaccine or

treatment available for COVID-19 infringes on and constructively prevents Plaintiffs’

exercise of their legal right to attend the execution;

b. Grant a declaratory judgment finding that the scheduling of Mr. Lee’s execution during a

national health emergency that creates substantial health risks to Plaintiffs is arbitrary and

capricious action, and set aside the warrant of execution;

c. Grant injunctive relief prohibiting the BOP from carrying out the execution until

treatment or a vaccine is available;

d. Award attorney’s fees and costs as the Court deems equitable and just; and

e. Award such other and further relief as the Court deems equitable and just.

Respectfully submitted

/s/ H. Baker Kurrus

H. Baker Kurrus, PLLC

10816 Crestdale Lane

Little Rock, AR 72212

Phone: (501) 831-0325

Email: Bkurrus@aol.com

Arkansas Bar No. 80082

Attorney for Plaintiffs

Dated: July 7, 2020

Case 2:20-cv-00350-JMS-DLP Document 28-1 Filed 07/10/20 Page 1 of 3 PageID #: 320

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

EARLENE PETERSON

KIMMA GUREL

MONICA VIELLETTE

Plaintiffs,

WILLIAM P. BARR, in his official

capacity as the Attorney General of the

United States; MICHAEL CARVAJAL, in

his official capacity as the Director of the

Federal Bureau of Prisons; and T.J.

WATSON, in his official capacity as

Complex Warden for Terre Haute Federal

Correctional Complex,

Defendants.

)

Case No. 2:20-cv-00350-JMS-MJD

DECLARATION OF RICK WINTER

I, Rick Winter, do hereby declare and state as follows:

I am employed by the United States Department of Justice, Federal Bureau of Prisons

(“BOP”), as Regional Counsel for the BOP’s North Central Region. I have held this

position since October 2016. I have been employed by the BOP since 1994.

The statements I make hereinafter are made on the basis of my review of the official files

and records of the BOP, my own personal knowledge, or on the basis of information

acquired by me through the performance of my official duties.

The BOP, under the supervision of the United States Marshals Service, is responsible for

implementing federal death sentences. See 18 U.S.C. § 3596(a); 28 C.F.R. Part 26.

Currently, execution dates are in place for four inmates. Specifically, Daniel Lee’s

execution is scheduled to occur on July 13, 2020; Wesley Purkey’s execution is scheduled

Case 2:20-cv-00350-JMS-DLP Document 28-1 Filed 07/10/20 Page 2 of 3 PageID #: 321

Appx55

to occur on July 15, 2020; Dustin Honken’s execution is scheduled to occur on July 17,

2020; and Keith Nelson’s execution is scheduled to occur on August 28, 2020.

In advance of these dates, the BOP has been, and intends to continue, making necessary

arrangements.

Such arrangements include the activation of the execution team, which consists of

approximately 40 BOP staff members. These staff members, by necessity, have been

removed from their normal duties, which include a wide range of correctional and

administrative positions within the BOP.

Pursuant to the current operational plan,

cessation of normal duties occurs several days in advance of a scheduled execution, in

order to give the team time to practice and prepare for their role in an execution. In addition

to the team members, a number of BOP administrators will be present as well. They also

ceased their normal duties in the days in advance of an execution. Logistical items such as

travel, lodging and personal arrangements have already been completed for the three

execution dates in July.

Also, the BOP plans to use contractors who have made themselves available and have made

necessary arrangements for personal and work related matters based on the executions

scheduled in July and August. If the current execution dates are stayed, it is likely that

both contractors will need at least one month’s notice in order to be able to reschedule.

Executions will take place at the Federal Correctional Complex at Terre Haute, Indiana

(FCC Terre Haute). Accordingly, FCC Terre Haute is also mobilizing personnel in

preparation of the currently scheduled executions, and has also been coordinating with

federal, state, and local law enforcement agencies, some of who plan to send personnel to

FCC Terre Haute to help maintain security for the currently scheduled executions.

Approximately 100 BOP staff will serve as institution security and support during an

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Appx56

execution. With its staff pulled away from their normal duties, FCC Terre Haute will not

be able to operate under normal conditions. For example, due to expected staffing issues

and changes in security procedures, FCC Terre Haute will not be able to prepare inmate

meals in the ordinary fashion. Instead, the institution plans to prepare food in advance for

its approximately 2,500 inmates. This alteration in meal preparation comes at a greatly

increased cost to BOP.

Additionally, FCC Terre Haute has made arrangements for specific needs related solely to

an execution, for example contracting for buses which will be used to transport public

demonstrators who wish to assemble.

10.

Schedules for FCC Terre Haute staff members have been created, allocating staff based on

current execution dates. For additional security and support, specialized BOP teams such

as Special Operations Response Teams (SORT) and Disturbance Control Teams (DCT)

will travel to FCC Terre Haute from other BOP institutions. These teams consists of

approximately 50 individuals. Again, logistical arrangements such as travel and lodging

have already begun for the current execution dates.

11.

Additionally, BOP has made travel and lodging arrangements for the victims’ family

members to attend the July executions.

12.

Any adjustment to the execution dates would require significant planning and coordination

such as that has been undertaken by BOP to date.

I declare, under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and

correct.

Executed this 9th day of July, 2020.

IjiuZisis CuL)

Rick Winter

Federal Bureau of Prisons

Case 2:20-cv-00336-JMS-DLP Document 51-1 Filed 07/08/20 Page 1 of 4 PageID #: 625

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

)

DALE HARTKEMEYER (AKA SEIGEN) )

)

Plaintiff,

)

WILLIAM P. BARR, ET AL,

)

Defendants.

)

Case No. 2:20-cv-00336-JMS-DLP

DECLARATION OF RICK WINTER

I, Rick Winter, do hereby declare and state as follows:

I am employed by the United States Department of Justice, Federal Bureau of Prisons

(“BOP”), as Regional Counsel for the BOP’s North Central Region. I have held this

position since October 2016. I have been employed by the BOP since 1994.

The statements I make hereinafter are made on the basis of my review of the official files

and records of the BOP, my own personal knowledge, or on the basis of information

acquired by me through the performance of my official duties.

The BOP, under the supervision of the United States Marshals Service, is responsible for

implementing federal death sentences. See 18 U.S.C. § 3596(a); 28 C.F.R. Part 26. The

BOP undertakes its role in accordance with the BOP Execution Protocol, see ECF No. 331, Declaration of Rick Winter (July 7, 2020), Ex. A-1, unless the Director or his designee

determines that deviation is required. Daniel Lewis Lee is a condemned inmate whose

execution is scheduled to occur on July 13, 2020, at the United States Penitentiary at Terre

Haute, Indiana (USP Terre Haute).

I am aware that Earlene Branch Peterson, Kimma Gurel, and Monica Veillette have been

Case 2:20-cv-00336-JMS-DLP Document 51-1 Filed 07/08/20 Page 2 of 4 PageID #: 626

Appx58

designated as witnesses for purposes of the execution on July 13, 2020. 28 C.F.R.

§ 26.4(c)(4)(i).

The Government announced the re-scheduling of Mr. Lee’s execution on June 15, 2020.

Ms. Branch Peterson, Ms. Gurel, and Ms. Veillette were informed of that date shortly after

it was publicly announced in order to begin their travel arrangements.

I am aware that in the above referenced lawsuit Ms. Branch Peterson, Ms. Gurel, and Ms.

Veillette (Proposed Intervenors) seek to intervene as plaintiffs and allege that because of

their age and health conditions, and because of the number of BOP staff members and other

individuals expected to be present at the execution, they would be subject to an

unacceptably high risk of exposure to COVID-19 if they choose to attend the execution.

However, despite the large number of individuals expected to be present at Mr. Lee’s

execution, Proposed Intervenors will have very limited interactions with the vast majority

of them. There are also numerous mitigation measures in place to avoid the spread of

COVID-19.

The Terre Haute Federal Correction Complex (FCC Terre Haute) consists of USP Terre

Haute, as well as a Federal Correctional Institution (FCI Terre Haute) and a prison camp.

Staff are required to pass a temperature check and symptom screening daily before being

allowed on the grounds of FCC Terre Haute. All BOP staff are required to wear face

masks. FCC Terre Haute will continue its screening procedures for all individuals arriving

at the FCC.

If Proposed Intervenors choose to attend Mr. Lee’s execution, they will have no interaction

with any inmates or members of the public other than possible limited interaction with the

rest of the witness group comprised of only the family members of Mr. Lee’s victims.

10.

As to their interaction with BOP employees, while the execution team consists of

Case 2:20-cv-00336-JMS-DLP Document 51-1 Filed 07/08/20 Page 3 of 4 PageID #: 627

Appx59

approximately 40 BOP staff members, the vast majority of them have assignments in areas

other than where Proposed Intervenors will be located. Similarly, while approximately 100

BOP staff members and approximately 50 members of specialized teams will have various

roles in the overall security of FCC Terre Haute, the vast majority will have duties which

will not cause them to have any interaction with Proposed Intervenors.

11.

On the day of the execution, Proposed Intervenors will be picked up by BOP staff from a

designated location off FCC Terre Haute grounds. Passengers in the vehicle will include

Proposed Intervenors and members of their immediate family. Upon being picked up, they

will be given the opportunity to utilize Personal Protective Equipment (“PPE”) in the form

of a surgical face mask, gloves, a gown, and a plastic face shield. BOP staff will be wearing

face masks. Proposed Intervenors will be escorted to FCC Terre Haute and through

security to a staging area on FCC Terre Haute property. At the staging area, they will have

access to hand sanitizer and a restroom with a sink and hand soap. The individuals at the

staging area will include Proposed Intervenors, their immediate family members, three

other witnesses from the family of Lee’s victims and approximately four BOP staff

members. The staging area allows for ample social distancing.

12.

At the appropriate time, those witnesses who have chosen to witness the execution will be

escorted to the execution facility witness room. Of the three proposed intervenors, only

Ms. Veillette has elected to do so. She will be accompanied in the witness room by two

additional witnesses, who will have access to PPE, and a small number of BOP staff, who

will be wearing face masks. Hand sanitizer will be available and the witnesses will have

access to a sink with hand soap. Ms. Branch Peterson and Ms. Gurel have elected to remain

in the staging area during the execution.

13.

At the conclusion of the execution, Ms. Veillette and the other witnesses in the execution

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Appx60

facility witness room will be escorted back to the staging area. Then the rest of their group

will be picked up and the group will be escorted back to the designated area where they

were initially picked up.

I declare, under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true

and correct.

Executed this 8th day of July, 2020.

(trc)

Rick Winter

Federal Bureau of Prisons

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Appx61

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

EARLENE BRANCH PETERSON, KIMMA GUREL,

and MONICA VEILLETTE,

Plaintiffs,

Case No. 2:20-cv-00350-JMS-DLP

WILLIAM P. BARR, in his official capacity as

Attorney General of the United States; MICHAEL

CARVAJAL, in his official capacity as Director of the

Federal Bureau of Prisons; and T.J. WATSON, in his

official capacity as Complex Warden for Terre Haute

Federal Correction Complex,

Defendants.

AFFIDAVIT OF EARLENE BRANCH PETERSON

Earlene Branch Peterson, after being duly, sworn, hereby deposes and states

as follows:

1. My name is Earlene Branch Peterson. I am 81 years old, and reside in

Hector, Arkansas.

2. I am the mother of the late Nancy Mueller, and the grandmother

of the late Sarah Elizabeth Powell.

3. I attended every day of the trial of Daniel Lee in the federal

Case 2:20-cv-00350-JMS-DLP Document 17-1 Filed 07/09/20 Page 2 of 5 PageID #: 189

Appx62

courthouse in Little Rock, Arkansas except for one day when I was so ill that I had

to be hospitalized. I think about my daughter and granddaughter every day, and I

pray for them every day. I am not at peace, and my prayer is that peace will come

to me somehow when this is over.

4. I am under the care of a doctor for a number of heart problems. I

have had a heart attack that damaged my heart, and I have had open-heart

surgery. I have congestive heart failure at this time, and I must take medications

for my conditions. My doctor has advised me to remain at home and avoid personal

contact with others due to the COVID-19 pandemic.

5. I have not left my home county of Pope County, Arkansas, since

I became aware of the COVID-19 pandemic sometime in February. In normal times

I am able to travel, but during this pandemic I am not doing so.

6. I have been homebound since March 10, 2020, when I first became aware

that COVID-19 was present in Arkansas. I have been advised by my doctor to be

very careful about contact with others. I live with my son Paul Branch, and I have

seen my sister, but I am limiting my contact with others. My neighbor who is a

Certified Nursing Assistant has been getting my groceries and medicine for me and

delivering these necessities to me at home. I am very fearful of the virus due to my

age, my medical conditions, and the advice of my doctor. I bought a full tank of gas

for my car on March 10, and my tank is still full because I have not been going out

almost at all for four months.

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7. As victims in the Kehoe-Lee murder case, our family was given

the opportunity to receive notices and updates regarding the status of the cases, and

the punishment of the convicted. My daughter Kimma Gurel, my niece Monica

Veillette and I requested to be witnesses to the execution Daniel Lewis Lee set for

December of 2019. We were notified that we had been granted that right. Monica

helped with the arrangements with the people from the prison.

8. Monica and Kimma made plans to go to the witness room at the prison. I

was not sure I wanted to do that, but I began to make plans to go to Terre Haute

because I wanted to be with my family, and I was considering going to the prison.

In the meantime I had a medical issue, and the execution was cancelled.

9. When Danny Lee was scheduled to be executed in December, 2019, I was

making plans to travel to Terre Haute. Terre Haute, Indiana is about 580 miles

from Hector, Arkansas. My son Paul was planning to drive me to the prison. Paul

has multiple sclerosis. He is able to drive safely, but he and I are not able to make

long trips in one day. We planned to make the drive in two days, with one night of

rest in a hotel along the way. We planned to spend another night in Terre Haute,

and then return home with another night’s stay in a hotel. This planning stopped

when I had a medical problem, and when the execution was halted.

10. I was never asked by anyone from the prison or the government

about my ability to travel to the execution scheduled for July 13, 2020. If the

pandemic were not going on I would go to the execution. If I were to go now I would

have to violate my doctor’s orders to make the trip. Paul and I would have to travel

Case 2:20-cv-00350-JMS-DLP Document 17-1 Filed 07/09/20 Page 4 of 5 PageID #: 191

Appx64

by car across four states to Terre Haute to the prison there. We would have to stop

at least every two hours so I could walk because of my congestive heart failure. We

would also have to stop for gas and for meals. I would have to spend a total of three

or four nights in hotels. I would be exposed to the virus at all of these locations. I

would then be exposed at the prison to numerous people who are also in contact

with other prisoners. Monica told me that we would not be able to maintain social

distance at the prison. I could do these things during normal times, but not during

the pandemic.

11. I feel as if my right to attend this execution was taken away from

me when the date was set during the pandemic, which is getting worse. I am now

faced with an impossible choice of either not exercising my right to attend the

execution, or traveling in dangerous conditions which could cause me to become

very sick, or even die.

12. I want to attend this execution at a time when it is safe for people to

travel. Although I have some medical issues, I can travel if the conditions are not

especially dangerous.

13. I pray every day for my lost daughter and granddaughter. As a mother I

feel very sorry for Daniel Lewis Lee’s mother. I hope somehow by attending I can

find some peace. Right now I am not at peace.

I declare under penalty of perjury that the foregoing is true and accurate.

Case 2:20-cv-00350-JMS-DLP Document 17-1 Filed 07/09/20 Page 5 of 5 PageID #: 192

Appx65

Executed on July 9, 2020.

_/s/ Earlene Branch Peterson

Earlene Branch Peterson

Case 2:20-cv-00350-JMS-DLP Document 17-2 Filed 07/09/20 Page 1 of 4 PageID #: 193

Appx66

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

EARLENE BRANCH PETERSON, KIMMA GUREL,

and MONICA VEILLETTE,

Plaintiffs,

Case No. 2:20-cv-00350-JMS-DLP

WILLIAM P. BARR, in his official capacity as

Attorney General of the United States; MICHAEL

CARVAJAL, in his official capacity as Director of the

Federal Bureau of Prisons; and T.J. WATSON, in his

official capacity as Complex Warden for Terre Haute

Federal Correction Complex,

Defendants.

AFFIDAVIT OF MONICA VEILLETTE

Comes now Monica Veillette, who after being first duly sworn, deposes and

states as follows:

1. My name is Monica Veillette. I am over the age of eighteen

years, of sound mind, and reside in Spokane, Washington.

2. My grandmother is Earlene Branch Peterson, who is the mother

of the late Nancy Mueller. My mother is Kimma Gurel, who is the late Nancy

Mueller’s sister. Therefore, I am the niece of the late Nancy Mueller, and the cousin

of the late Sarah Elizabeth Powell.

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Appx67

3. As a family member of the victims in the murder case involving

Daniel Lewis Lee, I have had numerous interactions with the Bureau of Prisons in

connection with the planned executions of Daniel Lewis Lee. I basically acted as

the family liaison to the Bureau of Prisons because I am more easily reached than

the others, and more technologically oriented than my mother or my grandmother.

4. Our family registered with the federal Victim Notification

Program to receive notices and updates with respect to the crimes involving our

family. When the first execution date for Daniel Lewis Lee was set, someone first

called my grandmother and told her about the upcoming execution. She understood

that representatives of our family had the right to attend.

5. My grandmother, my mother and I decided to go to Terre Haute.

We were all granted this right, and Mr. Steve Markle was the primary person who

worked with us regarding the arrangements for the trip. Although my grandmother

decided she probably did not want to be in the witness room, she did want to be

with our family in some place close by in Terre Haute. The final arrangements

were never made because the execution was called off. Although my grandmother

was involved in some of the discussions, I also began to be involved in the matters

relating to travel to the first execution.

6. When the second execution date was set, Mr. Steve Markle called

me directly to discuss it. My grandmother I believe had also told him to contact me

about her arrangements. I immediately expressed to him my concern about the

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COVID-19 pandemic for my grandmother, my mother, and myself. I believe my

grandmother also did so with him directly.

7. I have asthma, and am under a doctor’s care for it. I have

medication for treatment of asthma. When the pandemic started, my asthma

specialist called me and warned me to be extremely careful during the pandemic.

She advised me to adhere to Washington’s stay at home order. She said that I

should not travel, that I should avoid any crowds, and that I should always social

distance. I also have Centralized Sensitization Disorder (fibromyalgia). Because of

my health conditions I have not traveled during the pandemic, and I have been very

careful in every way. I always wear a mask in public places. Even when I visit my

mother I maintain social distance, wear a mask, and avoid any personal contact

with her.

8. Shortly after the second execution date was set I spoke with Mr.

Markle several times. I asked him very specifically about how my family could be

protected when at the prison. He told me that it would be impossible to maintain

social distancing at the witness room, in the hallways, in the transport vans, at

checkpoints and at other areas in the prison.

9. I asked Mr. Markle to send me something in writing describing

what measures the prison was going to take to keep me, my mother and my

grandmother safe so I would be sure and could share that with my family. I have

not ever received anything from him or anyone else which gave me any assurances

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regarding the safety of our family. I specifically remember that Mr. Markle told me

he could not send me anything in writing because it would be “discoverable.” I did

not know what that meant. When I asked him he said that anything he sent might

be used in court, and therefore he could not send me anything.

10. I am likewise very concerned about travel from Spokane,

Washington to Terre Haute during the pandemic. Spokane has recently had a big

uptick in coronavirus cases. I know that my mother and I would have to fly from the

Spokane airport first to a major airport, probably in Denver or California, and then

change planes one or more times to get to Indianapolis. I understood from Mr.

Markle that we would then have a trip in a transport of some kind to get to Terre

Haute.

11. The dangers to me and my family with respect to travel to Terre

Haute, staying a hotel, riding in transports, being inside the prison, being in the

witness room and the other areas are such that I and my family are being denied

our rights to attend this execution. I (like my family members) am being forced to

make a choice between protecting my health by following my doctor’s orders, or

risking my health in order to assert my right to attend the execution which, by its

very nature, will only happen once.

I declare under penalty of perjury that the foregoing is true and accurate.

Executed on July 9, 2020.

/s/ Monica Veillette

Monica Veillette

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1016

BOP EXECUTION PROTOCOL

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t*r

SENSITIVE - LIMITED OFFICIAL USE ONLY

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Designation of Persons Required to Assist with the Execution

1025

Those persons necessary to carry out the execution will be

identified.

The Warden, with the assistance of the Director, USMS, and

the Director, BOP, will be responsible for identifying,

selecting and obtaining the services of the individuals

administering the lethal injection.

The Warden, in conjunction with the Regional Director, is

responsible for selection of the local staff involved in

perimeter security, transportation, and command post

operations, as well as crowd control, support functions and

access screening.

All individuals identified for placement in vital or important positions

and identified alternates, will be attired in a uniform as determined

by the presiding Regional Director.

No officer or employee of the Department of Justice will be required

to be in attendance at or participate in any execution if such

attendance or participation is contrary to the moral or religious

convictions of the officer or employee. Staff participation in the

execution process must be on a voluntary basis.

Other Approved Witnesses

In addition to the United States Marshal designated by the Director

of the USMS (hereafter called the “Designated United Sates

Marshal”) and the Warden, the following persons will be present at

the execution.

Necessary personnel selected by the Designated United

States Marshal and the Warden.

Those attorneys of the Department of Justice whom the

Deputy Attorney General determines are necessary.

Not more than the following members of persons selected by

the Warden:

(1)

Up to eight citizens (in identifying these individuals,

the Warden, no later than 30 days after the setting of

an execution date, will ask the United States Attorney

for the jurisdiction in which the inmate was prosecuted

to recommend up to eight individuals who are victims

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1026

or victim family members to be witnesses of the

execution); and

(2)

Ten representatives of the press.

No other person will be present at the execution unless such person’s

presence is granted by the Director of the BOP. No person younger than

18 years of age will witness the execution.

The Warden will notify all witnesses of the date, time and place of

the execution as soon as practicable before the designated time of

execution.

Contact with the Vigo County Coroner

The Warden will contact the Vigo County Coroner to coordinate the

Coroner’s role.

The Vigo County Coroner will be requested to provide direction

concerning:

Transfer of custody of the body of the executed individual

from the Warden to the Vigo County Coroner;

Transportation of the body from the Execution Room to the

Vigo County Coroner’s facility; and

Briefing of Institution Staff

It is necessary to modify prison operations and communicate with

local staff throughout the execution process.

Local prison administrators should be briefed by the Warden, as

appropriate, on plans for the execution, restrictions on access,

crowd control, additional security procedures, etc., on an on-going

basis.

As soon as plans begin to evolve which will affect general prison

operations, briefings should begin and continue until operations

return to normal.

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.