Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 1 of 99 PAGEID #: 23710 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION IN RE: OHIO EXECUTION PROTOCOL LITIGATION This document relates to: PLAINTIFFS PHILLIPS, TIBBETTS AND OTTE Case No. 2:11-cv-1016 CHIEF JUDGE EDMUND A. SARGUS, JR. Magistrate Judge Michael R. Merz DEATH PENALTY CASE: EXECUTIONS SCHEDULED FOR JANUARY 12, 2017, FEBRUARY 15, 2017, AND MARCH 15, 2017 Plaintiffs’ Reply in Support of Their Respective Motions For Stay of Execution, Temporary Restraining Order, and Preliminary Injunction (ECF Nos. 714, 715, 718) Plaintiffs Phillips (ECF No. 714), Tibbets (ECF No. 718), and Otte (ECF No. 715) moved for injunctive relief on November 11, 2016 in accordance with this Court’s scheduling order (ECF No. 658). DRC Defendants filed a single memorandum in opposition as to all three motions (ECF No. 730), and Plaintiffs now submit a joint reply memorandum. Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 2 of 99 PAGEID #: 23711 Memorandum in Opposition TABLE OF CONTENTS I. Introduction and Argument Summary .................................................. 1 II. Defendants’ arguments against Plaintiffs’ sealed claims should be rejected. ........................................................................................... 2 III. Defendants’ arguments against Plaintiffs’ judicial estoppel and judicial admissions claims should be rejected. ...................................... 3 Judicial Admissions .................................................................... 3 Judicial Estoppel......................................................................... 9 IV. Defendants’ arguments against Plaintiffs’ Eighth Amendment claims, to the extent Defendants make them, should be rejected because they are wrong on the law and wrong on the facts. ................ 14 By denying only that Defendants had no purpose or intent to cause severe pain and suffering by adopting midazolam and the three-drug midazolam execution protocol, Defendants fail to rebut important elements of Plaintiffs’ Wilkerson/Kemmler claims. ....................................................... 14 1. The relevant caselaw demonstrates that Plaintiffs can demonstrate an Eighth Amendment violation under the Wilkerson/Kemmler line of precedent without offering an alternative execution method. ......................... 15 2. Defendants concede that some types of Eighth Amendment method-of-execution challenges do not require an alternative method. ......................................... 17 3. Defendants do not contest that they know midazolam and the three-drug midazolam protocol will cause severe pain and suffering, and their references to other states adopting purportedly more humane execution protocols miss the point. .................................................. 19 4. Conclusion to Plaintiffs’ reply in support of their Wilkerson/Kemmler claims. .............................................. 26 Defendants’ response to Plaintiffs’ Glossip/Baze claims. ............ 27 1. Glossip does not preclude, as a matter of law, Plaintiffs’ Glossip/Baze claims. ........................................ 27 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 3 of 99 PAGEID #: 23712 2. Defendants do not contest that Plaintiffs can satisfy both subparts of the “alternative method” test as to their Second and Third Alternatives, nor do Defendants contest Plaintiffs can satisfy the “substantial reduction” subpart as to their First Alternative. ...................................................................... 37 3. There is no binding precedent on what the “alternative method” test requires, and this Court should reject the Arthur standard as contrary to Glossip and unworkable in practice. ................................................... 39 4. Conclusion to Plaintiffs’ reply in support of their Glossip/Baze claims. ....................................................... 45 Defendants conflate Plaintiffs’ Glossip/Baze claims with their claims for categorical Eighth Amendment relief and otherwise fail to rebut Plaintiffs’ categorical/devolution claims. ...................................................................................... 46 V. Defendants’ arguments against Plaintiffs’ Equal Protection claims should be rejected as a matter of law and fact. .................................... 51 Defendants ask this Court to disregard the law of this case. ...... 51 Defendants misconstrue and mischaracterize Plaintiffs’ Equal Protection claims. ............................................................ 55 VI. 1. Plaintiffs’ individual physical and mental characteristics do not absolve Defendants’ failures to follow their Execution Protocol. ........................................ 55 2. Deviations from the Execution Protocol’s mandates constitute violations of the Equal Protection Clause. ........ 56 3. Requiring Defendants to apply the law equally does not run afoul of inapplicable Eighth Amendment precedent, and it complies with the binding law of this case. ................................................................................ 62 Defendants’ arguments against Plaintiffs Tibbetts and Otte’s corrupt activities claims should be rejected: DRC Defendants agree that Ohio law creates a private right of action for violations of state and federal law. .................................................................................. 65 The Controlled Substances Act preempts a state pharmacy board’s resolution and provides for a broad definition of unlawful dispensing; the text of the Execution Protocol contemplates multiple, literal violations of the Controlled Substances Act. ........................................................................ 67 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 4 of 99 PAGEID #: 23713 1. The Controlled Substances Act explicitly retains preemptive effect over conflicting state regulations. .......... 68 2. Under the Controlled Substances Act, to be effective, a prescription must be “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” ........................ 69 3. The Ohio Board of Pharmacy resolution provides for a Death Warrant to serve as “proper order” for administration of the execution drugs. ............................. 71 4. The Board’s resolution was adopted in violation of the required statutory procedures, and therefore is invalid and of no effect. ............................................................... 73 5. The Board’s resolution is also nullified because it conflicts with federal law. ................................................. 75 6. Gonzalez v. Oregon did not supplant the standard for violations of the Controlled Substances Act. ..................... 76 7. The Execution Protocol expressly contemplates multiple violations of the Controlled Substances Act, therefore, Plaintiffs are likely to prevail on the merits of the “dispensing without valid prescription” predicate. ...... 78 Federal law on intellectual property shows a product is not truly “genuine” unless it is distributed under quality controls established by the trademark owner; subverting manufacturer’s quality controls results in use of trademark without authorization. ............................................................... 81 Injunctive relief is available against both drug vendors and DRC Defendants........................................................................ 86 1. Injunctive relief against drug vendors is not barred by the Eleventh Amendment. ................................................ 86 2. By obtaining counterfeit drugs, DRC Defendants violated core elements of the protocol, thus committing constitutional violations. Therefore, injunctive relief is not barred under the Ex Parte Young exception. ............... 87 The DRC Defendants’ invocation of the Anti-Injunction Act concedes that Ohio can only carry out executions using illegal means. ............................................................................ 87 VII. Defendants’ arguments about Plaintiff Tibbetts’ and Otte’s religious freedom rights should be rejected. ...................................................... 88 VIII. Conclusion ......................................................................................... 93 Certificate of Service Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 5 of 99 PAGEID #: 23714 I. Introduction and Argument Summary DRC Defendants’ response in opposition to Plaintiffs’ motions for preliminary injunction makes clear their strategy: Ignore binding Sixth Circuit precedent to assert an argument they lost years ago that Plaintiffs’ Equal Protection Clause claims are non-cognizable and just Eighth Amendment claims in disguise, argue that Glossip v. Gross, 135 S. Ct. 2726 (2015), somehow blessed Ohio’s Execution Protocol and therefore resolves all the issues in the motions, and disclaim any previous representations made to this Court, the Sixth Circuit, Plaintiffs, and the public. Defendants’ position demonstrates they believe they are free to do whatever they want, regardless of what they have represented to the Court in the past. They believe their past statements—even under oath—are not binding on them. They previously changed their execution protocol to eliminate certain drugs and certain execution methods in the wake of highly publicized debacles, and announced that they were making changes to improve Ohio’s execution protocol to make it more humane. But they refuse to be held to that now, when they want to move forward with executions again. In a published decision that is binding precedent in this case, the Sixth Circuit has already held that Equal Protection claims of the sort Plaintiffs raise are cognizable in their own right and distinct from Eighth Amendment challenges, and that proving an Equal Protection claim does not require first demonstrating an Eighth Amendment violation. In re Ohio Execution Protocol Litig.(Lorraine), 671 F.3d 601, 602 (6th Cir. 2012). There is no mention of that 1 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 6 of 99 PAGEID #: 23715 decision in Defendants’ opposition memorandum. Defendants also fail to recognize that Glossip, by its very terms, was a fact-intensive inquiry in which the Supreme Court held only that the district court did not abuse its discretion in denying a stay of execution on the record developed in that case. A different record can—and here, should—lead to a different result. Defendants also do not dispute two of Plaintiffs’ three proffered alternative execution methods. And they dispute only that Plaintiffs first alternative is available, nothing more. Defendants do not dispute Plaintiffs’ arguments that Defendants know or must be credited with knowing that using midazolam and a three-drug midazolam execution protocol will cause severe pain and suffering. Additionally, Defendants’ arguments regarding Plaintiffs’ judicial estoppel and judicial admissions claims omit or otherwise ignore critical factual issues that undermine their position. Finally, Defendants’ arguments regarding Plaintiffs Tibbetts and Otte’s corrupt activities claims are of no avail. Plaintiffs’ motions should be granted. II. Defendants’ arguments against Plaintiffs’ sealed claims should be rejected. Arguments related to Plaintiffs’ sealed claims are presented in the separately filed under-seal supplement to this reply memorandum. 2 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 7 of 99 PAGEID #: 23716 III. Defendants’ arguments against Plaintiffs’ judicial estoppel and judicial admissions claims should be rejected. In addition to the Eighth and Fourteenth Amendment violations discussed below, the doctrines of judicial admission and judicial estoppel also entitle Plaintiffs to injunctive relief against the three-drug midazolam method. DRC Defendants made unambiguous representations in November 2009 that they would never again use the three-drug method, including its two painful drugs. These representations allowed Defendants to prevail on their mootness claim and to execute former Plaintiff Biros, and Plaintiffs’ ability to litigate the previously abandoned method and drugs has been detrimentally impaired through no fault of their own. Accordingly, Defendants must be estopped from claims to the contrary and their actions enjoined.1 Judicial Admissions The subject representations are binding judicial admissions because they were deliberate, unambiguous, and unequivocal statements by Defendants and their counsel, in this litigation, that Ohio would not use the three-drug method Federal law governs Plaintiffs’ claims under the doctrines of judicial admission and judicial estoppel. See, e.g., Ferguson v. Neighborhood Hous. Servs., Inc., 780 F.2d 549, 551 (6th Cir. 1986) (judicial admissions); Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 n.4 (6th Cir. 1982) (judicial estoppel); Rissetto v. Plumbers & Steamfitters Local, 343 94 F.3d 597, 603 (9th Cir. 1996) (“federal law governs the application of judicial estoppel in federal court”); Allen v. Zurich Ins. Co., 667 F.2d 1162, 1167 n.4 (4th Cir. 1982) (same). 1 3 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 8 of 99 PAGEID #: 23717 again. Most importantly, Defendants represented they would no longer use the paralytic and potassium chloride in Ohio’s execution process. Defendants now claim they never said the two painful drugs or the threedrug method would not be used again. But that is not accurate. It ignores the clear import, intent, and effect of their own words: Former Defendant Collins’ affidavit as submitted to this Court and the Sixth Circuit: “[G]oing forward, pancuronium bromide no longer will be used as part of the lethal injection process. Also, potassium chloride no longer will be used as part of that process.”2 Representations by Defendants’ counsel to this Court and the Sixth Circuit: (1) “Ohio no longer will use a three drug protocol”; (2) “neither pancuronium bromide nor potassium chloride will be used as part of the lethal injection process”; (3) “there is no possibility here that the allegedly unconstitutional conduct will reoccur”; (4) “[t]here is absolutely no reason to believe that defendants will reinstate the previous ‘three-drug protocol,’” and (5) Filed in District Court on November 13, 2009: Collins Aff. at ¶¶ 4-7 (ECF No. 601-1, Page ID 13242) (submitted with ECF No. 601, Motion for Summary Judgment, Case No. 04-cv-1156); Filed in Sixth Circuit on November 16, 2009 in Case No. 09-4300, Cooey et al. v. Strickland, Docket No. 16: Defendants-Appellants’ Memorandum in Reply to Biros’ Memorandum in Opposition to Defendants’ Motion to Vacate the District Court’s Stay of Biros’ Execution and Defendants’ Memorandum in Opposition to Biros’ Motion to Dismiss Defendants’ Appeal, with attached Motion for Summary Judgment and Aff. of Terry Collins. 2 4 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 9 of 99 PAGEID #: 23718 “as stated, pancuronium bromide and potassium chloride no longer will be used in Ohio’s lethal injection process.”3 The Sixth Circuit Court of Appeals understood the clear meaning of these unambiguous statements, concluding, at Defendants’ request, that the Defendants had met their heavy burden to prove that the voluntarily ceased challenged conduct—the use of the three-drug method and its two painful drugs—would not again recur. Cooey (Biros) v. Strickland, 588 F.3d 921, 922– 23 (6th Cir. 2009). Defendants also claim they withdrew the summary judgment motion which contained some of their admissions. But that is misleading and totally irrelevant given the factual backdrop against which the admissions occurred. While the summary judgment motion was withdrawn at the district court level on December 9, 2009 (ECF No. 636, Case No. 04-cv-1156), this was done only after Defendants had prevailed in the Sixth Circuit on these very same unambiguous judicial admissions that had also been filed in that court, and after Biros had been executed, in part on the basis of those very admissions. Filed in District Court on November 13, 2009: Defendants’ Motion for Summary Judgment at 1, 4-5 (ECF No. 601, Page ID 13233, 13236-37, Case No. 04-cv-1156); Filed in Sixth Circuit on November 16, 2009 in Case No. 09-4300, Cooey et al. v. Strickland, Docket No. 16: DefendantsAppellants’ Memorandum in Reply to Biros’ Memorandum in Opposition to Defendants’ Motion to Vacate the District Court’s Stay of Biros’ Execution and Defendants’ Memorandum in Opposition to Biros’ Motion to Dismiss Defendants’ Appeal, with attached Motion for Summary Judgment and Aff. of Terry Collins. 3 5 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 10 of 99 PAGEID #: 23719 In other words, Defendants withdrew their summary judgment motion (at the Court’s request) because Defendants’ efforts to secure dismissal on mootness grounds of Plaintiffs’ complaints challenging the three-drug method had already been resolved in their favor with the Sixth Circuit’s published decision on November 25, 2009. See Cooey (Biros), 588 F.3d at 922–23. At a status conference on December 9, 2009, the day after Biros’s execution, and with knowledge of the higher court’s Biros decision on mootness grounds, this Court noted that the Plaintiffs’ then-pending complaints challenging the three-drug protocol were moot, and it thus set a schedule for amending the complaints. (See ECF No. 639, Tr. at 25-28 (PageID 14245–48).) It was only then that Defendants “withdrew” their motion for summary judgment. (Id. at 45–46 (PageID 14265–66).) Now, seven years later, and with their 2009 admissions again at the forefront of the litigation, Defendants have omitted these undisputed facts from their present brief. If any party is seeking to “take advantage of lost institutionalized knowledge” (Defs. Opp. Mem., ECF No. 730 at PageID 23088) on this important topic—placed in issue by Defendants’ choice to revert back to a three-drug method and drugs it had previously abandoned—it is Defendants with their selective and misleading recitation of the record. Defendants seek to avoid the impact of their binding admissions, in an effort to avoid the doctrine of judicial estoppel, by alleging that circumstances have supposedly changed, and that they are now supposedly “forced” to use “the midazolam three-drug protocol out of necessity.” (Id. at PageID 23087.) 6 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 11 of 99 PAGEID #: 23720 But they offer no evidence to substantiate these “changed circumstances” or the “necessity” they now claim exists. Indeed, based on other filings they have made in this case, Defendants are now taking the position that such evidence— even if it exists—is something they plan to keep secret from Plaintiffs, the Court, and the public. (See, e.g., State Actor Defs.’ Response to Phillips’s Discovery Requests, ECF No. 706, PageID 21403–04.) That defense of “take our word for it” will not allow Defendants to avoid the legal effect of their binding admissions: it is their burden to show the changed circumstances upon which they rely, and to persuade the Court that the alleged “change” warrants the Court excusing the legal consequences ordinarily imposed on a judicial admission. See, e.g., Raleigh Flex Owner I, LLC v. MarketSmart Interactive, Inc., No. 1:09CV699, 2011 U.S. Dist. LEXIS 22743, *18 (M.D.N.C. Mar. 7, 2011) (holding defendant seeking to avoid effect of judicial admission failed to make required showing); Elec. Mobility Corp. v. Bourns Sensors/Controls, Inc., 87 F. Supp. 2d 394, 406 (D.N.J. 2000) (holding a party seeking to avoid effect of its judicial admissions failed to present evidence to persuade the court that it should do so). Defendants also point to the Supreme Court’s 2015 Glossip decision as a supposed changed circumstance. Again, to no avail. First, in the context of Defendants’ subject 2009 admissions renouncing the three-drug method and its two painful drugs, it is not that at all. The Defendants’ admissions were made in November 2009, some 19 months after the Supreme Court’s April 2008 decision in Baze v. Rees, 553 U.S. 35 (2008), which had upheld the 7 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 12 of 99 PAGEID #: 23721 constitutionality of Kentucky’s three-drug method, a method that used the same three drugs Ohio then used. Yet, even at that time, with a recent Supreme Court case endorsing their prevailing method, Defendants still abandoned their three-drug method and renounced further use of the two painful drugs. So, today, the existence of another Supreme Court case— Glossip, finding no abuse of discretion in a district court’s order denying preliminary injunction of a three-drug method based on a specific record— effects no relevant change that excuses the legal consequences of Defendants’ November 2009 admissions. Second, read most generously for Defendants, Glossip at best supports only generally that some states have had difficulty obtaining lethal injection drugs. Yet, despite the proposition upon which Defendants rely, the most active states imposing the death penalty in recent years—including Texas, Missouri, and Georgia—all continue to use a single-drug barbiturate method. Indeed, Georgia just carried out a one-drug pentobarbital execution yesterday.4 To overcome specific admissions, Defendants must demonstrate the changed circumstances upon which they rely, and that the alleged “change” warrants excusing the legal consequences ordinarily imposed on a judicial admission. See, e.g., Raleigh Flex Owner I, LLC, No. 1:09CV699, 2011 U.S. Dist. LEXIS 22743 at *18; Elec. Mobility Corp. v. Bourns Sensors/Controls, Inc., 87 F. Supp. See http://www.deathpenaltyinfo.org/execution-list-2016 (execution of William Sallie on December 6, 2016). 4 8 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 13 of 99 PAGEID #: 23722 2d at 406. Defendants have not even attempted to demonstrate that they cannot obtain the drugs that other states have been able to routinely and reliably secure, let alone why, or that any such (non-)alleged inability is the basis for backsliding to the abandoned three-drug protocol and two dangerous drugs. Defendants’ arguments opposing injunctive relief on Plaintiffs’ judicial admissions claims should be rejected. Judicial Estoppel For many of these same reasons, Defendants’ efforts to avoid the application of the doctrine of judicial estoppel also fail. Plaintiffs can establish all three factors typically required: (1) Defendants’ current position is “clearly inconsistent” with its earlier position; (2) Defendants “succeeded in persuading a court to accept [their] earlier position” so that judicial acceptance of a later inconsistent position would create the perception that the court has been misled; and (3) Defendants’ assertion of their inconsistent position would give them an unfair advantage or impose an unfair detriment on the Plaintiffs if not estopped. New Hampshire v. Maine, 532 U.S. 742, 750–51 (2001). Defendants have not and cannot defeat any of these factors. Defendants claim that their two positions—then and now—are not inconsistent is patently absurd. Defendants’ position in November 2009 was that the three-drug method and its two painful drugs would not be used again, 9 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 14 of 99 PAGEID #: 23723 that “there is no possibility . . . the allegedly unconstitutional conduct will reoccur,” and that “[t]here is absolutely no reason to believe that defendants will reinstate the previous ‘three-drug protocol.’” (Case No. 04-cv-1156, ECF No. 601, Page ID 13233, 13236–37.) Now, seven years later, these same Defendants are again planning to use, and seek to defend as constitutional, the same painful drugs and the three-drug execution method they had expressly renounced in 2009. There could not be a clearer case of inconsistent positions. To be sure, Plaintiffs agree that Defendants never conceded the renounced three-drug method was “unconstitutional.” But that is immaterial. They did represent that the method and drugs—which were alleged to be unconstitutional by Plaintiffs’ allegations thereof—would not be used again, and that representation is directly contradicted by their current plans. Defendants conflate the specific reasons why they stopped using the painful drugs, with the broader conduct actually at issue here. Regardless of their motivations for the change, Defendants ceased using the painful drugs, and represented that usage would not recur; that is what is factually relevant for this particular inquiry. As for the second factor, Defendants’ contention that the Court never accepted their earlier position is at best mistaken and at worst deliberately misleading. As explained above and in Plaintiffs’ respective motions, Defendants prevailed in the Sixth Circuit on their mootness argument, and, on the basis of that Court’s acceptance of Defendants’ earlier position, were permitted to execute Biros on December 8, 2009. That victory by Defendants 10 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 15 of 99 PAGEID #: 23724 also caused this Court to recognize the mootness of all existing complaints challenging the renounced three-drug method on December 9, 2009, the very next day after Biros’s execution, and to order the filing of new complaints for any party who wanted to challenge the new one-drug method. Plaintiffs’ ability to challenge the three-drug method—on the strength of the then-recent Broom evidence, with the Joseph Clark events only three years in the past, and with memories still relatively fresh—ended that day. These circumstances easily qualify under well-settled law of what constitutes “prior success” for purposes of judicial estoppel. See, e.g., Felix v. Dow Chem. Co., No. 2:07-cv-971, 2008 U.S. Dist. LEXIS 8946, *8–9 (S.D. Ohio Jan. 23, 2008) (“In regard to the ‘prior success’ requirement, the party against whom the judicial estoppel doctrine is to be invoked need not have prevailed on the merits of the action; rather, it is sufficient if the first court has adopted the position urged by the party as a preliminary matter.”) (citing Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469, 473 (6th Cir. 1988)); see also Hall v. GE Plastic Pac. PTE, Ltd., 327 F.3d 391, 399 (5th Cir. 2003) (same). On the third factor, Plaintiffs will plainly suffer an unfair detriment, and Defendants achieve an unfair advantage, if Defendants are not estopped from changing positions. Defendants’ only response is to suggest that Glossip’s ruling upholding denial of a preliminary injunction against Oklahoma’s threedrug midazolam method means Plaintiffs have not been treated unfairly. But, again, this misses the point entirely. The legal status of the three-drug method, insofar as the Supreme Court is concerned, is unchanged from 11 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 16 of 99 PAGEID #: 23725 November 2009 to now. Glossip, like Baze, addressed one state’s three-drug method, based on the specific record of that state’s protocol. And only in a preliminary injunction context. And yet Defendants, with Baze in hand, still abandoned Ohio’s three-drug method in November 2009 and renounced further use of the two painful drugs. Glossip is thus no help to Defendants here. The relevant detriment to Plaintiffs is that they are now required to litigate a three-drug method of execution, and two painful drugs, that have— solely because of Defendants’ prior position—been entirely off the table in this litigation for the better part of a decade. During that time memories have faded, witnesses have died or left the state’s employment, experts have been discharged, and discovery efforts have turned entirely to other matters to the exclusion of issues relevant to the abandoned three-drug method. And yet now, solely because Defendants have elected to abruptly reverse positions, Plaintiffs are required to resume their challenge to the three-drug method from a full stop, and must accelerate to a sprint, in the mere matter of weeks that Defendants’ unilateral choice of timing now requires. Indeed, the significant detriment to Plaintiffs can be easily demonstrated by Defendants’ aggressive attempts to preclude any discovery into matters related to Defendants’ prior actions related to the abandoned three-drug method and the two painful drugs. As to all these relevant facts of detriment, Defendants have nothing to say— their opposition memorandum is silent in this critical respect. Nor is there anything they can say. The detriment is all one sided. There is nothing “fair” about what they have done. 12 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 17 of 99 PAGEID #: 23726 Nothing else in Defendants’ response entitles them to avoid application of judicial estoppel either. For any changed circumstances on which they may seek to rely, it is their burden to prove such matters, not Plaintiffs’ burden to guess at what those circumstances might be and then shoot them down. Defendants have not even tried to carry their burden. See, e.g., Spencer v. Annett Holdings, Inc., 757 F.3d 790, 797–98 (8th Cir. 2014) (holding a party seeking to avoid application of judicial estoppel failed to establish changed circumstance). Defendants also ignore the case law cited in Plaintiffs’ briefs—including the Supreme Court’s decision in Already, LLC v. Nike, Inc., 568 U.S. ___, 133 S. Ct. 721 (2013)—which establishes that the application of judicial estoppel is particularly appropriate in cases where the party’s prior inconsistent position was adopted as part of a successful effort to challenge as moot a legal claim made against that party by the opposing litigant. (See, e.g., cases cited in Phillips’s motion, ECF No. 714, PageID 21621–23; in Tibbetts’s motion, ECF No. 718, PageID 22236–238; and in Otte’s motion, ECF No. 715, PageID 21657–659.) Under these cases, when a party has succeeded in meeting the heavy burden to persuade a court that the activity it has voluntarily ceased will not recur, such that the opponent’s claim is moot, any later resumption of the voluntarily ceased activity is subject to being barred by the opponent under the doctrine of judicial estoppel. (See id.) That is exactly the situation here. Unable to draw any distinctions, Defendants have instead ignored every single one of these cases. 13 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 18 of 99 PAGEID #: 23727 Defendants’ arguments opposing injunctive relief on Plaintiffs’ judicial estoppel claims should be rejected. IV. Defendants’ arguments against Plaintiffs’ Eighth Amendment claims, to the extent Defendants make them, should be rejected because they are wrong on the law and wrong on the facts. Some methods of execution are unconstitutional; it follows that there must be a way to prove it. The relevant body of law demonstrates that there are different avenues for an inmate to demonstrate a state’s execution protocol violates his Eighth Amendment right against cruel and unusual punishment. Plaintiffs raised a number of different Eighth Amendment claims in their motions. Defendants fail to rebut all or parts of some of those claims, and, accordingly, this Court should find Plaintiffs have established a substantial likelihood of success on the merits of those claims (or, in the alternative, find that Defendants have waived any opposition to those claims). As to the claims Defendants did address, their arguments should be rejected because they are wrong on the law and wrong on the facts. By denying only that Defendants had no purpose or intent to cause severe pain and suffering by adopting midazolam and the three-drug midazolam execution protocol, Defendants fail to rebut important elements of Plaintiffs’ Wilkerson/Kemmler claims. Defendants fail to address, let alone rebut, Plaintiffs’ claims that they can establish an Eighth Amendment violation by showing that Defendants know or must be credited with knowing that using midazolam as an execution drug and 14 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 19 of 99 PAGEID #: 23728 using a three-drug midazolam protocol will cause severe pain and suffering. (See ECF No. 730, PageID 23074–78.) 1. The relevant caselaw demonstrates that Plaintiffs can demonstrate an Eighth Amendment violation under the Wilkerson/Kemmler line of precedent without offering an alternative execution method. After reviewing the Wilkerson and Kemmler decisions and their formulation of the intentional infliction of pain “superadded” to death as additional punishment, see Baze, 553 U.S. at 48–49, the Baze plurality turned to cases regarding civil liability for injuries to prisoners for recognition of an additional Eighth Amendment prohibition against “subjecting individuals to a risk of future harm.” See id. at 49–50 (citing Helling v. McKinney, 509 U. S. 25 (1993) and Farmer v. Brennan, 511 U. S. 825 (1994)). That line of cases demonstrates that different rules apply based on the mental state of the prison officials. If injury is caused “maliciously and sadistically for the very purpose of causing harm,” then liability can be imposed even if the use of force occurs while putting down a prison disturbance, and there is no threshold requirement of a serious injury. Hudson v. McMillian, 503 U.S. 1, 6–7 (1992) (internal quotation marks omitted). In contrast, a claim of “deliberate indifference” to a risk requires a “substantial risk of serious harm,” Farmer v. Brennan, 511 U. S. 825, 834 (1994), and such claims are not generally available for uses of force that “are typically made in haste, under pressure, and without the luxury of a second chance.” Id. at 835 (citations and internal 15 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 20 of 99 PAGEID #: 23729 quotation marks omitted).5 Farmer refers to the mens rea categories of criminal law, defining “deliberate indifference” as less than “purpose or knowledge,” id., at 836, and equivalent to “subjective recklessness as used in the criminal law.” Id., at 839–40. The Baze plurality adopted the Helling/Farmer standards, and the majority in Glossip affirmed the Baze plurality opinion. Thus, the Supreme Court’s holdings support Plaintiffs’ Wilkerson/Kemmler arguments. As Plaintiffs explained in their Motions (see Tibbetts’s Motion, ECF No. 718, PageID 22242–243; Phillips’s Motion, ECF No. 714, PageID 21581–582; Otte’s Motion, ECF No. 21662–663), if a method is adopted with the purpose of causing pain, that is an Eighth Amendment violation under Wilkerson and Kemmler, and the existence of alternatives is irrelevant for such a claim. In fact, Defendants seem to agree on that proposition. See section IV.A.2 below. But Defendants have seemingly overlooked the other relevant mens rea in a Wilkerson/Kemmler claim; “Farmer’s reference to ‘purpose or knowledge’ together, see Farmer, 511 U.S. at 836, establishes that a state’s method of execution would be similarly unconstitutional if it were known to cause extreme pain or be akin to torture, without any need to consider the availability Of course, none of Defendants actions related to the three-drug midazolam protocol are “made under haste,” because they were undertaken when Defendants, who control the execution schedule and the timing and decision-making process involved with adopting the three-drug midazolam protocol, had the luxury of time and “a second chance.” 5 16 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 21 of 99 PAGEID #: 23730 or nature of alternatives.” (Tibbetts’s Motion, ECF No. 718, PageID 22242–243; Phillips’s Motion, ECF No. 714, PageID 21581–582; Otte’s Motion, ECF No. 21662–663.) Defendants focus solely on the “purposeful” or “intentional” standard, and fail to address the “knowledge” standard, let alone rebut Plaintiffs’ allegations and proof that Defendants know that using midazolam and using a three-drug midazolam protocol will cause severe pain and suffering. 2. Defendants concede that some types of Eighth Amendment method-of-execution challenges do not require an alternative method. At first blush, Defendants seemingly contend that all method-ofexecution claims must be raised under the Glossip/Baze standard, and thus all method-of-execution challenges require an inmate to proffer an alternative execution method. But Defendants also concede the contradictory point: that there are Eighth Amendment method-of-execution challenges other than “an alternate-method claim under Baze and Glossip.” (ECF No. 730 at PageID 23074.) Similarly, Defendants argue that if an execution protocol “satisfies the Glossip inquiry,” it will “necessarily” satisfy an Eighth Amendment challenge that “is a narrower claim than the alternate-methods claim under Baze and Glossip.” (ECF No. 730, PageID 23074.) That is also a concession to Plaintiffs’ Wilkerson/Kemmler arguments; there are, indeed, Eighth Amendment challenges that do not require showing an alternative method to prevail. After all, “a method of execution that is ‘barbarous,’ or ‘involve[s] torture or a lingering death’ does not become less so just because it is the only method 17 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 22 of 99 PAGEID #: 23731 currently available to a State.” Glossip, 135 S. Ct. at 2795 (Sotomayor, J., dissenting). Defendants’ argument cited above also inverts the relevant analysis to argue Plaintiffs cannot succeed on their Wilkerson/Kemmler claims. The question is not whether the three-drug midazolam protocol “satisfies the Glossip inquiry” and thus “necessarily satisfies” the Wilkerson/Kemmler inquiry. After all, a protocol could survive the Glossip inquiry for reasons having nothing to do with the pain and suffering the protocol causes, such as in the Eleventh Circuit’s Arthur ruling that inmate Arthur failed to satisfy the “available” subpart of Glossip’s “alternative method” test. But that would have no bearing on whether the inmate can demonstrate that state officials knew a particular protocol will almost certainly cause unnecessary severe pain and suffering and chose to adopt it anyway. Conversely, if an inmate alleging a Wilkerson/Kemmler claim can demonstrate that an execution protocol will almost certainly cause unnecessary severe pain and suffering, that showing will necessarily satisfy the first Glossip/Baze prong (the chance/risk of harm), regardless of whether the inmate has demonstrated the necessary mens rea to prevail on the Wilkerson/Kemmler claim. That would leave only the “alternate methods” prong to satisfy to demonstrate what Defendants have termed an “alternate-methods” (Glossip/Baze) claim. And that is what Plaintiffs argue in the unique circumstances of this case; Defendants know or must be credited with knowing that midazolam and their three-drug midazolam protocol will 18 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 23 of 99 PAGEID #: 23732 cause severe pain and suffering, not just a substantial risk of severe pain and suffering, and they adopted the protocol anyway. 3. Defendants do not contest that they know midazolam and the three-drug midazolam protocol will cause severe pain and suffering, and their references to other states adopting purportedly more humane execution protocols miss the point. Nowhere in their memorandum do Defendants rebut Plaintiffs’ arguments that Defendants knew or should be credited with knowing midazolam and the three-drug midazolam method will cause severe pain and suffering and yet still adopted it. Instead, Defendants dispute that they had any purpose or “intent to cause unnecessary pain.” (ECF No. 730, PageID 23075; see also id. at PageID 23074 (arguing Plaintiffs cannot demonstrate “that the State purposely seeks to impose unnecessary pain when carrying out its lawful sentences”); PageID 23076 (“Plaintiffs’ motion utterly fails to identify any evidence whatsoever that Ohio adopted its three-drug protocol with the aim of purposely causing unnecessary pain.”).) But as explained above, purposeful or intentional infliction of unnecessary pain is not the only way to demonstrate a Wilkerson/Kemmler claim. Defendants also argue the Supreme Court has “already recognized” that some “States have adopted alternative lethal-injection protocols to be more humane than the previous options that it had upheld.” (Id. at PageID 23075.) Notably, however, Defendants do not claim that, in moving back to midazolam and a worse version of the discarded three-drug protocol, they were motivated by a desire to find a “more humane” execution method. And, particularly with 19 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 24 of 99 PAGEID #: 23733 Defendants’ personal experience with the McGuire execution, they simply cannot reasonably make that claim, because they know better. Likewise, Defendants reference court findings of other States’ inability to obtain execution drugs to disclaim any “purpose” of “causing unnecessary pain” by adopting the three-drug midazolam protocol. (ECF No. 730, PageID 23075–78.) But evidence of why other States have made certain choices is not evidence of why Defendants have chosen to reintroduce drugs and an execution method Defendants had previously discarded and foresworn ever using again. And Defendants provide no evidence that Ohio reverted to an abandoned threedrug method or to midazolam based on inability to find other execution drugs. Instead, they make thinly veiled attempts to blame Plaintiffs for Defendants’ adoption of the three-drug midazolam protocol. Indeed, Defendants do not explicitly, unambiguously and consistently argue they themselves have reintroduced midazolam and the three-drug midazolam execution protocol because they are unable to obtain any other execution drugs. They imply that, with statements such as that a “‘widely’ recognized difficulty in securing the drugs for one-drug-protocol executions is the reasons that States like Ohio have turned to midazolam.” (ECF No. 730, PageID 23076.) But that sentence does not actually suggest why Ohio “turned to midazolam.” Rather it speculates on why others States “like Ohio,”—i.e., some other unidentified States that have the death penalty and lethal injection as the execution method—have chosen to adopt midazolam. 20 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 25 of 99 PAGEID #: 23734 In fact, for example, Defendants’ answers to Tibbetts’s Fourth Amendment Complaint strongly suggest that Defendants have readopted midazolam and instituted a three-drug midazolam protocol not because of lack of options but simply because they could get their hands on the three drugs now, with plans to get pentobarbital or sodium thiopental still active. Defendants denied Tibbetts’s allegation that “Defendants therefore have no legitimate or legal source of Nembutal” (pentobarbital). (Compare Tibbetts’s Fourth Am. Compl., ECF No. 691, ¶ 428, PageID 20129, with Defs.’ Answer, ECF No. 722, ¶ 109, PageID 22837 (“Defendants deny the averments set forth in Paragraph 428.”).) Defendants also provided a very specific, parsed answer to Tibbetts’s allegation that “DRC Defendants represented to the Plaintiffs and this Court at the October 3, 2016 status conference that they will use the revised three-drug method, and not a one-drug method, to execute Tibbetts on January 12, 2017.” (ECF No. 691, ¶ 147, PageID 20065.) If Defendants truly cannot obtain and use pentobarbital or thiopental sodium, then their answer to that straightforward allegation could only be an unqualified “admit.” But instead, they answered as follows: “Regarding Paragraph 147, the Defendants aver that they have represented that they will use the revised three-drug method to execute Inmate Ronald Phillips on January 12, 2017.” (ECF No. 722, ¶ 54, PageID 22828.) Defendants’ curious behavior at the November 17, 2016 status conference further demonstrates Defendants’ ambiguity on this matter. 21 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 26 of 99 PAGEID #: 23735 Tibbetts’s counsel pointed out that Defendants had not actually clearly stated to the Court during the October 3, 2016 status conference that Defendants planned to use the three-drug midazolam method for any inmate other than Phillips. (ECF No. 744, PageID 23288.) When Tibbetts’s counsel asked for clarification about what execution protocol Defendants intended to use for Tibbetts and Otte, Defendants did not directly respond that they would use the three-drug midazolam method. Instead, counsel asked for a moment to consult, followed by a “(Pause)” long enough to be transcribed. (Id. at PageID 23289.) At that point, counsel for Defendants huddled with Defendant Gray (who is ODRC’s Chief Counsel). After the “pause,” Defendant Gray asked for a citation to their previous transcribed statement, “so we can clarify what it is.” (Id. at PageID 23288–289.) Tibbetts’s counsel read the relevant statements from the October 3, 2016 transcript, and then reiterated “there is never actually a statement that [Defendants] are prepared to go forward with this three-drug protocol” for Tibbetts and Otte. (Id. at PageID 23291.) The Court agreed, and asked whether Defendants were “prepared to execute Mr. Tibbetts and Mr. Otte, or either one of them, using the same three-drug protocol” as they plan to use for Phillips. (Id.) Only at that point did counsel for Defendants state “yes.” (Id.) If, however, Defendants could only use the three-drug midazolam protocol because they could not obtain any other drugs, there was no need for “a moment” for counsel to huddle and confer. There was no need to “clarify” anything when the question was whether it “is the State’s intention to use the 22 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 27 of 99 PAGEID #: 23736 three-drug midazolam protocol execute to Tibbetts and Otte.” (Id. at PageID 23288.) Defendants’ reluctance to immediately answer with anything other than a direct, unambiguous, immediate “yes” is the dog that did not bark, see Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991) (citing A. Doyle, Silver Blaze, in The Complete Sherlock Holmes 335 (1927)), suggesting that Defendants believe they can, indeed, obtain pentobarbital or sodium thiopental for use in executions. In any event, all of Defendants’ arguments about their purpose or intent in adopting the new protocol obscures the bottom line; regardless of whether Defendants had a purpose or intent of inflicting additional pain, they still know or are charged with knowing what will happen when they use a three-drug midazolam protocol, and they adopted it anyway. Demonstrating that Defendants know what will happen is sufficient for Plaintiffs to prevail on their Wilkerson/Kemmler claims, regardless of their comparative Glossip/Baze claims and the “alternative method” prong of those claims, and regardless of whether Defendants “purposely” or “intentionally” seek to impose unnecessary pain on Plaintiffs. Defendants do not rebut Plaintiffs’ demonstration that Defendants know or must be charged with knowing the three-drug midazolam method will cause unnecessary pain and suffering. Defendants do, however, assert an additional argument that is, frankly, frivolous; Defendants mischaracterize a statement in Plaintiffs’ motions, wrenched out of context, to suggest that Plaintiffs have undermined their own argument. (ECF No. 730, PageID 23076.) According to Defendants, Plaintiffs 23 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 28 of 99 PAGEID #: 23737 “say that, if the first drug in the protocol does not work, they will be exposed to needless pain.” (Id.) Defendants declare that statement a “conditional ‘whatif’,” some kind of concession about midazolam that “dooms the claim that the State purposely aims to inflict pain.” (Id.) But considered in the full context, there is nothing conditional about Plaintiffs’ statement. Absent a first drug that will sufficiently render Tibbetts unaware and insensate and sufficiently maintain that state even when Tibbetts is exposed to noxious stimuli, IV administration of the paralytic drug and potassium chloride will be agonizingly, horrifically painful and torturous, physically and mentally/psychologically. Because the paralytic drug does not serve any therapeutic purpose, it is critical the first drug is properly administered and that Plaintiff is rendered unaware and insensate to pain. DRC Defendants know and/or are charged with knowing that if Tibbetts is not properly rendered unaware and insensate by the first drug, the paralytic will compound the terror and pain Tibbetts will experience during his execution by inducing an unnecessary paralysis of all his voluntary movements and, consequently, his ability to effectively communicate his internal distress. Though aware at some level, Tibbetts will be trapped in his own body as the execution moves forward. The pain from the paralytic drug is excruciating; Tibbetts will experience an agonizing, torturously horrifying death akin to being buried alive. That pain and suffering is nothing less than “inhuman and barbarous” torture. In re Kemmler, 136 U.S. 436, 447 (1890). (Tibbetts’s Motion, ECF No. 718, PageID 22244; see also Phillips’s Motion, ECF No. 714, PageID 21582 (same); Otte’s Motion, ECF No. 715, PageID 21664 (same).) Plaintiffs are not suggesting a conditional “what-if” about midazolam— they are saying Defendants know and/or are charged with knowing how critical the first drug in a three-drug protocol is; the effects of the paralytic drug on an 24 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 29 of 99 PAGEID #: 23738 aware, sensate individual; and that those effects are indisputably, excruciatingly torturous. Finally, Defendants argue ad naseum that Glossip has already blessed Ohio’s Execution Protocol, and that evidence from other executions using midazolam is irrelevant. (See ECF No. 730, PageID 23077.) Defendants are mistaken. Ohio is uniquely situated in its experience with midazolam, its abandonment of the three-drug method and the two painful drugs, its abandonment of midazolam following a horrific execution using the drug, and its subsequent re-adoption of those methods following horrific results in other states. Those were not the circumstances in Glossip. So no, Ohio’s use of a three-drug midazolam protocol has not been assessed by the Supreme Court or any other court for that matter, no matter how many times Defendants repeat that incantation. Additionally, the Supreme Court’s statement about the Lockett and Wood executions was made on the basis of a record that did not expressly address the question why those executions were relevant in the same way Plaintiffs argue they are. Further, the Supreme Court had no record evidence about the great likelihood that a significant amount of a 500 mg. bolus injection of midazolam will immediately precipitate upon injection. Nor did the Court have any evidence in the record regarding the troubling Florida executions—other than Florida’s self-serving amicus brief—or the Brooks execution in Alabama. The Court did not have the record evidence that in every single execution using midazolam in which a paralytic curtain did not successfully mask the condemned inmate’s reaction to painful stimuli, the 25 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 30 of 99 PAGEID #: 23739 inmate demonstrated movements and actions consistent with being aware and/or sensate on some level to experience that painful stimuli, even behind a subsequent chemical veil. Defendants also suggest that these other executions were “innocent mistakes.” But the issue is not whether Lockett’s or Wood’s or Brooks’s or McGuire’s or other executions were “innocent mistakes.” Rather, the issue is whether Defendants can be subjectively blameless when faced with the evidence from numerous executions using midazolam and that evidence uniformly demonstrates that midazolam cannot successfully render and maintain a condemned inmate unaware and insensate to the severe trauma, pain and suffering that occurs to the body being executed by lethal injection. Defendants are not subjectively blameless in such circumstances. 4. Conclusion to Plaintiffs’ reply in support of their Wilkerson/Kemmler claims. Defendants concede that Plaintiffs can demonstrate an Eighth Amendment violation without demonstrating Glossip/Baze’s alternativemethod test. And they do not dispute Plaintiffs’ arguments and demonstration of a key element to their Wilkerson/Kemmler claims. The Court should grant relief on those claims because Plaintiffs can demonstrate a substantial likelihood of success. 26 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 31 of 99 PAGEID #: 23740 Defendants’ response to Plaintiffs’ Glossip/Baze claims. 1. Glossip does not preclude, as a matter of law, Plaintiffs’ Glossip/Baze claims. Defendants repeatedly argue that Glossip blessed Ohio’s Execution Protocol, and thus Plaintiffs’ Glossip/Baze claims must fail as a matter of law. But that is simply not accurate. The most obvious refutation of Defendants’ position is that Glossip did not prove final for inmate Glossip. His lethal injection challenge continued after the Supreme Court’s decision. See Glossip v. Gross, No. 5:14-cv-665 (W.D. Okla.) (reflecting substantial docket activity after Supreme Court’s June 29, 2015 opinion, most recently a jointly stipulated agreement to administratively close the case for an indefinite period of time (ECF No. 260), which appears to have been entered in the wake of new information uncovering that Oklahoma had used a non-protocol drug during the execution of inmate Charles Warner). It would have been dismissed outright if Glossip was dispositive as Defendants contend. The most direct analysis of whether Glossip/Baze challenges to a threedrug midazolam protocol remain viable following Glossip can be found in a recent opinion by the federal district court of Arizona denying the State’s Rule 12(b)(6) motion to dismiss a challenge to a three-drug midazolam execution protocol. First Am. Coalition of Ariz. (Wood) v. Ryan, No. 14-cv-1447, 2016 U.S. Dist. LEXIS 66113, *17–20 (D. Ariz. May 18, 2016). In Wood, condemned inmates challenged a three-drug midazolam protocol that is “identical” to the Oklahoma protocol at issue in Glossip. Id. at *17. The State argued, like 27 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 32 of 99 PAGEID #: 23741 Defendants here, “that the decisions in Glossip and Baze foreclose relief.” Id. But the court held that “[n]either Baze nor Glossip is dispositive of [the inmates’] Eighth Amendment claims.” Id. at *19. Baze, the court held, did not foreclose relief to such a challenge. Id. The inmates’ challenge alleged “that midazolam is not reliable as a sedative, which means the paralytic will mask the inmate’s pain. In Baze, by contrast, there was no dispute that the first drug, sodium thiopental, would render the inmate insensate to pain caused by the paralytic and the potassium chloride. 553 U.S. at 49.” Id. Similarly, “Glossip does not foreclose relief,” the court held. Id. “Glossip held only that the district court did not clearly err in denying a preliminary injunction based on the evidence before it. Here, the inmates indicate they will present substantial new evidence challenging midazolam’s efficacy as a sedative.” Id. (internal citation omitted). Further, the court held, “Glossip underscores that this is a fact-based inquiry, and the inmates are entitled to present evidence in support of the allegations. See Glossip, 135 S. Ct. at 2740 (explaining that “an inmate challenging a protocol bears the burden to show, based on evidence presented to the court, that there is a substantial risk of severe pain”) (emphasis added).” Id. at *19–20; see also Glossip, 135 S. Ct. at 2741 (reiterating that Court based its ruling on the highly deferential “abuse of discretion” review standard in consideration of “the evidence that the parties presented to the District Court”). The Wood court’s analysis is directly on point here. Like the Arizona inmates, Plaintiffs allege that midazolam is inadequate and not reliable as the 28 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 33 of 99 PAGEID #: 23742 critical first drug that precedes the painful second and third drugs, which means they will experience severe pain and suffering but the paralytic will mask that pain and suffering. And, like the inmates in Wood, Plaintiffs have presented and will further present to the Court at the evidentiary hearing, substantial new evidence that challenges midazolam’s efficacy as a sedative. Defendants’ opposition memorandum does not contain any reference to Wood or that court’s on-point analysis. Instead, Defendants misrepresent what the Supreme Court in Glossip actually held. Ignoring the critical procedural posture distinction the Wood court recognized, Defendants assert as follows: “If anything, Ohio’s protocol is designed to avoid pain. Speaking of the exact same midazolam dose, the Supreme Court said that it is ‘highly likely to render a person unable to feel pain during an execution.’” (ECF No. 730, PageID 23077 (quoting Glossip, 135 S. Ct. at 2739).) The full context of that passage in Glossip, however, shows how Defendants have significantly mischaracterized it: “The District Court did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution.” Glossip, 135 S. Ct. at 2739 (emphasis added). The italicized context makes all the difference, for it reveals the Supreme Court did not actually hold what Defendants represent the Court held. Defendants also point for support to cases other than Wood, (see ECF No. 730, PageID 23067–069), but each are distinguishable or otherwise not controlling on this Court. 29 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 34 of 99 PAGEID #: 23743 Defendants suggest Jordan v. Fisher, 823 F.3d 805, 812 (5th Cir. 2016), rejected “the same claims” Plaintiffs raise here. (See ECF No. 730, PageID 23067.) Not so. Again Defendants offer quotes shorn of context, but context matters. The language Defendants quote from Jordan was part of that court’s discussion of whether Mississippi’s execution protocol would “impose atypical and significant hardship” on the inmates—a due process challenge, not an Eighth Amendment Glossip/Baze claim. The Fifth Circuit was not endorsing the idea that Glossip forever insulated the three-drug midazolam execution protocol from any challenge by any other inmates; it was merely stating the obvious—that the Court ruled against the petitioners in Glossip in their challenge to Oklahoma’s three-drug midazolam protocol. Defendants also cite language from the majority opinion in the Eleventh Circuit’s split decision in Arthur v. Commissioner, No. 16-15549, 2016 U.S. App. LEXIS 19752 (11th Cir. Nov. 2, 2016). The language Defendants cite comes from a portion of the majority opinion in which the court noted that inmate Arthur had not satisfied his burden to show Alabama’s three-drug midazolam protocol created a substantial risk of serious harm. See id. at *85. But the court’s statement that the Eleventh Circuit and the Supreme Court “have upheld the midazolam-based execution protocol that Arthur challenges here,” id., does not carry the weight Defendants suggest. First, the Eleventh Circuit pointed to its own line of cases in which it rejected a three-drug midazolam challenge because the inmate had failed to develop an evidentiary record. That is meaningless here, when there is no 30 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 35 of 99 PAGEID #: 23744 caselaw in the Sixth Circuit on the three-drug midazolam protocol, and no inmates have ever had the chance to create an evidentiary record on such a protocol. Second, that discussion—including the reference to Glossip—was dicta, nothing more. The district court expressly limited Arthur’s trial to the “availability” of Arthur’s alternative execution method, which meant Arthur never had any chance to create an evidentiary record on midazolam’s unsuitability as the first of three drugs, nor did the district court consider or weigh his evidence about midazolam as the first drug. Thus, the only merits issue before the circuit court was whether inmate Arthur could satisfy the “alternative method” standard as the Eleventh Circuit has (erroneously) defined it. As the Arthur dissent noted, whether the three-drug midazolam protocol poses a substantial risk of serious harm was never litigated in Arthur, and thus “the Majority’s reliance on the issue is misplaced.” Id. at *168–69 n.12 (Wilson, J., dissenting). The court’s reference to Glossip on which Defendants rely was nothing more than the majority’s passing observation. It bore no analytical significance in Arthur, and bears even less in this case. Defendants circle back to Arthur again to quote a different passage. (ECF No. 730, PageID 23068.) Defendants observe that the “Supreme Court emphasized that midazolam has been repeatedly and successfully used without problems as the first drug in the three-drug lethal injection protocol.” (Id. (quoting Arthur, [2016 U.S. App. LEXIS 19752, *86].) And indeed, the Supreme Court did state that, pointing to a line of Florida cases. See Glossip, 135 S. Ct. 31 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 36 of 99 PAGEID #: 23745 at 2739–40. But the Supreme Court also stated that Oklahoma killed Charles Warner using a potassium chloride as the third drug following midazolam and a paralytic drug. Id. at 2735. And subsequent revelations have since established that to be untrue. See Mahita Gajanan, “Oklahoma used wrong drug in Charles Warner’s execution, autopsy report says,” THE GUARDIAN (Oct. 8, 2015).6 Likewise, the Supreme Court’s understanding of what transpired in Florida’s executions based on the self-interested amicus representations of the State of Florida itself—that the three-drug midazolam protocol was “successfully used without problems,” Arthur, 2016 U.S. App. LEXIS 19752 at *85–86—appears to be misguided as well, once the relevant evidence is uncovered. The most that can be said for Florida’s executions using a threedrug midazolam method is that the State tried mightily to give the appearance of “no problems” by rapidly drawing closed the chemical curtain to conceal the true nature of those executions. As Plaintiffs explained in their motions (see, e.g., ECF No. 718 at PageID ,22259–260 & Ex. 16), we now know the State of Florida was injecting the paralytic approximately two minutes after injecting the midazolam. Defendants also point to a Tenth Circuit decision arising out of a suit brought by Clayton Lockett’s estate following his horrific execution. (See ECF Available at https://www.theguardian.com/usnews/2015/oct/08/oklahoma-wrong-drug-execution-charles-warner. 6 32 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 37 of 99 PAGEID #: 23746 No. 730, PageID 23068–069 (citing Estate of Lockett v. Fallin, No. 15-6134, 2016 WL 6695780 (10th Cir. Nov. 15, 2016).) But again, that case does not bear the weight Defendants suggest; the issues in Estate of Lockett and the governing body of law are distinct from the matters at issue in this case. First, the court in Estate of Lockett rejected, on the basis of qualified immunity, claims for money damages levied against numerous government actors in their individual capacities. The qualified immunity doctrine is a different body of law involving multiple layers of legal analysis before a claimant can prevail, above and beyond just demonstrating a constitutional violation; qualified immunity is not at issue in this case. Second, the Tenth Circuit observed that Glossip and Baze were the relevant “clearly established law” under qualified immunity analysis, but that single executions “can go awry” without being an Eighth Amendment violation. Estate of Lockett v. Fallin, No. 15-6134, 2016 U.S. App. LEXIS 20499, at *19 (10th Cir. Nov. 15, 2016). The court, considering a single execution, declared that Lockett’s execution, as to him, was “exactly the sort of ‘innocent misadventure’ or ‘isolated mishap’ that the Baze plurality excuses from the definition of cruel and unusual punishment.” Id. Thus, the court suggested there was no Eighth Amendment violation as to Lockett himself. For the purposes of Plaintiffs’ Glossip/Baze (and Wilkerson/Kemmler) claims here, however, the Tenth Circuit’s conclusion that “[e]veryone acknowledges that Lockett suffered during his execution,” id. at *20, is the significant finding, not whether Lockett’s family could fully prove an Eighth Amendment violation. 33 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 38 of 99 PAGEID #: 23747 Defendants know or must be credited with knowing that Lockett suffered during his execution in which midazolam was injected as the first of a threedrug protocol. Plaintiffs can demonstrate a string of problematic executions involving midazolam, not just a single one considered in isolation, and it makes no difference whether those other executions are formally considered Eighth Amendment violations themselves. What matters is what happened and what that demonstrates about midazolam. Third, the language Defendants quote must be placed in the full context, which reads: “Oklahoma did not switch to midazolam in an effort to inflict additional pain. Thus, we conclude that Oklahoma’s use of midazolam comports with the Eighth Amendment.” Id. at *31. Saying that Oklahoma’s use of midazolam “comports with” the Eighth Amendment under Glossip because there was no record evidence of Oklahoma officials’ intent or purpose of inflicting additional pain is different than holding that a three-drug midazolam execution protocol can never be challenged following Glossip. Finally, that the Tenth Circuit cited the Supreme Court’s ruling involving Oklahoma’s three-drug midazolam protocol in a subsequent case involving Oklahoma’s three-drug midazolam protocol is hardly surprising and dispositive of nothing in this case, which involves Ohio’s execution protocol and a markedly different evidentiary record. Defendants also invoke Estate of Lockett in the course of making a selfcontradicting argument. They argue: “Plaintiffs’ assertion here ‘that midazolam is ineffective in rendering an inmate unconscious essentially asserts 34 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 39 of 99 PAGEID #: 23748 that the use of midazolam is constitutionally deficient, a legal conclusion that [this Court] need not credit.’ Lockett, 2016 WL 6695780, at *2 n.5 (emphasis added). To the contrary, Glossip now controls on that factual claim.” (ECF No. 730, PageID 23068.) Thus, in the space of consecutive sentences, Defendants first take the position that “whether midazolam . . . is[—or is not—]sufficient to anesthetize Plaintiffs” is a legal conclusion, and then they argue the same inquiry is a “factual claim” that is “controlled” by Glossip. Defendants do not explain how the same issue can simultaneously be a legal conclusion and a factual issue. Instead, they invoke yet a third characterization to argue that “whether midazolam poses a substantial risk of unnecessary pain qualifies as a ‘legislative fact’ that should not be decided differently in different district courts.” (Id.) But the Court should reject this frivolous argument; there are no factual findings by the Ohio General Assembly regarding midazolam or Ohio’s three-drug midazolam protocol. This Court is free to consider in the first instance and on the record Plaintiffs create whether Defendants’ three-drug midazolam protocol violates the Eighth Amendment.7 The concurring Judge in Estate of Lockett also provided a cogent explanation for why an allegation that midazolam is ineffective is not a legal conclusion: To be sure, the Estate’s factual allegations about midazolam’s efficacy may have legal implications—as all relevant factual allegations in a complaint surely must. But that doesn’t necessarily make them legal conclusions.” Estate of Lockett, 2016 U.S. App. LEXIS 20499, *42–43 n.2 (Moritz, J., concurring). 7 35 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 40 of 99 PAGEID #: 23749 Defendants also include a string cite to Kelley v. Johnson, 496 S.W.3d 346, 355-60 (Ark. 2016), and an accompanying parenthetical. (See ECF No. 730, PageID 23068.) But Kelley is also distinguishable and carries no weight in this case. The court in Kelley, like in Arthur, rejected the inmates’ Glossip/Baze challenges for failure to meet the “available” subpart of the “alternative method” Glossip test. That has no bearing on Plaintiffs’ arguments that a three-drug midazolam method presents a substantial risk of serious harm. In sum, Defendants cite Glossip, Baze, Estate of Lockett, Arthur, Jordan, and Kelley as the “binding precedent” (ECF No. 730, PageID 23066) requiring this Court to reject Plaintiffs’ Glossip/Baze claims. They even argue that Plaintiffs “cannot legally show” that a three-drug midazolam protocol violates the Eighth Amendment, which ignores Glossip’s explicit statement that the inquiry is a fact-intensive one. None of those cases requires the outcome Defendants assert.8 The cases cited in Defendants’ Section I.A–B all involve claims alleging Glossip/Baze-type, comparative claims. None allege the type of claims Plaintiffs allege in their Wilkerson/Kemmler claims. 8 36 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 41 of 99 PAGEID #: 23750 2. Defendants do not contest that Plaintiffs can satisfy both subparts of the “alternative method” test as to their Second and Third Alternatives, nor do Defendants contest Plaintiffs can satisfy the “substantial reduction” subpart as to their First Alternative. Glossip’s “alternative method” test requires demonstrating a known and available alternative method of execution that would substantially reduce the risk of harm posed by the current three-drug midazolam method. That standard includes two sub-questions: (1) is the alternative known and available? (hereinafter the “available” subpart); and (2) does the alternative substantially reduce the risk of harm posed by the current protocol? (hereinafter the “substantial reduction” subpart). Plaintiffs offered three alternative methods as part of their Glossip/Baze claims. The First Alternative uses extremely vetted pentobarbital in conjunction with additional prophylactic measures. The Second and Third Alternatives use a two-drug method involving midazolam and potassium chloride in conjunction with additional prophylactic measures. Defendants do not oppose Plaintiffs’ arguments and evidence on either subpart of the “alternative method” test as to Plaintiffs’ Second Alternative or Third Alternative. Defendants do not argue the drugs or prophylactic measures proposed in those alternatives are unknown or unavailable. Indeed, Defendants cannot reasonably dispute that the specific drug-related measures in the Second and Third Alternatives satisfy the “available” subpart, because those alternatives include some—but not all—of the drugs in the three-drug midazolam protocol Defendants intend to use. Removing the paralytic drug 37 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 42 of 99 PAGEID #: 23751 from the execution protocol and administering the Second or Third Alternatives, while not reducing the risk of serious harm below other potential alternatives, will nevertheless satisfy the “substantial reduction” subpart of the “alternative method” test because it will substantially reduce the risk of serious harm as compared to the relevant comparison: the current three-drug midazolam method. Because Defendants offer no argument to contest these allegations, Plaintiffs prevail even under the Arthur standard Defendants advance (discussed below). As to the First Alternative, Defendants substantively argue only that Plaintiffs cannot demonstrate that pentobarbital is available to Ohio now, and thus cannot satisfy the “alternative method” test as a matter of law. (ECF No. 730 at PageID 23069) This Court should reject that argument, as explained below. In short, the Court should rule in Plaintiffs’ favor on the majority of the “alternative method” issues because Defendants do not dispute Plaintiffs’ arguments and evidence as to their Second and Third Alternatives. Defendants rebut only the “available” subpart as to Plaintiffs First Alternative. They do not contest Plaintiffs’ arguments that any of their three proffered alternatives will substantially reduce the risk posed by the three-drug midazolam method. That is, Plaintiffs’ arguments on the “substantial reduction” subpart stand unrebutted as to each of their three proffered alternatives. 38 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 43 of 99 PAGEID #: 23752 3. There is no binding precedent on what the “alternative method” test requires, and this Court should reject the Arthur standard as contrary to Glossip and unworkable in practice. Regarding Plaintiffs’ First Alternative, Defendants argue that Plaintiffs cannot prevail on their Glossip/Baze claims in light of the second prong of Glossip’s test, the “alternative method” requirement. (See ECF No. 730, PageID 23069–70.) Specifically, Defendants argue Plaintiffs cannot demonstrate that pentobarbital is “available” under Glossip. But the Glossip Court did not indicate how an inmate can satisfy the “available” subpart of the “alternative method” test. Neither this Court nor the Sixth Circuit has addressed the issue following Glossip, making it a question of first impression for this Court. Defendants rely on the Eleventh Circuit’s Arthur decision for the proposition that meeting the “available” subpart requires an inmate to identify the specific vender willing to sell the alternative execution drug(s) to the State, and potentially even procure a supply of drugs on behalf of the State. (See ECF No. 730, PageID 23069 (asserting “Plaintiffs have presented no evidence suggesting that an alternative drug protocol is reasonably available to Ohio now. That dooms their claim here as a matter of law” and citing Arthur); id. at PageID 23069–70 (quoting Arthur to argue “the evidentiary burden on Plaintiffs is to show that there is now a source for alternative drugs that would sell them to Ohio for use in executions” (internal punctuation marks omitted)).) But Defendants’ reliance on Arther is misplaced. Obviously Arthur is not a Sixth Circuit decision and thus is not binding on this Court. This Court can and should decline to follow the Eleventh Circuit’s path. 39 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 44 of 99 PAGEID #: 23753 To begin, the Arthur standard contravenes what the Supreme Court actually said in Glossip. The Supreme Court required only that an inmate raising a comparative Glossip/Baze claim “identify”—not “obtain” or “procure”—“an alternative [method of execution] that is ‘feasible [and] readily implemented.’” Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 52) (emphasis added). And that is what Plaintiffs have done in their Fourth Amended Complaints and their Motions for Preliminary Injunction. It is what Plaintiffs will further demonstrate at the evidentiary hearing on their motions— evidence that Defendants could use a more humane alternative to their current protocol. Specifically, as to their First Alternative, that Defendants could use a one-drug extremely vetted pentobarbital protocol with additional prophylactic measures. And again, Defendants do not contest that Plaintiffs can and have established the entire “alternative method” test as to their Second and Third Alternatives, regardless of the applicable standard for “availability.” As the Supreme Court has explained, “[t]he plain meaning of the word ‘feasible’ . . . [is] ‘capable of being done, executed, or effected.’” Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 508–509 (1981) (quoting Webster’s Third New International Dictionary of the English Language 831 (1976)) (emphasis added). Similarly, Glossip’s “readily implemented” requirement cannot be read to mean more than that such an alternative is reasonably practicable under the circumstances. Cf. United States v. One TRW, Model M14, 7.62 Caliber Rifle, 441 F.3d 416, 422 (6th Cir. 2006) (“‘[R]eadily’ is a relative term, one that describes a process that is fairly or reasonably efficient, 40 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 45 of 99 PAGEID #: 23754 quick, and easy, but not necessarily the most efficient, speedy, or easy process.” (citing Webster’s Third New International Dictionary of the English Language 1889 (1981)) (emphasis in original). But under Defendants’ asserted standard, Plaintiffs would be required to identify a specific drug source willing to sell to the State, or actually procure an alternative. (See ECF No. 730 at PageID 23069–70 (quoting Arthur).) This is a much more stringent standard than required by Glossip, and impossible for a condemned inmate to meet. Plaintiffs lack the authority and resources to negotiate and procure a supply of controlled substances on behalf of the State of Ohio. Plaintiffs cannot reasonably do more than identify a feasible alternative that several other states are presently using. This is particularly true if Plaintiffs are forced to identify a specific willing supplier but then denied discovery on that very issue, as Defendants have done in this case. Further, the Eleventh Circuit’s standard is not just, as Defendants characterize it, a “heavy burden.” (See ECF No. 730, PageID 23066–67.) It is an insurmountable burden, made even more so still when the states— including Ohio—have aggressively moved to cut off information about their drug-seeking behavior, thereby precluding inmates from being able to obtain the very information it requires them to provide. The Arthur standard essentially bars Glossip/Baze claims without regard to the pain and suffering caused by the execution protocol in question. This eviscerates the constitutional guarantee against cruel and unusual punishment reaffirmed in Glossip. Applying this insurmountable burden on 41 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 46 of 99 PAGEID #: 23755 Glossip’s second prong would permit Defendants to insulate themselves from review of the severe pain and suffering caused by an execution method. The majority of the Glossip Court rejected as “outlandish” the principal dissent’s suggestion that, as a result of its ruling, inmates could be executed using torturous methods. 135 S. Ct. at 2746. Yet that is precisely what would result if this Court accepts Defendants’ argument and thereby forces Plaintiffs to satisfy a version of the “alternative method” test that imposes an impossible burden on Plaintiffs. As Plaintiffs have alleged in their papers and as they will further demonstrate an the evidentiary hearing, using the second and third drugs in a three-drug protocol reliant on midazolam to render the inmate sufficiently unaware and insensate will undoubtedly subject the inmate to torturous pain and suffering. That conclusion inexorably arises from scientific data not in the record in Glossip, informed by expert opinion based on the only relevant evidence: what happens when injecting large quantities of midazolam in the execution context. The evidence from that data set demonstrates that Plaintiffs will be tortured to death if subjected to Defendants’ three-drug midazolam Execution Protocol. Adopting the Arthur standard would all but create the very result the Supreme Court disclaimed as “outlandish” in Glossip—Plaintiffs will be executed with a torturous method, not because they are unable to prove that Defendants’ Execution Protocol will cause substantial pain and suffering, but because they cannot satisfy an insurmountable standard on the “available” subpart of the “alternative method” test. 42 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 47 of 99 PAGEID #: 23756 Finally, while Defendants rely on Arthur and urge this Court to follow suit, they omit any mention of subsequent events that caution against adopting the Arthur standard. With apologies to the late Paul Harvey, the Court must know the rest of the story. Following the Eleventh Circuit’s ruling—which was issued one day before his scheduled November 3, 2016 execution date—Arthur sought certiorari and a stay of execution from the Supreme Court of the United States. He raised two primary questions, the first of which included the matter of what the “alternative method” Glossip prong requires. In his motion for stay, Arthur explained that his case presented important legal questions, including that the “lower courts are in need of this Court’s guidance on how to interpret the ‘known and available alternative’ requirement from Glossip.” Application for Stay of Execution Pending Disposition of Petition for a Writ of Certiorari at 2, Arthur v. Alabama, 16-15549 (U.S. Nov. 3, 2016). Arthur also quoted the very language Defendants employ here that requires a condemned inmate to identify a specific, willing drug source that would sell to the State for use in executions, and explained such a standard “creates a burden no challenger could possibly meet.” Id. at 4. After consideration of Arthur’s arguments, the Supreme Court stayed Arthur’s execution pending consideration of his cert petition. Arthur v. Dunn, No. 16-602, 2016 U.S. LEXIS 6713, at *1 (Nov. 3, 2016). Under the Supreme Court’s jurisprudence, granting a stay of execution pending certiorari review requires, among other factors, that “four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari,” and a 43 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 48 of 99 PAGEID #: 23757 “significant possibility of reversal of the lower court’s decision.” Barefoot v. Estelle, 463 U.S. 880, 895 (1983) (citation omitted). Thus, there is a significant likelihood the Court will grant review and subsequently reverse the Eleventh Circuit’s insurmountable standard.9 Arthur’s certiorari petition has been distributed for Conference twice, and rescheduled twice. It remains pending at this time, having been most recently distributed for Conference of December 9, 2016. Arthur v. Dunn, No. 16-602, available at https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16602.htm. Rather than following the Eleventh Circuit down a path that ignores Supreme Court law defining “feasible” and “readily” implemented and is, therefore, likely to be reversed, this Court should hold that Plaintiffs can demonstrate the “available” subpart for their proffered alternatives involving a different drug by showing that the alternative drug is available and being used for executions by other departments of corrections. And Plaintiffs have alleged that to be the case regarding pentobarbital, because other states continue to obtain and use it. Chief Justice Roberts noted that he did not believe the case merited the Court’s review, although he voted to grant the stay “as a courtesy” because four other Justices voted to grant a stay. Arthur v. Dunn, No. 16-602, 2016 U.S. LEXIS 6713, at *1 (Nov. 3, 2016) (Roberts, C.J., statement respecting the grant of application for stay). The Court’s order also disclosed that Justices Thomas and Alito would deny the application. But even without Chief Justice Roberts’s vote to grant certiorari, there remains potentially five other votes for review among Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. 9 44 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 49 of 99 PAGEID #: 23758 4. Conclusion to Plaintiffs’ reply in support of their Glossip/Baze claims. Because Defendants offer no arguments to the contrary, this Court should find Plaintiffs have satisfied both subparts of Glossip’s “alternative method” test as to each provision in their Second Alternative and Third Alternatives, without the need for an evidentiary hearing (or, in the alternative, that Defendants have waived any opposition to Plaintiffs’ arguments and evidence on these points). On the same lack of any argument to the contrary, this Court should also, without the need for an evidentiary hearing, find Plaintiffs have satisfied (or Defendants have waived opposition to) the “substantial reduction” subpart of Glossip’s “alternative method” test as to their First Alternative. Similarly, this Court should also find Plaintiffs have satisfied (or Defendants have waived opposition to) the “available” subpart, with the need for an evidentiary hearing, as to all provisions of their First Alternative except the one Defendants rebutted: whether properly vetted pentobarbital is available. The only factual issue that remains subject to an evidentiary dispute as to the “alternative method” test for any of Plaintiffs’ three proffered alternatives is whether Plaintiffs can demonstrate properly vetted pentobarbital is available under an appropriate standard. And on the legal standard for that particular issue, this Court should decline to follow the Eleventh Circuit’s lead and find Plaintiffs can satisfy the “available” subpart by showing that pentobarbital is available because other 45 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 50 of 99 PAGEID #: 23759 state departments of corrections continue to obtain it and use it for lethal injection executions. This Court can bolster that finding by also finding that Defendants have a pentobarbital supplier “in the bullpen” to be used later. Finally, this Court should find a substantial risk of serious harm posed by Defendants’ use of a three-drug midazolam protocol. Defendants conflate Plaintiffs’ Glossip/Baze claims with their claims for categorical Eighth Amendment relief and otherwise fail to rebut Plaintiffs’ categorical/devolution claims. Defendants’ response to Plaintiffs’ other Eighth Amendment claims seemingly takes the position that an inmate has only one available legal framework under which he may attempt to plead and prove an Eighth Amendment violation. Of course, this simply is not so. While Defendants would rather litigate all Plaintiffs’ claims in rote fashion, that is not how Plaintiffs have pled their claims. Plaintiffs get to define their own claims and they will continue to pursue those claims whether or not the Defendants choose to acknowledge them, or continue to instead respond to the claims they wish Plaintiffs had raised. In response to Plaintiffs’ claim that the three-drug method of execution Defendants seek to inflict is categorically barred under the Eighth Amendment as cruel and unusual punishment, Defendants repeatedly attempt to lump this claim together with Plaintiffs’ method-of-execution claims by reiterating the holdings of, and pleading standards for, Glossip/Baze comparative-method claims. Glossip/Baze claims arise, for example, when an inmate has proposed an alternative method of execution which substantially reduces the risk of pain 46 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 51 of 99 PAGEID #: 23760 that is feasible and readily implementable, or an inmate alleges the State has refused to adopt a more humane method without legitimate penological justification. If an inmate does not propose such an alternative method, then it must be shown that the method of execution should not be used because it violates the inmate’s constitutional rights for some other reason—under some other cognizable legal theory. The very reason Plaintiffs do not have to prove an alternative method in the categorical bar context is because this type of claim, by definition, does not require an alternative; the method would be barred under any circumstance. If a method of execution is categorically barred, then it can never be imposed regardless of whether another form of execution is available. See Graham v. Florida, 560 U.S. 48, 59 (2010) (the Eighth Amendment prohibits “inherently barbaric punishments under all circumstances.”); Penry v. Lynaugh, 492 U.S. 302, 330 (1989) (the “Eighth Amendment categorically prohibits the infliction of cruel and unusual punishments.”). In other words, a Glossip/Baze claim insists that a State use one method instead of another because the alternative method is less painful or risky, while a categorical bar claim maintains that the State can never use a certain method because it is always cruel and unusual. One is a comparative analysis while the other requires only review of the punishment at issue (i.e., its inherent qualities) and its frequency of application. These are fundamentally different legal questions and thus require completely different pleading, proof, and analysis. 47 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 52 of 99 PAGEID #: 23761 Plaintiffs can and will show that the three-drug midazolam method is cruel and unusual under the prevailing standards of decency because it is not commonly used as a method of execution. Defendants point to states that allegedly provide for midazolam as an alternative drug in their execution protocol (ECF No. 730, PageID 23073), but two of the five (40%) states listed (Arkansas and Mississippi) have never actually used the drug in practice. As noted in Plaintiffs’ respective Fourth Amended Complaints, only three states that permit executions by lethal injection have ever used midazolam as the first drug in a three-drug method. (See ECF No. 691, PageID 20521–22 (Tibbetts); ECF No. 692, PageID 20611–12 (Phillips); ECF No. 695, Page ID 21164–65 (Otte).) When determining if a categorical bar is appropriate, objective indicia of society’s standards determines whether there is a national consensus against the sentencing practice. The fact that, in practice, so few states use a method of punishment is telling: a national consensus can exist against a punishment even though it is statutorily permitted by a majority of states. Graham, 560 U.S. at 62–63. The mere infrequency of a particular punishment suffices to establish a national consensus against the practice. Id. Despite Defendants’ citation of cases suggesting a midazolam three-drug method is “typical for those states that use lethal injection” (ECF No. 730, PageID 23060, 23067, 23073), that is demonstrably false. As set forth in Plaintiffs’ Fourth Amended Complaints, midazolam is not a commonly used drug in executions. (ECF No. 691, PageID 20522–27 (Tibbetts); ECF No. 692, PageID 20611–16 (Phillips); 48 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 53 of 99 PAGEID #: 23762 ECF No. 695, Page ID 21164–69 (Otte).) Though some states may provide for its use in their protocols, midazolam has only been used in the U.S. as part of a three-drug method just over a dozen times (16 executions total). The vast majority of these executions—13—have all taken place in a single southern state (Florida). Two other states, Oklahoma and Alabama, are the only other states who have used the three-drug midazolam method Defendants seek to inflict upon Plaintiffs. Plaintiffs agree that a state-by-state standard-of-decency review is not part of a Glossip/Baze claim, which is why they do not include that analysis in those claims. Such a review is properly undertaken, instead, as part of a categorical bar analysis, as plead in Plaintiffs’ respective Fourth Amended Complaints. Defendants falsely equate a showing of what is necessary to prove that a method is in and of itself cruel and unusual with the requirement needed to demonstrate that an asserted method is more humane when compared to another. As a result of this false equivalence, Defendants have failed to rebut Plaintiffs’ claims that Defendants’ three-drug midazolam method constitutes cruel and unusual punishment, and must be categorically barred. Similarly, as to Defendants’ opposition to Plaintiffs’ “devolution” argument, Defendants miss the point: the point is that Defendants previously made a change away from the three-drug method and the two dangerous drugs expressly to be (purportedly) more humane, and the courts gave them credit for that. Notably, Defendants do not deny those representations. Now they are going backwards, contrary to their expressed purpose of the previous evolution 49 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 54 of 99 PAGEID #: 23763 and their promises to this Court and the Sixth Circuit. The key is not the devolution going backwards itself, but that Defendants evolved for the purpose of making execution procedures more humane, and were blessed by the courts for that evolution, and are now devolving to a markedly less safe and humane execution method. In such circumstances, devolution is not permissible. Defendants suggest that they must devolve, but they have presented no evidence to demonstrate that position. They also misconstrue Justice Sotomayor’s principal dissent in Glossip, in which the Justice noted that “use of the firing squad could be seen as a devolution to a more primitive era. That is not to say, of course, that it would therefore be unconstitutional.” Glossip, 135 S. Ct. at 2796–97 (Sotomayor, J., dissenting). Defendants argue that statement means a devolution will never be unconstitutional. The proper reading of that statement in light of the entire context of Justice Sotomayor’s principal dissent, however, is that a devolved execution method will not necessarily be an unconstitutional execution method, but it certainly may be depending on the circumstances. And here, the evidence will establish that Defendants did not devolve out of absolute necessity but rather out of administrative convenience. Moreover, the logical extension of Defendants’ argument is clear and demonstrates the error of their argument. In essence, Defendants are arguing that if no other drug—whether barbiturates, benzodiazepines, or any other class of drug—is available to use as the critical first drug in a three-drug execution method, then injection of a paralytic agent followed by potassium 50 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 55 of 99 PAGEID #: 23764 chloride would, ipso facto, become constitutional. But the Supreme Court has already said that injecting a sensate person—let alone one who is fully aware— with the paralytic drug and/or potassium chloride to execute the person causes unconstitutional pain and suffering, Baze, 553 U.S. at 53. So that cannot be—it is not—the law. V. Defendants’ arguments against Plaintiffs’ Equal Protection claims should be rejected as a matter of law and fact. Defendants’ primary argument against Plaintiffs’ Equal Protection claims are recycled attempts to convert the claims into Glossip/Baze Eighth Amendment claims. This Court and the Sixth Circuit have emphatically rejected Defendants’ argument, however, establishing the law of the case as to this issue. Beyond their Sisyphean efforts to recast Plaintiffs’ claims, Defendants’ remaining arguments misconstrue and mischaracterize Plaintiffs’ claims instead of rebutting them. Defendants also devote considerable discussion to opposing injunctive relief on a claim—a “class-of-one” Equal Protection claim—not asserted in Plaintiffs’ motions; the Court can disregard those arguments. Defendants ask this Court to disregard the law of this case. The entire discussion between PageID 23080 and PageID 23083 (ECF No. 730) in Defendants’ opposition memorandum should be rejected. That section argues that Plaintiffs’ Equal Protection claims are non-cognizable: that they are merely Eighth Amendment claims in disguise. These arguments are wrong as a matter of law. 51 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 56 of 99 PAGEID #: 23765 Defendants have asserted those arguments to this Court on at least six previous occasions. Each time, this Court rejected it. In chronological order:  Cooey v. Kasich (Smith), 801 F. Supp. 2d 623, 653 (S.D. Ohio July 8, 2011) (“Defendants attempt to transform Plaintiff’s Fourteenth Amendment claim into a pure Eighth Amendment claim. But the former claim sufficiently targets that the sweeping core deviations at least burden Plaintiff’s fundamental right by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation.”);  Cooey v. Kasich (Brooks), 2011 U.S. Dist. LEXIS 128192, *15–16 (S.D. Ohio Nov. 4, 2011) (“As they did with Smith’s similar claim, Defendants attempt to transform Plaintiff’s Fourteenth Amendment claim into a pure Eighth Amendment claim”; providing same analysis as in Smith, and adding “[f]or present purposes, it does not matter whether there is a qualifying risk of severe pain . . . but only the creation of unequal treatment impacting the fundamental protection involved.”);  Lorraine, 840 F. Supp. 2d at 1054 (same);  In re Ohio Execution Protocol Litig. (Wiles), 868 F. Supp. 2d 625, 637–39 (S.D. Ohio Apr. 4, 2012) (same); 52 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 57 of 99 PAGEID #: 23766  In re Ohio Execution Protocol Litig. (Hartman), No. 2:11-cv-1016, 2012 U.S. Dist. LEXIS 158199, *50–55 (S.D. Ohio Nov. 5, 2012) (same);  In re Ohio Execution Protocol Litig. (Phillips), No. 2:11-cv-1016, 2013 U.S. Dist. LEXIS 159680, * (S.D. Ohio Nov. 7, 2013) (reiterating that Defendants have tried this argument “[t]hroughout this litigation,” to no success). This Court has steadfastly maintained its “reluctance” to “hold that there can only be an equal protection violation when there is an Eighth Amendment violation,” even as it noted that some Ninth Circuit caselaw might differ. See, e.g., Wiles, 868 F. Supp. 2d at 637; Hartman, 2012 U.S. Dist. LEXIS 158199 at *51; Phillips, 2013 U.S. Dist. LEXIS 159680 at *62. The Court explained why: “Many of the non-core deviations eliminated the procedural safeguards upon which the Sixth Circuit and this Court have expressly relied in the past in concluding that Ohio’s execution procedures survived Eighth Amendment scrutiny. And the practice of core deviations that arose once again in Lorraine undercuts the purported inability of Ohio to deviate from core deviations, pointing to at least a burden on the fundamental right involved if not outright disregard of that right.” Wiles, 868 F. Supp. 2d at 639; Hartman, 2012 U.S. Dist. LEXIS 158199 at *54–55; Phillips, 2013 U.S. Dist. LEXIS 159680 at *66. The Court continued: “To require an Eighth Amendment violation would suggest a narrow perspective that transforms the Equal Protection Clause into nothing more than a redundant backdoor route to the Eighth Amendment.” 53 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 58 of 99 PAGEID #: 23767 Wiles, 868 F. Supp. 2d at 639 (citing Special Programs, Inc. v. Courter, 923 F. Supp. 851, 855-56 (E.D. Va. 1996) (explaining that “it is mere impingement upon, not impermissible interference with, the exercise of a fundamental right that triggers strict scrutiny”)); Hartman, 2012 U.S. Dist. LEXIS 158199 at *54– 55 (same); Phillips, 2013 U.S. Dist. LEXIS 159680 at *66 (same). “Most significantly” on this issue, however, is “the Sixth Circuit’s express reliance on this Court’s prior equal protection analysis” that points “to partial if not full agreement with this Court’s rationale.” Phillips, 2013 U.S. Dist. LEXIS 159680 at *66 (citing Lorraine, 671 F.3d 601, 602 (6th Cir. 2012)); see also Wiles, 868 F. Supp. 2d at 639 (same); Hartman, 2012 U.S. Dist. LEXIS 158199 at *55 (same). The only caselaw in the Sixth Circuit on this issue arose when Defendants took their arguments in Lorraine on appeal, and that court bluntly rejected Defendants’ position. In re Ohio Execution Protocol Litig. (Lorraine), 671 F.3d 601, 602 (6th Cir. 2012). The Sixth Circuit’s published decision in Lorraine definitively resolves, as a matter of law, that Plaintiffs’ Equal Protection claims are distinct legally and analytically from Eighth Amendment claims. Id. (“agree[ing] with the district court” and expressly basing its order “upon the analysis of the district court’s [Lorraine order], as well as the district court’s [Smith order]). Defendants also took their arguments to the Supreme Court, attempting to vacate the stay of execution this Court entered for Lorraine. But that Court 54 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 59 of 99 PAGEID #: 23768 rejected them too. Kasich v. Lorraine, 132 S. Ct. 1306 (2012) (denying application to vacate stay of execution). The bottom line is that Lorraine is the law of this case. It is stunning that Defendants entirely omit any mention of that directly on-point, binding caselaw from their memorandum to this Court. Likewise stunning is Defendants’ omission of any acknowledgement of this Court’s orders granting injunctive relief to Plaintiffs Smith or Lorraine on equal protection grounds, both of which are opinions issued by this Court in this very litigation and thus highly persuasive if not outright controlling. Defendants misconstrue and mischaracterize Plaintiffs’ Equal Protection claims. Defendants other arguments opposing Plaintiffs’ Equal Protection claims fare no better. 1. Plaintiffs’ individual physical and mental characteristics do not absolve Defendants’ failures to follow their Execution Protocol. Plaintiffs are similarly situated, in all material respects, with others also subject to execution at Defendants’ hands by their Execution Protocol, contrary to Defendants’ cursory suggestion. (ECF No. 730, PageID 23079.) The impermissible deviations from the Protocol that violate the Equal Protection Clause’s guarantees are not deviations predicated on any individual differences between those inmates. For instance, it was not because of Dennis McGuire’s individual characteristics that Defendants injected him with more than 40 mg. of hydromorphone, in direct contravention of Core Element # 2 of the protocol 55 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 60 of 99 PAGEID #: 23769 Defendants used to execute McGuire. Or, in a different example, if Defendants obtained their pre-October 7, 2016 supply of execution drugs from a wholesaler, then those actions are a deviation from Core Elements of the protocol, because the version of the protocol under which those drugs were obtained did not authorize Defendants to obtain their execution drugs from a wholesaler. But that deviation would not be because of any inmate’s individual characteristics. When Defendants deviate from the Core Elements in the ways identified in Plaintiffs’ motions for injunctive relief, those deviations are not because of any inmate’s individual characteristics. Defendants’ arguments invoking differences in physical and mental characteristics between condemned inmates are therefore inapplicable. 2. Deviations from the Execution Protocol’s mandates constitute violations of the Equal Protection Clause. Defendants continue to misrepresent the nature of Plaintiffs’ Equal Protection claims. But they are simple, and this Court should see through Defendants’ efforts to muddy the waters. First, condemned inmates’ rights against cruel and unusual punishment (and other fundamental rights) are and must be protected in the execution context by Defendants’ execution policies and procedures, including most particularly the provisions of DRC Policy 01-COM-11, the Execution Protocol. But for the protections of those policies and procedures, there is, by definition, a substantial risk of severe harm to a condemned inmate. See Baze v. Rees, 553 U.S. 35, 53 (2008) (“It is uncontested that, failing a proper dose of sodium 56 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 61 of 99 PAGEID #: 23770 thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of [a paralytic agent] and pain from the injection of potassium chloride.”). Second, when there is not a guarantee that the necessary protections represented by the mandates of the Execution Protocol will be applied equally to Plaintiffs, that unconstitutionally burdens Plaintiffs’ fundamental rights, because it “subvert[s] the key constitutional principles that control the execution process.” In re Ohio Execution Protocol Litig. (Wiles), 868 F. Supp. 2d 625, 627 (S.D. Ohio Apr. 4, 2012). Third, Defendants, by their own representations, the text of the Execution Protocol and the law of this case, may not deviate from the five Core Elements in the Protocol, because any deviation from the Core Elements means the entire protocol is rendered optional and non-protective of Plaintiffs’ fundamental rights. Those Core Elements are essential “safeguards [of] the constitutionality of Ohio’s execution process.” Lorraine, 840 F. Supp. 2d at 1058. The Core Elements must be strictly followed. See, e.g., Wiles, 868 F. Supp. 2d at *644 (explaining that Director Mohr and Defendants “must strictly follow the protocol language in regard to the third core component”); see also Lorraine, at 1055 (“Defendants represented to this Court . . . two fundamental precepts. One was that Ohio would not and in fact could not deviate from the core protocol provisions”). Deviation from any of those five Core Elements would establishes yet again that “every aspect of the protocol . . . [is] a set of preferred practices or 57 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 62 of 99 PAGEID #: 23771 suggestions subject to variable implementation from inmate to inmate on good reasons, bad reasons, or no reasons at all.” Id.; see also Smith, 801 F. Supp. 2d at *643 (if the execution protocol is not strictly followed, it is “thus revealed to be an advisory compilation of guidelines subject to being ignored”). The Core Elements also implicitly include “all applicable policies, administrative regulations, and statutes,” and other concessions or representations that Defendants have made that are related to those Core Elements. See In re: Ohio Execution Protocol Litig. (Phillips), No. 2:11-cv-1016, 2013 WL 5963150, 2013 U.S. Dist. LEXIS 159680, *82–84 (S.D. Ohio Nov. 7, 2013). Fourth, any unauthorized deviation from any “non-Core” provision of the Execution Protocol is, by definition, an impermissible deviation from Core Element #5. See Lorraine, 840 F. Supp. 2d at 1058 (failing to adhere to the only permissible process to approve non-Core deviations “punctures one of the core components,” namely Core Element # 5). When Defendants engage in a non-Core deviation without following the strict requirements for authorization of such deviation, that demonstrates “that [Core Element # 5] is a hollow mandate, which would in turn suggest that none of the core components are of the requisite inviolate nature.” Wiles, 868 F. Supp. 2d at 647; see also Lorraine, 840 F. Supp. 2d at 1053 (explaining “the protocol itself rejects permissible non-core deviations that are not approved by the Director”). Indeed, that rule was the entire basis of this Court’s ruling in Lorraine, which the Sixth Circuit expressly adopted as its own. See In re Ohio Execution Protocol Litig.(Lorraine), 671 F.3d at 602, application to vacate stay denied, 58 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 63 of 99 PAGEID #: 23772 Kasich v. Lorraine, 132 S. Ct. 1306 (2012). Non-core deviations may only be authorized, in writing and in advance of the deviation, by the person at the top of the chain of command—the “Incident Commander” under the principles of Incident Command Systems (“ICS”), which Defendants have sworn to this Court that they will use in every execution. Wiles, 868 F. Supp. 2d at 648 (“Defendants have now returned to this Court, arguing that they respect what the protocol and the Constitution require and that ICS is the course correction that was found to be lacking in the Lorraine decision”; see also id. at 652 (warning that Defendants “must recognize the consequences that will ensue if they fail to succeed in conducting a constitutionally sound execution of Wiles. They must recognize what performing a constitutionally sound Wiles execution and then returning to the flawed practices of the past would mean.”). Defendants have also sworn to this Court that the only persons who may authorize deviations from non-Core provisions of the Protocol are Defendant Director Mohr, and—only in Director Mohr’s absence—Defendant Voorhies; if both Mohr and Voorhies are unavailable, “a reprieve from the Governor will be sought.” In re: Ohio Execution Protocol Litig. (Phillips), No. 2:11-cv-1016, 2013 WL 5963150, 2013 U.S. Dist. LEXIS 159680, *74 (S.D. Ohio Nov. 7, 2013). This Court also warned Defendants: “Ohio: Do not vary from this procedure. The delegation route is finite and should not be pushed to find its limits.” Id. But Defendants provide no discussion of these concepts. In fact, the words “Core Element” or similar ideas, including that there can be no deviation 59 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 64 of 99 PAGEID #: 23773 from any of the Core Elements without creating a constitutional violation, cannot be found anywhere in their memorandum. Relatedly, Defendants present no rebuttal to the argument that Defendants deviate from their Execution Protocol by failing to abide by concessions or representations that amount to unwritten or informal policies or practices incorporated into the Execution Protocol. (See Tibbetts’s Mot., ECF No. 718, PageID 22319–320; Phillips’s Mot., ECF No. 714, PageID 21611–615; Otte’s Mot., ECF No. 715, PageID 21725–726.) Instead, Defendants offer a sentence or two claiming Plaintiffs are trying to “incorporate by reference every federal and state statute, regulation, and city ordinance.” (ECF No. 730, PageID 23083.) That is untrue, and Defendants fail to mention, let alone address, that which Judge Frost previously held and Plaintiffs cited in their motions: applicable federal and Ohio state statutes and regulations are implicitly incorporated into the Execution Protocol such that violation of the federal or state law constitutes a deviation from the relevant Core Element when there is substantial overlap and correlation between a Core Element and federal and Ohio state statutes and regulations. See Phillips, No. 2:11-cv-1016, 2013 U.S. Dist. LEXIS 159680 at *82–84. Contrary to Defendants’ suggestion, there are innumerable statutes, regulations and city ordinances that are not applicable to the execution context or otherwise so overlapping with the requirements of the Execution Protocol that they are not relevant. For example, consider the laws governing Ohio’s roadway speed limits. They are obviously not applicable or so overlapping with 60 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 65 of 99 PAGEID #: 23774 any provision of the Execution Protocol such that deviation from them violates Plaintiffs’ Equal Protection rights. If Director Mohr breaks the law by driving faster than the posted speed limit on the road from Columbus to Lucasville to oversee an execution, that deviation from a state statute would not violate Plaintiffs’ rights to equal protection under the law. If, however, Director Mohr directs execution team personnel to use drugs for an execution that are adulterated, or illegally imported, or experimental or unapproved drugs under the relevant federal and state laws, that constitutes a deviation from Core Element # 2 (and Core Element # 3 and #4), because those other regulations and statutes are so overlapping with those Core Elements as to be implicitly part of them. And, if there was no written, advance authorization to deviate from the controlling, applicable regulations and statutes by Director Mohr (or, in his place, Mr. Voorhies), then that is a deviation from Core Element # 5. Likewise, DRC’s policies regarding the circumstances and procedures under which DRC may administer experimental or investigational drugs to inmates, DRC Policy 68-MED-11, Protocol E-4, Paragraph III.D, are “policies” and “administrative regulations” that are so overlapping with the drug provisions in the Execution Protocol as to be incorporated into it. So too are DRC’s policies regarding administering experimental medical treatment and pharmaceuticals, DRC Policy 06-RES-01 and 06-RES-02. So when the various Defendants involved with the execution drugs deviate from those policies to 61 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 66 of 99 PAGEID #: 23775 execute Plaintiffs, those deviations are deviations from Core Elements of the Execution Protocol and thus Equal Protection Clause violations. The point Defendants miss is this: an Equal Protection violation in this context is not the mere fact of Defendants’ violations of any and all policies, regulations or statutes. Rather, the Equal Protection violations arise from the fact that Defendants may not impermissibly deviate from their Execution Protocol, and violations of certain applicable policies, regulations or statutes are impermissible deviations from the Protocol. 3. Requiring Defendants to apply the law equally does not run afoul of inapplicable Eighth Amendment precedent, and it complies with the binding law of this case. This Court should also disregard as contrary to law of the case Defendants’ invocation of Eighth Amendment analysis in Cooey (Biros), Baze or Glossip to oppose Plaintiffs’ Equal Protection claims. (See ECF No. 730, PageID 23083–84.) As they have before, Defendants complain that requiring them to adhere to their Execution Protocol would turn this Court into a “board of inquiry charged with determining ‘best practices’ for executions.” (Id. at PageID 23083.) They now disclaim that they must strictly follow the Execution Protocol. That development is troubling, because Defendants have previously sworn they may never deviate from the Core Elements and the Execution Protocol facially prohibits deviation from the Core Elements. See Lorraine, 840 F. Supp. 2d 1044 at 1057 (quoting Cooey v. Kasich (Brooks), 2011 U.S. Dist. LEXIS 128192, *23 (S.D. Ohio Nov. 4, 2011) (recounting Defendant Director 62 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 67 of 99 PAGEID #: 23776 Mohr’s sworn testimony that the execution “protocol and approach was intended to embrace a policy of strict compliance”)); id. at 1058 (“Ohio created a new protocol and its agents indicated that they would comply with that protocol, presenting this Court with an interpretation of the protocol in which there are five core components from which they cannot vary.”); see also Brooks, at *24 (recounting Defendant Voorhies’s sworn testimony that “a team member cannot vary from the protocol”). Thus, Defendants’ backsliding on strict adherence to the Execution Protocol establishes yet another instance of the steadily rising number of sworn representations Defendants now disclaim. It also suggests Defendants are retrenching in their position that “substantial compliance” is acceptable, a position that this Court emphatically rejected, even for “non-core” deviations. See Lorraine, 840 F. Supp. 2d at 1053 (“The Court thus rejects Defendants’ invitation to accept substantial compliance with non-core protocol provisions as acceptable.”) That position must be rejected again for what it is: “nonsense.” Lorraine, 840 F. Supp. 2d at 1059 (quoting Smith, 801 F. Supp. 2d at 624). Moreover, this Court has already rejected on several occasions Defendants’ complaints that the Court is “micro-managing” their executionrelated behavior or turning itself into an “impermissible best-practices board” by enforcing Plaintiffs’ constitutionally guaranteed rights. See, e.g., Lorraine, 840 F. Supp. 2d at 1058 (“This Court has no interest in micro-managing executions in Ohio. That is not a judge’s role and it is certainly not this Court’s inclination. By Ohio’s own design, the ODRC Director is the designated micro63 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 68 of 99 PAGEID #: 23777 manager of the state’s executions.”); Wiles, 868 F. Supp. 2d at 649 (“Although Mohr testified that this Court has imposed the duty of micro-managing executions on him, that is incorrect.” (quoting Lorraine).) In one recent example, when Defendants complained about needing to preserve evidence for Plaintiffs to review for their constitutional claims, they “posit[ed] that the Court has in fact turned into a best practices board or a board of inquiry.” (ECF No. 396, PageID 11904.) But this Court rejected that contention as “incorrect.” (Id.) “Preserving the evidence as requested in no way micromanages the execution,” the Court explained. (Id.) “Permitting parties to obtain relevant evidence, considering that evidence, and determining whether the evidence presents successful claims of violations of 42 U.S.C. § 1983 are fundamental duties of an Article III judge.” (Id.) Finally, Defendants argue any Equal Protection claims are prohibited as “speculative injuries” that are “beyond the scope of judicial authority” under Cooey (Biros). (ECF No. 730, PageID 23083.) But Lorraine proves that Equal Protection challenges remain firmly within the scope of this Court’s judicial authority. And of course, Plaintiffs’ Equal Protection claims based on the drugs Defendants intend to use on them are anything but speculative, assuming Defendants use for Plaintiffs’ executions the drugs they have already acquired. 64 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 69 of 99 PAGEID #: 23778 VI. Defendants’ arguments against Plaintiffs Tibbetts and Otte’s corrupt activities claims should be rejected: DRC Defendants agree that Ohio law creates a private right of action for violations of state and federal law. As DRC Defendants agreed, Ohio law creates a private right of action for violations of state and federal law, and Plaintiffs Tibbetts and Otte10 will present evidence of such violations at a hearing on these claims. Although Plaintiffs asserted federal RICO claims in their respective Fourth Amended Complaints, they do not intend to litigate those claims at this time. Therefore, the Court may ignore the five pages of DRC Defendants’ opposition memorandum (ECF No. 730, PageID 23094–98) where they rebut arguments that were not even made. As to claims that are presented in Plaintiffs’ motions, DRC Defendants concede that the Ohio Corrupt Practices Act (OCPA) creates a private cause of action to “[a]ny person who is injured or threated with injury,”—meaning, injury to business or property is not necessary—and that Ohio law provides for injunctive relief. (ECF No. 730, PageID 23099.) These are notable differences from federal RICO law. Plaintiffs elaborated further on these differences in their FRAP 28j letter filed in the Sixth Circuit in the Fears appeal, notice of which was also filed with this Court (ECF No. 735, PageID 23146–47). References to “Plaintiffs” in this particular section refer to Plaintiffs Tibbetts and Otte. 10 65 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 70 of 99 PAGEID #: 23779 DRC Defendants also do not contest that this Court may grant injunctive relief against Drug Source Defendants, enjoining them from supplying DRC Defendants with counterfeit drugs. And so, any relief that may incidentally impact DRC Defendants, such as seizure of property (i.e., counterfeit drugs), would be ancillary to the federal court’s power to impose injunctive relief. This relief would not be barred by Eleventh Amendment for the same reason an award of attorneys’ fees against state officials in civil rights action paid out of state funds is also not barred by Eleventh Amendment—it is ancillary to the Court’s power. Moreover, the Court may also issue an injunctive relief directly against DRC Defendants to correct the violation of Plaintiffs’ federal rights caused by DRC obtaining execution drugs illegally. Irregular distribution channels and the murky origin of the drugs implicate the Equal Protection clause, and Ex Parte Young therefore provides an exception to doctrine of sovereign immunity. Finally, Plaintiffs are likely to prevail on the merits of their Ohio Corrupt Practices claims. The first OCPA predicate, dispensing without a valid prescription, is not barred by either Gonzales v. Oregon, or Ohio’s board of pharmacy resolution, which equates a death warrant with a prescription. Complying with this state law—to the extent that an invalidly promulgated pharmacy board resolution is state law—is impossible without violating the Federal Controlled Substances Act (CSA). Federal law, therefore, preempts the pharmacy board’s resolution. And Gonzales v. Oregon did not impose new requirements to prove a violation of the CSA. 66 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 71 of 99 PAGEID #: 23780 As to the second OCPA predicate, counterfeit controlled substances, here federal law on trademarked goods demonstrates that drug vendors and DRC Defendants are running afoul of Ohio laws prohibiting the sale and possession of counterfeit controlled substances. Plaintiffs address these issues in the reverse order from how they are listed in this paragraph, starting with the merits of the predicate acts Plaintiffs intend to prove at the hearing. The Controlled Substances Act preempts a state pharmacy board’s resolution and provides for a broad definition of unlawful dispensing; the text of the Execution Protocol contemplates multiple, literal violations of the Controlled Substances Act. Plaintiffs alleged that drug vendors are dispensing drugs without a valid prescription in violation of several federal laws. (Tibbetts’ Compl., ECF No. 691, PageID 20367, ¶ 1389, Otte’s Compl., ECF No. 695, PageID 21036, ¶ 1389.)11 DRC Defendants’ argument to the contrary—that the resolution of Ohio’s State Board of Pharmacy (the “Board”) trumps the Controlled Substances Act, and therefore, the conduct of the Drug Source Defendant is In their response to Tibbetts’s Preliminary Injunction Motion, DRC Defendants assert that Tibbetts did not raise a correct predicate; they argue that he should have raised 21 U.S.C. § 841 and 842, instead of § 829. (ECF No. 730, PageID 23101.) Tibbetts directs DRC Defendants to his Complaint, where he raised violations of 21 U.S.C. § 829, § 841 et seq, and § 353(b) as predicate violations and more broadly, “dispensing without a valid prescription.” (ECF No. 691, PageID 20367, ¶¶ 1386–89). The same goes for Otte. 11 67 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 72 of 99 PAGEID #: 23781 legal—fails. Federal law preempts that resolution as state regulation in direct conflict with federal law. Moreover, as argued below, that resolution is an invalidly enacted rule that has no binding authority. The case on which DRC Defendants rely to argue that this predicate would not succeed, Gonzales v. Oregon, 546 U.S. 243 (2006), has been held inapplicable in the context of federal criminal law by this Circuit and other federal courts. United States v. Volkman, 797 F.3d 377, 385 (6th Cir.), cert. denied, 136 S. Ct. 348 (2015). 1. The Controlled Substances Act explicitly retains preemptive effect over conflicting state regulations. Under the doctrine of federal preemption, a federal law supersedes or supplants an inconsistent state law or regulation. Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992). This canon embraces three distinct types of preemption: express, field, and conflict. Id. Express preemption requires Congress to explicitly state its intent to preempt relevant state laws. Id. Field preemption occurs when Congress intends to “occupy the field,” taking over a field of law to the exclusion of state or local authority. Id. Finally, conflict preemption takes two forms: (i) when compliance with both state and federal law is impossible, and (ii) when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. The Federal Controlled Substances Act explicitly retains preemptive effect over state regulations when “there is a positive conflict between . . . this subchapter and . . . State law so that the two cannot consistently stand together.” 21 U.S.C. § 903. “What is a sufficient obstacle [to give rise to conflict 68 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 73 of 99 PAGEID #: 23782 preemption] is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000). 2. Under the Controlled Substances Act, to be effective, a prescription must be “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” Section 841(a)(1) of the CSA makes it “unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance” unless that person is a registered person acting pursuant to an effective prescription. See 21 U.S.C. §§ 841(a), 822(b); 21 C.F.R. § 1306.04. Title 21 C.F.R. § 1306.04 describes the conditions under which a registered person can distribute a controlled substance and requires that, to be “effective,” a prescription must be “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” Id. The same section emphasizes that “[a]n order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) . . . .” Id. Consequently, “the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.” Id. Consistent with this provision, lay persons who conspire with or aid and abet a practitioner’s unlawful distribution of drugs can be convicted under the CSA and its regulations. See, e.g., United States v. Hicks, 529 F.2d 69 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 74 of 99 PAGEID #: 23783 841, 844 (5th Cir. 1976) (security guard); United States v. Green, 511 F.2d 1062, 1070–71 (7th Cir. 1975) (pharmacy owner). Several federal courts have examined what the “usual course of professional practice” requires. In United States v. Moore, 423 U.S. 122, 139 (1975), the Supreme Court impliedly approved a jury instruction that allowed a jury to find a doctor guilty of violating § 841(a) if the doctor dispensed methadone “other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States.” The circuit courts have likewise focused on the same standard. See, e.g., United States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008) (“The appropriate focus is not on the subjective intent of the doctor, but rather it rests upon whether the physician prescribes medicine in accordance with a standard of medical practice generally recognized and accepted in the United States.” (quotation omitted)); United States v. Feingold, 454 F.3d 1001, 1011 n.3 (9th Cir. 2006) (“The term ‘professional practice’ implies at least that there exists a reputable group of people in the medical profession who agree that a given approach to prescribing controlled substances is consistent with legitimate medical treatment.”); United States v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986) (“One person’s treatment methods do not alone constitute a medical practice.”). Consistent with Moore, the Eighth Circuit in United States v. Katz, 445 F.3d 1023, 1028 (8th Cir. 2006), indicated that prescriptions issued “outside 70 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 75 of 99 PAGEID #: 23784 the bounds of professional medical practice” include instances where a doctor issues prescriptions “for other than a legitimate medical purpose.” In a subsequent case, the Eighth Circuit again confirmed that the court is “not at liberty to eliminate the requirement that an issuing practitioner’s practice be objectively ‘professional.’” United States v. Smith, 573 F.3d 639, 648 (8th Cir. 2009). In sum, under the CSA, dispensing a controlled substance is illegal, unless pursuant to a prescription “issued for legitimate medical purpose” or “consistent with legitimate medical treatment,” “in accordance with a standard of medical practice generally recognized and accepted in the United States,” such that “there exists a reputable group of people in the medical profession who agree that a given approach to prescribing controlled substances is consistent with legitimate medical treatment.” Applying these principles to the resolution of the Ohio board of pharmacy, it becomes apparent that federal law here conflicts with, and therefore, preempts, state law. But what’s more, the resolution is not even a validly promulgated rule, and it is therefore void. 3. The Ohio Board of Pharmacy resolution provides for a Death Warrant to serve as “proper order” for administration of the execution drugs. The state board of pharmacy is established by statute and consists of nine members. Ohio Rev. Code § 4729.02. Members of this board are appointed by the governor, who is a named defendant in this case. Id. The board “may adopt rules in accordance with Chapter 119. [sic] of the Revised 71 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 76 of 99 PAGEID #: 23785 Code, not inconsistent with the law, as may be necessary to carry out the purposes of and to enforce the provisions of this chapter.” Ohio Rev. Code § 4729.26. In turn, Chapter 119 is Ohio’s Administrative Procedure Act, which requires that the agency’s rules are promulgated through the notice-andcomment procedure. Ohio Rev. Code § 119.03. With their response to Plaintiffs’ motions, the DRC Defendants enclosed an exhibit, a Record of Proceedings from Wednesday, September 14, 2011, of the State Board of Pharmacy. (ECF No. 730-1, PageID 23105.) This record reflects that at the urging of the counsel for DRC Defendants—the Ohio Attorney General’s Office—and the Department of Corrections, the board “moved that the following resolution is approved.” Id. This resolution states that “[a] certified copy of a Death Warrant issued by the Ohio Supreme Court, ordering the execution of an inmate by lethal injection, as provided for in R.C. § 2949.22, shall have the same force and effect as a proper order for administration of the drug(s).” Id. The same resolution also provides that “a pharmacist in receipt of said Warden’s order for drugs for use in carrying out a court order for execution shall release the requested drugs pursuant to the direction of the Warden and shall maintain a record the release for a period of at least three years from the date of the release.” Id. 72 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 77 of 99 PAGEID #: 23786 4. The Board’s resolution was adopted in violation of the required statutory procedures, and therefore is invalid and of no effect. Defendants contend the Board’s resolution is an exercise of the State’s “police power.” (ECF No. 730, PageID 23102.) But the Board’s resolution is not even a validly enacted agency rule, much less an exercise of a valid State police power. The resolution has no legally binding authority because it was adopted in contravention of the procedures required under the law, and it is, consequently, void. “[W]hat an agency labels a document is not conclusive.” State ex rel. Saunders v. Indus. Comm., 802 N.E.2d 650, 653 (2004). “It is the effect of the document, not how the agency chooses to characterize it, that is important.” Id. (internal alterations omitted). “The pivotal issue in determining the effect of a document is whether it enlarges the scope of the rule or statute from which it derives rather than simply interprets it.” Id. If the document enlarges the scope of the rule or statute from which it derives, the rule must be promulgated according to rule-making requirements. Here, the resolution does not state which statute or administrative rule it derives from or enlarges. In fact, it appears that the resolution is completely contradictory to several. Other administrative rules promulgated by the same board require that a “prescription, to be valid, must be issued for a legitimate medical purpose by an individual prescriber acting in the usual course of his/her professional practice.” Ohio Admin. Code § 4729-5-21(A); § 4729-5-30. These rules also provide that “[a]n order purporting to be a prescription issued 73 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 78 of 99 PAGEID #: 23787 not in the usual course of bona fide treatment of a patient is not a prescription and the person knowingly dispensing such a purported prescription, as well as the person issuing it, shall be subject to the penalties of law.” Ohio Admin. Code § 4729-5-30(A). And finally, another rule decrees that “no pharmacist shall dispense dangerous drugs pursuant to a written outpatient prescription unless the following conditions are met: (1) The prescription is issued in compliance with rule 4729-5-30 of the Administrative Code. . . .” Ohio Admin. Code 4729-5-13(A). The resolution thus completely disregards at least three administrative rules that were validly promulgated under Chapter 119 after the notice-andcomment period. Therefore, the resolution enlarges—to put it mildly—the scope of the rule, rather than simply interpreting it. For these reasons, to be valid, this resolution should have been promulgated under the Chapter 119 notice-and-comment requirements as required by O.R.C. 4729.26. It was not. The resolution was approved by a five-member vote of a ninemember board after a few minutes of discussing it with counsel for Defendants in this case. None of the other procedures required by Chapter 119 were followed: filing the full text of the proposed rule with the secretary of state and with the director of the legislative service commission, preparing a fiscal analysis, a hearing report, giving the public notice and opportunity to comment, etc. See O.R.C. 119.03. Rules adopted by an agency in violation of the required statutory procedures are invalid and of no effect. See Bd. of 74 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 79 of 99 PAGEID #: 23788 Trustees v. Dept. of Admin. Services, 429 N.E.2d 428 (Ohio 1981); see also Condee v. Lindley, 465 N.E.2d 450, 452 (1984). Thus, the resolution is not a binding authority or state law or part of any regulatory scheme or exercise of the State’s police power. And if it were, it would be nullified by federal law. 5. The Board’s resolution is also nullified because it conflicts with federal law. Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982). Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility” or when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. These principles do not lose their gravitas simply because a particular law is a matter of special concern to the States: “The relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail.” Free v. Bland, 369 U.S. 663, 666 (1962); see also Ridgway v. Ridgway, 454 U.S. 46, 54-55 (1981). Here, compliance with both the federal Controlled Substances Act and the resolution of the Ohio board of pharmacy, to the extent that resolution has the power of binding state law, is impossible. Complying with the resolution means that a pharmacist “releases” the requested drugs upon presentation of an order, not a prescription. This violates black-letter federal law, that “[a]n 75 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 80 of 99 PAGEID #: 23789 order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) . . . .” 21 C.F.R. § 1306.04. (State law may preempted by a federal regulation, not just a statute. State Farm Bank v. Reardon, 539 F.3d 336, 349 (6th Cir. 2008)). Returning to the principles articulated by federal courts’ interpretations of the CSA, nothing about a death warrant constitutes “a prescription” issued “in the usual course of professional treatment,” as required by 21 C.F.R. § 1306.04. There is no “legitimate medical purpose” required by the same regulation, either. No standards of medical practice exist to govern administration of drugs in lethal doses, as this is not a medical practice “generally recognized and accepted in the United States,” as the Supreme Court required in Moore, 423 U.S. at 139. No group of people in the medical profession exists where this approach to prescribing controlled substances is consistent with “legitimate medical practice.” Feingold, 454 F.3d at 1011 n.3. This practice is not objectively “professional,” as circuit courts demand. See, e.g., Smith, 573 F.3d 639, 648; Norris, 780 F.2d at 1209. Therefore, the board’s resolution, to the extent it has any effect at all, is preempted by federal law, the Controlled Substances Act. 6. Gonzalez v. Oregon did not supplant the standard for violations of the Controlled Substances Act. DRC Defendants argue that it would be “inconsistent” with Gonzales v. Oregon, 546 U.S. 243 (2006), to read the Controlled Substances Act to 76 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 81 of 99 PAGEID #: 23790 “interfere with the State’s powers to administer and prepare for its executions.” (ECF No. 730, PageID 23102.) The question here is far simpler than DRC Defendants represent and Gonzales has nothing to do with it. This part of the case is not about administrative law, it is about whether Plaintiffs can show two or more violations of the CSA by the Drug Source Defendants. On that point, the authorities are unanimous: Gonzales has no application in the context of federal criminal law, which is where we find ourselves by the virtue of OCPA and Federal RICO. In United States v. Volkman, 797 F.3d 377, 386 (6th Cir. 2015), the Sixth Circuit joined its sister circuits and found “Gonzales did not impose new requirements to prove a violation of the CSA.” The Sixth Circuit specifically noted the decisions in United States v. Lovern, 590 F.3d 1095 (10th Cir. 2009), in which the Tenth Circuit Court of Appeals “commented on Gonzales’ relevance—or lack thereof—in the setting of a criminal prosecution[,]” and in United States v. Kanner, 603 F.3d 530, 535 (8th Cir. 2010), in which the Eighth Circuit Court of Appeals “added to the Lovern court’s conclusions by noting that ‘Gonzales did not supplant the standard for violations of the CSA.’” Volkman, 797 F.3d at 385–86. As described in detail below, the Execution Protocol contemplates multiple violations of the CSA. The people involved in delivering and administering drugs are doing so without a valid prescription, cloaked by all the legal authority that minutes from a pharmacy board meeting can provide. What’s before the Court is not an interpretive rule like in Gonzales, but a 77 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 82 of 99 PAGEID #: 23791 question of whether certain conduct of Drug Source Defendants violates the CSA. As Plaintiffs argue, this conduct is not even valid under Ohio’s own laws and regulations, much less federal law. And that’s all that the Court needs to decide here. 7. The Execution Protocol expressly contemplates multiple violations of the Controlled Substances Act, therefore, Plaintiffs are likely to prevail on the merits of the “dispensing without valid prescription” predicate. Now that the supremacy of the Controlled Substances Act cannot reasonably be questioned, Plaintiffs will demonstrate that they are likely to prevail on the merits of their Ohio Corrupt Practices Act claim based on an unlawful dispensing predicate. To prevail under the Ohio Corrupt Practices Act, Plaintiffs must show two predicate violations. Unlawful dispensing in violation of the Controlled Substances Act is encompassed in the definition of the racketeering activity under 18 U.S.C. § 1961(1)(D): “the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance . . . , punishable under any law of the United States.” In turn, the Ohio Corrupt Practices Act incorporates racketeering activity as defined in 18 U.S.C. § 1961(1)(D) into its definition of “corrupt activity” in Ohio Revised Code § 2923.31(I)(1). To secure a conviction for unlawful dispensation under the Controlled Substances Act, 21 U.S.C. § 841(a)(1), the government must prove that the defendant “dispensed controlled substances for other than legitimate medical purposes in the usual course of professional practice, and that he did so 78 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 83 of 99 PAGEID #: 23792 knowingly and intentionally.” United States v. Azmat, 805 F.3d 1018, 1035 (11th Cir. 2016). Plaintiffs are not trying to secure a conviction of their executioners, but that case is illustrative. The Controlled Substances Act itself defines the term “dispense” as meaning “to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling or compounding necessary to prepare the substance for such delivery. 21 U.S.C. § 802(10) (emphasis added). The term “dispenser” means a practitioner who so delivers a controlled substance to an ultimate user or research subject. Id. The terms “deliver” or “delivery” mean the actual, constructive, or attempted transfer of a controlled substance or a listed chemical, whether or not there exists an agency relationship. Id. § 802(8). Courts have interpreted the term “dispense” even more broadly, to mean that § 802(10) provides that “dispense” means to “deliver.” United States v. Roya, 574 F.2d 386, 393 (7th Cir. 1978). In turn, the “delivery” may be a constructive transfer and may be carried out by various methods, including: (1) prescribing the medication, (2) administering the medication, (3) packaging, labeling, or compounding the medication as necessary to prepare it for delivery, or (4) other methods not listed in § 802(10). See Azmat, 805 F.3d at 1035; Stansell v. Revolutionary Armed Forces of Colom., 704 F.3d 910, 915 (11th Cir. 2013) (noting that the term “‘include’ [in § 802(10)] is merely illustrative”). 79 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 84 of 99 PAGEID #: 23793 The current Execution Protocol provides that a pharmacist, presumably relying on the invalid resolution of Ohio’s pharmacy board, will “release” the drugs to two Drug Administrators, who will then prepare the drugs and subsequently administer them to Plaintiffs: A Drug Administrator, in the presence of a second Drug Administrator, shall take possession of the Execution Drugs from the SOCF responsible pharmacist or another appropriately licensed pharmacist at the secured pharmacy storage area .... The Drug Administrator taking possession of the Execution Drugs, accompanied by a second Drug Administrator shall deliver the Execution Drugs to the Death House. .... The Execution Drugs shall be prepared for injection by a Drug Administrator. ... The first drug shall be prepared as follows: . . . syringes, labeled “1” and “2”. .... [A] Drug Administrator shall intravenously administer the previously prepared syringes . . . 01-COM-11 (Oct. 7, 2016), ECF No. 667-1, PageID 19823–28. Although by no means an exhaustive list, every single one of those actions is an unlawful dispensation within the meaning of § 841(a)(1): the Protocol describes delivering, constructively delivering, administering, packing, labeling, and packaging medications for other than legitimate medical purposes in the usual course of professional practice, done knowingly and intentionally. In turn, these predicate violations satisfy the definition of racketeering activity 80 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 85 of 99 PAGEID #: 23794 in 18 U.S.C. § 1961(1)(D), which is incorporated by reference into the definition of “corrupt activity” under Ohio Revised Code § 2923.31(I)(1). Plaintiffs, therefore, will likely prevail on their Ohio Corrupt Practices Act claim with unlawful dispensing predicates. They are also likely to prevail on his counterfeit controlled substances predicate. Federal law on intellectual property shows a product is not truly “genuine” unless it is distributed under quality controls established by the trademark owner; subverting manufacturer’s quality controls results in use of trademark without authorization. For a second predicate, Plaintiffs asserted that Drug Source Defendants sold or delivered to the DRC counterfeit controlled substances in violation of Ohio Revised Code § 2925.37, which is a predicate act under the Ohio Corrupt Practices statute, Ohio Revised Code § 2923.31(I)(2)(c). The precise statutory details of this predicate are laid out in ECF No. 718, PageID 22335–38. Under the relevant section of Ohio law, “counterfeit controlled substance” means “[a]ny drug that bears, or whose container or label bears, a trademark, trade name, or other identifying mark used without authorization of the owner of rights to that trademark, trade name, or identifying mark.” Ohio Rev. Code § 2925.01(O)(1). Because of the restrictions manufacturers place on their drugs, possessing or delivering a manufactured drug that bears a manufacturer’s label for a lethal injection execution will necessarily constitute possessing or delivering a drug that bears a trademark used without authorization. Evidence Plaintiffs submitted with their motions for preliminary injunction shows that all manufacturers of the drugs listed in the Execution 81 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 86 of 99 PAGEID #: 23795 Protocol have put restrictions on the distribution of these drugs. (ECF No. 71826, PageID 22765.) Plaintiffs intend to provide additional evidence of these restrictions at the hearing. Instead of denying these factual assertions, DRC Defendants respond that this statute can only be violated by a very literal misuse of a trademark, such as by substituting the substance in the container bearing the mark. Id. (ECF No. 730, PageID 23103.) DRC Defendants provide an example of “a defendant who conceals cocaine in a Tylenol jar.” Id. Obviously, the Tylenol manufacturer did not authorize the subsequent substitution of Tylenol for cocaine, and that’s what makes the substance counterfeit. The assumption that DRC Defendants make here is that a jar of Tylenol with Tylenol still inside is never counterfeit because the manufacturer put a label on that jar in the due course of manufacturing. Therefore, all subsequent use of that trademark on that jar would always be “with authorization.” That’s an intolerably narrow view of trademark protection, unsupported by legal precedent. The trademark holder is entitled to maintain control of quality of the goods manufactured and sold under the holder’s trademark. Therefore, products distributed without quality controls established by the trademark owner are not truly “genuine” and infringe on intellectual property rights. For this analysis, we turn to federal law. In most states, including Ohio, courts have held that the state trademark common law and trademark statutes are to be given the same meaning and interpretation as the mainstream principles of common law and federal 82 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 87 of 99 PAGEID #: 23796 trademark law. 3 McCarthy on Trademarks and Unfair Competition § 22:1.50 (4th ed.); Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619, 625 n.2 (6th Cir. 2002) (“Both Ohio and federal courts have recognized that the same analysis applies to claims under Ohio’s statutory and common law of unfair competition and the Lanham Act.”). Federal law, therefore, is illuminating on this point. A leading trademark infringement case on genuineness, El Greco Leather Products Co. v. Shoe World, Inc. 806 F.2d 392, 396 (2d Cir.1986), rejected the narrow view of trademarks espoused by DRC Defendants here. El Greco held that “[t]he mere act of ordering a product to be labeled with a trademark does not deprive its holder of the right to control the product and the trademark,” and that products distributed without quality controls established by the trademark owner are not truly “genuine.” In El Greco, plaintiff, who was the trademark holder, had contracted for a third party to manufacture a quantity of shoes bearing plaintiff’s trademark. 806 F.2d at 393. After the plaintiff cancelled a quantity of the order, the contractor sold these allegedly genuine shoes without plaintiff’s authorization, and the plaintiff sued. Id. at 394. The district court held that no case of unfair competition had been made out, basing this holding on the conclusion that since the shoes were genuine shoes, there was no “likelihood of confusion” to the buying public. Id. The Second Circuit reversed, calling district court’s opinion “an unjustifiably narrow view of the protection afforded trademark holders.” Id. at 83 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 88 of 99 PAGEID #: 23797 395. The Court emphasized that “[o]ne of the most valuable and important protections . . . is the right to control the quality of the goods manufactured and sold under the holder’s trademark.” Id. For this purpose the actual quality of the goods is irrelevant; it is the control of quality that a trademark holder is entitled to maintain. Id. Here, Drug Source Defendants who sell drugs to DRC in violation of the manufacturers’ distribution restrictions deprive the trademark holders of the opportunity to control the quality of their fragile, perishable product by subverting it from normal distribution channels. Drug wholesalers and other distributors are subject to the manufacturers’ supervision and quality control measures until the drugs reach the end user. These control measures are not trivial. See, e.g., http://www.pfizer.com/products/hcp/pfizer_authorized_distributors/all. Far from facilitating quality control measures, however, DRC Defendants have refused to produce in discovery lot numbers or other identifying characteristics, and reserved the right to further violate manufacturers’ intellectual property rights by removing manufacturing labels, “wording, lot numbers, logos, distinct designs, and expiration dates.” ECF No. 748, PageID 23311. But this, too, runs counter to protections afforded by intellectual property law. Lot numbers and production codes “improve the [trademark owner’s] ability to identify defective products, effectuate a targeted recall and remedy production defects as well as permit the detection of counterfeits.” Zino 84 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 89 of 99 PAGEID #: 23798 Davidoff SA v. CVS Corp., 571 F.3d 238, 243 (2d Cir. 2009). Applying this rule, the court affirmed a preliminary injunction barring a retailer from selling goods in containers from which the production codes had been removed. Such production codes facilitate the trademark owner’s ability to maintain quality control and to detect counterfeit goods. The court observed that: “The mark holder is entitled to protection against acts that subvert its ability to protect the reputation of its marks by exercising quality control.” Id. at 246. In sum, merely because the product was initially manufactured and labeled with the trademark owner’s permission, does not mean that subsequent possession of that product bearing that mark is still “with authorization” or that the product remains genuine. Drug Source Defendants and DRC Defendants interfered with the manufacturer’s quality control measures and thus, the manufacturer’s control over the trademark itself. And finally, the most damning evidence that DRC Defendants are in possession of controlled substances bearing a trademark used without authorization is that the manufacturers themselves unambiguously and unequivocally revoked authorization for their drugs to be used in lethal injections. (ECF No. 718-26, PageID 22765.) Accordingly, Plaintiffs will show at the evidentiary hearing that the drugs in DRC’s possession are controlled substances bearing a trademark used without authorization of the manufacturer, which makes them counterfeit controlled substances. O.R.C. § 2925.01(O)(1). Therefore, Drug Source Defendants sold these counterfeit controlled substances to DRC Defendants in 85 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 90 of 99 PAGEID #: 23799 violation of O.R.C. § 2925.37, which is a predicate act under OCPA, § 2923.31(I)(2)(c). Because there were multiple transfers of these counterfeit controlled substances, satisfying the OCPA requirement that two or more predicate violations are necessary to show the pattern, Plaintiffs are likely to succeed on the merits of their second OCPA predicate. Injunctive relief is available against both drug vendors and DRC Defendants DRC Defendants do not contest that the Court may grant injunctive relief against Drug Source Defendants. DRC argues only that the Court may not grant injunctive relief against DRC Defendants based on state-law claims, because that would be an Eleventh Amendment violation. But incidental relief against DRC Defendants is not barred under the Eleventh Amendment; and neither is relief based on violations of federal law such as equal protection violations resulting from obtaining counterfeit drugs in violation of core elements of the protocol. 1. Injunctive relief against drug vendors is not barred by the Eleventh Amendment. First, Plaintiffs asserted Ohio Corrupt Practices Act claims against drug vendors, not state officials in their official capacity. Injunctive relief against non-state actors presents no immunity issues. Any incidental effects from relief ordered against drug vendors that may impact DRC Defendants, such as seizing counterfeit controlled substances in their possession or ordering that they refrain from using them, is also not barred by the Eleventh Amendment. See, e.g., Hutto v. Finney, 437 U.S. 678, 86 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 91 of 99 PAGEID #: 23800 691 (1978) (approving award of attorneys’ fees against state officials in a civil rights action and directing that the award be paid out of state funds, as “ancillary to the federal court’s power to impose injunctive relief”); Milliken v. Bradley, 433 U.S. 267 (1977) (upholding district court’s remedial plan for desegregation of a Detroit school system that required the State of Michigan to shoulder half the cost of the comprehensive program set out in the plan). 2. By obtaining counterfeit drugs, DRC Defendants violated core elements of the protocol, thus committing constitutional violations. Therefore, injunctive relief is not barred under the Ex Parte Young exception. Second, the law of this case requires DRC Defendants to comply with Core Elements of the Execution Protocol, which includes using the “right”— that is, unadulterated, genuine, legal—drugs. Failure to comply with Core Elements of the Protocol results in a constitutional violation. Thus, by breaking state law, DRC Defendants are, by extension, burdening Plaintiffs’ constitutional rights. (See Section V above.) There is certainly no problem with the Court granting injunctive relief to remedy violations of federal law. See Ex parte Young, 209 U.S. 123 (1908). The DRC Defendants’ invocation of the Anti-Injunction Act concedes that Ohio can only carry out executions using illegal means. As stated above, DRC Defendants do not contest that the Court may grant injunctive relief against Drug Source Defendants. But in their supplemental filing with the Sixth Circuit, also filed with this Court (ECF No. 759-1, PageID 23451), DRC Defendants asserted that “an OCPA injunction 87 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 92 of 99 PAGEID #: 23801 against the ‘drug vendors’ would presumably prevent their executions.” Id. Therefore, DRC Defendants reason, the Anti-Injunction Act, 28 U.S.C. § 2283 applies. Id. The only way an injunction stopping illegal activities results in a delay of an execution is if DRC can only carry out an execution illegally. An order enjoining illegal activities directed at a third-party is not the same as an order stopping an execution. DRC Defendants remain free to carry out lawful executions. Therefore, the Anti-Injunction Act has no application here, unless Ohio concedes that they cannot carry out executions without resorting to illegal means. VII. Defendants’ arguments about Plaintiff Tibbetts’ and Otte’s religious freedom rights should be rejected. Defendants contend that there are four reasons that the RFRA/RLUIPA arguments fail as a matter of law. Each of these reasons relies on Defendant’s mistaken assumption that the Glossip decision requiring inmates to plead an alternative execution method—the “suicide burden”—is somehow now part of the Eighth Amendment. But that’s not the case. Glossip merely held that in certain (comparative) Eighth Amendment method-of-execution claims, inmates must plead an alternative method. Because the suicide burden is just that, a pleading requirement, Defendants’ arguments fail. Defendants first argue that Congress cannot alter the meaning of the Eighth Amendment via the RFRA/RLUIPA. But the RFRA does not alter the meaning of the Eighth Amendment. Pleading an alternative method is not a 88 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 93 of 99 PAGEID #: 23802 part of the Eighth Amendment. It is merely a court-created pleading requirement for some claims based on the Eighth Amendment. There are claims asserting an Eighth Amendment violation that do not require an inmate to plead an alternative, such as Plaintiffs’ Wilkerson/Kemmler claims or their categorical-bar and devolution claims. The very fact that an inmate can raise a valid Eighth Amendment violation without pleading an alternative method establishes that the suicide burden is something separate from the meaning of an Eighth Amendment violation. Though Glossip requires this pleading requirement for pleading a valid § 1983 Glossip/Baze comparative method-ofexecution claim, it is not a part of the Eighth Amendment itself. Exempting Plaintiffs Tibbetts and Otte from pleading an alternative method does not alter the meaning of the Eighth Amendment. Defendants next argue that Plaintiffs are unlikely to show that the Eighth Amendment constitutes a substantial burden on their religious beliefs. But Plaintiffs need not show that the Eighth Amendment is creating the substantial burden. It is the suicide burden that is creating the burden on Plaintiff’s religious beliefs. Defendants do not directly dispute Plaintiffs’ sincerely held religious beliefs, or that enabling or facilitating their own deaths by suggesting how Defendants should execute them is, under those sincerely held religious beliefs, a sinful, immoral act that significantly burdens their religious convictions. They argue that Plaintiffs’ analogy to the Hobby Lobby case is mistaken. But whether Plaintiffs’ analogy is mistaken (or not) is a different matter entirely than whether Plaintiffs’ religious beliefs are sincerely 89 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 94 of 99 PAGEID #: 23803 held, or substantially burdened by being forced to identify for Defendants how Plaintiffs should be executed. Defendants also claim that the suicide burden is narrowly tailored to compelling governmental interests because Ohio has a compelling interest in enforcing state court judgements in a timely fashion. But Plaintiffs Tibbetts and Otte are not arguing that Ohio cannot enforce its judgements against them. It is the pleading requirement for their Glossip/Baze comparative method-of-execution claims they take issue with. Ohio can still enforce its judgement against him as long as it can be done in accordance with the Eighth Amendment. Additionally, Defendants are mistaken as a matter of law—the Supreme Court has not held a state’s interest in carrying out its sentencing judgments to be a “compelling” interest. That interest has only been defined by the Court as “an important interest.” Hill v. McDonough, 547 U.S. 573, 584 (2006) (emphasis added). But as a matter of hornbook Constitutional law, a “compelling” governmental interest is a higher level of interest—and subjected to strict scrutiny review—than an “important” interest. The RFRA/RLUIPA standard is plain: it requires a compelling governmental interest to justify a substantial burden on sincerely held religious beliefs. There is no compelling governmental interest present here, as a matter of law. Defendants argue that requiring inmates to plead an alternative method is the least restrictive means to ensure an actual Eighth Amendment violation is actually present. They suggest that a court cannot determine if there is an “unnecessary risk” of pain without being able to compare the pain caused by 90 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 95 of 99 PAGEID #: 23804 the method to a second alternative method. But courts make these type of decisions daily. For example, courts often rely on a “reasonable person” standard. See Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (applying “reasonable person” standard to seizure question for Fourth Amendment purposes.) Or, in another example, courts are often called on to determine if certain zoning ordinances create “unnecessary hardships.” Consolidated Mgmt., Inc. v. Cleveland, 6 Ohio St. 3d 238, 242 (Ohio 1983) (standard for determining if landowner entitled to a variance). And in the Eighth Amendment context, courts often determine whether there has been an “unnecessary and wanton infliction of pain.” See Hudson v. McMillian, 503 U.S. 1, 10 (1992) (determining whether significant injury is necessary to establish Eighth Amendment violation for assault of an inmate by prison guards.) These are the types of decisions courts make daily, based on the evidence presented and not based on a comparison analysis. Furthermore, Holt v. Hobbs, 135 S. Ct. 853, 864 (2015), requires this Court to consider whether exceptions are required under the test for a burden on religious liberty set forth by Congress. Plaintiffs Tibbetts and Otte request nothing more than an exemption to the requirement that they be forced to plead an alternative method of execution. In Tibbetts and Otte’s cases, the least restrictive way for Defendants to accomplish what they desire to do is to not require Tibbetts or Otte to assert or prove any alternative method as part of their Glossip/Baze Eighth Amendment challenges. 91 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 96 of 99 PAGEID #: 23805 Defendants additionally argue that any analogy to Hobby Lobby is mistaken because Hobby Lobby was required to “arrange for” the provision of certain contraceptives. Hobby Lobby, 134 S. Ct. 2751 (2014). They similarly argue that pleading a successful Eighth Amendment comparative claim “has the effect of limiting—not enabling—Plaintiffs’ executions.” (ECF No. 730, PageID 23091–092.) Defendants contend that proving a method-of-execution claim does not “arrange for” an execution, it stays the execution under the current protocol. But Defendant’s argument relies on semantics and misses the point of the RFRA/RLUIPA. Congress enacted the religious freedom protection statutes “in order to provide very broad protection for religious liberty.” Hobby Lobby, 134 S. Ct. at 2760. RFRA “intru[des] at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter,” and its restrictions apply to “every agency and official” of the government. See Mack v. Loretto, 839 F.3d 286 (3d Cir. 2016) citing City of Boerne v. Flores, 521 U.S. 507, 532 (1997). Given this broad scope, Tibbetts and Otte are entitled to raise their RFRA/RLUIPA arguments here to exempt each of them from having to plead or prove the suicide burden. A final point: the Glossip/Baze suicide burden is a Court-imposed law that burdens Plaintiffs’ sincerely held religious beliefs. That the burden is imposed by ruling of the Supreme Court does not mean the law is not subject to RFRA. As Plaintiffs noted in their motions, “RFRA applies to all Federal law, and the implementation of that law, whether statutory or otherwise. 42 U.S.C. 92 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 97 of 99 PAGEID #: 23806 § 2000bb-3(a).” (Tibbetts’s Mot., ECF No. 718, PageID 22218; Otte’s Mot. ECF No. 715, PageID 21643 (emphasis added).) It does mean, however, that Defendants likely have no standing to defend the suicide burden against RFRA/RLUIPA attack. Only a third party appointed specifically to defend the Supreme Court’s governmental interests would have the requisite standing. VIII. Conclusion For all the foregoing reasons and the reasons articulated in Plaintiffs’ respective motions for injunctive relief, this Court should grant Plaintiffs’ motions, and preliminarily enjoin and stay their respective executions. Respectfully submitted, Deborah L. Williams Federal Public Defender Stephen Newman Federal Public Defender by by /s/ Allen L. Bohnert Allen L. Bohnert (0081544) Trial Counsel /s/ Vicki Werneke Vicki Werneke (0088560) Assistant Federal Public Defender Office of the Federal Public Defender for the Northern District of Ohio Capital Habeas Unit 1660 West 2nd Street, Suite 750 Cleveland, Ohio 44113 216-522-4856 216-522-1951 (fax) Email: Vicki_Werneke@fd.org Trial Counsel for Gary Otte Erin G. Barnhart (0079681) Sharon A. Hicks (0076178) Assistant Federal Public Defenders and /s/ Timothy F. Sweeney Timothy F. Sweeney (OH 0040027) 93 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 98 of 99 PAGEID #: 23807 Carol A. Wright (0029782) Supervising Attorney - CHU LAW OFFICE OF TIMOTHY FARRELL SWEENEY The 820 Building, Suite 430 820 West Superior Avenue Cleveland, Ohio 44113-1800 216-241-5003 216-241-3138 (fax) E-mail: tim@timsweeneylaw.com Trial and Lead Counsel for Ronald Phillips Office of the Federal Public Defender for the Southern District of Ohio Capital Habeas Unit 10 West Broad Street, Suite 1020 Columbus, Ohio 43215 614-469-2999 614-469-5999 (fax) Email: Allen_Bohnert@fd.org /s/ Lisa M. Lagos Lisa M. Lagos (OH 0089299) Assistant State Public Defender Office of the Ohio Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215 614-466-5394 614-644-0708 (fax) Email: Lisa.Lagos@opd.ohio.gov James A. King (0040270) Porter, Wright, Morris & Arthur LLP 41 South High Street Columbus, Ohio 43215 614-227-2051 614-227-2100 (fax) Email: jking@porterwright.com Counsel for Raymond Tibbetts Co-Counsel for Ronald Phillips and 94 Case: 2:11-cv-01016-EAS-MRM Doc #: 784 Filed: 12/07/16 Page: 99 of 99 PAGEID #: 23808 Certificate of Service I hereby certify that on December 7, 2016, I electronically filed the foregoing Plaintiffs’ Reply in Support of Their Respective Motions For Stay of Execution, Temporary Restraining Order, and Preliminary Injunction (ECF Nos. 714, 715, 718) with the Clerk of the United States District Court for the Southern District of Ohio using the CM/ECF system, which will send notification of such filing to the following at the e-mail address on file with the Court: Thomas Madden Senior Assistant Attorney General Charles L. Wille Principal Assistant Attorney General David Henry Senior Assistant Attorney General Jocelyn Lowe Assistant Attorney General Counsel for all DRC Defendants Office of the Ohio Attorney General Criminal Justice Section, Capital Crimes Unit 150 East Gay Street, 16th Floor Columbus, Ohio 43215-3428 /s/ Allen L. Bohnert Assistant Federal Public Defender Co-Counsel for Plaintiff Tibbetts