Thomas Arthur Brief (As-Filed 09.23.16)

Case: 16-15549
Date Filed: 09/26/2016
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Case: 16-15549
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CERTIFICATE OF INTERESTED PERSONS

Under Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1, Mr. Arthur
certifies that the following is a complete list of all trial judges, attorneys, persons,
associations of persons, partnerships, or corporations that have an interest in the
outcome of this appeal:
Arthur, Thomas D
Roller, Justin D.
Brebner, Adam R.
Sherman, Meredith C.
Crenshaw, J. Clayton
Simpson, Lauren Ashley
Davenport, Carter
Stone, Sherrie
Dunn, Jefferson S.
Strange, Luther
Govan, Thomas R.
Toprani, Akash M.
Han, Suhana S.
Watkins, William Keith
Houts, James R.
Wicker, Judy (a.k.a. Mary

Turner)
Mar, Stephen S.
Wicker, Jr., Troy
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STATEMENT REGARDING ORAL ARGUMENT

Pursuant to 11th Cir. R. 28-1(c), Appellant Thomas D. Arthur,
through undersigned counsel, hereby respectfully requests that the Court hear oral
argument on this appeal. Oral argument will assist the Court in the disposition of
this action, which includes complex and novel issues of first impression
concerning the appropriate legal and evidentiary burdens placed upon a petitioner
challenging a lethal injection protocol.
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TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS .........................................................i
STATEMENT REGARDING ORAL ARGUMENT .............................................. ii
INTRODUCTION ..................................................................................................... 1
STATEMENT OF JURISDICTION.......................................................................... 4
STATEMENT OF THE ISSUES............................................................................... 4
STATEMENT OF THE FACTS ............................................................................... 5
A.
Alabamas Lethal Injection Protocol .................................................... 5
B.
Alternative Methods of Execution ........................................................ 8
C.
ADOC Protocols Consciousness Assessment ..................................... 9
STATEMENT OF THE CASE .................................................................................. 9

A.
Mr. Arthurs Initial Complaint .............................................................. 9
B.
The States Change to Midazolam in its Protocol............................... 10
C.
Glossip and Mr. Arthurs Alternative Methods of Execution............. 13
D.
The Bifurcated Hearing ....................................................................... 14
E.
The First-Phase Opinion...................................................................... 15
F.
Mr. Arthurs As-Applied Claim .......................................................... 17
G.
Mr. Arthurs Motion for a New Trial .................................................. 18
H.
The District Courts Subsequent Opinions ......................................... 19
I.
Mr. Arthurs Execution Date ............................................................... 20
SUMMARY OF THE ARGUMENT ...................................................................... 21

STANDARDS OF REVIEW ................................................................................... 23
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ARGUMENT ........................................................................................................... 26
I.
The District Court Misinterpreted the Requirement to Plead a Feasible

Alternative Method of Execution. ................................................................. 26
A.
The District Court Improperly Denied Mr. Arthur Leave to

Plead the Firing Squad as an Alternative Method of Execution. ........ 26
1.
Glossip Does Not Require Alternative Methods of

Execution To Be Permitted by Statute. ................................. 27
2.
Adopting the District Courts Interpretation of Glossip

Would Lead to Absurd Consequences. ..................................... 29
3.
B.
a.
The district courts ruling allows states to

legislatively exempt themselves from Eighth
Amendment review......................................................... 29
b.
The district courts holding will result in state-bystate variation in federal constitutional rights. ............... 31
Even if Glossip Does Require that an Alternative be

Permitted by Statute, Alabamas Death Penalty Statute
Authorizes the Firing Squad. .................................................... 32
The District Court Erred In Dismissing Mr. Arthurs Substantial

Evidence that Pentobarbital Is an Available Alternative to
Midazolam. .......................................................................................... 35
1.
The District Court Misconstrued the Burden Imposed by

Glossip by Effectively Requiring Mr. Arthur To Obtain
an Alternative Execution Drug. ................................................ 35
2.
The Burden Imposed by the District Court Conflicts with

Glossips Requirement that the State Undertake a GoodFaith Effort To Obtain an Alternative....................................... 40
3.
ADOCs Purported Attempts To Procure Pentobarbital

Were Inadequate. ...................................................................... 43
4.
The District Court Abused its Discretion by Prohibiting

Mr. Arthur from Obtaining Discovery To Show the
Availability of Drug Alternatives to ADOC. ............................ 45
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II.
III.
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The District Court Erred In Dismissing Mr. Arthurs As-Applied

Challenge Showing That Alabamas Lethal Injection Protocol Creates
a Substantial Risk that He Will Suffer a Painful Heart Attack. .................... 47
A.
The District Court Abused Its Discretion By Excluding Mr.

Arthurs Expert Evidence on Midazolams Hemodynamic
Effects. ................................................................................................. 49
B.
Even If Mr. Arthur Were Required To Plead and Prove an

Alternative for His As-Applied Claim, the District Court
Imposed An Unreasonable Burden of Proof. ...................................... 53
The District Court Erred In Dismissing Mr. Arthurs Equal Protection

Claim. ............................................................................................................. 55
CONCLUSION ........................................................................................................ 61
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TABLE OF CITATIONS
Page(s)
Cases
Ali v. Fed. Bureau of Prisons,
552 U.S. 214 (2008) ............................................................................................ 35
*Am. Textile Mfrs. Inst., Inc. v. Donovan,
452 U.S. 490 (1981) ..........................................................................36, 37, 39, 47
Arcia v. Fla. Secy of State,
772 F.3d 1335 (11th Cir. 2014) .......................................................................... 34
Arthur v. Allen,
452 F.3d 1234 (11th Cir. 2006) .......................................................................... 25
*Arthur v. Thomas,
674 F.3d 1257 (11th Cir. 2012) ..............................................................11, 24, 63
*Baze v. Rees,
553 U.S. 35 (2008) .......................................................................................passim
Boyd v. Myers,
No. 14-cv-1017, Dkt. # 50 (M.D. Ala. Oct. 7, 2015) ......................................... 34
Branca v. Sec. Ben. Life Ins. Co.,
789 F.2d 1511 (11th Cir. 1986) .......................................................................... 41
Brooks v. Warden,
810 F.3d 812 (11th Cir. 2016) ......................................................................37, 41
Buckler v. Israel,
2014 WL 6460112 (S.D. Fla. Sept. 25, 2014) .................................................... 48
Chavez v. Credit Nation Auto Sales, LLC,
641 Fed. Appx 883 (11th Cir. 2016) ................................................................. 43
City of Miami v. Wells Fargo & Co.,
801 F.3d 1258 (11th Cir. 2015) .......................................................................... 24
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*Cooey v. Kasich,
801 F. Supp. 2d 623 (S.D. Ohio 2011) ............................................................... 58
Daubert v. Merrell Dow Pharm., Inc.,
509 U. S. 579 (1993) .........................................................................20, 51, 53, 54
Ellison v. Nw. Engg Co.,
709 F.2d 681 (11th Cir. 1983) ............................................................................ 26
Gissendaner v. Commr, Georgia Dept of Corr.,
803 F.3d 565 (11th Cir. 2015) ............................................................................ 56
*Glossip v. Gross,
135 S. Ct. 2726 (2015) .................................................................................passim
Inv. Props. Intl, Ltd. v. IOS, Ltd.,
459 F.2d 705 (2d Cir. 1972) ............................................................................... 48
Martin v. Hunters Lessee,
14 U.S. (1 Wheat.) 304 (1816) ........................................................................... 33
Moore v. Balkcom,
716 F.2d 1511 (11th Cir. 1983) .......................................................................... 24
OKeefe v. Adelson,
2016 WL 4750213 (11th Cir. Sept. 13, 2016) .................................................... 47
*In re Ohio Execution Protocol Litig.,
671 F.3d 601 (6th Cir. 2012) .............................................................................. 58
Proudfoot Consulting Co. v. Gordon,
576 F.3d 1223 (11th Cir. 2009) .......................................................................... 25
Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd.,
326 F.3d 1333 (11th Cir. 2003) ....................................................................26, 27
Quigg v. Thomas Cty. Sch. Dist.,
814 F.3d 1227 (11th Cir. 2016) .......................................................................... 26
Rosenfeld v. Oceania Cruises, Inc.,
654 F.3d 1190 (11th Cir. 2011) .......................................................................... 53
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In re Rothstein, Rosenfeldt, Adler, P.A.,

717 F.3d 1205 (11th Cir. 2013) .......................................................................... 35
Seamon v. Remington Arms Co., LLC,
813 F.3d 983 (11th Cir. 2016) ............................................................................ 54
Smith v. Montana,
2015 WL 5827252 (Mont. Dist. Ct. Oct 6, 2015) ........................................31, 32
Smith v. United States,
133 S. Ct. 714 (2013) .......................................................................................... 42
Sprye v. Ace Motor Acceptance Corp.,
2015 WL 5136511 (D. Md. Aug. 31, 2015) ....................................................... 49
Toole v. Baxter Healthcare Corp.,
235 F.3d 1307 (11th Cir. 2000) .......................................................................... 25
Travelers Prop. Cas. Co. of Am. v. Moore,
763 F.3d 1265 (11th Cir. 2014) .......................................................................... 25
*United States v. Alabama Power Co.,
730 F.3d 1278 (11th Cir. 2013) ....................................................................26, 54
United States v. Jacques,
2011 WL 3881033 (D. Vt. Sept. 2, 2011) .......................................................... 33
*United States v. Johnson,
900 F. Supp. 2d 949 (N.D. Iowa 2012) .............................................................. 33
United States v. Jones,
125 F.3d 1418 (11th Cir. 1997) .......................................................................... 25
*United States v. One TRW, Model M14, 7.62 Caliber Rifle,
441 F.3d 416 (6th Cir. 2006) .............................................................................. 36
Warner v. Gross,
776 F.3d 721 (10th Cir. 2015) ............................................................................ 41
Wika Instrument I, LP v. Ashcroft, Inc.,
2014 WL 11970547 (N.D. Ga. June 3, 2014)..................................................... 48
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Statutes
28 U.S.C. 1291 ........................................................................................................ 4
28 U.S.C. 1331 ........................................................................................................ 4
28 U.S.C. 1343(a)(3) ............................................................................................... 4
42 U.S.C. 1983 ...................................................................................................... 10
Ala. Code 15-18-82.1(c) .................................................................................34, 35
Colo. Rev. Stat. 18-1.3-1202 ................................................................................ 32
Miss. Code Ann. 99-19-51 .................................................................................... 32
Okla. Stat. tit. 22, 1014(A) .................................................................................... 29
Or. Rev. Stat. 137.473 ........................................................................................... 32
Other Authorities
29 Am. Jur. 2d Evidence 178 ................................................................................ 42
Websters Third New International Dictionary of the English Language (1976) ... 36
Websters Third New International Dictionary of the English Language (1981) ... 36
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INTRODUCTION
Some methods of execution are unconstitutional; it follows that there
must be a way to prove it. In Glossip v. Gross, the U.S. Supreme Court set forth a
two-step roadmap for making that showing: first, a condemned prisoner must
show that the challenged method presents a substantial risk of severe pain, and
second, identify a known and available alternative method of execution that
entails a lesser risk of pain. 135 S. Ct. 2726, 2731 (2015).
In a little over a month, on November 3, 2016, the State of Alabama
intends to execute Thomas D. Arthur using a three-drug protocol that, as
established by expert evidence of record, bears a substantial risk of causing severe
pain and suffering.1 Mr. Arthurs constitutional challenge to this protocol using
midazolam as the first drug has been cut off without review of the merits of his
claim, however, by the district courts conclusion that Mr. Arthur cannot show the
availability of an alternative. The district courts rulingin effect, a nullification
of the Eighth Amendment rightwas in error. Mr. Arthur offered several feasible
alternatives to Alabamas protocolconstitutional alternatives actually used in
other statesincluding a firing squad or a single-drug protocol using pentobarbital.
In ruling that these alternatives were not feasible and readily implemented, the
1
On September 6, 2016, Judge Hull granted Mr. Arthur until October 4, 2016
to file his opening brief. In light of the execution order, Mr. Arthur has accelerated
his filing.
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district court misread Glossip, applied an impossibly stringent standard and

disregarded the evidence.
First, Mr. Arthur alleged that the firing squada method of execution
that is constitutionally acceptable and has been recently used in another stateis
available to Alabama as a practical matter, and is a more humane alternative to
Alabamas current execution protocol. The district court denied Mr. Arthur the
opportunity to plead this alternative, based on the unsupported legal conclusion
that the firing squad is not available, solely because it is not expressly prescribed
by Alabamas current execution statute. This is a profound misinterpretation of
Glossip. If condemned prisoners could plead only alternatives that are already
expressly permitted by statute, states could simply rule out all alternatives in their
execution laws and thus legislatively exempt any method of execution from Eighth
Amendment scrutiny. That is, in effect, the result of the district courts ruling here.
Second, despite being denied access to critical discovery, Mr. Arthur
amassed substantial evidence demonstrating the availability of an alternative drug,
pentobarbital, that could be used in an effective single-drug protocol that would not
present the substantial risks of Alabamas current protocol. Mr. Arthurs evidence,
including the unrebutted expert testimony of a doctor of pharmaceutical chemistry,
showed that several other neighboring states have in fact used Mr. Arthurs
proposed alternative in recent executions, and also that this alternative is available
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to Alabama through a variety of channels.
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The district court misapplied the
standard and found that Mr. Arthur had not proven the drugs availability because
Mr. Arthur had not actually taken steps to procure the drug for Alabamawhich,
of course, he could not doand a lawyer for Alabamas department of corrections
testified that she was unable to obtain the drug through perfunctory telephone calls
to a number of Alabama pharmacies identified by Mr. Arthur.
Third, as a final alternative, Mr. Arthur identifiedat the district
courts directionmodifications to the implementation of Alabamas current
protocol using a drug in that protocol, which would alleviate at least some (but not
all) of the deficiencies of the current method, and address specific concerns arising
from Mr. Arthurs medical condition. This, too, was rejected by the district court
because Mr. Arthurs medical expert did not provide step-by-step execution
instructions, which he could not have done without violating ethical rules and his
oath as a physician.
The district courts holding renders it impossible for a
condemned inmate to propose an alternative based on medical evidence because no

medical expert could supply the detailed protocol that the district court demanded.
Additionally, the district court erroneously dismissed Mr. Arthurs
Equal Protection claim that Alabamas consciousness assessmentthe states
only purported safeguard against a torturous executionhas been inadequately
applied in previous executions. There was overwhelming evidence showing that
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execution team members did not know how to properly conduct the assessment
(because they were never instructed on how to do so).
The district court
disregarded this evidence by applying the wrong testthe district court analyzed
the claim through the Eighth Amendment, while this Court (and the district courts
own prior rulings) has clearly held that deviations from an execution protocol state
a Fourteenth Amendment claim.
*
Absent this Courts intervention, Mr. Arthur will soon be executed

without having been afforded the chance to prove that Alabamas method of
execution is highly likely to subject him to agonizing pain. The district courts
erroneous application of Glossip must be reversed.
STATEMENT OF JURISDICTION
The district court had jurisdiction over Mr. Arthurs action under 28
U.S.C. 1331 and 1343(a)(3), and dismissed Mr. Arthurs action on July 19,
2016.
Mr. Arthur timely appealed on August 18, 2016, and this Court has
jurisdiction under 28 U.S.C. 1291.

STATEMENT OF THE ISSUES
1.
Whether the district court erred in its interpretation of Glossips
requirement that a method-of-execution challenger prove a feasible alternative by

(a) requiring that any alternative be expressly permitted by statute, and (b)
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imposing a requirement that Mr. Arthur must actually procure, or provide a

specific willing source, for drugs to be used in an alternative method of execution.
2.
Whether the district court erred in dismissing on summary
judgment Mr. Arthurs as-applied challenge on the basis that (a) Mr. Arthurs
medical expert had no experience administering lethal doses of drugs, and (b) Mr.
Arthurs medical expert did not provide an execution protocol because doing so
would have been a violation of ethical rules and his medical oath.
3.
Whether the district court erred in dismissing Mr. Arthurs
Equal Protection claim, challenging the States significant deviations from its
execution protocol, by analyzing Mr. Arthurs claim under the Eighth Amendment
instead of the Fourteenth, as this Court has instructed.
STATEMENT OF THE FACTS
A.
Alabamas Lethal Injection Protocol

To execute condemned prisoners, the Alabama Department of
Corrections (ADOC) currently uses a lethal injection protocol comprising the

injection of the following three drugs in order: (1) midazolam hydrochloride,
(2) rocuronium bromide, and (3) potassium chloride. R.E. Tab 2 at 3.2 It is
undisputed that the administration of the second and third drugs in the protocol
would cause agonizing pain and suffering if administered alone. The second drug
2
The record excerpts are cited as R.E. followed by the tab number and page
number within the document.
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in the protocol is a paralytic that stops muscle usage (but not the sensation of pain
or brain function), and so would effectively suffocate a conscious inmate in a
manner that has been compared to being buried alive. The third drug is a caustic
agent that produces a sensation akin to fire running through the veins. See Baze v.
Rees, 553 U.S. 35, 53 (2008); R.E. Tab 12 at 8-9. Accordingly, the only way to
avoid a torturous execution using these two drugs is to first use an anesthetic that
will render the condemned unconscious and insensate to pain.
Midazolamthe first drug in ADOCs lethal injection protocol, and
the only drug responsible for shielding an inmate from the second and third
drugsis not up to this task. Rather, midazolam is commonly used in clinical
settings to relieve anxiety and sedate patients before surgery; and although
midazolam is sometimes used for anesthesia in concert with one or (more
typically) several anesthetics, it isaccording to the FDA and the products own
packagingnot approved for use as a standalone general anesthetic. R.E. Tab 12
at 9-10.
There are well-accepted scientific reasons why midazolam is not used
as a general anesthetic for major surgery, and these reasons demonstrate equally
that it is not suitable for use in a constitutionally acceptable execution protocol.
Studies have shown that midazolam exhibits a ceiling effect, which means that
there is a level after which no additional dose of midazolam will have any impact.
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R.E. Tab 12 at 12. Critically, that ceiling for midazolam is below the level
necessary to induce a depth of anesthesia required for invasive surgeryor painful
executions. R.E. Tab 12 at 13-14. For example, practicing anesthesiologists
around the world utilize an FDA-approved device called a bispectral index (BIS)
monitor to measure an individuals depth of unconsciousness, using a scale ranging
from 0 (known as burst suppression or flatline EEG) to 100 (fully awake).
R.E. Tab 12 at 6-7. On this scale, midazolam has been shown to reliably result in a
depth of unconsciousness insufficient for use in a painful invasive procedure
requiring a general anesthetic. R.E. Tab 12 at 7.
Additionally, midazolam also has well-documented hemodynamic
effectsi.e., effects on the flow of blood within the body. R.E. Tab 10 at 5-7. In
particular, midazolam induces a sharp reduction in blood pressure immediately
upon injection; and for elderly individuals with coronary heart disease, the drop in
blood pressure that would accompany a large dose of midazolam is highly likely to
induce a heart attack. R.E. Tab 10 at 12-13. This drop in blood pressure happens
prior to any of the drugs sedative effects because the hemodynamic effects of
midazolam occur directly at the level of the vasculature (the blood vessels),
whereas midazolam must travel through the blood stream to reach the brain and
penetrate the blood-brain barrier before having any sedative effect. R.E. Tab 10 at
6.
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B.
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Alternative Methods of Execution

Pentobarbital is part of a family of drugs called barbiturates, which
have been used to achieve deep anesthesia in decades of medical practice. R.E.
Tab 12 at 10-11. In contrast, midazolam is a benzodiazepine, part of the same drug
family as anti-anxiety medications Valium and Xanax. R.E. Tab 12 at 9. ADOC
has asserted that it changed its protocol from using pentobarbital to midazolam
because it could no longer acquire pentobarbital, even though (1) pharmacies
throughout Alabama are capable of compounding the drug (i.e., preparing the drug
for administration from its ingredients), (2) the active ingredient for pentobarbital
is available for sale in the United States or could be synthesized for the State, and
(3) four other states have used pentobarbital in executions in the past year alone.
R.E. Tab 2 at 10-14.
Additionally, other states have recently employed alternative forms of
capital punishment. For example, in 2010, Utah executed an inmate using the
firing squad, and experience with that form of execution has shown that if properly
implemented, it is both reliable and relatively painless. R.E. Tab 6 at 43-44.
Indeed, over the past century, a firing squad execution has never resulted in a
botched execution (i.e., resulting in an agonizing death for the inmate), in contrast
to more than 7% of lethal injection executions. R.E. Tab 6 at 44.
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C.
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ADOC Protocols Consciousness Assessment

Under ADOCs lethal injection protocol, after the first drug is
administered, but before the last two drugs, ADOC personnel must perform a
consciousness assessment. R.E. Tab 50 at 10. The purpose of this assessment is
to ensure the inmate has been sufficiently anesthetized to withstand the pain of the
second and third drugs in the protocol.
R.E. Tab 2 at 22.
The assessment
prescribed by ADOCs protocol requires three steps:
R.E. Tab 50 at 10. If there is no response following this third step, ADOC
personnel will administer the second and third drugs of the protocol. R.E. Tab 50
at 10.
STATEMENT OF THE CASE
A.
Mr. Arthurs Initial Complaint

Thomas D. Arthur is a seventy-four year old inmate incarcerated at
Holman Correctional Facility (Holman), under sentence of death.

Mr. Arthur filed this action in the Middle District of Alabama on June
8, 2011, against ADOC, its commissioner, and the warden of Holman.3 Under 42
3
For convenience, this brief will hereafter refer to defendants collectively as

ADOC or the State.
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U.S.C. 1983, Mr. Arthur challenged the then-existing lethal injection protocol
ADOC intended to use for his execution. R.E. Tab 48. Mr. Arthur advanced
claims under the Eighth Amendment to the U.S. Constitution and the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitution, and soon
afterwards, amended his complaint to include claims under the Equal Protection
Clause of the Fourteenth Amendment to the U.S. Constitution and the separation of
powers clause of the Alabama Constitution. R.E. Tab 47.
Soon after Mr. Arthur filed his action, ADOC moved to dismiss,
which the district court (Fuller, J.) granted on November 3, 2011. R.E. Tab 46.
The district court held that Mr. Arthurs Eighth Amendment claim was untimely,
and that his Fourteenth Amendment claim failed to state a claim. R.E. Tab 46. On
appeal, this Court reversed, holding that Mr. Arthurs Eighth and Fourteenth
Amendment claims could not be resolved without Mr. Arthur being afforded an
opportunity to conduct discovery and develop a factual record. Arthur v. Thomas,
674 F.3d 1257, 1261-63 (11th Cir. 2012).
B.
The States Change to Midazolam in its Protocol

Following remand, limited discovery took place concerning the
timeliness of Mr. Arthurs claims and the likelihood that ADOC would fail to
adequately conduct the consciousness assessment required by its protocol. After a
hearing on these two issues, ADOC moved for summary judgment, which the
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district court denied on September 30, 2013, finding genuinely disputed issues of
materials fact on both questions. R.E. Tab 27.
Thereafter, ADOC repeatedly sought and obtained adjournments of
further proceedings. See, e.g., R.E. Tab 40; R.E. Tab 39. But on September 11,
2014, the day before a scheduled status conference, ADOC filed a motion in the
Alabama Supreme Court to set a date for Mr. Arthurs execution. R.E. Tab 36. In
the motion, filed without any advance notice to Mr. Arthur or the district court,
ADOC disclosed for the first time that, the day before, it had changed its lethal
injection protocol to provide for the use of midazolam (a sedative) in place of
pentobarbital (an anesthetic) as the first lethal injection drug. R.E. Tab 36 at 2-3.
Concurrently with its filing of a motion to set an execution date, ADOC filed a
motion in the district court seeking dismissal of Mr. Arthurs Eighth Amendment
claim on the ground of mootness. R.E. Tab 37.
Shortly after the change to ADOCs protocol, Mr. Arthur moved for
leave to file a second amended complaint to challenge ADOCs new lethal
injection protocol. The district court (Watkins, J.)4 granted the motion, R.E. Tab
34, and denied ADOCs subsequent motion to dismiss, R.E. Tab 32.
On August 21, 2014, the action was reassigned from Judge Fuller to Judge
Watkins. R.E. Tab 38.
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The Second Amended Complaint alleged two constitutional

inadequacies in ADOCs protocol: First, Mr. Arthur alleged that midazolam was
not an appropriate anesthetic, both facially (because it is incapable of inducing
anesthesia prior to the administration of the other two agonizing drugs) and asapplied in Mr. Arthurs unique circumstances (because it would cause someone
with his particular health condition to suffer and feel an excruciating heart attack),
thereby violating Mr. Arthurs right to be free from cruel and unusual punishment
under the Eighth Amendment. Second, Mr. Arthur alleged that the States preexecution consciousness assessment has been inconsistently and inadequately
performed, violating Mr. Arthurs right to Equal Protection under the Fourteenth
Amendment. R.E. Tab 33.
The Second Amended Complaint also alleged two alternative methods
of execution: single-drug protocols using pentobarbital or sodium thiopental. Mr.
Arthur alleged that both of these drugs, administered gradually and in a sufficient
dose, were capable of inducing deep anesthesia and death without the substantial
risks of pain and suffering of Alabamas three-drug protocol.5
5
Although Mr. Arthur had challenged ADOCs prior protocol using

pentobarbital, that was in the context of a rapid bolus dose in a three-drug protocol:
Mr. Arthurs allegation was that pentobarbital would not adequately anesthetize
him in time for the administration of the second and third drugs and that the bolus
dose would induce a heart attack. The gradual administration of pentobarbital
without use of the second and third drugs would not implicate the risks identified
in Mr. Arthurs initial complaints.
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On December 23, 2014, while Mr. Arthurs motion to amend his

complaint was still pending, the Alabama Supreme Court granted ADOCs motion
to set an execution date, scheduling Mr. Arthurs execution for February 19, 2015.
R.E. Tab 35. On February 13, 2015, Mr. Arthur filed an emergency motion for a
stay of execution, R.E. Tab 59, which the district court granted, finding that Mr.
Arthur had met his burden of proving a likelihood of success on the merits of his
Equal Protection claim, R.E. Tab 31 at 12. This Court affirmed the stay, and no
appeal to the U.S. Supreme Court was sought.
C.
Glossip and Mr. Arthurs Alternative Methods of Execution

On February 24, 2015, the State requested that Mr. Arthurs action be
stayed based on the U.S. Supreme Courts grant of certiorari in Glossip v. Gross,
which the State contended could change the legal framework for Mr. Arthurs
challenge. R.E. Tab 30. The district court granted the motion and stayed the case.
R.E. Tab 29. On June 29, 2015, the U.S. Supreme Court released its opinion in
Glossip, which clarified that a method-of-execution challenger must plead and
prove a known and available alternative method of execution that is feasible,
readily implemented, and in fact significantly reduces a substantial risk of severe
pain. 135 S. Ct. at 2731, 2737 (internal quotation marks and alteration omitted).
Under the new Glossip framework, Mr. Arthur moved for leave to
amend his complaint to add further allegations concerning alternative methods of
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execution. R.E. Tab 28. The district granted the motion in part, allowing Mr.
Arthur to add additional allegations concerning his proposed alternative singledrug protocols, but denied Mr. Arthur leave to plead the firing squad as an
alternative, on the basis that Alabama law does not expressly permit the firing
squad as a method of execution. R.E. Tab 4.
Following Glossip, Mr. Arthur also sought discovery from ADOC on
its investigation and knowledge of available alternative methods of execution,
which the district court largely denied. R.E. Tab 27. Relevant to this appeal, the
district denied any discovery on: (1) the attempts or efforts by ADOC to obtain
any drugs for the purposes of lethal injection, including the identity of any
suppliers; (2) any alternative methods of execution identified or considered by
ADOC; and (3) ADOCs communications and knowledge concerning other states
uses of midazolam. R.E. Tab at 6-7.
D.
The Bifurcated Hearing

On October 8, 2015, the district court ordered a hearing on Mr.
Arthurs claims, to begin on January 12, 2016. Subsequently, Mr. Arthur and
ADOC finished document discovery, exchanged expert reports and completed
depositions.
On January 6, 2016, six days before the hearing, and after the parties
filed pre-trial briefs, exhibit lists and objections, deposition designations and
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objections, motions in limine, and briefs on an ADOC summary judgment motion,

the court orderedover Mr. Arthurs objectionthat the hearing would be limited
to two issues: (1) the availability of an alternative to ADOCs current lethal
injection protocol; and (2) Mr. Arthurs Equal Protection claim. R.E. Tab 23. Mr.
Arthur was thus barred in the first phase of the hearing from introducing evidence
on the significant harm that would be caused by ADOCs lethal injection protocol.
That is, only if Mr. Arthur prevailed on the first phase of the bifurcated hearing,
the district court ordered, would Mr. Arthur be permitted to show the substantial
risk of pain and suffering presented by the States three-drug protocol. R.E. Tab
23. The first phase of the bifurcated hearing, limited to the availability of an
alternative method and the Equal Protection claim, was held on January 12-13,
2016. See generally R.E. Tab 21; R.E. Tab 22.
E.
The First-Phase Opinion

On April 15, 2016, the district court released its opinion concerning
the issues litigated at the hearing (the First-Phase Opinion). R.E. Tab 2. The
court dismissed Mr. Arthurs facial Eighth Amendment claim on the basis that he
had failed to prove that the State could obtain the alternative drugs Mr. Arthur pled
in his complaint.6 R.E. Tab 2 at 19-21. Among other things, the district court
Citing Glossip, the district court stated that Arthur must prove by a
preponderance of the evidence an alternative method of execution that is feasible
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accepted Mr. Arthurs evidence that numerous pharmacies in Alabama could

compound pentobarbital, and that several other statesGeorgia, Missouri, Texas
and Virginiahad within the past year executed individuals using that drug, but
concluded that although pentobarbital may be available, that showing fell far
short of Arthurs burden. R.E. Tab 2 at 18, 20. The court also dismissed Mr.
Arthurs Equal Protection claim. R.E. Tab 2 at 52-54. The court stated that the
Eighth Amendment does not require a consciousness assessment, and therefore,
Mr. Arthur failed to state an Equal Protection claim challenging the adequacy of
this assessment. R.E. Tab 2 at 53. The court also rejected Mr. Arthurs evidence
showing that the consciousness assessment had not been performed in prior
executions.
Although the district court found the fact and expert testimony
presented by Mr. Arthur credible, and noted the existence of contemporaneous

records supporting Mr. Arthurs claims (ADOCs own execution logs), the court
held the testimony of ADOCs employees tasked with performing the
consciousness assessment overrode the evidence to the contrary. R.E. Tab 2 at 5152.
[and] readily implemented . . . or, in other words, is known and available. R.E.
Tab 2 at 9 (citation omitted).
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F.
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Mr. Arthurs As-Applied Claim

Prior to issuance of the First-Phase Opinion, the district released an
order on February 24, 2016 stating that Mr. Arthur had failed to meet his burden to
show an available alternative and that an opinion addressing those issues would be
forthcoming (i.e., the subsequent First-Phase Opinion). R.E. Tab 20. The order
also stated that the court must now consider Arthurs idiosyncratic health
concerns relating to lethal injection, and directed both parties to propose a
modified protocol that reasonably addressed these issues. R.E. Tab 20 at 2. If the
parties failed to come to a stipulated solution, the district court ordered that the
parties file their respective proposals, supported by briefing and evidence, with
the court, and [i]f necessary, the court [would] conduct an evidentiary hearing.
R.E. Tab 20 at 3.
Following the district courts February 24 order, the parties exchanged
positions on modifications to ADOCs protocol. Mr. Arthur stated that because his
as-applied challenge to midazolam was based on the drugs rapid administration,
the harm could be significantly reduced by modifying the protocol to administer
midazolam more gradually, and to incorporate mechanisms to monitor the inmates
health. R.E. Tab 18 at 2-3. ADOC maintained that the protocol required no
modification. R.E. Tab 19. Accordingly, the parties reached an impasse, and
submitted their positions to the district court. Mr. Arthur also submitted a further
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expert declaration of a board-certified cardiologist, providing support for his

proposed modifications. R.E. Tab 11.
On April 21,2016, the district court identified a number of issues it
believed may not be in dispute, and a number of legal issues that required briefing.
R.E. Tab 16. Accordingly, the district court ordered ADOC to submit a motion for
judgment on the pleadings, and in the alternative, summary judgment. R.E. Tab
16. ADOC so moved, and Mr. Arthur opposed.
G.
Mr. Arthurs Motion for a New Trial

On April 14, 2016, the day before the First-Phase Opinion was
released, Mr. Arthurs counsel learned of new evidence. In a separate Eighth

Amendment challenge brought by other condemned inmates, the States
pharmacist expert, Dr. Daniel Buffingtonalso an ADOC expert in Mr. Arthurs
action (but who did not testify at the hearing due to the bifurcation order)
testified that he personally knew compounding pharmacists who would be willing
to compound pentobarbital for ADOC, and that to obtain pentobarbital, ADOC
would just have to ask. R.E. Tab 14 at 98:3-15; 101:6-102:12. Because this
evidence directly contradicted the (non-expert) evidence offered by the State in the
first-phase hearing, Mr. Arthur filed a motion for a new trial as to the availability
of pentobarbital on May 13, 2016. R.E. Tab 13.
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H.
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The District Courts Subsequent Opinions

On July 19, 2016, the district court issued an opinion resolving
ADOCs motion for summary judgment and Mr. Arthurs motion for a new trial.
R.E. Tab 3. The district court granted summary judgment for ADOC, holding that
Mr. Arthur was obligated to plead and prove an alternative method of execution in
support of his as-applied challenge, and had failed to do so. R.E. Tab 3. The court
ruled that Mr. Arthurs proposed modifications to the existing midazolam-based
protocol were inadequate because he failed to offer expert medical evidence that
showed specific, detailed and concrete alternatives or modifications to the
protocol with precise procedures, amounts, times and frequencies of
implementation. R.E. Tab 3 at 24 (internal quotation marks omitted).
The district court also held that Mr. Arthur had failed to raise a
genuine issue of material fact concerning the risk posed by ADOCs protocol asapplied to Mr. Arthur. Mr. Arthur had relied primarily upon expert evidence from
a practicing cardiologist with decades of experience, but the district court excluded
this evidence under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
R.E. Tab 3 at 35-36. The district court reasoned that Mr. Arthurs expert was not
permitted to extrapolate his opinions on midazolam from a clinical dose to the dose
used in ADOCs protocol, and that the expert was unqualified because he had no
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experience administering midazolam at the potentially lethal dose called for in

ADOCs protocol. R.E. Tab 3 at 35-36.
The district court further denied Mr. Arthurs motion for a new trial,
crediting a declaration submitted by Dr. Buffington, wherein he supplemented
his deposition testimony by stating that he subsequently contacted a number of
pharmacists and they were either unable or unwilling to supply compounded
pentobarbital to ADOC. R.E. Tab at 41-42.
I.
Mr. Arthurs Execution Date

Two days after the First-Phase Opinion was released, the State moved
the Alabama Supreme Court to set an expedited execution date for Mr. Arthur
before any other pending motions to set an execution date are addressed. Mot. to
Reset Arthurs Execution Date, Ex parte Arthur, No. 1951985 (Ala. Jul. 21, 2016).
Thus, rather than seeking execution dates based on when the proceedings of
condemned inmates had been finalized, the State apparently put Mr. Arthur at the
top of the list and sought an execution date before any decision on his appeal. Mr.
Arthur opposed, and timely appealed the district courts judgment on August 18,
2016.
Despite Mr. Arthurs pending appeal, the Alabama Supreme Court on
September 14, 2016 set an execution date for November 3, 2016. R.E. Tab 7.
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SUMMARY OF THE ARGUMENT

I.A. The district court improperly denied Mr. Arthur leave to amend
his complaint to include the firing squad as an alternative method of execution. In
so doing, the district court incorrectly applied Glossip by requiring Mr. Arthur to
plead an alternative method that is expressly authorized by statute.
This
interpretation is untenable; if allowed to stand, it would permit states to

legislatively exempt themselves from Eighth Amendment scrutiny (by providing
for only a single method of execution) and create state-by-state variations in
Constitutional protections.
I.B. Despite Mr. Arthurs substantial showing that pentobarbital is a
feasible and readily implemented alternative execution drugincluding that the
active ingredient for pentobarbital is available for sale in the United States and a
number of pharmacies in Alabama are capable of compounding it, and that several
other states have used compounded pentobarbital recently in executionsthe
district court ruled that Mr. Arthur failed to show that this drug is an available
alternative. Indeed, the court essentially placed on Mr. Arthur the impossible
burden of procuring the drugs himselfwhich he had no practical ability to do
while simultaneously preventing him from obtaining discovery as to ADOCs
ability to obtain the drug. As well, the court relieved ADOC of the obligation to
undertake good-faith efforts to obtain pentobarbitalas Glossip demandsyet
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credited ADOCs half-hearted, insubstantial efforts to create a record of

unavailability.
II.A. Mr. Arthur offered unrebutted expert evidence that the
administration of midazolam, as directed by ADOCs lethal injection protocol,
would cause him to suffer a painful heart attack before being sedated. The district
court erroneously dismissed this claim on summary judgment by excluding the
unchallenged testimony of an eminently qualified cardiologist. The court reasoned
that the expert could not reliably extrapolate findings regarding a clinical dose of
midazolam to the massive overdose called for in ADOCs protocoleven though
such extrapolation was expressly sanctioned in Glossipand the expert was
unqualified because he had no personal experience administering a potentially
lethal overdose of midazolam. Both reasons are unsupportable.
II.B.
At the district courts request, Mr. Arthur proposed
modifications to ADOCs current protocol involving the use of midazolam that is

in ADOCs possession and therefore obviously readily available. The district
court nonetheless erroneously rejected this proposed alternative because Mr.
Arthurs medical expert refused to violate his ethical obligations and oath as a
physician by providing step-by-step execution instructions.
This holding
essentially renders it impossible to prove an available alternative and should be

rejected.
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III. This Court has made clear that substantial deviations from the
States execution protocol burden Mr. Arthurs right to Equal Protection under the
Fourteenth Amendment, Arthur, 674 F.3d at 1262, and Mr. Arthur made an
overwhelming showing that the State had, and would continue to, inadequately and
inconsistently apply its consciousness assessment.
The court erroneously
dismissed this claim by recasting it as an Eighth Amendment claim and thus

applied the wrong legal standardcontrary to this Courts instructions and the
district courts own prior rulings.
STANDARDS OF REVIEW
Argument I.A. (Mr. Arthurs Challenge to the Courts Erroneous
Decision to Deny Mr. Arthur Leave to Amend his Complaint to Allege the
Firing Squad as an Alternative Method of Execution). This Court generally
review[s] the district courts decision to deny leave to amend for an abuse of
discretion, but . . . will review de novo an order denying leave to amend on the
grounds of futility, because it is a conclusion of law that an amended complaint
would necessarily fail. City of Miami v. Wells Fargo & Co., 801 F.3d 1258, 1265
(11th Cir. 2015).
Moreover, in a capital case, the district court should be
particularly favorably disposed toward a petitioners motion to amend. Moore v.

Balkcom, 716 F.2d 1511, 1526 (11th Cir. 1983). Here, because the district courts
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denial of leave to amend was based on an error of law, it should be reviewed de

novo. City of Miami, 801 F.3d at 1265.
Arguments I.B. (Mr. Arthurs Challenge to the District Courts
Misapplication of Glossip) and III (Mr. Arthurs Challenge to the District
Courts Erroneous Dismissal of his Equal Protection Claim).
After a bench
trial, [this Court] review[s] the district courts conclusions of law de novo and the
district courts factual findings for clear error.
Proudfoot Consulting Co. v.
Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). Similarly, [t]he question whether
the district court correctly interpreted . . . controlling legal precedent is subject to
de novo review. United States v. Jones, 125 F.3d 1418, 1427 (11th Cir. 1997).
Under the clear error standard, [this Court] may reverse the district courts
findings of fact if, after viewing all the evidence, [the Court is] left with the
definite and firm conviction that a mistake has been committed. Travelers Prop.
Cas. Co. of Am. v. Moore, 763 F.3d 1265, 1268 (11th Cir. 2014).
A motion for a new trial is reviewed for abuse of discretion. Toole v.
Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000)
Argument I.B.4 (Mr. Arthurs Challenge to the District Courts
Improper Denial of Discovery on ADOCs Sources of Lethal Injection Drugs
and Efforts To Procure Them). This Court review[s] for abuse of discretion the
district courts denial of discovery. Arthur v. Allen, 452 F.3d 1234, 1243 (11th
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Cir. 2006). [A] district court by definition abuses its discretion when it makes an
error of law. Id.
Argument II (Mr. Arthurs Challenge to the District Courts
Dismissal on Summary Judgment of Mr. Arthurs As-Applied Claim
Regarding His Unique Health Circumstances).
This Court review[s] de novo a summary judgment determination,
drawing all reasonable inferences in the light most favorable to the non-moving
party. Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016).
Summary judgment is only appropriate if a case is so one-sided that one party
must prevail as a matter of law. Id. Summary judgment may be inappropriate
even where the parties agree on the basic facts, but disagree about the factual
inferences that should be drawn from these facts. If reasonable minds might differ
on the inferences arising from undisputed facts, then the court should deny
summary judgment. Ellison v. Nw. Engg Co., 709 F.2d 681, 682 (11th Cir.
1983).
A district courts exclusion of expert evidence is reviewed for abuse
of discretion. United States v. Alabama Power Co., 730 F.3d 1278, 1282 (11th
Cir. 2013). However, it is not the role of the district court to make ultimate
conclusions as to the persuasiveness of the proffered evidence. Quiet Tech. DC-8,
Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). The district
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courts gatekeeping role . . . is not intended to supplant the adversary system or

the role of the [factfinder]: vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence. Id.
ARGUMENT
I.
THE DISTRICT COURT MISINTERPRETED THE REQUIREMENT

TO PLEAD A FEASIBLE ALTERNATIVE METHOD OF
EXECUTION.
A.
The District Court Improperly Denied Mr. Arthur Leave to Plead

the Firing Squad as an Alternative Method of Execution.
After Glossip, Mr. Arthur sought leave to amend his complaint to
include the firing squad as an alternative method of execution. R.E. Tab 28. Mr.
Arthurs proposed amended complaint alleged that the firing squad was a known
and available alternative in the state of Alabama, that there are numerous people
employed by the State who have the training necessary to successfully perform an
execution by firing squad, and that the State already has a stockpile of both
weapons and ammunition.
R.E. Tab 6 135.
Additionally, Mr. Arthurs
proposed complaint alleged that execution by firing squad, if implemented

properly, would result in a substantially lesser risk of harm than the States
continued use of a three-drug protocol involving midazolam. R.E. Tab 6 136.
The State did not deny any of Mr. Arthurs allegations, but contended that the
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firing squad was not a feasible alternative under Glossip because it is not a
method contemplated by or provided in the Code of Alabama. R.E. Tab 26 at 8.
The district court adopted the States argument and denied Mr. Arthur
the opportunity to plead the firing squad as an alternative, based on the erroneous
reasoning that because execution by firing squad is not permitted by statute, it
therefore is not a method of execution that could be considered either feasible or
readily implemented by Alabama at this time. R.E. Tab 4 at 2.
1.
Glossip Does Not Require Alternative Methods of Execution

To Be Permitted by Statute.
The district courts ruling misconstrues Glossip.
In Glossip, the
Supreme Court expressly permitted inmates to challenge a method of execution by

pleading and proving a known and available alternative method of execution
that is feasible, readily implemented, and in fact significantly reduce[s] a
substantial risk of severe pain. 135 S. Ct. at 2737-38 (quoting Baze, 553 U.S. at
52) (alteration in original). Glossip does not suggest, much less require, that such
an alternative method must be statutorily authorized to be considered feasible or
readily implemented. By holding that Mr. Arthur cannot plead an alternative
method of execution if that method is not already permitted by statute, the
district court crafted out of whole cloth a prerequisite that was neither required nor
envisioned by Glossip.
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Indeed, the Glossip opinion itself contemplated the pleading of

alternatives that are not permitted by statute.
At issue in Glossip was
Oklahomas death penalty law, which provides in relevant part that [t]he
punishment of death shall be carried out by the administration of a lethal quantity
of a drug or drugs. Okla. Stat. tit. 22, 1014(A). Under the district courts
reasoning, only a drug or drugs would be permitted by statute in Oklahoma,
and thus, a petitioner would be barred from pleading anything else. Yet in Glossip,
the Supreme Court held that petitioners in that case had not identified any
available drug or drugs that could be used in place of those that Oklahoma is now
unable to obtain[, n]or have they shown a risk of pain so great that other
acceptable, available methods must be used.
135 S. Ct. at 2738 (emphasis
added). Accordingly, the Supreme Court indicated that petitioners could have
pleaded not only alternative drugs, but also other acceptable, available
methods of execution. Id. Indeed, in Glossip, the Supreme Court specifically
noted the constitutionality of the firing squad and electric chair. See id. at 2732.
The inescapable conclusion is that if a method of execution creates a risk of pain
that would violate the Eighth Amendment as compared to known and available
alternatives, those alternatives need not be part of a states existing legislative
scheme.
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Adopting the District Courts Interpretation of Glossip Would

Lead to Absurd Consequences.
It is wholly unsurprising that the Supreme Court did not incorporate a

permitted by statute requirement in Glossip, given the objectionable
consequences that logically follow. Not only would states be permitted to shield
themselves from constitutional scrutiny merely by mandating single, specific
methods of execution, but the Eighth Amendment would suddenly take on dozens
of different meanings nationwide.
a.
The district courts ruling allows states to legislatively

exempt themselves from Eighth Amendment review.
Glossip made clear that as long as condemned prisoners plead an

available alternative, they have the right to challenge a method of execution that
would produce a significant risk of serious harm. See Glossip, 135 S. Ct. at 2746
(stating that it was outlandish to suggest prisoners are not able to challenge
inhumane execution methods under the Courts ruling). Affirming the district
courts judgment would negate that right by giving states the perverse incentive to
limit their death penalty statutes to one specific method so as to foreclose any
constitutional challenge. For example, a state could mandate a three-drug protocol
using midazolam hydrochloride, rocuronium bromide, and potassium chloride (i.e.,
ADOCs current protocol). If the state did not specifically delineate alternatives in
a statute, then that would instantly defeat all conceivable method-of-execution
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challenges. To take a more extreme example, if a state legislated burning at the

stake as the only permissible method of execution, then no alternatives would be
permitted, and no challenge possible. The path to proving an Eighth Amendment
violation provided for in Glossip would then be illusory and the rule instead would
be:
if a state provides for a single method of execution, that method is
constitutional.7
The very real impact of the district courts ruling, if applied by other
courts, would be felt immediately in states that already provide for a narrow range
of statutorily acceptable options for carrying out the death penalty. For example,
the Montana lethal injection statute requires use of an ultra-fast-acting
barbiturate. Smith v. Montana, 2015 WL 5827252, at *2 (Mont. Dist. Ct. Oct 6,
2015).8 One notable drug that is not ultra-fast-acting is pentobarbital, which is
used by 14 states as part of their lethal injection protocols. See id. at *4. Under the
The district court also never provided a principled basis for why it was
drawing the line at permitted by statute. The district court could have just as
easilyand arbitrarilydecreed that an alternative method of execution must be
permitted by law. And since ADOC has delegated authority to determine the
only execution protocol permitted by law, every conceivable alternative to the
current protocol would thus be unavailable. This is, of course, an absurd result
permitting the whim of the executive branch to dictate constitutional standards
but the permitted by statute requirement is conceptually indistinguishable.
8
Several other states death penalty laws provide for equally specific
protocols without contemplating alternatives. See, e.g., Miss. Code Ann. 99-1951; Colo. Rev. Stat. 18-1.3-1202; Or. Rev. Stat. 137.473.
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district courts interpretation of Glossip, a petitioner in Montana would be

precluded from pleading as an alternative the most widely used form of execution
in the country. That cannot have been the intention of the Glossip Court.
Here, the district courts erroneous ruling denying Mr. Arthur the
opportunity to plead the firing squad as an alternative method of execution
despite its practical availability and use in this country for over a centuryhas
resulted in the ultimate dismissal of his Eighth Amendment challenge to the States
three-drug protocol without review of the evidence demonstrating the substantial
risks of that protocol, including as compared to the firing squad.
b.
The district courts holding will result in state-by-state

variation in federal constitutional rights.
Allowing the district courts decision to stand would also necessarily

mean that the Eighth Amendment has a different meaning in each state. For
example, as discussed above, under the district courts logic, a Montana petitioner
would be barred from pleading pentobarbital as an alternative. Yet in Oklahoma,
where the states lethal injection statute mandates execution by any drug or
drugs, a petitioner would face no such impediment. This outcome violates the
centuries-old basic tenet that constitutional rights should be interpreted uniformly
throughout the country. See Martin v. Hunters Lessee, 14 U.S. (1 Wheat.) 304,
348 (1816).
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Indeed, courts have specifically rejected the argument that a state-bystate standard should apply when evaluating Eighth Amendment claims, . . .
because such a state-by-state standard would aggravate regional differences in the
application of a national standard. United States v. Johnson, 900 F. Supp. 2d 949,
963 (N.D. Iowa 2012); see also United States v. Jacques, 2011 WL 3881033, at *4
(D. Vt. Sept. 2, 2011) ([A]pplying a state-based standard in evaluating Eighth
Amendment claims . . . would effectively be sanctioning and contributing to
geographic disparities in application of the federal death penalty.). There simply
is no compelling reason to encourage a discordant patchwork of constitutional
rights.
3.
Even if Glossip Does Require that an Alternative be Permitted

by Statute, Alabamas Death Penalty Statute Authorizes the
Firing Squad.
Even if Glossip required inmates to plead alternative methods of

execution that a state statute permits (it does not), Alabamas lethal injection
statute does permit the use of the firing squad.
The statutes savings clause
provides that if lethal injection or electrocution is held unconstitutional, all

persons sentenced to death for a capital crime shall be executed by any
constitutional method of execution. Ala. Code 15-18-82.1(c) (emphasis added);
see also Arcia v. Fla. Secy of State, 772 F.3d 1335, 1344 (11th Cir. 2014)
([A]ny means all.). As the Supreme Court recognized in Glossip, the firing
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squad is a constitutional method of execution. 135 S. Ct. at 2732, 2739 (citing

Wilkerson v. Utah, 99 U.S. 130, 134-35 (1879)). Thus, if lethal injection is held
unconstitutional, Alabamas lethal injection statute allows the use of the firing
squad.9
The district court did not offer any reason why Alabamas savings
clause is inapplicable in Mr. Arthurs case.
R.E. Tab 25.
However, when
presented with this argument in another case challenging Alabamas method-ofexecution, the district court reasoned that because the firing squad is not permitted
by statute in Alabama absent a declaration that Alabamas current method is
unconstitutional, implementing [the firing squad] without lethal injection and
electrocution first being declared unconstitutional would require a statutory
amendment. Boyd v. Myers, No. 14-cv-1017, Dkt. # 50 at 11 (M.D. Ala. Oct. 7,
2015). This interpretation creates a Catch-22 that nullifies the savings clause of
Alabamas statute: to prove that lethal injection is unconstitutional, a condemned
inmate must plead a constitutional alternative method of execution, Glossip,
135 S. Ct. at 2737; but according to the district courts reasoning, such inmate
cannot plead any constitutional method[s] permitted by the savings clause
9
Based on the record in this proceeding, the State seems to contend that the
only manner in which Alabama can carry out lethal injection is according to its
current protocol. Accordingly, a finding that ADOCs protocol is unconstitutional
(and that the alternative lethal injection methods proposed by Mr. Arthur are
unavailable) would implicate the savings clause.
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without first satisfying both of Glossips requirements: the challenged execution

method is unconstitutional and a feasible alternative method exists. The district
courts reading finds no support in Glossip and strips the broad constitutional
savings clause in Ala. Code 15-18-82.1(c) of its natural meaning. See Ali v. Fed.
Bureau of Prisons, 552 U.S. 214, 218-19 (2008) (noting that the word any has
an expansive meaning). Such a construction also runs afoul of the time-honored
canon of construction that [courts] should disfavor interpretations of statutes that
render language superfluous. In re Rothstein, Rosenfeldt, Adler, P.A., 717 F.3d
1205, 1214 (11th Cir. 2013).
Additionally, the district courts interpretation ignores the intent of
Glossip: the alternative method requirement in Glossip was designed to ensure
that a state wishing to do so may implement the death penalty in a constitutional
manner and prevent gamesmanship in Eighth Amendment challenges.
See
Glossip, 135 S. Ct. at 2732-33. It was not intended to limit Eighth Amendment
claims to the selection of an alternative allowed by existing state statute.
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The District Court Erred In Dismissing Mr. Arthurs Substantial

Evidence that Pentobarbital Is an Available Alternative to
Midazolam.
1.
The District Court Misconstrued the Burden Imposed by

Glossip by Effectively Requiring Mr. Arthur To Obtain an
Alternative Execution Drug.
In Baze, Chief Justice Roberts explained that a method of execution

challenger could propose any feasible and readily implemented alternative.
Baze, 553 U.S. at 52. The meaning of these terms is no secret. As the Supreme
Court has previously 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 Websters Third New
International Dictionary of the English Language 831 (1976)).
Similarly,
Glossips readily implemented requirement should be read to mean 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, quick, and easy, but not necessarily the most efficient,
speedy, or easy process. (citing Websters Third New International Dictionary of
the English Language 1889 (1981)) (emphasis in original)).10
10
Under the district courts formulation, feasible [and] readily implemented

means known and available. R.E. Tab 2 at 9 (citation omitted).
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The Supreme Court certainly did not impose a heightened requirement

that a method-of-execution challenger procure an alternative or identify a
specific source for an alternative. Rather, all Baze and Glossip require is for Mr.
Arthur to identify 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). Accordingly, Mr. Arthur should have been able to satisfy his
burden by identify[ing] an alternative method of execution, id., that could be
carried out by the State. See Donovan, 452 U.S. at 508.
Mr. Arthur showed exactly this. In particular, Mr. Arthur offered the
expert testimony of Dr. Gaylen M. Zentner, Ph.D., a pharmaceutical chemist and
registered pharmacist with over three decades of experience in the pharmaceutical
industry. The district court found Dr. Zentners testimony credible. R.E. Tab 2 at
14.11
With respect to the ready availability of pentobarbital, Dr. Zentner
testified, as the district court summarized, that:
(1) no active patents cover
[pentobarbital sodium], meaning that anyone who has the ingredients can make it;
(2) at least four other states have been able to locate sources for compounded
11
To the extent ADOC relies on this Courts decision in Brooks v. Warden,

810 F.3d 812 (11th Cir. 2016), Mr. Arthurs showing far exceeds the showing
made in that case, specifically by providing detailed evidence on capable
pharmacies in Alabama that are equipped to prepare compounded pentobarbital.
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pentobarbital for use in executions over the past year; (3) creating compounded
pentobarbital [is] a straightforward process and [a]ny pharmacy in any state that
desires to compound pentobarbital could implement that straightforward
process; (4) there is a company in the United States that listed pentobarbital
sodium, the active ingredient for compounded pentobarbital, as among its
products for sale; (5) there are overseas suppliers of pentobarbital sodium;
(6) pentobarbital sodium could be produced by drug synthesis labs in the United
States; and (7) at least two accredited pharmacies in Alabama agreed when
contacted by Dr. Zentner that they had the facilities necessary to do sterile
compounding. R.E. Tab 2 at 11-14. In sum, as to the availability of pentobarbital
to ADOC, Dr. Zentners unrebutted testimony was that there are compounding
pharmacies that have the skills and licenses to perform sterile compounding of
pentobarbital sodium. Therefore, the feasibility for producing a sterile preparation
of pentobarbital sodium does exist.
R.E. Tab 22 at 219:13-16.
The State
presented no expert evidence to the contrary.

Despite this, the district court concluded that Mr. Arthur had not met
his burden because he had presented evidence only of alternatives that should,
could or may be available. R.E. Tab 22 at 20. This conclusion is flawed for
multiple reasons.
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First, if an identified alternative should, could or may be available,

based on unrebutted and unchallenged expert evidence, then it is capable of being
done, and therefore necessarily feasible within the plain meaning of that word.
See Donovan, 452 U.S. at 508.
Similarly, if an alternative is known and
practicable, it can be readily implemented without unreasonably burdening the

State. But by going furtherapparently requiring Mr. Arthur to identify a specific
willing source, or actually procure an alternative, R.E. Tab 2 at 20)the district
court imposed a much more stringent standard than required by Glossip, one that
would be nigh impossible for a condemned inmate to meet.12
Second, despite the district courts characterization, the unchallenged
evidence was not merely that pentobarbital may be available, but in fact that it
is available, R.E. Tab 22 at 219:12, because all its ingredients are readily
available, R.E. Tab 22 at 205:23, and any qualified pharmacist can perform the
easy and straightforward compounding process necessary to create the drug, R.E.
Tab 22 at 208:20; see generally R.E. Tab 22 at 205-219.
This evidence is
confirmed by the fact that other states have obtained and used compounded
pentobarbital. See R.E. Tab 22 at 218:7-10); R.E. Tab 51.
12
As further explained below, Section II.B., infra, the district court later
further expounded on this to require the pleading and proof of an alternative
protocol with a precise procedure, amount, time and frequencies of
implementation. R.E. Tab 3 at 24-25. All of this demonstrates that the district
court failed to properly apply Glossip.
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The district court further erred in adhering to its conclusion even

when, after the hearing, one of defendants own experts, Daniel Buffington, Pharm.
D., testified in another proceeding that he had met other pharmacists who told him
that they would be willing to compound pentobarbital for use in lethal
injections. R.E. Tab 3 at 41 (quoting R.E. Tab 9 2). This concession further
confirmed the testimony of Dr. Zentner that pentobarbital is, in fact, available to
ADOC as a compounded drug. Nonetheless, the district court allowed ADOC to
gloss over Dr. Buffingtons concession through a supplemental declaration (not
subject to cross-examination), in which Dr. Buffington stated that he had
subsequently contacted certain pharmacists who, he said, told him they were
unable or unwilling to supply compounded pentobarbital to ADOC. R.E. Tab 9
7.13 The district court abused its discretion by disregarding Dr. Buffingtons
admission at deposition, which should have, at the very least, resulted in a new
trial. See Branca v. Sec. Ben. Life Ins. Co., 789 F.2d 1511, 1512 (11th Cir. 1986).
13
However, certain of the pharmacists indicated not that they were unwilling, but
that they would have difficulty with access to the pharmaceutical supplies and
raw materials needed to compounded [sic] pentobarbital. R.E. Tab 9 7. There
is no reason the State could not have assisted such apparently willing pharmacists
to obtain the necessary ingredients.
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2.
Page: 50 of 73
The Burden Imposed by the District Court Conflicts with

Glossips Requirement that the State Undertake a Good-Faith
Effort To Obtain an Alternative.
The district courts heightened burden makes even less sense, given
that it is ADOCs responsibility to actually procure and implement the alternative
method of execution.
To be sure, Mr. Arthur carries the initial burden of
identifying a feasible alternative, Brooks, 810 F.3d at 820; but once he has done
soas was the case herethe State cannot rebut that showing by simply claiming
potential suppliers are unwilling to sell to ADOC based on perfunctory telephone
inquiries.
The States obligation to make a good-faith effort follows directly
from the Supreme Courts opinion in Glossip.
There, petitioner pleaded
pentobarbital as an alternative method of execution, but the alternative was

rejected only because the record show[ed] that Oklahoma ha[d] been unable to
procure [the alternative] drugs despite a good-faith effort to do so. 135 S. Ct. at
2738 (emphasis added). Indeed, the district court noted that the defendants ha[d]
affirmatively shown that . . . pentobarbital [was] not available to the DOC.
Warner v. Gross, 776 F.3d 721, 730 (10th Cir. 2015) (emphasis added; internal
quotation marks omitted).
There can be no dispute that condemned prisoners lack the authority
to negotiate a supply of drugs on behalf of the state, and a condemned inmate
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cannot reasonably do more than identify a feasible alternative. R.E. Tab 22 at

229:13-20 (Dr. Zentner explaining that he could not actually negotiate for the
State).
The States good-faith obligation envisioned by Glossip is not novel,
and indeed, is routinely applied in other areas of the law whereas herean
information asymmetry exists between the parties. See 29 Am. Jur. 2d Evidence
178 (Even in cases where the party does not have the general burden of proof,
the burden to produce evidence will rest upon that party when the party possesses
positive and complete knowledge concerning the existence of facts which the party
having that burden is called upon to negative or where for any reason the evidence
to prove a fact is chiefly, if not entirely, within the partys control.); Smith v.
United States, 133 S. Ct. 714, 720 (2013) (reaffirming principle that [w]here the
facts with regard to an issue lie peculiarly in the knowledge of a party, that party is
best situated to bear the burden of proof, given the informational asymmetry
that exists).14
14
For example, the McDonnell Douglas burden-shifting framework governs

Title VII employment-discrimination claims, in which a plaintiff must first make
out a prima facie case of intentional discrimination, at which point [t]he burden
then shifts to the defendant employer to articulate a legitimate, non-discriminatory
reason for the adverse employment action. Chavez v. Credit Nation Auto Sales,
LLC, 641 Fed. Appx 883, 886 (11th Cir. 2016) (per curiam).
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That requirement is also consistent with the Supreme Courts decision

in Baze, which acknowledges the governments burden to refute a prisoners
proposed alternative. If a State refuses to adopt such an alternative in the face
of . . . documented
advantages,
without
legitimate
penological
justification . . . then a States refusal to change its method violates the Eighth
Amendment.
128 S. Ct. at 1532 (emphasis added).
In other words, when
presented with substantial evidence of a proposed alternatives availability, the

court must inquire whether the state can show an adequate justification for its
refusal to adopt that alternativean inquiry that would be rendered toothless if the
district courts interpretation of Glossip was affirmed.
Moreover,
without
good
faith
requirement,
intolerable
consequences would follow. For example, it would mean that inmates in states
whose departments of corrections try harder than ADOC to obtain pentobarbital
for example, states such as Georgia and Missouri that have obtained and used
compounded pentobarbital in single-drug execution protocols, the same alternative
proposed by Mr. Arthur15enjoy greater constitutional protection than Mr. Arthur,
violating the basic tenet that constitutional rights be interpreted uniformly
throughout the country. See Section I.A.2.b, supra. Additionally, the district
courts interpretation of Glossip creates a perverse incentive for a state to do little
15
See R.E. Tab 52; R.E. Tab 53.

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or nothing to determine the availability of more humane alternatives, and even to

block an inmates ability to determine such availabilityas ADOC has done. See
Sections I.B.3 and I.B.4, infra.
3.
ADOCs Purported Attempts To Procure Pentobarbital Were

Inadequate.
While insisting that ADOC carried no duty to make good-faith

effortsessentially giving ADOC license to sit on its hands and assert
pentobarbitals unavailabilitythe district court nonetheless credited ADOCs
perfunctory evidence that it could not obtain pentobarbital. R.E. Tab 2 at 21. But
the states half-hearted efforts to create a record of unavailability through the
testimony of an ADOC lawyer are inadequate to show pentobarbitals
unavailability or establish ADOCs good-faith efforts.
At the hearing, ADOC offered the testimony of Anne Adams Hill,
general counsel of ADOC, who summarily testified that she had contacted all
eighteen accredited compounding pharmacies in Alabama [to inquire whether
pentobarbital was available], but her efforts were to no avail. R.E. Tab 2 at 15.
These calls were all made over a two-week periodto pharmacies that Mr. Arthur
had first identifiedimmediately preceding an ADOC motion for summary
judgment. R.E. Tab 68; R.E. Tab 22 at 147:24-25.
Ms. Hill provided no meaningful testimony as to the content of her
communications with the pharmacies other than to assert that they told her either
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that they could or would not provide pentobarbital in response to her telephone
inquiries.
For example, Ms. Hill never stated whether pharmacies had
categorically refused to provide pentobarbital under any circumstances, and she

stated that she never attempted to offer favorable terms to induce negotiation. R.E.
Tab 22 at 137:4-139:4.
This is a crucial omissionwhile a compounding
pharmacy might be initially disinclined to provide compounded pentobarbital, that

position could very well change in a negotiation.
Moreover, Ms. Hills search for alternative sources was inexplicably
limited. For example, she conceded that she did not do any research . . . on the
internet as to the availability of compounded pentobarbital, R.E. Tab 2 at 15, and
that she contacted no sources of pentobarbital other than Alabama compounding
pharmacies (and other states departments of corrections), R.E. Tab 22 at 141:621). Although Ms. Hill was aware that at least two pharmacies in Alabama are
capable of compounding pentobarbital but did not have the active ingredient, she
made no effort to obtain the ingredient. R.E. Tab 22 at 149:8-22; 150:6-15.16
In the face of Mr. Arthurs substantial evidence that pentobarbital is a
feasible alternative, ADOCs attempts to procure the drug reflect neither good faith
nor reasonable effort.
16
Had she done so, she would have learned through a simple Internet search
that the active ingredient is produced in the United States and available for sale.
R.E. Tab 22 at 213:1-216:6; R.E. Tab 54.
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The District Court Abused its Discretion by Prohibiting Mr.

Arthur from Obtaining Discovery To Show the Availability of
Drug Alternatives to ADOC.
In addition, despite the district courts ultimate reliance on the States

testimony, it denied Mr. Arthur the opportunity to test through discovery ADOCs
knowledge of, and efforts to obtain, alternative methods of execution. The district
court denied this discovery on the basis that Mr. Arthur sought production of
highly sensitive information, R.E. Tab 28 at 6. But the test for discoverability is
not whether information is sensitive, but rather, whether it is relevant to any
partys claim or defense, as Mr. Arthurs request surely was. OKeefe v. Adelson,
2016 WL 4750213, at *1 (11th Cir. Sept. 13, 2016); see Fed. R. Civ. P. 26(b)(1).
It cannot be reasonably disputed that Mr. Arthurs discovery requests
targeted relevant information, particularly in light of the States ultimate reliance
on the summary testimony of ADOCs counsel to rebut Mr. Arthurs expert
evidence of the availability of pentobarbital. For example, if discovery revealed
that ADOC could obtain drug alternatives, but negotiations had broken down over
price, that would most certainly be relevant to Mr. Arthurs claims.
Similarly, the district court acknowledged that Georgia, Missouri,
Texas, and Virginia were all able to perform executions using compounded
pentobarbital in 2015. R.E. Tab 2 at 18. If discovery revealed, for example, that
ADOC had simply been unwilling to use the sources apparently available to such
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other states, that fact would doubtlessly be relevant to whether that method of
execution is feasible for Alabama. See Donovan, 452 U.S. at 508.
Moreover, while Alabama may have an interest in maintaining
confidentiality of sensitive information, the district court had measures to ensure
confidentiality short of denying discovery altogether. Indeed, the parties were
subject to a court-ordered protective order, under which they were forbidden from
publicly disclosing certain information regarding ADOCs protocol. R.E. Tab at
44. The parties also maintained the confidentiality of ADOC employees and
potential suppliers by using abbreviations or code names at public hearings. See,
e.g., R.E. Tab Tr. 22 at 5-7 (referring to ADOC witnesses by their initials). The
district court could easily have relied on similar measures to ensure confidentiality
while granting Mr. Arthur access to discovery essential to his claims. See, e.g.,
Buckler v. Israel, 2014 WL 6460112, at *1 (S.D. Fla. Sept. 25, 2014) (Even when
the [defendant] does raise legitimate privacy and confidentiality concerns, such
concerns may be allayed through implementation of an appropriate protective
order.); Wika Instrument I, LP v. Ashcroft, Inc., 2014 WL 11970547, at *3 (N.D.
Ga. June 3, 2014) (same).
The district court abused its discretion by foreclosing discovery that
goes to the heart of the controversy, making it virtually impossible for
Mr. Arthur to examine the States position on an essential element of his Eighth
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Amendment claim. Inv. Props. Intl, Ltd. v. IOS, Ltd., 459 F.2d 705, 707 (2d Cir.
1972).
Mr. Arthur is thus in a cul-de-sac which the Federal Rules never
contemplated, id., required on the one hand to prove the availability of an

alternative execution method to ADOC but prevented, on the other, from
developing the factual record to meet that burden.
Without access to that
discovery, ADOC could have presented self-serving representations, which were

necessarily one-sided and, therefore, provided an incomplete picture of the factual
context, especially on account of ADOCs asymmetric access to information.
Sprye v. Ace Motor Acceptance Corp., 2015 WL 5136511, at *4 (D. Md. Aug. 31,
2015).
II.
THE DISTRICT COURT ERRED IN DISMISSING MR. ARTHURS

AS-APPLIED CHALLENGE SHOWING THAT ALABAMAS
LETHAL INJECTION PROTOCOL CREATES A SUBSTANTIAL
RISK THAT HE WILL SUFFER A PAINFUL HEART ATTACK.
In addition to his facial challenge, Mr. Arthur alleged that ADOCs
lethal injection protocol is unconstitutional as applied to him, given his unique

health circumstances.
Specifically, Mr. Arthur alleged that the protocols
administration of midazolam would induce a painful heart attack before the

sedative effects of the drug are felt.
As support, Mr. Arthur relied primarily on the evidence of Dr. J.
Russell Strader, Jr., a practicing cardiologist with over a decade of experience.
R.E. Tab 10 at 4).
Dr. Strader opined that midazolam has well-known

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hemodynamic effects, including causing a rapid drop in blood pressure upon

administration. R.E. Tab 10 at 3. This is particularly so with a large bolus dose, as
is called for under ADOCs protocol. R.E. Tab 10 at 13. Dr. Strader also opined,
based on a review of Mr. Arthurs medical records, that Mr. Arthur likely has
clinically significant obstructive heart disease, making him highly susceptible to a
heart attack if he experienced a sudden and sharp reduction in blood pressure. R.E.
Tab 10 at 14. Accordingly, Dr. Strader concluded that it is highly likely that the
administration of midazolam called for under ADOCs protocol would cause Mr.
Arthur to suffer the excruciating pain of a heart attack. R.E. Tab 10 at 14.
The district court dismissed Mr. Arthurs as-applied claim on
summary judgment, holding that Mr. Arthur had failed to raise a genuine issue of
material fact both as to the likely harm posed by ADOCs protocol, and the
availability of alternatives. The district court was wrong. Not only was Mr.
Arthurs evidence concerning his likelihood to suffer a heart attack unrebutted, it
was almost entirely unchallenged. The district court reached its conclusion only by
elevating its unscientific speculation over the opinions of a qualified expert. The
district court further erred in holding that Mr. Arthur failed to meet his burden to
show an alternative because he failed to provide expert evidence on step-by-step
instructions for an alternative protocol.
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Page: 59 of 73
The District Court Abused Its Discretion By Excluding Mr.

Arthurs Expert Evidence on Midazolams Hemodynamic Effects.
While acknowledging that Dr. Strader is an expert of the highest
caliber in his field, and that his medical opinions are unrebutted by affirmative
evidence, R.E. Tab 3 at 19, the district court nonetheless rejected Dr. Straders
conclusion as unreliable under Daubert. R.E. Tab 3 at 35. The court did so
because, in its view, Dr. Strader supposedly could not establish whether
midazolam would induce a heart attack in Mr. Arthur before any sedative effects of
the drug were felt. R.E. Tab 3 at 27. The district courts reasoning in rejecting of
Dr. Straders evidence constituted an abuse of discretion.
First, the court stated that [b]ecause Dr. Strader cannot render an
opinion regarding how much time it would take a 500-mg dose to render one
unconscious, it is impossible for him to extrapolate a sequence of hemodynamic
effect and sedation. R.E. Tab 3 at 35-36. In other words, according to the district
court, Dr. Strader could not say whether Mr. Arthur would first be sedated or suffer
a heart attack.
Dr. Straders unrebutted evidence, however, showed that
midazolams hemodynamic effects could occur within 1-2 minutes of the drugs
administration. R.E. Tab 10 at 6. Accordingly, Dr. Straders conclusionthat Mr.
Arthur will suffer a heart attack before he is sedatedturns on whether it would
take longer than two minutes for midazolams sedative effects to be felt. The
answer, based on both Mr. Arthurs and ADOCs evidence, is yes.
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For example, Dr. Straders report explained that in his experience,17

midazolam administered at clinical doses generally take[s] 5 minutes or more to
take effect. R.E. Tab 10 at 6. While Dr. Strader had no experience with a 500 mg
dosei.e. a massive overdose that would never be administered in a clinical
settinghe had no reason to believe that his conclusion would be different with
such a dose. This approach was expressly sanctioned by the Supreme Court in
Glossip, which recognized the impossibility of providing direct clinical evidence of
the effects of dosages at the levels used in execution protocols. See Glossip, 135 S.
Ct. at 2741 ([B]ecause a 500-milligram dose [of midazolam] is never
administered for a therapeutic purpose, extrapolation [from a smaller dose] was
reasonable.).
There was zero evidence to contradict Dr. Straders conclusion. In
holding to the contrary, the district court relied entirely on the package insert
prepared by midazolams manufacturer, which ADOC attached as an exhibit. But
even that source states that midazolam cannot induce anesthesia until at least 2 to
2.5 minutes after administration. R.E. Tab 3 at 34); see R.E. Tab 15 at 3.18 To
17
As the district court noted, Dr. Strader had performed approximately 3,500
invasive procedures using midazolam. R.E. Tab 10 at 16 n.13.
18
To be clear, the package insert states that midazolam can be used for
induction of general anesthesia, but only before administration of other
anesthetic agents. R.E. Tab 15 at 6; see R.E. Tab 12 at 10 ([M]idazolam is not
approved by the FDA for use as a stand-alone anesthetic.).
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state the obvious, 2 to 2.5 minutes for sedation is greater than the 1 to 2 minutes for
the heart attack-inducing drop in blood pressure, and the district court was
compelled, on summary judgment, to draw the inference in Mr. Arthurs favor.
The district court also pointed out that, according to the midazolam
package insert, [t]he effects of midazolam on the [central nervous system] are
dependent on the dose administered. R.E. Tab 3 at 34); see R.E. Tab 15. To the
extent the district court inferred that a high dose of midazolam could cause
sedative effects faster than two minutes, that conclusion is unwarranted. The
package insert does not say how the effects change based on dose, nor does it say
that a greater dose will induce sedative effects more quickly. This insert simply
does not demonstrate that midazolam will have any sedative effect prior to Mr.
Arthur being subjected to an agonizing heart attack. It was a clear abuse of
discretion for the district court to rely upon its own (incorrect) interpretation of a
medical package insert to resolve a Daubert challenge on summary judgment. See
Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) (Under
Daubert, it is not the role of the district court to make ultimate conclusions as to
the persuasiveness of the proffered evidence. (quoting Quiet Tech., 326 F.3d at
1341)).
Moreover, the district courts focus on the precise amount of time
midazolam requires to take effect is misplacedas Dr. Strader explained, the
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hemodynamic effects of midazolam (and the resulting heart attack) would

necessarily occur prior to any sedative effects, regardless of precisely how long
each of them takes to occur.
R.E. Tab at 7.
This is because midazolams
hemodynamic effects occur directly at the level of the vasculaturei.e.,

immediately upon midazolams administration into the bloodstreamwhereas
midazolams sedative effects can occur only after the drug has circulated through
the bloodstream and penetrated the blood-brain barrier. R.E. Tab 10 at 7. For this
reason, as Dr. Strader opined, the precise timing of midazolams hemodynamic and
sedative effects is irrelevant; what matters is that the former precedes the latter. By
failing to recognize this unrebutted expert testimony and basing its exclusion of
evidence on its own erroneous lay supposition, the district court committed
reversible error. See Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 989
(11th
Cir.
2016)
(reversing
district
courts
Daubert
ruling
where
it
mischaracterize[d] [the experts] opinion and the evidence supporting it.);

Alabama Power Co., 730 F.3d at 1284-88 (11th Cir. 2013) (holding that the
exclusion of an expert was an abuse of discretion because the district court
mischaracterized the evidence supporting the experts opinion).
Second, the district court rejected Dr. Straders conclusion as
unreliable because he had never administered more than a 20-mg dose of
midazolam, and typically only a 2-5 mg dose, in more than 3,500 invasive
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procedures in which he used midazolam. R.E. Tab 3 at 36. The import of this
ruling is breathtaking. In no uncertain terms, the district court held that experts
may opine on midazolam only if they have personally administered a potentially
lethal quantity of the drug that would never be done in a clinical setting. That is
not the law. See Glossip, 135 S. Ct. at 2741 ([B]ecause a 500milligram dose [of
midazolam] is never administered for a therapeutic purpose, extrapolation [from a
smaller dose] was reasonable.); see R.E. Tab 24 at 208:8-14 (ADOCs expert
explaining that it would be unethical to administer someone 500 milligrams of
midazolam).
B.
Even If Mr. Arthur Were Required To Plead and Prove an

Alternative for His As-Applied Claim, the District Court Imposed
An Unreasonable Burden of Proof.
Aside from the alternatives Mr. Arthur offered in his facial
challenge,19 he also proposed modifications to ADOCs existing midazolam-based

protocol in support of his as-applied claim, including through the administration
of midazolam at a gradual rate closer to that used in clinical practice . . . [to]
reduce the risk of a severe drop in arterial blood pressure resulting from a rapidly
injected bolus dose of midazolam. R.E. Tab 11 6.
19
Mr. Arthur in fact bore no such burden for his as-applied claim based on unique
health circumstances. See Gissendaner v. Commr, Georgia Dept of Corr., 803
F.3d 565, 569 n.1 (11th Cir. 2015) (per curiam).
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The district court rejected Mr. Arthurs midazolam-based alternative,

finding that he failed to provide specific, detailed and concrete alternatives or
modifications to the protocol with precise procedures, amounts, times and
frequencies of implementation, R.E. Tab 3 at 24.
The district courts
requirementthat Mr. Arthurs medical expert provide step-by-step instructions

on an execution protocolis an impossible standard to meet, and should be
rejected. As Dr. Strader made clear in his expert opinion, as a physician, he is
ethically prohibited from suggesting modifications to a lethal injection protocol.
R.E. Tab 11 4 (citing American Medical Association Ethics Opinion 2.06).
Indeed, ADOCs own expert, Dr. Dershwitz, testified that
The district court thus placed Mr. Arthur in

an untenable positionit required proof from a medical expert, R.E. Tab 3 at 2425, but the kind of proof that no medical expert could ethically provide.
The district court further held that Mr. Arthur was estopped from
offering midazolam as an alternative, reasoning that he could not credibly propose
the use of midazolam in any argument for a remedy because one of his experts,
Dr. Kaye, stated that midazolam is incapable of inducing anesthesia in the context
of Mr. Arthurs facial challenge. R.E. Tab 3 at 25-26. But there is nothing
inconsistent about Mr. Arthurs positions or evidence. As Dr. Strader opined,
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modifications to ADOCs current protocol will substantially reduce the risk of Mr.
Arthur suffering a heart attackthe risk identified in Mr. Arthurs as-applied
challengeand Dr. Kayes opinion is not to the contrary.
Mr. Arthur has
presented arguments and evidence consistently showing that midazolam is not an

adequate anesthetic to withstand the torturous pain of the second and third drugs in
Alabamas protocol. Mr. Arthurs modifications to the existing protocol offered in
his as-applied challenge do not alter that, but instead substantially reduce the risk
that he will feel the full extent of an agonizing heart attack.
III.
THE DISTRICT COURT ERRED IN DISMISSING MR. ARTHURS

EQUAL PROTECTION CLAIM.
As the district court previously found, if the State elects to implement
a consciousness assessment in Alabamas lethal injection protocol, the assessment

must be performed adequately. R.E. Tab 42 at 50:14-16 (If a state has a policy of
doing a graded stimuli test, then the state needs to perform that test on every
inmate thats going to be executed.); see also In re Ohio Execution Protocol
Litig., 671 F.3d 601, 602 (6th Cir. 2012) ([T]he State should do what it agreed to
do: . . . it should adhere to the execution protocol it adopted.); Cooey v. Kasich,
801 F. Supp. 2d 623, 654 (S.D. Ohio 2011) (Defendants steadfast refusal to
recognize core deviations as problematic subverts the purpose of the written
protocol and defies the point of the protections that the Fourteenth Amendment
provides to all citizens.).
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The uncontested evidence presented to the district court is that

members of ADOCs execution team did not know how to perform an appropriate
consciousness assessment and did not perform it properly. R.E. Tab 41 at 17-18 &
n.8 (noting that execution team members displayed a wide-ranging understanding
of the required amount of force for the pinch test, and were not afforded specific,
uniform instructions on how to perform the task)). For example, one execution
team member testified that, in administering the consciousness assessment, he
would pinch hard enough that if it was a conscious person, they would jerk their
arm away from me, while another officer testified that he would pinch an inmate
on the inside of the arm hard enough to wake him if hes asleep. R.E. Tab 43 at
179:4-5, 192:7-8).
But the undisputed testimony of both ADOCs and
Mr. Arthurs anesthesiologists confirms that this level of force is inadequate to

gauge anesthetic depth, and that the consciousness assessment should involve as
hard a pinch as possible. See R.E. Tab 60 at 80:2-81:3; R.E. Tab 43 at 179:15-16
(Dr. Heath: pinch should be hard enough for a conscious person to jerk their
whole body away and scream out loud.); R.E. Tab 21 at 24:23-25 (Dr. Kaye:
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Case: 16-15549
Page: 67 of 73
pinch should be [a]s firm and as hard as you can. Not in a mild way; not in a
moderate way. In a very significant way.).
ADOC employees inadequate implementation of the consciousness
test is unsurprising, since no one ever told them how to do it properly. The warden
testified that execution team members were not given instructions regarding how
hard to pinch, what reactions to look for, or what significance particular reactions
might have. R.E. Tab 43 at 59:10-11 (Ive never told someone how hard to pinch
someone. Just do perform the pinch test. Pinch the arm.); 63:8-66:1.20 There is
no record evidence whatsoever contradicting the expert medical testimony of
Dr. Kaye that ADOCs consciousness assessment has been implemented by
individuals who do not understand the intention of [the] protocol and its critical
role as a safeguard. R.E. Tab 21 at 26:24-28:18.
Moreover, the uncontested evidence shows that execution team
members disagreed as to how the results of the consciousness assessment were
communicated to the warden.
20
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Case: 16-15549
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Notwithstanding the overwhelming evidence showing the States

inadequate application of the consciousness assessment, the district court
dismissed Mr. Arthurs Fourteenth Amendment Claim, holding that under Baze
and Glossip, the Eighth Amendment does not require medical training and
standards or procedures be employed in a consciousness assessment during an
execution, nor is there a constitutional requirement that a states execution protocol
include a consciousness assessment at all. R.E. Tab 2 at 53-54, Dkt. 359. But
Baze and Glossip presented exclusively a question of Eighth Amendment law that
is inapposite to Mr. Arthurs Fourteenth Amendment claim.
As the district court previously noted in rejecting ADOCs attempt to
recast Plaintiffs Equal Protection claim as an Eighth Amendment claim, there is
overlap between some of the elements of Plaintiffs Eighth and Fourteenth
Amendment claims but the claims are distinct. R.E. Tab 41 at 25; see also R.E.
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Case: 16-15549
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Tab 42 at 53:15-20 ([I]f in their . . . protocol that the state has, . . . if its not done
accurately or done consistently, that . . . doesnt make this an Eighth Amendment
claim. Thats an equal protection claim. (emphases added)). In fact, the district
court previously found that because the evidence shows wide ranging differences
among witnesses as to whether, if the required consciousness assessment is
performed, the State will perform it adequately, Arthur has established a
substantial likelihood of success on the merits of this Fourteenth Amendment equal
protection claim. R.E. Tab 31 at 12.
But in ultimately dismissing Mr. Arthurs Fourteenth Amendment
claim, the district court improperly recast his claim as an Eighth Amendment
claim. Specifically, the court held that the principle applicable to an Eighth
Amendment claima medical standard of care to execution procedures and
training for them are not required by the Eighth Amendmentis applicable to
Arthurs Equal Protection claim challenging the adequacy of the consciousness
assessment and the training therefor, including the force used in the pinch test.
R.E. Tab 2 at 54. In doing so, the district court apparently relied on Glossip, but
nothing in that case altered the requirements for demonstrating an Equal Protection
claim. As this Court explained in earlier proceedings, Arthur has alleged enough
facts to constitute a plausible Equal Protection claim because he alleges that
Alabama has substantially deviated from its execution protocol in a manner that
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Case: 16-15549
significantly reduces inmate safeguards.
Page: 70 of 73
Arthur, 674 F.3d at 1262.
Thus,
significant deviations from [ADOCs] protocol can establish an Equal Protection

claim. Id. at 1263 (noting that the Sixth Circuit had affirmed an order to stay an
execution because four core deviations from Ohios lethal injection protocol
burdened the Equal Protection rights of inmates in Ohio). By presenting evidence
that the State failed to perform an adequate consciousness assessmentwhich the
State claims is a safeguard against a cruel and unusual executionMr. Arthur did
demonstrate an Equal Protection violation resulting in a substantial risk of
agonizing and selective pain. Even if Alabamas consciousness assessment is not
required under the Eighth Amendment, that has no bearing here. The district court
erred by applying this principle of the Eighth Amendment to Mr. Arthurs Equal
Protection claim.
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Case: 16-15549
Page: 71 of 73
CONCLUSION
For the foregoing reasons, the judgment of the district court should be
reversed, and the case should be remanded.
Respectfully submitted,
/s/ Suhana S. Han
SUHANA S. HAN
ADAM R. BREBNER
MEREDITH C. SHERMAN
STEPHEN S. MAR
AKASH M. TOPRANI
JUSTIN D. ROLLER
125 Broad Street
New York, New York 10004
Telephone: (212) 558-4000
Fax: (212) 558-3588
E-mail: hans@sullcrom.com
Counsel for Plaintiff-Appellant
Thomas D. Arthur
September 23, 2016
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Case: 16-15549
Page: 72 of 73
CERTIFICATE OF COMPLIANCE
I, Suhana S. Han, hereby certify that this Brief of Appellant Thomas
D. Arthur complies with the type-volume limitations of Federal Rule of Appellate
Procedure 32(a)(7)(B)(1). This brief has been prepared using 14-point Times New
Roman font, a proportionally space, serif typeface. According to the word count of
the word processing program that was used to prepare it, this brief contains 13,791
words, exclusive of the Certificate of Interested Persons, Statement Regarding Oral
Argument, Table of Contents, Table of Citations, Certificate of Compliance and
Certificate of Service.
Dated: New York, New York

September 23, 2016
/s/ Suhana S. Han
Suhana S. Han
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Case: 16-15549
Page: 73 of 73
CERTIFICATE OF SERVICE
I hereby certify that on September 23, 2016, I electronically filed the
foregoing brief with the Clerk of Court using the CM/ECF system, which will send
notification of such filing to the following individuals:
J. Clayton Crenshaw, Esq.
Thomas R. Govan, Esq.
James R. Houts, Esq.
Lauren Ashley Simpson, Esq.
Office of the Attorney General
Capital Litigation Division
501 Washington Avenue
Montgomery, AL 36104
/s/ Suhana S. Han

Suhana S. Han
125 Broad Street
New York, New York 10004
Telephone: (212) 558-4000
Fax: (212) 558-3588
E-mail: hans@sullcrom.com
-63-

Thomas Arthur Brief (As-Filed 09.23.16)

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Thomas Arthur Brief (As-Filed 09.23.16)

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Case: 16-15549

Date Filed: 09/26/2016

Date Filed: 09/26/2016

CERTIFICATE OF INTERESTED PERSONS

Simpson, Lauren Ashley

Watkins, William Keith

Wicker, Judy (a.k.a. Mary

Wicker, Jr., Troy

Date Filed: 09/26/2016

STATEMENT REGARDING ORAL ARGUMENT

Date Filed: 09/26/2016

Alabamas Lethal Injection Protocol .................................................... 5

Alternative Methods of Execution ........................................................ 8

ADOC Protocols Consciousness Assessment ..................................... 9

STATEMENT OF THE CASE .................................................................................. 9

Mr. Arthurs Initial Complaint .............................................................. 9

The States Change to Midazolam in its Protocol............................... 10

Glossip and Mr. Arthurs Alternative Methods of Execution............. 13

The Bifurcated Hearing ....................................................................... 14

The First-Phase Opinion...................................................................... 15

Mr. Arthurs As-Applied Claim .......................................................... 17

Mr. Arthurs Motion for a New Trial .................................................. 18

The District Courts Subsequent Opinions ......................................... 19

Mr. Arthurs Execution Date ............................................................... 20

SUMMARY OF THE ARGUMENT ...................................................................... 21

Date Filed: 09/26/2016

The District Court Misinterpreted the Requirement to Plead a Feasible

The District Court Improperly Denied Mr. Arthur Leave to

Glossip Does Not Require Alternative Methods of

Adopting the District Courts Interpretation of Glossip

The district courts ruling allows states to

Even if Glossip Does Require that an Alternative be

The District Court Erred In Dismissing Mr. Arthurs Substantial

The District Court Misconstrued the Burden Imposed by

The Burden Imposed by the District Court Conflicts with

ADOCs Purported Attempts To Procure Pentobarbital

The District Court Abused its Discretion by Prohibiting

Date Filed: 09/26/2016

The District Court Erred In Dismissing Mr. Arthurs As-Applied

The District Court Abused Its Discretion By Excluding Mr.

Even If Mr. Arthur Were Required To Plead and Prove an

The District Court Erred In Dismissing Mr. Arthurs Equal Protection

Date Filed: 09/26/2016

Date Filed: 09/26/2016

Date Filed: 09/26/2016

In re Rothstein, Rosenfeldt, Adler, P.A.,

Date Filed: 09/26/2016

Date Filed: 09/26/2016

Date Filed: 09/26/2016

district court misread Glossip, applied an impossibly stringent standard and

Date Filed: 09/26/2016

to Alabama through a variety of channels.

The district court misapplied the

The district courts holding renders it impossible for a

condemned inmate to propose an alternative based on medical evidence because no

Date Filed: 09/26/2016

The district court

Absent this Courts intervention, Mr. Arthur will soon be executed

jurisdiction under 28 U.S.C. 1291.

Whether the district court erred in its interpretation of Glossips

requirement that a method-of-execution challenger prove a feasible alternative by

Date Filed: 09/26/2016

imposing a requirement that Mr. Arthur must actually procure, or provide a