In Re: Ohio Execution Protocol Litigation
CORRECTED DECISION AND ORDER DENYING MOTION TO STAY. Signed by Magistrate Judge Michael R. Merz on 2/7/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
Case No. 2:11-cv-1016
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
This Order relates to Plaintiffs
Phillips, Tibbetts, and Otte.
CORRECTED DECISION AND ORDER DENYING
MOTION TO STAY
This capital § 1983 case is before the Court on Defendants’ Motion (ECF No. 967) to
Stay the Court’s Decision and Order Granting in Part and Denying in Part Plaintiffs’ Motions for
Preliminary Injunction (ECF No. 948)(“Preliminary Injunction Order”). Plaintiffs oppose the
Motion (ECF No. 977).
The Preliminary Injunction Order was entered January 26, 2017, and appealed the same
day (ECF No. 949)1. The Motion to Stay was filed January 31, 2017, and the Court ordered it
briefed on an expedited schedule (ECF No. 969), understanding that Defendants would seek
expedited consideration of their appeal.
The appeal has been assigned Case No. 17-3076.
Defendants seek to be able to proceed with the executions of the above-named Plaintiffs
as presently scheduled: Phillips on February 15, 2017; Otte on March 15, 2017; and Tibbetts on
April 12, 2017.
As Defendants note, the factors which must be considered in granting a stay pending
appeal mirror those considered in granting preliminary injunctive relief in the first place:
"(1) the likelihood that the party seeking the stay will prevail on
the merits of the appeal; (2) the likelihood that the moving party
will be irreparably harmed absent a stay; (3) the prospect that
others will be harmed if the court grants the stay; and (4) the public
interest in granting the stay." Mich. Coalition of Radioactive
Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.
1991). All four factors are not prerequisites but are interconnected
considerations that must be balanced together. Id.
(Motion, ECF No. 967, PageID 34519, quoting Coalition to Defend Affirmative Action v.
Granholm, 473 F.3d 237, 244 (6th Cir. 2006)). The considerations as stated in Coalition are
consistent with long-standing Supreme Court precedent. Hilton v. Braunskill, 481 U.S. 770, 776
(1987), and previously followed by this Court. Gillispie v. Timmerman-Cooper, 2011 U.S. Dist.
LEXIS 147841 (S.D. Ohio Dec. 22, 2011).
While the court of appeals also has authority to stay a preliminary injunction pending
appeal, an application for stay must ordinarily be made in the first instance to the issuing court.
Wright, Miller & Kane: Federal Practice and Procedure: Civil § 2908 3rd ed. 2016).
Likelihood of Success on Appeal: On the first factor to be considered, Defendants
argue that they are likely to prevail on appeal, “because Glossip [v. Gross, 135 S. Ct. 2726
(2015),] cleared any legal obstacle to the use of the midazolam-based protocol Ohio adopted.”
(ECF No. 967, citing Glossip, 135 S. Ct. at 2739. Defendants argue that Glossip “establishes a
Supreme Court sanctioned ‘legislative fact’ (just as Baze [v. Rees, 553 U.S. 35 (2008),] did) that,
regardless of the standard of review there, the lower courts must accept.” (ECF No. 967, citing
Franks v. Walker, 768 F. 3d 744, 750 (7th Cir. 2014).
Defendants further cite Glossip for its finding that
[N]umerous courts have concluded that the use of midazolam as
the first drug in a three-drug protocol is likely to render an inmate
insensate to pain that might result from administration of the
paralytic agent and potassium chloride. See, e.g., 776 F. 3d 721
(case below affirming the District Court); Chavez v. Florida SP
Warden, 742 F. 3d 1267 (affirming the District Court); Banks v.
State, 150 So. 3d 797 (Fla. 2014) (affirming the lower court);
Howell v. State, 133 So. 3d 511 (Fla. 2014) (same); Muhammad v.
State, 132 So. 3d 176 (Fla. 2013) (same).
Glossip, 135 S. Ct. at 2739-40.
Defendants also assert that the Preliminary Injunction Order errs in finding that the
alternative execution method pled by Plaintiffs is sufficiently available to satisfy the Eighth
Amendment standard on that issue explicated in Glossip (ECF No. 967, PageID 34522-23).
Finally, Defendants believe that this Court’s alternative finding of judicial estoppel regarding a
paralytic agent and potassium chloride will not be sustained. Id. at PageID 34523.
Balance of Equities: Conflating the last two Coalition factors, Defendants argue the
balance of equities favors their position because they acted in good faith in adopting an
execution method “approbated by the Supreme Court” in Glossip. (ECF No. 967, PageID
34520). They reiterate that States have a “strong” or “important” interest in the timely execution
of criminal judgments. Id. They note, without attempting to quantify, the “administrative and
logistical burden imposed on ODRC and the Governor by the need to reschedule execution dates
for these inmates.” Id. at PageID 34521.
Irreparable Harm: Defendants make no comment on the irreparable harm issue.
Likelihood of Success: Plaintiffs note that the standard of review for a preliminary
injunction is abuse of discretion and argue there was no abuse of discretion in granting the
preliminary injunction because of the extensive evidence taken and the quality of that evidence
(ECF No. 977, PageID 36314-16). They also point out that Defendants’ argument that judicial
estoppel does not apply to a State was never raised before the preliminary injunction issued. Id.
at PageID 36319-20.
They argue that the preliminary injunction was and is necessary to
preserve the status quo pending trial, whereas a stay would moot Phillips’ claims and possibly
those of Otte and Tibbetts. Id. at PageID 36320-21.
Balance of Equities: Plaintiffs argue Defendants will suffer no irreparable harm from
denial of a stay whereas the irreparable harm to Plaintiffs from allowing them to be executed is
the most severe of irreparable harms, noting that Defendants have not argued on this factor and
presumably concede it. Id. at PageID 36322-25. Plaintiffs then offer a point-by-point response
to Defendants balance of equities argument. Id. at PageID 36326-30.
The Public Interest: Plaintiffs respond separately to that portion of Defendants balance
of equities argument that discusses the public interest. Id. at PageID 36325-26.
The parties agree that the standard to be applied in deciding the Motion for Stay is the
standard set out in Coalition for Affirmative Action, supra.
Likelihood of Success on Appeal
The standard for review of a preliminary injunction is whether its entry constituted an
abuse of discretion. Therefore, in seeking to stay a preliminary injunction, an appellant must
show that it is likely the district court abused its discretion. Michigan State A. Philip Randolph
Institute v. Jackson, 833 F.3d 656, 662 (6th Cir. 2016), quoting U.S. Student Ass’n Foundation v.
Land, 546 F.3d 373, 380 (6th Cir. 2008).
Under the abuse of discretion standard, "[t]he
injunction will seldom be disturbed unless the district court relied upon clearly erroneous
findings of fact, improperly applied the governing law, or used an erroneous legal standard."
Michigan State A. Philip Randolph Institute, supra, at 662, quoting Mascio v. Pub. Empls. Ret.
Sys. Of Ohio, 160 F. 3d 310, 312 (6th Cir. 1998).
Defendants’ argument for a stay goes directly to the merits of their appeal, without giving
the Preliminary Injunction Order the benefit of the abuse of discretion standard. That standard is
more deferential to a district court’s exercise of its equity jurisdiction than review on the merits
after trial would be. See David G. Knibb, Federal Court of Appeals Manual § 31:2-4 (6th ed.);
see also Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 54041 (6th Cir. 2007)(stating that “[w]e generally review a district court’s denial of a request for a
preliminary injunction for abuse of discretion. . . . This standard of review is ‘highly deferential’
to the district court’s decision.)
This Court is not persuaded that it abused its discretion in entering the Preliminary
Plaintiffs’ Eighth Amendment Baze/Glossip Claim
Midazolam as an Execution Drug:
Defendants argue that the Supreme Court has found as a matter of legislative fact that
midazolam as the first drug in a three drug execution protocol satisfies the Eighth Amendment.
As this Court has said before and repeatedly, that is an overbroad reading of Glossip. The
holding in Glossip as stated by Justice Alito is that “[t]he District Court did not commit clear
error when it found that midazolam is highly likely to render a person unable to feel pain during
an execution.” 135 S. Ct. 27 at 2739. To unpack this holding, it treats the question of the effect
of midazolam as a question of fact. Then it applies the usual standard for appellate review of a
trial court’s fact finding: is it clearly erroneous?
When a trial court decides any question of fact, it must do so on the basis of the evidence
it has heard, not the evidence on which some other trial court made a finding of fact. The
evidence before the District Court for the Western District of Oklahoma in Glossip was not
before this Court in the preliminary injunction hearing. For example, noting the evidence before
the District Court, Justice Alito found it “noteworthy that one or both of the two key witnesses in
this case – Dr. Lubarsky for petitioners and Dr. Evans for respondents – were witnesses in [three
other lethal injection challenges].” 135 S. Ct. at 2739. Neither of those witnesses testified in this
case nor did any of the experts who testified here advert to their testimony in Glossip or any
Defendants go so far as to claim that approval of midazolam is a Supreme Court
sanctioned “legislative fact,” and remind this Court of its duty to accept legislative facts
established by the Supreme Court (ECF No. 967, PageID 34522, citing Franks v. Walker, 768
F.3d 744, 750 (7th Cir. 2014)). In Franks, the Seventh Circuit held that the Supreme Court had
found as a matter of legislative fact that a photo identification requirement for voting “promotes
public confidence in the electoral system.” Id. Once that had happened a district court could
not find to the contrary:
The district judge heard from one political scientist, whose view
may or may not be representative of the profession's. After a
majority of the Supreme Court has concluded that photo ID
requirements promote confidence, a single district judge cannot
say as a "fact" that they do not, even if 20 political scientists
disagree with the Supreme Court.
Perhaps the most famous use of legislative facts is the Supreme Court’s finding in Brown
v. Board of Education, 347 U.S. 483 (1954): “To separate them [grade and high school students]
from others of similar age and qualifications solely because of their race generates a feeling of
inferiority as to their status in the community that may affect their hearts and minds in a way
unlikely ever to be undone.”2 However controversial this finding was among many Americans,
no lower court, so far as this Court is aware, ever questioned that it was a binding finding of fact.
Similarly here, if the Supreme Court had found in Glossip as a matter of legislative fact
that “use of midazolam as the first drug in a three-drug protocol is likely to render an inmate
insensate to pain that might result from administration of the paralytic agent and potassium
This finding was supported not by record evidence but by the authorities cited in the famous footnote 11.
chloride,” this Court would understand it was bound by that finding.3 But that is not what the
Supreme Court concluded in Glossip. Rather, it held that a district court finding to that effect, on
the basis of the evidence before that court, was not clearly erroneous.
This Court understands the impulse to read Supreme Court decisions beyond their
holdings which is what Defendants wish to do here and what ODRC Director Gary Mohr thought
was appropriate when he approved the current protocol. The Supreme Court has the ability to
provide finality which no other court in our system does. Because it presently decides only
about seventy-five cases per term, it necessarily leaves many important issues undecided and
litigants with those issues desiring finality. But respect for Supreme Court decisions requires
reading them no more broadly than they are written because the justices may be expected to
choose their words carefully and after deliberation.4
This Court’s duty is to decide the cases before it on the evidence before it in those cases.
As the Preliminary Injunction Decision hopefully makes clear, a great deal of evidence, lay and
expert, has accumulated about midazolam as an execution drug since its use in January 2014 to
execute Dennis McGuire. That evidence is summarized at length in the Preliminary Injunction
Decision. It apparently has persuaded some States to abandon the drug: Arizona did so in late
2016, and Florida did so while this Court was hearing evidence in early January. (Note that all
the non-Oklahoma cases cited by Justice Alito as approving midazolam are Florida cases.) Even
Ohio discarded the McGuire protocol which combined midazolam with hydromorphone.
Indeed, there would have been no need to take evidence here because, as Judge Easterbrook clearly implies in
Franks, a district court cannot undercut a Supreme Court finding of legislative fact by hearing different evidence.
Note that Glossip was decided at the end of the 2014 term by a close vote with vigorous dissents by Justices Breyer
and Sotomayor. The majority opinion is of course the law and the dissents are not cited in the Preliminary
Injunction Decision. But the majority opinion may have been written more narrowly than Defendants read it
because of the need to maintain one of the silent majority votes.
In sum, the Court is not persuaded that its findings of fact about midazolam are clearly
erroneous or a failure to abide by a legislative fact found by the Supreme Court in Glossip.
The Preliminary Injunction Decision found that Plaintiffs satisfied their Eighth
Amendment obligation to plead “a known and available alternative method of execution that
entails a lesser risk of pain.” (ECF No. 948, PageID 32228-30.) Defendants argue that the
method suggested by Plaintiffs – a pentobarbital injection – is not readily implemented because
they have been unable, despite efforts, to acquire pentobarbital. They do not dispute the finding
that using pentobarbital would be preferable from the perspective of all parties to the current
protocol nor the observation that the Supreme Court did “not attempt to quantify how available
the alternative method must be to qualify” under Glossip. They note the alternative method
“cannot actually be used in Phillips’ execution, so it is neither feasible nor readily implemented”
on February 15, 2017. (Motion, ECF No. 967, PageID 34523).
Defendants have cited no case deciding how available the alternative must be to meet the
Glossip standard. In the absence of any precedent, this Court is unpersuaded that it abused its
discretion in deciding, as a matter of first impression, that injectable pentobarbital satisfies the
standard. Ohio and other States successfully used pentobarbital (and thiopental sodium, its
analogue for execution purposes), so there is no question about its feasibility in the sense that it
will work. Defendants presented no evidence that their efforts to obtain pentobarbital are
unlikely to be successful. Indeed, a premise of the statute protecting the identity of drug sources
was that such protection was necessary to obtain execution drugs and particularly compounded
pentobarbital. If injected pentobarbital is infeasible, why put so much effort into obtaining it?
The Court concludes it did not abuse its discretion in finding Plaintiffs had satisfied their
obligation to plead an alternative method of execution.
Plaintiffs’ Judicial Estoppel Claim
In addition to finding Plaintiffs were likely to be successful on their Blaze/Glossip claim,
the Preliminary Injunction Decision concluded they were likely to succeed on their claim that
Defendants were judicially estopped from using a paralytic agent and potassium chloride by their
assertion to the Sixth Circuit that they would never again do so, statements that led to the
dismissal and execution in Cooey (Biros) v. Strickland, 588 F.3d 921 (6th Cir. 2009)(ECF No.
948, PageID 32235-37).
Defendants now assert that judicial estoppel does not “ordinarily” apply to the States
(Motion, ECF No. 967, PageID 34523, quoting Illinois ex rel Gordon v. Campbell, 329 U.S. 362,
369 (1946). Gordon held that the United States’ claims for unemployment and Social Security
taxes had priority over similar claims by Illinois as to a debtor in receivership. Justice Rutledge
did write, “ordinarily the doctrine of estoppel or that part of it which precludes inconsistent
positions in judicial proceedings is not applied to states,” but he did not end the sentence at that
point as is implied by Defendants’ ending what they quote with a period. Instead, he wrote in
the same sentence “in the present litigation Illinois is in the position of any lien creditor” and
judicial estoppel does apply. 329 U.S. at 369.
Indeed, it was Illinois that instituted the
receivership proceedings “and the state admitted in its answer to the Government’s intervening
petition that the debtor was insolvent,” a fact it attempted to deny later in the case and on which
the Supreme Court concluded it was estopped. Id.
Defendants rely on Longaberger Co. v. Kolt, 586 F.3d 459 (6th Cir. 2009), which held in
a case of first impression that judicial estoppel should not preclude a change in position based on
a change in the law. Id. at 470. The court quoted its own prior decision "Judicial estoppel is an
equitable doctrine that preserves the integrity of the courts by preventing a party from abusing
the judicial process through cynical gamesmanship, achieving success on one position, then
arguing the opposite to suit an exigency of the moment." Id. quoting Teledyne Indus., Inc. v.
NLRB, 911 F.2d 1214, 1217-18 (6th Cir. 1990), and New Hampshire v. Maine, 532 U.S. 742, 750
(2001), in which judicial estoppel was applied to a State. This Court disclaims any finding that
Ohio has engaged in any gamesmanship, cynical or otherwise, but believes the State should be
held to its word, given by the highest official in the Department of Rehabilitation and
Corrections and relied on by the Sixth Circuit to dismiss the Biros appeal.
Defendants do not suggest the Court abused its discretion in finding they would be
irreparably harmed if executed before this case is tried. In upholding an injunction in Ashcroft v.
American Civil Liberties Union, 542 U.S. 656, 670 (2004), the Supreme Court noted that “the
potential harms from reversing the injunction outweigh those of leaving it in place by mistake.”
The same is true in this case. Even if Plaintiffs were willing to “die for the cause,” their deaths
The authority Justice Rutledge cites for the general proposition is a student note at 59 Harv. L, Rev. 1132 (1946).
The Note is largely devoted to the distinction between judicial estoppel and res judicata. It devotes a total of three
sentences to the proposition that “The principle of preclusion is not usually applied against the state or federal
government.” Id. at 1136.
would render their claims moot. If the event sought to be enjoined transpires before the appeal is
heard, the appeal will be dismissed as moot. Wright, Miller & Kane: Federal Practice and
Procedure: Civil § 2904 (3rd ed. 2016)
The Public Interest
In granting preliminary injunctive relief, the Court recognized the public’s interest in
speedy executions after conviction, to serve both the retributive and deterrence ends of criminal
justice (ECF No. 948, PageID 32240).
However, all three of the above-named Plaintiffs
committed the murders of which they were convicted decades ago (Phillips 1993; Otte 1992;
Tibbetts 1997). The Court concluded “it is very debatable how much loss in deterrence there is
from waiting until a case can be tried on the merits.” Id. at PageID 32241.
The States’ Motion does not deal with that point, but instead quotes adjectives about the
government’s interest in enforcing criminal judgments, calling it “essential,” “strong,”
“important,” and “powerful and legitimate,” (Motion, ECF No. 967, PageID 34520-21, quoting
Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009); Nelson v. Campbell, 541 U.S. 637 (2004); Hill v.
McDonough, 547 U.S. 573 (2006); and Cooey (Beuke) v. Strickland, 604 F.3d 939 (2010).
Adjectives are not analysis. Defendants nowhere argue against the competing public interest in
enforcing the Constitution. Whatever adjectives the Supreme Court may have used in Nelson
and Hill, those two cases gave death row inmates a whole new litigation tool for attacking their
sentences, straight civil rights litigation under 42 U.S.C. § 1983 as opposed to habeas corpus.
While the public is interested in speedy justice, it is also interest in legal justice. Our
Nation’s shameful history of thousands of lynchings during Jim Crow helped shape the modern
writ of habeas corpus. See Frank v. Mangum, 237 U.S. 309 (1915). The public’s interest is not
solely in speed.
The Court is not persuaded it abused its discretion in entering the Preliminary Injunction
Order. The Motion to Stay is therefore DENIED.
February 7, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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