RUSSELL BUCKLEW, ) ) Plaintiff, ) ) ) v. ) No. 14-2163 ) GEORGE LOMBARDI, et al. ) ) Defendants. )
PETITION FOR REHEARING AND REHEARING EN BANC
The decision of the panel conflicts with the decisions of the United States Supreme Court in Baze v Rees, 535 U.S. 35 (2008) and Brewer v. Landrigan, 131 S.Ct. 445 (2010). The decision of the panel also conflicts with the decision of this court in In re Lombardi, 741 F.3d 888 (8 th Cir. 2014)(en banc) and Clemons v. Delo, 535 F.3d 1119 (8 th Cir. 2009). En banc consideration is necessary to maintain the uniformity of this Courts decisions, and the case presents a question of exceptional importance: Do the United States Supreme Court precedents in Baze and Brewer and this Courts decision in In re Lombardi control in cases making as-applied challenges to a method of execution as well to cases making facial challenges to a method of execution? Appellate Case: 14-2163 Page: 1 Date Filed: 05/20/2014 Entry ID: 4156138 2 I. This Court should vacate the stay of execution because the Panels holding that Baze and I n re Lombardi do not control as-applied challenges to execution methods is contrary to precedent and bad policy. The thrust of the panel decision is that this Court need not follow the decisions in Baze and In re Lombardi because those decisions involved a facial challenge to a method of execution, but Bucklew alleges Missouri execution procedures are unconstitutional only as applied to him because of a physical infirmity that might increase the risk of pain from an execution. But Clemons v. Crawford, 585 F.3d 1119 (8 th Cir. 2009) was an as-applied challenge that used the controlling Baze standard. The plaintiffs in Clemons alleged not that the execution protocol itself was defective but rather that the lack of training of execution team members made the protocol unconstitutional as applied to particular inmates. The proposition that In re Lombardi and through it Baze do not control as applied challenges directly conflicts with Clemons. Rehearing en banc is necessary to maintain uniformity of the Courts decisions. Baze and In re Lombardi dictate the plaintiff must set out a feasible alternative method of execution that will substantially reduce a serious risk of pain. Only if a State does not adapt a feasible readily implemented alternative that in fact significantly reduces a substantial risk of severe pain does the execution violate the Eighth Amendment. Baze, 553 U.S. at 52. The standard is high and intentionally so, so that the court does not become a best practices committee, with each ruling supplemented by another round of litigation touting a new and improved methodology. Id. at 51. Bucklew does not even purport to offer an alternative. Instead he alleges he cannot be executed at all because his Appellate Case: 14-2163 Page: 2 Date Filed: 05/20/2014 Entry ID: 4156138 3 medical condition may increase pain from the execution. The panel decision therefore conflicts with Baze, In re Lombardi and Clemons. The panel rejects the Baze requirement that the condemned must allege and demonstrate an alternative to the criticized portion of the protocol in as applied challenges. No precedent of this Court or the United States Supreme Court supports that proposition. The holding is in fact a way to avoid the requirements of Baze and In re Lombardi that would swallow those precedents, because one could always make some as-applied challenge. The panel cites Baze to support its conclusion (Panel Op. at 13). But the Baze Court noted that an execution with torture has a lawful alternative, an execution without torture. II. The panel decision also conflicts with United States Supreme Court precedent because Bucklews speculation does not show he is sure or very likely to endure serious illness and needless suffering as a result of an execution. As the dissent in the panel opinion pointed out, Baze and Brewer require Bucklew show an execution is sure or very likely to cause serious illness and needless suffering, Panel Decision at 16 (Loken J. dissenting). Bucklew has fallen well short of that standard. Id. at 17. See also District Court Document 17 at 8, holding Bucklew does not indicate the extremity of pain he might suffer, or the length of such pain and his pain and that his claim is based on speculation. Therefore, the panel decision conflicts with United States Supreme Court precedent for a reason independent of the reasoning of In re Lombardi. That is as the dissent points out, the speculation he presents about what might go wrong falls well short of the standard in Brewer and Baze, creating an independent conflict. Appellate Case: 14-2163 Page: 3 Date Filed: 05/20/2014 Entry ID: 4156138 4 III. Conclusion This Court should grant rehearing en banc and vacate the stay of execution.
/s/ Michael J. Spillane Michael J. Spillane Assistant Attorney General Missouri Bar No. 40704 PO Box 899 Jefferson City MO 65102 Phone: 573.751.0967 Fax: 573.751.3825 mike.spillane@ago.mo.gov ATTORNEYS FOR RESPONDENT
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was electronically filed by using the CM/ECF system on this 20 th day of May, 2014. This Courts electronic filing system should serve counsel for the plaintiffs, as all are electronic filers.
s/ Michael J. Spillane Michael J. Spillane Assistant Attorney General Appellate Case: 14-2163 Page: 5 Date Filed: 05/20/2014 Entry ID: 4156138