Appellants' Opening Brief - Ca10 - 21-6139

Appellate Case: 21-6139 Document: 010110600096 Date Filed: 11/03/2021 Page: 1
No. 21-6139
IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
JULIUS JONES (EXECUTION DATE SET 11-18-2021),

WADE LAY (EXECUTION DATE SET 01-06-2022),
DONALD GRANT (EXECUTION DATE SET 01-27-2022),
GILBERT POSTELLE (EXECUTION DATE SET 02-17-2022),
Plaintiffs-Appellants,
v.
RANDY CHANDLER, ET AL.,
Defendants-Appellees.
DEATH PENALTY CASE
On Appeal from the United States District Court for

the Western District of Oklahoma
The Honorable Stephen P. Friot, District Judge

District Court Case No. 5:14-cv-00665
APPELLANTS’ OPENING BRIEF
ORAL ARGUMENT IS REQUESTED
Emma V. Rolls, OBA # 18820 Jon M. Sands

Office of the Federal Public Defender for Federal Public Defender
the Western District of Oklahoma District of Arizona
215 Dean A. McGee Ave., Suite 707 Dale A. Baich (OH Bar No. 025070)
Oklahoma City, OK 73102 Jennifer M. Moreno (Bar No. CA 244967)
Michael W. Lieberman, OBA #32694
James K. Stronski 850 West Adams Street, Suite 201
CROWELL & MORING LLP Phoenix, Arizona 85007
590 Madison Avenue
New York, NY 10022
TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................... i
TABLE OF ATTACHMENTS ........................................................................................... ii
TABLE OF AUTHORITIES .............................................................................................. iv
STATEMENT OF JURISDICTION ................................................................................... 1
STATEMENT OF ISSUES ................................................................................................. 1
STATEMENT OF THE CASE ........................................................................................... 2
A. Introduction ................................................................................................... 2
B. Background ................................................................................................... 5
SUMMARY OF THE ARGUMENT ................................................................................ 12
STANDARD OF REVIEW ............................................................................................... 13
ARGUMENT..................................................................................................................... 13
A. Appellants are Likely to Succeed on their Eighth Amendment

Claim (Count II). ......................................................................................... 13
1. The Execution Protocol is Sure or Very Likely to
Cause Serious Illness and Needless Suffering. ................................ 14
2. Baze and its Progeny do not Require Appellants to
Choose their Own Method of Execution. ......................................... 19
B. Appellants are Likely to Succeed on their Religious Liberty
Claim (Count VIII). ..................................................................................... 22
C. Appellants are Likely to Succeed on their Human
Experimentation Claim (Count IX). ............................................................ 28
D. Appellants are Likely to Succeed on their Ex Post Facto and
Due Process Clause Claims (Counts VI and VII). ...................................... 31
E. The District Court Abused its Discretion in Holding that there
Will Be Irreparable Harm Whether Defendants are Executed
or Not. .......................................................................................................... 34
STATEMENT REGARDING ORAL ARGUMENT ....................................................... 36
CONCLUSION ................................................................................................................. 36
i
CERTIFICATE OF COMPLIANCE ................................................................................ 38
CERTIFICATE OF DIGITAL SUBMISSION ................................................................. 39
CERTIFICATE OF SERVICE .......................................................................................... 40

TABLE OF ATTACHMENTS
Attachment 1:
Summary Judgment Opinion, ECF No. 449,
Glossip, et al. v. Chandler, et al., 5:14-CV-00665-F
Attachment 2:
10th Circuit Opinion, dated October 27, 2021,
Grant, et al. v. Habti, et al., No. 21-6139
Attachment 3:
Third Amended Complaint, ECF No. 325,
Attachment 4:
Motion to Dismiss Opinion, ECF No. 349,
Attachment 5:
Motion for Stay of Execution Opinion, ECF No. 542,
Attachment 6:
Rule 54(b) Final Judgment, ECF Nos. 450-54,
Attachment 7:
Motion for Preliminary Injunction, ECF No. 506,
Attachment 8:
Second Motion from Preliminary Injunction Opinion, ECF No. 532,
Attachment 9:
Transcript of October 25, 2021 Preliminary Injunction Hearing, ECF No. 537,
ii
Attachment 10:
Motion to Amend, Alter and/or Vacate Judgment, ECF No. 467,
Attachment 11:
A Minute-by-Minute Account of John Grant’s Death as told by
Witness of Execution, by Dan Snyder. Fox 25 (Oct. 28, 2021)
Attachment 12:
Scheduling Conference Order, ECF No. 456,
Attachment 13:
Notice by All Plaintiffs, ECF No. 259,
Attachment 14:
Expert Report of Craig Stevens, ROA Vol. II 179-229,
Attachment 15:
Expert Report of Michael Weinberger Pt. 1, ROA Vol. II 230-251,
Attachment 16:
Expert Report of Michael Weinberger Pt. 2, ROA Vol III 1-68,
Attachment 17:
Expert Report of Mark Edgar, ROA Vol. IV 273-291,
Attachment 18:
Expert Report of Reginald Wilkinson, ROA Vol IX 275-283,
Attachment 19:
Expert Report of Joseph Fins, ROA Vol IX 313-512,
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Alberty v. State,
140 P. 1025 (Okla. Crim. App. 1914) .......................................................................... 34
Barr v. Roane,
140 S. Ct. 353 (2019) ................................................................................................... 35
Baze v. Rees,
535 U.S. 35 (2008) ........................................................................... 3, 19, 20, 21, 29, 32
Bracco v. Lackner,
462 F. Supp. 436 (N.D. Cal. 1978) .............................................................................. 17
Burwell v. Hobby Lobby Stores,

573 U.S. 682 (2014) ............................................................................................... 26, 27
Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751 (2014) ................................................................................................. 13
Cantwell v. Connecticut,
310 U.S. 296 (1940) ............................................................................................... 23, 24
Church of the Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993) ..................................................................................................... 24
Citizens United v. Gessler,

773 F.3d 200 (10th Cir. 2014) ..................................................................................... 13
Everson v. Bd. of Ed. of Ewing Tp.,

330 U.S. 1 (1947) ......................................................................................................... 23
Garner v. Jones,
529 U.S. 244 (2000) ............................................................................................... 31, 33
Glossip v. Chandler,
No. 5:14-cv00665-F (W.D. Okla. 2021). ......................................... 3, 10, 18, 19, 20, 21
Glossip v. Gross,
576 U.S. 863 (2015) ............................................................................................... 14, 20
iv
Henderson v. Scott,
260 F.3d 1213 (10th Cir. 2001) ............................................................................. 31, 33
Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 (10th Cir. 2013), .................................................................................. 13
Holt v. Hobbs,
574 U.S. 352 (2015) ..................................................................................................... 26
In re Medley,
134 U.S. 160 (1890) ..................................................................................................... 31
In re Ohio Execution Protocol Litig.,

994 F. Supp. 2d 906 (S.D. Ohio 2014) ............................................................ 28, 29, 30
In re Ohio Execution Protocol Litig.,

No. 2:11-CV-1016, 2017 WL 2964901 (S.D. Ohio July 12, 2017)............................. 28
In the Matter of the Federal Bureau of Prisons’ Execution Protocol Cases,

No. 19-5322 (D.C. Cir. Dec. 2, 2019).......................................................................... 36
Larson v. Valente,
456 U.S. 228 (1982) ..................................................................................................... 23
League of Women Voters of U.S. v. Newby,

838 F.3d 1 (D.C. Cir. 2016) ......................................................................................... 35
Malloy v. South Carolina,

237 U.S. 180 (1915) ..................................................................................................... 33
Masterpiece Cakeshop v. Colo. Civil Rights Comm’n,

138 S. Ct. 1719 (2018) ................................................................................................. 24
Mills v. Denver Tramway Corp.,

155 F.2d 808 (10th Cir.1946) ...................................................................................... 19
N.M. ex rel. Nat. Res. Def. Council v. Watkins,

783 F. Supp. 628 (1991)............................................................................................... 17
One Chi. Coin’s Play Boy Marble Bd., No. 19771 v. State ex rel. Adams,
212 P.2d 129 (Okla. 1949) ........................................................................................... 34
United States SEC v. Mediatrix Capital, Inc.,

No. 19-CV-02594, 2019 U.S. Dist. LEXIS 158593
(D. Colo. Sep. 13, 2019) .............................................................................................. 16
v
Warner v. Gross,
776 F.3d 721 (10th Cir. 2015) ..................................................................................... 29
Zorach v. Clauson,
343 U.S. 306 (1952) ..................................................................................................... 23
Statutes
22 Okla. Stat. Ann. § 1014(A) (1977) ............................................................................... 31
28 U.S.C. § 1292(a)(1) ........................................................................................................ 1
28 U.S.C. § 1343(a) ............................................................................................................. 1
42 U.S.C. § 1983 ................................................................................................................. 1
42 U.S.C. § 2000bb-3(a) .................................................................................................... 26
Okla. Stat. tit. 22, § 1014(A) (2011).................................................................................. 32
Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1 et seq. .................... 26
Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §

2000cc et seq. ............................................................................................................... 25
Other Authorities
Fed. R. Evid. 201(b) .......................................................................................................... 19
Oklahoma Constitution Article 5, § 54.............................................................................. 34
U.S. Const. amend. I .......................................................................................................... 23
U.S. Const. art. I, § 10, cl. 1 .............................................................................................. 31
U.S. Const. art. I, § 10 ....................................................................................................... 34
vi
STATEMENT OF JURISDICTION
This appeal arises from a challenge under 42 U.S.C. § 1983 to Oklahoma’s method
of execution. The case originated in the Western District of Oklahoma.1 Four Plaintiffs in
that lawsuit, the Appellants here,2 filed a motion for preliminary injunction asking the
district court to enjoin Defendants-Appellees from carrying out their executions in a
manner that would violate their constitutional rights. (ROA, Vol. XI at 1125.)3 The district
court had subject-matter jurisdiction pursuant to 28 U.S.C. § 1343(a).
On October 25, 2021, the district court denied the motion. (ROA, Vol. XI at 1265.)
Appellants filed their timely notice of appeal on October 25, 2021. (ROA, Vol. XI at
1422.) This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1292(a)(1).
STATEMENT OF ISSUES
Issue One: The district court erred in finding that Appellants could not
demonstrate a likelihood of success on the merits of their second claim for relief.
Issue Two: The district court erred in finding that Appellants could not
demonstrate a likelihood of success on the merits of their eighth claim for relief.
1
Documents filed in the district court, not included in the Record on Appealgod, will be
referred to as (Doc. __) and included in the appendix.
2
A fifth Plaintiff-Appellant, John M. Grant, was executed on October 28, 2021, after the
Supreme Court granted Appellees’ motion to vacate the stay this Court entered on October
27, 2021.
3
The motion was originally filed on behalf of Plaintiffs John Grant, Donald Grant, Julius
Jones, and Gilbert Postelle. Plaintiff Wade Lay subsequently joined the motion. Each
Appellant has an execution date scheduled in the coming weeks. Julius Jones’ date is
November 18, 2021; Wade Lay’s date is January 6, 2022; Donald Grant’s date is January
27, 2022; and Gilbert Postelle’s date is February 17, 2022. (Non-plaintiff Bigler Stouffer
is scheduled to be executed on December 9, 2021.)
1
Issue Three: The district court erred in finding that Appellants could not
demonstrate a likelihood of success on the merits of their ninth claim for relief.
Issue Four: The district court erred in finding that Appellants could not
demonstrate a likelihood of success on their sixth and seventh claims for relief.
Issue Five: The district court erred in finding that Appellants could not
demonstrate that they had met the other requirements to be entitled to a preliminary
injunction.
STATEMENT OF THE CASE
A. Introduction
Last week, after a six-year execution moratorium specifically intended to consider
and then adopt and deploy policies and procedures to ensure humane executions, and avoid
the mistakes that plagued Oklahoma executions in the past, Oklahoma picked up exactly
where it left off: it conducted another problematic execution. Witnesses to the execution
of John Grant, including Scott Crow, the Director of the Oklahoma Department of
Corrections (“ODOC”), reported that Mr. Grant—restrained, prone on his back—
“convulsed” and began vomiting during the administration of midazolam. The
convulsions and vomiting continued even after ODOC officials wiped the vomit from Mr.
Grant’s face and neck to preserve his “dignity.” While acknowledging that it was
“unpleasant to watch,” at no time did Director Crow halt the execution. Instead, Director
Crow boasted that the execution was completed without “delay” and “without
complication.” According to Director Crow (who is not a physician), vomiting during
sedation is “not uncommon.”
2
Director Crow’s flippant, uninformed response confirms that the ODOC has not
learned a thing in six years. At a minimum, allowing a person to remain restrained, prone
on their back while vomiting is a recipe for death by suffocation. Here, Director Crow not
only failed to immediately halt the execution—and act to ensure that Mr. Grant was not
suffocating on his own vomit—the Director gave the executioners the proverbial “thumbs
up” to proceed with Mr. Grant’s execution and to the executions scheduled in the coming
weeks and months. This latest debacle just adds to the existing mountain of evidence
demonstrating that Appellants are likely to succeed on the merits of their claims below
and demonstrates that Oklahoma’s execution protocol is unconstitutional.
Indeed, as discussed in Appellants’ motion to stay, the district court has already
determined based on a robust summary judgment record (which included several expert
reports on both sides) that there are issues of fact concerning whether the State’s execution
method presents a substantial risk of severe pain, and whether the alternative methods of
execution proposed by Plaintiffs are feasible and readily implemented, and has set the
matter for trial in four months, in February 2022. (ROA, Vol. XI at 381-82.)
The only reason this matter is currently before the Court is the district court’s
imposition of a new requirement—not found in Baze, Glossip, or Bucklew—that each
individual plaintiff in the lawsuit—in addition to pleading the feasible and readily
implemented alternatives and successfully arguing in support of those alternatives in
opposition to Appellees’ summary judgment motion—“check a box” and select the
specific method by which he will be executed. In other words, the district court did not
dismiss Appellants because they failed to propose, identify, or proffer evidence for trial to
3
prove a “feasible and readily implemented” alternative. Instead, the district court
dismissed each Appellant solely because he initially refused on religious and/or moral
grounds to sacrifice one constitutional right (religious liberty under the First Amendment)
to preserve another (protection against cruel and unusual punishment under the Eighth
Amendment) and “check a box” and affirmatively say: “This is how I want you to execute
me.”
Worse still, after the district court issued its dismissal order, the district court
rejected the motion of Appellants Julius Jones, Donald Grant, Wade Lay, and Gilbert
Postelle to consider declarations they submitted with the motion in which they set aside
their ethical, moral and religious beliefs and specifically elected alternatives. (ROA, Vol.
XI at 610.) As those Appellants explained in their motion, they submitted the declarations
because they did not know, and had no reason to believe, that exercising their religious
rights would subject them to immediate execution. (ROA, Vol. XI at 474-75.) In other
words, Appellants Julius Jones, Donald Grant, Wade Lay, and Gilbert Postelle have
submitted the exact same declarations as their co-plaintiffs that the district court
erroneously required, but are now facing imminent execution because (according to the
district court) those Appellants submitted too late. That was an abuse of discretion.
And, significantly, the district court encouraged Appellants’ executions prior to the
February 2022 trial, and suggested that Appellants could be used as human guinea pigs
whose executions would be test cases assessing the State’s ability to conduct constitutional
executions. (ROA, Vol. XI at 390-91, n.13.) (“[b]ecause . . . six of the plaintiffs . . . have
declined to proffer an alternative method of execution, there may well be a track record
4
under Chart D of the new Oklahoma protocol by the time this case is called for trial as to
the other twenty-six plaintiffs”) (emphasis added). As noted above, Oklahoma conducted
its first experiment last week and it was catastrophic.
In short, the district court’s denial of Appellants’ motion for a preliminary injunction
was an abuse of discretion that discriminates against a subset of plaintiffs who are
identically situated to those not now facing execution but for the initial exercise of religious
objections. In other words, absent reversal of the district court’s order, Appellants will be
executed despite the fact that the district court has already determined that Appellants’ co-
plaintiffs are entitled to a trial in a few short months on the constitutionality of the very
method of execution Appellees plan to use to execute Appellants. Oklahoma cannot be
permitted to execute these Appellants on the eve of what this Court described as
“present[ing] what may be a viable Eighth Amendment claim to the federal courts[.]”
(ROA, Vol. XI at 1580.)
B. Background
In October 2015, after the Supreme Court affirmed denial of a preliminary
injunction, the parties stipulated to stay the case while investigations into the State’s
execution procedures took place. (Notice, Doc. 259.) Nearly five years later, on February
13, 2020, ODOC released a revised Execution Protocol to be utilized in the executions of
prisoners, including Appellants. The same day, then-Oklahoma Attorney General Mike
Hunter announced that executions would be conducted utilizing the same three-drug
protocol comprising midazolam, vecuronium bromide, and potassium chloride that the
State used in 2014 and 2015.
5
Appellants (and the other plaintiffs) filed their Third Amended Complaint on July
6, 2020. Among other Counts, the Third Amended Complaint alleged that the Execution
Protocol violated the Eighth Amendment’s prohibition against cruel and unusual
punishment (Count II); that use of the protocol constitutes impermissible human
experimentation (Count IX); that plaintiffs’ sincerely-held religious beliefs are violated by
the requirement that they propose a feasible alternative method of execution (Count VIII);
and that the Execution Protocol violates the ex post facto and due process clauses (Count
VI and VII). (ROA, Vol. I at 168, 175, 180.)
As relevant here, the district court dismissed Count VIII on Appellees’ motion to
dismiss, and the case proceeded to discovery. (ROA, Vol. I at 357.)
Following substantial fact and expert discovery, Appellees moved for summary
judgment on the remaining Counts of the Third Amended Complaint. Significantly, the
Third Amended Complaint identified four alternative methods that all plaintiffs—
including Appellants—alleged were “feasible, available, readily implemented and would
significantly reduce a substantial risk of severe pain.” (ROA, Vol. I at 164-66.) As this
Court noted just last week, “[n]one of the plaintiffs, including Appellants, have ever
withdrawn that allegation or withdrawn these methods from consideration.” (ROA, Vol.
XI at 1578.) Nevertheless, the district court sua sponte ordered each plaintiff to go a step
further and select the alternative method for his own execution.
Specifically, the district court required each plaintiff to respond to Appellees’
interrogatory asking each individual plaintiff to further identify which of the pleaded
alternative methods he proffered for use in executing him. (ROA, Vol. XI at 1578.) As
6
noted by this Court, “[t]he plaintiffs who answered the interrogatory did so by filing a
supplemental response that included a listing of the four alternative methods identified in
the [Third Amended Complaint], with a blank line next to each method where a plaintiff
could put his initials.” (ROA, Vol. XI at 1578.) Each Appellant, however, declined to
respond to the interrogatory on religious and/or moral grounds.
By order dated August 11, 2021, the district court granted in part and denied in part
Appellees’ summary judgment motion and set the matter for trial in February 2022. (ROA,
Vol. XI at 376.) The court found genuine issues of material fact on the Eighth Amendment
claim (Count II). The district court addressed Count II in the context of the Supreme
Court’s two-prong test: (1) whether “the State’s method presents ‘a substantial risk of
severe pain’”; and (2) whether “the alternative method of execution the prisoner is obliged
to propose [is] ‘feasible and readily implemented,’ and [is] one that ‘the State has refused
to adopt without a legitimate penological reason.’” (ROA, Vol. XI at 381-82.)
Specifically, with respect to the first prong, the court found plaintiffs’ attacks on
the protocol’s safeguards supported by “credible expert criticism.” (ROA, Vol. XI 389-
90.) As summarized by this Court:
…the district court stated that “[t]here is a fact issue as to

whether midazolam performs as well, for execution purposes,
as defendants claim it does.” Glossip v. Chandler, No. 5:14-
cv00665-F, CM doc. 449 at 10 (W.D. Okla. 2021). It also
recognized “a fact issue as to whether midazolam will reliably
render the prisoner insensate to pain . . . for the length of time
necessary to avoid a constitutionally unacceptable risk that the
prisoner will be subjected to a constitutionally unacceptable
level of pain.” Id. at 11. The district court further stated that
“the prisoners squarely attack the warden’s unfettered
discretion to deviate from the protocol, as well as—among
7
other things—the adequacy of the consciousness check

specified in the protocol[,]” which it said was “unmistakably a
central consideration in the Supreme Court’s lethal injection
jurisprudence.” Id. at 14
In addition, the district court found that fact issues precluded summary judgment
as to each of the four alternatives pled in the Third Amended Complaint. (ROA, Vol. XI
at 389-401.) However, because Appellants had declined on religious and/or moral grounds
to “check a box” selecting the method of their own execution among the four alternatives
they pleaded, the district court distinguished these plaintiffs from the others and dismissed
their Eighth Amendment claims. (ROA, Vol. XI at 393.)
The district court then offered a “word to the wise,” cautioning the remaining
plaintiffs that they “would be well advised to be prepared, at trial, to present evidence as
to the actual track record of midazolam as used in executions over the last few years.”
(ROA, Vol. XI at 390 n. 13.) (emphasis added). According to the court, “[t]hat evidence
may go far to eliminate speculation as to whether midazolam does or does not perform as
intended when used as specified in the protocol.” (ROA, Vol. XI at 390 n.13.)
Remarkably, the district court noted that “[b]ecause . . . six of the plaintiffs . . . have
declined to proffer an alternative method of execution, there may well be a track record
under Chart D of the new Oklahoma protocol by the time this case is called for trial as to
the other twenty-six plaintiffs.” (ROA, Vol. XI at 390 n.13.) (emphasis added).
The district court certified its decision with respect to Appellants under Rule 54(b)
as a partial final judgment. (ROA, Vol. XI 419-423.) Appellants filed a Rule 59(e) motion
8
to amend the final judgment to, among other things, restore Appellants to the trial on
Count II with the other plaintiffs. (ROA, Vol. XI at 459.) As noted above, Appellants
Donald Grant, Julius Jones, Wade Lay, and Gilbert Postelle set aside their ethical, moral
and religious beliefs and “checked the box,” providing sworn declarations as the district
court erroneously required because they did not know, and had no reason to believe, that
exercising those rights would subject them to immediate execution.
As relevant here, on October 12, 2021, the district court denied the motion to amend
to add Appellants back into the case for trial.4 That order was appealed to this Court the
following day. On October 15, 2021, this Court dismissed the appeal, along with a related
appeal filed by Wade Lay, finding that the Rule 54(b) certification was an abuse of
discretion by the district court.
Appellees refused to withdraw Appellants’ and John Grant’s execution dates, and
Appellants moved to enjoin and for a stay on October 20, 2021. (ROA, Vol. XI at 1125.)
Following an October 25, 2021 hearing, the district court denied Appellants’ motion.
(ROA, Vol. XI at 1267.) And in doing so, the district court found that Appellants had
litigated their claims with a dispatch that distinguished their claims from the disfavored
eleventh-hour claims with which the Supreme Court has found fault. (See ROA, Vol. XIII
at 325-26.)
4
The district court originally entered judgment against Plaintiff James Coddington, and
Appellees set an execution date. Although the district court subsequently vacated its Rule
54(b) final judgment against Mr. Coddington (ROA, Vol. XI at 610) and Mr. Coddington
will be a participant in the February 2022 trial, Appellees have refused to withdraw his
March 10, 2022 execution date.
9
Appellants sought a stay in this Court that same day. On October 27, 2021, this
Court granted Appellants’ motion. In issuing the stay, the Court found:
• “Because the district court had already ruled that the first prong [of Glossip]
must be resolved at trial, Appellants are likely to succeed on their position that
denial of an injunction on that basis was an abuse of discretion.” (ROA, Vol.
XI at 1577.)
• “As for the second prong [of Glossip], Appellants have made a strong showing
that they complied with it.” (ROA, Vol. XI at 1578.) Specifically, “[t]he [Third
Amended Complaint] identified four alternative methods that all plaintiffs,
including Appellants, alleged, as required by the pertinent test, were ‘feasible,
available, readily implemented and would significantly reduce a substantial risk
of severe pain.’ None of the plaintiffs, including Appellants, have ever
withdrawn that allegation or withdrawn these methods from consideration.”
• “The only real difference between those plaintiffs who survived summary
judgment to go to trial and these Appellants, who lost on summary judgment
and now face imminent execution, was that the other plaintiffs complied with
the district court’s instruction to supplement their interrogatory responses by
specifying an execution method or methods to be used to carry out their death
sentences; the supplemental responses listed the same four alternative methods
as choices that were identified by all plaintiffs in the [Third Amended
Complaint].” (ROA, Vol. XI at 1579.)
• “Appellants, citing religious scruples about assisting in what they viewed as

‘suicide,’ refused to answer the interrogatory by choosing one or more of the
four alternative methods to be used in their particular case. The problem with
granting summary judgment on this basis is that we find nothing in the relevant
case law that specifically requires a prisoner to designate a method of execution
to be used in his case by ‘checking a box’ when the prisoner has already
identified in his complaint the very same alternative methods given as choices
on the form.” (ROA, Vol. XI at 1579-80.)
• “Nor did Appellants’ refusal to make such a designation by specifying each

method they proffered for their execution in a supplemental interrogatory
10
response somehow nullify or renounce the alternative methods they identified

in the [Third Amended Complaint]. Thus, Appellants have shown a likelihood
of success concerning the second prong of their claim as well. The district court
abused its discretion in concluding to the contrary.” (ROA, Vol. XI at 1580.)
• “Appellants have also satisfied the other stay factors. They risk being unable to
present what may be a viable Eighth Amendment claim to the federal courts
before they are executed using the method they have challenged. Although
Appellees cite the State’s and the crime victims’ interest in prompt execution,
the delay in developing the new protocol, coupled with the relatively short time
frame that will ensue until the district court has finished its trial, which is set to
commence on February 28, 2022, weigh against Appellees’ assertions of harm.
And the public interest favors a stay, so that all the plaintiffs with identical
claims in this matter are treated equitably by the courts.” (ROA, Vol. XI at
1580.)
On October 28, 2021, without explanation, the United States Supreme Court
vacated this Court’s stay. John Grant was executed almost two hours later. A witness to
Mr. Grant’s execution reported that “[a]lmost immediately after the drug was
administered, Grant began convulsing, so much so that his entire upper back repeatedly
lifted off the gurney.” See A minute-by-minute account of John Grant's death as told by
witness of execution | KOKH (okcfox.com). That same reporter stated that “[a]s the
convulsions continued, Grant then began to vomit. Multiple times over the course of the
next few minutes medical staff entered the death chamber to wipe away and remove vomit
from the still-breathing Grant.” Id.
Scott Crow, the Director of the Oklahoma Department of Corrections, agreed with
the reporter’s account that Mr. Grant began vomiting during the administration of
midazolam, acknowledged that an ODOC had to wipe vomit from Mr. Grant’s face, but
indicated that that caused no “delays” in the execution and that the execution was
11
conducted “without complication” because vomiting during sedation is “not uncommon.”
SUMMARY OF THE ARGUMENT
The district court’s denial of Appellants’ motion for a preliminary injunction was
an abuse of discretion.
The district court discriminated against a subset of plaintiffs who are identically
situated to those not now facing execution. The only difference between Appellants and
their co-plaintiffs is that Appellants initially refused to comply with the district court’s
imposition of a new requirement, not found in Supreme Court precedent, that each
Appellant specifically elect the manner in which he will be executed. Absent reversal of
the district court’s order, Appellants will be executed despite the fact that the district court
has already determined that Appellants’ co-plaintiffs are entitled to a trial in February 2022
on the constitutionality of the very method of execution Appellees plan to use to execute
Appellants. In any event, the district court erroneously applied Supreme Court Eighth
Amendment precedent, and improperly forced Appellants to forfeit protected religious
liberties to meet a non-existent Supreme Court standard.
The district court then doubled-down on that error and further abused its discretion
in suggesting that Appellants’ pre-trial executions could be used as test cases to develop
evidence to be used at the February 2022 trial concerning whether the execution protocol
is constitutional, and whether Oklahoma can implement the protocol in a constitutional
manner. In doing so, the district court put its imprimatur on human experimentation.
Finally, the district court abused its discretion in rejecting Appellants ex post facto
claim. It is undisputed that the law at the time of Appellants’ sentencing required death by
12
lethal injection by an “ultrashort-acting barbiturate” and that midazolam is not an
“ultrashort-acting barbiturate.” Yet, the district court erroneously concluded that there
could not be any ex post facto violation so long as Appellants are still executed using lethal
injection. That self-evidently makes no sense and is not the law. The test is whether there
is “a significant risk” of increased punishment which, there is as will be shown at the
February 2022 trial.
STANDARD OF REVIEW
This Court reviews a district court’s denial of a preliminary injunction for abuse of
discretion. Citizens United v. Gessler, 773 F.3d 200, 209 (10th Cir. 2014). Under this
standard, the Court examines the district court’s legal determinations de novo, and its
underlying factual findings for clear error. Id. A district court abuses its discretion by
denying a preliminary injunction based on an error of law. Hobby Lobby Stores, Inc. v.
Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751 (2014).
ARGUMENT
A. Appellants are Likely to Succeed on their Eighth Amendment Claim

(Count II).
Appellants contend that Oklahoma’s three-drug execution protocol—500 mg
midazolam followed by 100 mg vecuronium bromide followed by 240 mEq potassium
chloride—violates the Eighth Amendment. To succeed on that claim, Appellants must
show that the protocol is “sure or very likely to cause serious illness and needless
suffering,” and “identify an alternative that is feasible, readily implemented, and in fact
13
significantly reduces a substantial risk of severe pain.” Glossip v. Gross, 576 U.S. 863,
875-77 (2015) (internal quotations, alterations, and citations omitted).
1. The Execution Protocol is Sure or Very Likely to Cause Serious

Illness and Needless Suffering.
The district court found that Appellants did not demonstrate a “substantial
likelihood that the use of midazolam . . . presents a substantial risk of severe pain that is
sure or very likely to cause serious illness and needless suffering.” (ROA, Vol. XIII at 342.)
As discussed below, that was an abuse of discretion.
In reaching that decision, the district court erroneously disregarded the robust
summary judgment record and its prior findings that “fact issues preclude summary
judgment in favor of the defendants[.]” (ROA, Vol XI at 383.) Specifically, after
considering the parties’ competing evidence, the district court found that “[t]here is a fact
issue as to whether midazolam performs as well, for execution purposes, as defendants
claim it does” (ROA, Vol. XI at 385), and “[t]here is a fact issue as to whether midazolam
will reliably render the prisoner insensate to pain . . . for the length of time necessary to
avoid a constitutionally unacceptable risk that the prisoner will be subjected to a
constitutionally unacceptable level of pain.” (ROA, Vol. XI at 386.) Indeed, Plaintiffs’
anesthesiology expert, Dr. Michael Weinberger, opined that “midazolam used alone
cannot prevent a prisoner from experiencing the severe suffering experienced during the
pulmonary edema that is substantially likely to occur as a result of administration of
midazolam.” (ROA, Vol. III at 32.) Another of Plaintiffs’ experts, Dr. Craig Stevens, was
equally unequivocal: “Midazolam, a benzodiazepine, is a scientifically-unfounded choice
14
for the first drug in a three-drug lethal Execution Protocol, because it cannot reliably
render the prisoner insensate to the terror of chemical suffocation from the second drug
(vecuronium bromide) or the pain of being burned alive from the inside from the third
drug (potassium chloride).” (ROA, Vol. II at 209-10, ¶¶ 93, 98) (emphasis added). In
addition, Plaintiffs’ pathology expert, Dr. Mark Edgar, opined that the rapid intravenous
injection of a massive dose of highly-acidic, injectable midazolam solution will almost
immediately cause sudden and acute pulmonary edema, i.e., the prisoner’s lungs will fill
with blood and other fluids, resulting in “intolerable sensations of asphyxiation” and
“significant suffering as the person struggles to breathe without being able to inflate the
lungs due to abnormal fluid accumulation.” (ROA, Vol. IV at 278-290, ¶¶13, 61, 62.)
In addition, the district court honed in on plaintiffs’ arguments concerning the
implications of the “warden’s unfettered discretion to deviate from the protocol, as well
as—among other things—the adequacy of the consciousness check specified in the
protocol.” (ROA, Vol. XI at 389-90.) Specifically, Plaintiffs’ prison-operations expert, Dr.
Reginald Wilkinson, former Director of the Ohio Department of Rehabilitation and
Correction, opined “[t]here is no legitimate penological justification for the Director to
retain” the discretion to modify or eliminate any of the critical elements of the Execution
Protocol that are specifically designed to protect the prisoners, including, IV procedures,
consciousness checks, members of execution teams, and/or training. (ROA, Vol. IX at 278-
79.) Dr. Weinberger described in detail why additional consciousness check procedures are
necessary, and, in scientific detail, why the current iteration of the consciousness check is
“inadequate to determine whether a prisoner will be insensate and will remain in a state of
15
general anesthesia.” (ROA, Vol. III at 45, ¶152; see ROA Vol III at 38-59.) As the district
court correctly noted, “[t]he consciousness check is unmistakably a central consideration
in the Supreme Court’s lethal injection jurisprudence[,]” and “it is passing strange that
Oklahoma would write a protocol (knowing it would be looked at under a microscope)
which, read literally, gives the director discretion to water down the consciousness check
or wink at its results.” (ROA, Vol. XI at 389) (emphasis added). As the district court noted,
“[o]n that score, the Supreme Court recently reminded us . . . that a provision for ‘entirely
discretionary exceptions’ to the operation of an otherwise constitutional administrative
scheme may be fatal to the constitutionality of that scheme.” (ROA, Vol. XI at 389-90.)
Accordingly, “the reservation of unfettered power in the director or his designee to modify
the protocol, especially as to those provisions so strongly touted by defendants, erodes the
confidence the court ordinarily needs in order to adjudicate an issue favorably to the
movant as a matter of law.” (ROA, Vol. XI at 389-90, n.11.)
In denying the motion for a preliminary injunction, the district court erroneously
ignored and failed to consider the entire record, including the expert reports submitted by
Appellants which the court has already found warrant a trial. United States SEC v.
Mediatrix Capital, Inc., No. 19-CV-02594, 2019 U.S. Dist. LEXIS 158593, at *2-3 (D.
Colo. Sep. 13, 2019) (“The Court will treat this motion as a request for preliminary
injunction as well. The Court has considered the entire record of this case, including: (1)
the Complaint; (2) Plaintiff’s Emergency Motion for an Ex Parte Asset Freeze, Temporary
Restraining Order to Show Cause, and Other Emergency Relief; (3) and the Declaration of
Jeffrey D. Felder, with attached exhibits.”) (emphasis added) (footnote omitted); N.M. ex
16
rel. Nat. Res. Def. Council v. Watkins, 783 F. Supp. 628, 629 (1991) (“Upon careful
consideration of the motions, the opposition thereto, and the entire record in this case, the
Court concludes that a preliminary injunction is necessary.”) (emphasis added); Bracco v.
Lackner, 462 F. Supp. 436, 459 (N.D. Cal. 1978) (“that upon consideration of the law, the
facts, the testimony (in affidavit, documentary and oral form) and the entire record in this
proceeding thus far, the Court has concluded that the following preliminary injunction
should be and is here-by issued.”) (emphasis added). In fact, given the district court’s
finding that plaintiffs have established questions of fact concerning the constitutionality of
Oklahoma’s method of execution warranting a trial—a trial that will be held in just a few
months—it makes no sense to execute a subset of those plaintiffs before that trial. As this
Court noted last week, Appellants “risk being unable to present what may be a viable
Eighth Amendment claim to the federal courts before they are executed using the method
they have challenged.” (ROA, Vol. XI at 1580.)
Indeed, the rulings of the district court are incongruous and irreconcilable, and,
thus, an abuse of discretion. The district court, in denying defendants’ summary judgment,
concluded that Appellants’ record evidence on the Baze/Glossip test—including
deposition transcripts and expert reports of a medical doctor with anesthesiology and pain
medicine board certifications, a pathologist, a pharmacologist, a formulator and a
chemist—credibly criticized the constitutionality of the protocol. The district court then
essentially contradicted itself, ignoring the record developed on summary judgment, in
denying Appellants’ motion for a preliminary injunction. In other words, as this Court
stated last week, “[b]ecause the district court had already ruled that the first prong must
17
be resolved at trial, Appellants are likely to succeed on their position that denial of an
injunction on that basis was an abuse of discretion.” (ROA, Vol. XI at 1577.) (emphasis
added).
The district court’s conclusion also ignores the unique posture of this case.
Appellants established that they were entitled to a trial on Glossip prong 1, i.e., that there
are factual issues concerning whether the execution protocol presents a “substantial risk
of severe pain.” Appellants’ dismissal from the lawsuit had nothing to do with prong 1.
Instead, the only reason Appellants were dismissed from the lawsuit is because they
(supposedly) failed to comply with Glossip prong 2 by not additionally selecting how they
would be executed. In other words, had the district court not misapplied Glossip’s second
prong precedent (discussed below), and not dismissed Appellants from the lawsuit, we
would not be here today. To then say that Appellants are not entitled to a stay of execution
because they (again, supposedly) failed to satisfy the standard for a preliminary injunction
on prong 1 (when the district court is proceeding to trial on that prong) is illogical and
leads to an absurd result.
Finally, in assessing Appellants’ likelihood of success, this Court can and should
take judicial notice of the facts of Mr. Grant’s execution last week, facts which will
continue to be developed and already cast serious doubt on the State’s ability to conduct
humane executions. Judicial notice may be taken at any time, including on
appeal. See Mills v. Denver Tramway Corp., 155 F.2d 808, 812 (10th Cir.1946) (holding
appellate court has discretion to take judicial notice for the first time). A fact may be
judicially noticed if it is not subject to reasonable dispute because it (1) is generally known
18
within the trial court’s territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be questions. FED. R. EVID.
201(b). As noted above, a witness to Mr. Grant’s execution reported that “[a]lmost
immediately after the [midazolam] was administered, Grant began convulsing, so much
so that his entire upper back repeatedly lifted off the gurney[,]” and that “[a]s the
convulsions continued, Grant then began to vomit” with staff entering the death chamber
“[m]ultiple times over the course of the next few minutes…to wipe away and remove
vomit from the still-breathing Grant.” Dan Snyder, A minute-by-minute account of John
Grant's death as told by witness of execution, Fox 25 (Oct. 28, 2021),
https://okcfox.com/news/local/a-minute-by-minute-account-of-john-grants-death-as-
told-by-witness-of-execution. The press account was largely confirmed by Scott Crow,
the Director of the Oklahoma Department of Corrections, who acknowledged that Mr.
Grant began vomiting during the administration of midazolam.
In sum, the record amply establishes a substantial likelihood of success on the first
prong of the Glossip test.
2. Baze and its Progeny do not Require Appellants to Choose their

Own Method of Execution.
It is undisputed that, under Supreme Court precedent, to succeed on an Eighth
Amendment claim, in addition to demonstrating that a prisoner is “sure or very likely to
cause serious illness and needless suffering,” he must “identify an alternative that is
feasible, readily implemented, and in fact significantly reduces a substantial risk of severe
pain.” Glossip, 576 U.S. at 877 (internal quotations, alterations, and citations omitted)
19
(emphasis added).
As explained above, the district court dismissed Appellants from the lawsuit not
because they failed to satisfy this test, but because they failed to satisfy a different, more
expansive test found nowhere in Supreme Court precedent. Specifically, the district court
imposed on Appellants that they not only plead and prove a feasible, readily
implemented alternative to the challenged method of execution, but that they also
affirmatively and individually “check a box” and select the specific alternative method
by which he will be executed. As this Court recognized just last week, Supreme Court
precedent has not set forth any such requirement. (ROA, Vol. XI at 1579-80.) (“[t]he
problem with granting summary judgment on this basis is that we find nothing in the
relevant case law that specifically requires a prisoner to designate a method of execution
to be used in his case by ‘checking a box’ when the prisoner has already identified in his
complaint the very same alternative methods given as choices on the form”).
Nowhere in Bucklew or anywhere else (including Baze or Glossip) did the Supreme
Court decide or even consider whether this standard requires that the alternative method be
identified specifically for use in the prisoner’s own execution. To be sure, in Bucklew, the
Court recognized that “distinguishing between constitutionally permissible and
impermissible degrees of pain is a necessarily comparative exercise.” Mr. Bucklew’s
failure to identify an alternative procedure altogether was a “dispositive shortcoming” of
his complaint. Bucklew v. Precythe, 139 S. Ct. 1112, 1126, 1121 (2019). Here, there is no
such “dispositive shortcoming,” because not only did the operative pleading identify four
alternative methods of execution for the “necessarily comparative exercise” described by
20
the Supreme Court (ROA, Vol. I at 47), but also Appellants successfully argued in the
district court that there were questions of fact warranting a trial concerning each of those
proffered alternatives. Appellants satisfied the legal pleading standard set out in Baze,
Glossip, and Bucklew by identifying or “showing” an available alternative.
Moreover, the district court’s assertion that Appellants’ initial failure to select one
of the alternatives as their chosen method of execution suggests some sort of reservation
to argue that an alternative is not “constitutionally permissible” is a red herring. As noted
above, this matter is set for trial in February 2022, and the district court will determine
whether plaintiffs have proposed a readily implemented alternative to the current
Oklahoma protocol. In other words, the fact that Appellants initially declined to endorse a
specific option for their own executions is beside the point.
In any event, after the district court issued its dismissal order, Appellants Julius
Jones, Donald Grant, Wade Lay, and Gilbert Postelle submitted to the district court
declarations in which they set aside their ethical, moral and religious beliefs and
specifically elected alternatives. (ROA, Vol. XI at 485-503.) As explained in the Motion
to Reconsider, Appellants were submitting the declarations because they did not know,
and had no reason to believe, that exercising their religious rights would subject them to
immediate execution. (ROA, Vol. XI at 474-75.) In other words, the only difference
between plaintiffs who will be proceeding to trial in February and Appellants is that
Appellants submitted the declarations required by the district court a few months later than
the others.
Contrary to the State’s contention, the Supreme Court has never decided nor
21
considered whether a prisoner must select the method of his or her own execution. All
Supreme Court precedent requires is that a prisoner “show a feasible and readily
implemented alternative method that would significantly reduce a substantial risk of severe
pain and that the State has refused to adopt without a legitimate penological reason.”
Bucklew, 139 S. Ct. at 1125 (emphasis added). There is no requirement that any prisoner
specifically choose his or her alternative method of execution.
In that regard, as Appellants’ counsel made clear at the preliminary injunction
hearing, Appellants are in no different position than the non-dismissed plaintiffs. That is,
Appellants intend to “show” at trial (as required by Supreme Court precedent) the existence
of several, readily-available, constitutional alternatives. The only difference between non-
dismissed plaintiffs and Appellants is that Appellants initially refused to affirmatively
select an alternative for their own execution notwithstanding that they later did so.
Appellants have a substantial likelihood of success of demonstrating that a prisoner
need not affirmatively elect an alternative method of execution in violation of his religious
beliefs, or whether it is sufficient (as Appellants urge) to simply identify and prove the
existence of a readily implemented alternative. That is not an insignificant difference to
an individual who believes that selecting an alternative for his own execution makes him
complicit in his own death and contravenes his religious belief that suicide is immoral.
B. Appellants are Likely to Succeed on their Religious Liberty Claim

(Count VIII).
Appellants’ dismissal highlights a tension between constitutional rights that has
never been addressed by the Supreme Court. By forcing Appellants to either violate their
22
sincerely held religious beliefs or face imminent execution, the alternative method
requirement favors prisoners whose religious beliefs do not require them to abstain from
participating in orchestrating their own deaths. Plaintiffs who have religious objections to
electing an alternative are being treated differently from those who do not.
The First Amendment of the United States Constitution commands that “Congress
shall make no law respecting an establishment of religion[.]” U.S. CONST. amend. I. This
command is similarly binding on the states. See Cantwell v. Connecticut, 310 U.S. 296,
303 (1940). It is well settled that the Establishment Clause not only prohibits governmental
entities from passing laws that prefer one or more religions over others, but also those that
demonstrate a hostility toward religion. See Larson v. Valente, 456 U.S. 228, 246 (1982);
Zorach v. Clauson, 343 U.S. 306, 313-15 (1952); Everson v. Bd. of Ed. of Ewing Tp., 330
U.S. 1, 15 (1947) (“Neither a state nor the Federal Government . . . can force nor influence
a person to go to or to remain away from church against his will or force him to profess a
belief or disbelief in any religion.”). A law or policy that is not neutral between religion
and non-religion is inherently suspect. See Larson, 456 U.S. at 246. Such a law or policy
may only be upheld if it passes strict scrutiny—in other words, if it is narrowly tailored to
a compelling interest. Id. at 246-47.
The First Amendment also commands that “Congress shall make no law . . .
prohibiting the free exercise” of religion. U.S. CONST. amend. I. Like the Establishment
Clause, the Free Exercise Clause’s command is binding on the states. See Cantwell, 310
U.S. at 303. The level of scrutiny to be applied when reviewing policies that hinder an
individual’s ability to freely exercise his religion depends on whether the law is neutral and
23
generally applicable. As Justice Kennedy explained in Church of the Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U.S. 520 (1993), “a law that is neutral and of general applicability
need not be justified by a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice.” Id. at 531. A law that does
not satisfy both of these requirements “must be justified by a compelling governmental
interest and must be narrowly tailored to advance that interest.” Id. at 531-32; see also
Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1734 (2018)
(Gorsuch, J., concurring).
The insistence that Appellants select an alternative method of execution
demonstrates a hostility toward religion generally. The State of Oklahoma made clear its
intention to proceed with Appellants’ executions unless those prisoners affirmatively and
individually proposed how they should be executed. Appellants, however, could not make
any such proposals without violating their own sincerely held religious beliefs. By forcing
Appellants either to violate their sincerely held religious beliefs or face imminent
execution, the alternative method requirement favors non-religious prisoners, or at least
those whose religious beliefs do not require them to abstain from participating in
orchestrating their own deaths.
Indeed, the requirement is not neutral because it evinces a hostility toward religion
and thereby favors non-religious plaintiffs over religious plaintiffs. Plaintiffs who have
religious objections to electing an alternative are being treated differently from those who
do not, even though the religious objections have nothing to do with their claims.
Appellants are similarly situated to all other plaintiffs in every way except for their
24
religious beliefs, and they are being singled out for execution now because of those
religious beliefs.
Because it is not neutral, the alternative method requirement is permissible only if
it can survive strict scrutiny. At the outset, it is unclear what interest Appellees believe
their discriminatory policy serves. Oklahoma’s interest in seeing criminal sentences and
judgments finalized is not “compelling” for purposes of strict scrutiny. Moreover, imposing
an alternative method requirement on Appellants is not the least restrictive means of
furthering any interest the government might have in carrying out executions. Requiring
each Appellant to choose the method by which he will be killed, and to assist Oklahoma
by demonstrating that his chosen method is “feasible and readily implemented,” Bucklew,
139 S. Ct. at 1125, is not the least restrictive means of furthering Oklahoma’s interest in
finalizing criminal sentences. This is particularly so given the district court’s finding that
four distinct alternative methods proposed by other plaintiffs in this litigation are
sufficiently “feasible” to have survived summary judgment. (See ROA, Vol. XI at 398-
401.)
Even if Appellants were unlikely to successfully show that their religious objections
to electing an alternative are compelled by their religions, they are nevertheless likely to
succeed in showing that the alternative method requirement violates the Religious Land
Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq. The
provisions of RLUIPA governing religious exercise by institutionalized persons “mirrors
25
RFRA,”5 such that RLUIPA “allows prisoners ‘to seek religious accommodations pursuant
to the same standard as set forth in RFRA.’” Holt v. Hobbs, 574 U.S. 352, 357-58 (2015)
(citation omitted). The religious liberty protections and provisions of the RFRA and
RLUIPA apply to all federal law, and the implementation of that law, whether statutory or
otherwise. See 42 U.S.C. § 2000bb-3(a).
“In RLUIPA, in an obvious effort to effect a complete separation from the First
Amendment case law, Congress deleted reference to the First Amendment and defined the
‘exercise of religion’ to include ‘any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.’” Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 696 (2014) (quoting 42 U.S.C. § 2000cc-5(7)(A)). Accordingly, even if the Court
were to find that the alternative method requirement does not violate Appellants’ rights
pursuant to the Free Exercise Clause because refusal to participate in orchestrating their
own deaths is not compelled by their respective religions, Appellants are nevertheless
likely to succeed on their claim that the alternative method requirement violates RLUIPA.
Appellants have religious objections to suicide, and according to their religious
beliefs, electing a method of execution is a decision that “facilitat[es]” suicide. See Hobby
Lobby, 573 U.S. at 691. If Appellants do not comply with the alternative method
requirement, then they will pay the “very heavy price” of their lives. Id. Appellants are
very likely to succeed in establishing that this constitutes a substantial burden. See id. (“If
these consequences do not amount to a substantial burden, it is hard to see what would.”).
5
“RFRA” is the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1 et seq.
26
For the same reasons stated above with respect to Appellants’ claims pursuant to the
First Amendment, the alternative method requirement is not the least restrictive means of
achieving any compelling governmental interest. Even assuming arguendo that there is
some governmental interest in carrying out executions, the alternative method requirement
does not further that interest. Instead of requiring each Appellant to elect an alternative
method to be used in his own execution, there are other ways the State of Oklahoma could
further any interest it might have in seeing criminal judgments finalized and sentences
carried out. Indeed, at the scheduled February 2022 trial, the district court will receive
evidence and testimony regarding several alternative methods of executions. Appellants—
each of whom joined the Third Amended Complaint which pled these alternatives—do not
argue that they cannot or should not be subject to execution by these alternative methods;
instead, they argue only that they should not be required individually to elect any specific
alternative for their own respective executions.
Because Appellants have religious objections to participating in or facilitating their
own deaths, and because electing an alternative method of execution “has the effect of
enabling or facilitating the commission of” their own deaths, Hobby Lobby, 573 U.S. at
724, requiring each of them to identify and select an alternative method for his own
execution constitutes an explicit and substantial burden on their religious exercise.
Appellees have not identified any governmental interest justifying this substantial burden,
let alone a compelling one—and even if there is a compelling governmental interest, the
alternative method requirement is not the least restrictive means of furthering it. Appellants
thus are likely to succeed on their claim that the alternative method requirement violates
27
RLUIPA.
C. Appellants are Likely to Succeed on their Human Experimentation

Claim (Count IX).
In Count IX of the Third Amended Complaint, Appellants alleged that the use of
the protocol constitutes impermissible human experimentation on captive human subjects.
(ROA, Vol. I at 180.) The district court granted summary judgment to Appellees, finding
that this Court previously rejected Appellants’ claim. (ROA Vol. XI at 414.) Appellants
are likely to succeed on this claim particularly given the unique posture of this case.
Experimentation on human beings without their consent offends standards of
decency and violates an individual’s substantive due process rights to liberty and to be free
from cruel and unusual punishment, under the Eighth and Fourteenth Amendments to the
United States Constitution. The Due Process Clause of the Fourteenth Amendment affords
a substantive due process right to be free from human experimentation. In re Ohio
Execution Protocol Litig., No. 2:11-CV-1016, 2017 WL 2964901, at *17 (S.D. Ohio July
12, 2017) (citing Rochin v. California, 342 U.S. 165 (1952)). That right extends to the
lethal injection context. See id. As one court has explained, “[t]here is absolutely no
question that Ohio’s current protocol presents an experiment in lethal injection processes.”
In re Ohio Execution Protocol Litig., 994 F. Supp. 2d 906, 913 (S.D. Ohio 2014); see also
In re Ohio Execution Protocol Litig., 2017 WL 2964901 at *17 (“Judge Frost’s observation
that the use of a new protocol for that process ‘presents an experiment’ and ‘to pretend
otherwise . . . would be disingenuous’ is correct” (citation omitted).
28
This Court has suggested that such a claim is viable and “subject to the principles
or mode of analysis outlined in [Baze v. Rees, 535 U.S. 35 (2008)].” Warner v. Gross, 776
F.3d 721, 736 (10th Cir. 2015). That rationale is consistent with other courts that have
considered the issue in the lethal injection context and concluded that the potential success
of a prisoner’s human experimentation claim based on a lethal injection protocol depends
on the degree of risk posed by the protocol at issue. See, e.g., In re Ohio Execution Protocol
Litig., 994 F. Supp. 2d at 913.
As explained by Plaintiffs’ medical-ethics expert, Dr. Joseph Fins, Professor of
Medical Ethics and Chief of the Division of Medical Ethics at Weill Cornell Medical
College, Oklahoma has no “clinical experience” using 500 mg of midazolam in executions.
(ROA, Vol. IX, at 324-27, ¶¶25-29.) Accordingly, “Oklahoma has not shown that its three-
drug lethal injection protocol using midazolam works for its intended purpose: executing
prisoners in a manner that avoids a substantial risk of severe pain and suffering.” (ROA,
Vol. IX at 323, ¶20; ROA, Vol. IX at 343, ¶77.)
Logically, using an untested execution method to determine if it actually works to
avoid a substantial risk of severe pain and suffering as ODOC claims that it does amounts
to human experimentation. That process is therefore subject to all of the applicable laws
and procedures required for conducting experiments on humans. (ROA, Vol. IX at 343-44,
¶¶78-80, 83.) (citations omitted). Under the circumstances, as explained in Dr. Fins’ expert
report, “Oklahoma’s three-drug lethal injection protocol constitutes an unregulated
experiment on human subjects in violation of well-established legal and ethical standards
for human subject protection.” (ROA, Vol. IX at 319, ¶15.) Here, the district court stated
29
in its August 11th Order that it remains an open question “whether midazolam does or does
not perform as intended when used as specified in the protocol[]” and invited the State of
Oklahoma to execute the Appellants before the trial on Count II to “eliminate
speculation[.]” (ROA, Vol. XI at 390-91, n.13.) To aid in its resolution of that question,
the court directed the parties to present evidence at the February 2022 trial from
Appellants’ executions. (ROA, Vol. XI at 390, n.12) (explaining how the evidence at trial
“may well [include] a track record under . . . the new Oklahoma protocol,” given that
Appellants would presumably be executed before the trial on Count II). In its scheduling
order, the court explicitly invited the parties to present evidence at trial from the
Appellants’ presumptive executions. (Order, Doc. 456 at n.2).
Until now, no court has ever invited any party to conduct lethal injection
experimentation and present the results of that experimentation at a trial on the
constitutionality of the lethal injection procedures. Even if the Court ultimately finds the
protocol at issue in this case constitutional, executing Appellants any time prior to that
finding necessarily constitutes human experimentation because the constitutionality of the
protocol necessarily will remain uncertain up until that time. See In re: Ohio Execution
Protocol Litig.994 F. Supp. 2d at 913 (“an experiment in lethal injection processes” is
acceptable only “until such experimentation sufficiently risks running afoul of the
constitution protections afforded every citizen, regardless of his or her status, crime, or
punishment”) (citing Cooey v. Strickland (Biros), 589 F.3d 210, 229-30 (6th Cir. 2009)).
Because a trial is imminent on whether Oklahoma can successfully carry-out its execution
protocol and because Mr. Grant’s execution last week demonstrates that it cannot,
30
executing Appellants pre-trial for purposes of obtaining additional evidence from their
executions to use at trial constitutes human experimentation. Appellants are likely to
succeed on the merits of this claim.
D. Appellants are Likely to Succeed on their Ex Post Facto and Due

Process Clause Claims (Counts VI and VII).
The district court granted summary judgment to Appellees on Counts VI and VII of
the Third Amended Complaint (ROA Vol. XI at 410-12), and then found that for the
reasons set forth in that order Appellants “have not shown a substantial likelihood of
prevailing on the merits on those counts.” (ROA, Vol. XIII at 337.) As explained below,
Appellants are likely to prevail on the merits.
The United States Constitution prohibits the States from passing any “ex post facto
Law.” U.S. Const. art. I, § 10, cl. 1. “Two critical elements must be present for a law to
fall within the ex post facto prohibition: first, the law must be retrospective, that is, it must
apply to events occurring before its enactment; and second, it must disadvantage the
offender affected by it,” Henderson v. Scott, 260 F.3d 1213, 1215 (10th Cir. 2001)
(emphasis added) (internal quotations and citation omitted), by creating “a significant risk”
of increased punishment, Garner v. Jones, 529 U.S. 244, 255 (2000); In re Medley, 134
U.S. 160, 172 (1890).
Here, it is undisputed that at the time each Appellant was sentenced to death,
Oklahoma law required that “[t]he punishment of death must be inflicted by continuous,
intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in
combination with a chemical paralytic agent . . . .” (22 Okla. Stat. Ann. § 1014(A) (1977)).
31
In 2011, the Oklahoma statute was “amended” to replace the “ultrashort-acting barbiturate”
requirement with broader authorization to execute prisoners with “a lethal quantity of a
drug or drugs . . . .” Okla. Stat. tit. 22, § 1014(A) (2011); Doc. 388 at 41. By relying on
the amended statute to utilize the midazolam three-drug protocol, the law is being given
retrospective effect by Defendants, and thus the first element is satisfied.
The second element is satisfied as well. Three ultrashort-acting barbiturates are
used in anesthesia: thiopental, methohexital and thiamylal. Thiopental (sodium pentothal)
is an ultrashort-acting barbiturate (R. Miller, Miller’s Anesthesia, 326-29 (6th ed. 2005)),
and is the only such drug authorized as a lethal agent by the Execution Protocol (ROA,
Vol. II at 30.) The Supreme Court has held that using sodium thiopental as part of a
three-drug method of execution does not violate the Eighth Amendment’s ban on cruel
and unusual punishment. Baze, 553 U.S. at 63. That conclusion reflects the fact that, as
explained by Plaintiffs’ expert, Dr. Craig Stevens, an ultrashort-acting barbiturate “will
produce a state of general anesthesia, noted by unawareness and non-responsiveness to
painful stimuli,” (ROA, Vol. II at 184 , ¶11; 210, ¶99), thereby rendering the prisoner
insensate to pain as required by the prior law.
The same is not true for midazolam. It is undisputed that midazolam is not an
ultrashort-acting barbiturate. In fact, it is not a barbiturate at all, but rather is in the separate
class of drugs called benzodiazepines. (ROA, Vol. II at 193, ¶50.) As such, as explained
above, Plaintiffs’ experts have opined that midazolam will not render a prisoner insensate
to pain, and, as a result, the prisoner will experience the pain and suffering associated with
the administration of the midazolam (suffocation and drowning), vecuronium bromide
32
(same), and potassium chloride (chemical burning and cardiac arrest).
In granting summary judgment to Appellees, the district court held that “a change
in the execution method does not increase a condemned inmate’s punishment and thus does
not implicate the Ex Post Facto clause.” (ROA, Vol. XI at 410) (citing Malloy v. South
Carolina, 237 U.S. 180 (1915)). The district court misstated the applicable standard. As
noted above, the authority in this Circuit and the Supreme Court is clear that the applicable
standard is whether the offender is “disadvantage[d]” by the law by creating “a significant
risk” of increased punishment. Henderson, 260 F.3d at 1215; Garner, 529 U.S. at 255. A
significantly more painful lethal execution method ipso facto “disadvantages” the offender
and increases the punishment. Taken to its logical conclusion, the district court’s
conclusion would mean that a prisoner sentenced to death by lethal injection could be
executed with a lethal dose of any substance (e.g., gasoline, battery acid or some other
toxic substance) and that would not violate the Ex Post Facto clause of the Constitution.
That is not the applicable standard.
The Supreme Court’s decision in Malloy v. South Carolina, 237 U.S. 180 (1915) is
inapposite. There, the Court found a change to electrocution was not an ex post facto law
because it eliminated “some of the odious features” incident to the older and less
“barbarous” method of execution. Id. at 184, 185. Here, however, the change in the statute
increases the odious features of the method of execution by risking that a prisoner is
sensate during his or her execution and thus able to experience the horrific and excruciating
pain and suffering caused by the administration of the execution drugs. Proceeding with
Petitioners’ executions without using an ultrashort-acting barbiturate thus exposes them to
33
additional punishment. As such, the statute as amended violates article I, § 10 of the United
States Constitution and Article 5, § 54 of the Oklahoma Constitution.
Finally, executing Plaintiffs without using an ultrashort-acting barbiturate would
also violate Plaintiffs’ due process rights under the Oklahoma Constitution, which does not
permit an amended or repealed statute to “affect any accrued right, or penalty incurred, or
proceedings begun by virtue of such repealed statute.” Okla. Const. art. 5, § 54; see also
One Chi. Coin’s Play Boy Marble Bd., No. 19771 v. State ex rel. Adams, 212 P.2d 129, 133
(Okla. 1949) (internal quotations and citation omitted). Lethal injection by ultrashort-
acting barbiturate, as specified in Plaintiffs’ death warrants, is an “accrued right” and a
“penalty incurred” before the 2011 amendment to the statute. Plaintiffs have a
constitutional right to be executed by the statutory method in effect when they were
sentenced, and duly reflected in their death warrants. See Alberty v. State, 140 P. 1025
(Okla. Crim. App. 1914).
E. The District Court Abused its Discretion in Holding that there Will Be
Irreparable Harm Whether Defendants are Executed or Not.
The district court held that Appellants “are correct that they would be irreparably
harmed by implementation of an unconstitutional lethal injection protocol,” but that a
preliminary injunction “would adversely affect the public’s interest undeniable interest…in
timely enforcement of the judgment of the state courts after decades of direct and collateral
review of the conviction and sentence of death.” (ROA, Vol. XIII at 346.) That was a
clear abuse of discretion.
34
Any putative harm to Appellees pales in comparison to the irreparable harm that
would result if the State of Oklahoma executed Appellants in a manner that violated the
Eighth Amendment. The irreparable harm to Mr. Jones is particularly significant given
that the Oklahoma Pardon and Parole Board recommended clemency on November 1,
2021. Specifically, the Board recommended, for a second time,6 Mr. Jones’ sentence be
commuted to life with the possibility of parole.
On the other hand, the public interest is not served by executing individuals before
they have had the opportunity to avail themselves of the legal process to challenge the
legality of their executions. Instead, the public interest lies in ensuring that agencies act in
accordance with the Constitution and federal law. League of Women Voters of U.S. v.
Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). This interest is only heightened in the context of
executions. The public will be ill-served if Appellants are executed before being given a
full opportunity to test the constitutionality of Oklahoma’s execution protocol. See Barr v.
Roane, 140 S. Ct. 353 (2019) (Alito, J., respecting the denial of stay or vacatur) (“[I]n light
of what is at stake, it would be preferable for the District Court’s decision to be reviewed
on the merits by the Court of Appeals for the District of Columbia Circuit before the
executions are carried out.”); see also Lee, 2020 WL 3964985, at *3 (Sotomayor, J.,
dissenting) (noting that “because of the Court’s rush to dispose of this litigation in an
6
On September 13, 2021, the Oklahoma Pardon and Parole Board voted 3-1 at a
commutation hearing to commute the death sentence to life with the possibility of parole.
However, after an execution date was set, the governor directed, consistent with Oklahoma
law, that a clemency hearing be held. Following the November 1, 2021 clemency hearing,
the Oklahoma Pardon and Parole Board voted once again to commute the death sentence
to life with the possibility of parole.
35
emergency posture, there will be no meaningful judicial review of the grave, fact-heavy
challenges respondents bring”); Order, In the Matter of the Federal Bureau of Prisons’
Execution Protocol Cases, No. 19-5322 (D.C. Cir. Dec. 2, 2019) (per curiam). This is
especially compelling here where the district court has denied summary judgment and
ordered trial on these constitutional challenges to take place in February 2022 while
Appellants would be subject to execution before such trial for the sole reason that they have
exercised their religious beliefs.
STATEMENT REGARDING ORAL ARGUMENT
Counsel request oral argument. Due to the complex legal and factual issues in this
capital case, oral argument will materially assist the Court in adjudicating these matters.
CONCLUSION
Appellants are likely to succeed on the merits of their claims and executing them
before that appellate process can be completed would indisputably result in profound and
irreparable harm. Under the circumstances, the district court’s denial of Appellants’
motion for a preliminary injunction should be reversed.
Respectfully submitted: November 3, 2021.
s/Dale A. Baich
Jon M. Sands
Federal Public Defender District of Arizona
Dale A. Baich (OH Bar No. 0025070)
Jennifer M. Moreno
Michael W. Lieberman
850 West Adams Street, Suite 201
Phoenix, Arizona 85007
Telephone: (602) 382-2816
Facsimile: (602) 889-3960
[email protected]
36
Emma V. Rolls, OBA # 18820

Office of the Federal Public Defender
215 Dean A. McGee Ave., Suite 707
Oklahoma City, OK 73102
Telephone: (405) 609-5975
[email protected]
James K. Stronski
CROWELL & MORING LLP
590 Madison Avenue
New York, NY 10022
Telephone: (212) 223-4000
[email protected]
COUNSEL FOR PLAINTIFFS-

APPELLANTS
37
CERTIFICATE OF COMPLIANCE
This motion complies with the type-volume limitation contained in Fed. R. App. P.
27(d)(2)(A) because, excluding the portions exempted by Rule 32(f), this brief contains
9, 847 words.
This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been
prepared in a proportionally spaced typeface using Microsoft Word 2019 in 13-point Times
New Roman.
s/ Dale A. Baich
38
CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that with respect to the foregoing motion:
(1) all required privacy redactions have been made pursuant to 10th Cir. R. 25.5;
(2) if required to file additional hardcopies, that this ECF submission is an exact copy of
those documents;
(3) this digital submission has been scanned for viruses with the most recent version of
Symantec Endpoint Protection, Version 14.2, and according to the program is free of
viruses.
s/ Dale A. Baich
39
CERTIFICATE OF SERVICE
I certify that on November 3, 2021, I electronically filed the foregoing Opening
Brief with the Clerk of Court for the U.S. Court of Appeals for the Tenth Circuit through
the appellate CM/ECF system. I certify that all participants in the case are registered
CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/Dale A. Baich
40

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Appellate Case: 21-6139 Document: 010110600096 Date Filed: 11/03/2021 Page: 1

IN THE UNITED STATES COURT OF APPEALS

JULIUS JONES (EXECUTION DATE SET 11-18-2021),

DEATH PENALTY CASE

On Appeal from the United States District Court for

The Honorable Stephen P. Friot, District Judge

APPELLANTS’ OPENING BRIEF

ORAL ARGUMENT IS REQUESTED

Emma V. Rolls, OBA # 18820 Jon M. Sands

TABLE OF CONTENTS ..................................................................................................... i

TABLE OF ATTACHMENTS ........................................................................................... ii

TABLE OF AUTHORITIES .............................................................................................. iv

STATEMENT OF JURISDICTION ................................................................................... 1

STATEMENT OF ISSUES ................................................................................................. 1

STATEMENT OF THE CASE ........................................................................................... 2

STANDARD OF REVIEW ............................................................................................... 13

A. Appellants are Likely to Succeed on their Eighth Amendment

CERTIFICATE OF COMPLIANCE ................................................................................ 38

CERTIFICATE OF DIGITAL SUBMISSION ................................................................. 39

CERTIFICATE OF SERVICE .......................................................................................... 40

Burwell v. Hobby Lobby Stores,

Burwell v. Hobby Lobby Stores, Inc.,

Church of the Lukumi Babalu Aye, Inc. v. Hialeah,

Citizens United v. Gessler,

Everson v. Bd. of Ed. of Ewing Tp.,

Hobby Lobby Stores, Inc. v. Sebelius,

In re Ohio Execution Protocol Litig.,

In re Ohio Execution Protocol Litig.,

In the Matter of the Federal Bureau of Prisons’ Execution Protocol Cases,

League of Women Voters of U.S. v. Newby,

Malloy v. South Carolina,

Masterpiece Cakeshop v. Colo. Civil Rights Comm’n,

Mills v. Denver Tramway Corp.,

N.M. ex rel. Nat. Res. Def. Council v. Watkins,

United States SEC v. Mediatrix Capital, Inc.,

22 Okla. Stat. Ann. § 1014(A) (1977) ............................................................................... 31

28 U.S.C. § 1292(a)(1) ........................................................................................................ 1

28 U.S.C. § 1343(a) ............................................................................................................. 1

42 U.S.C. § 1983 ................................................................................................................. 1

42 U.S.C. § 2000bb-3(a) .................................................................................................... 26

Okla. Stat. tit. 22, § 1014(A) (2011).................................................................................. 32

Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1 et seq. .................... 26

Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §

Fed. R. Evid. 201(b) .......................................................................................................... 19

Oklahoma Constitution Article 5, § 54.............................................................................. 34

U.S. Const. amend. I .......................................................................................................... 23

U.S. Const. art. I, § 10, cl. 1 .............................................................................................. 31

U.S. Const. art. I, § 10 ....................................................................................................... 34

district court to enjoin Defendants-Appellees from carrying out their executions in a

court had subject-matter jurisdiction pursuant to 28 U.S.C. § 1343(a).

STATEMENT OF THE CASE

Last week, after a six-year execution moratorium specifically intended to consider

Corrections (“ODOC”), reported that Mr. Grant—restrained, prone on his back—

“convulsed” and began vomiting during the administration of midazolam. The

complication.” According to Director Crow (who is not a physician), vomiting during

sedation is “not uncommon.”

and demonstrates that Oklahoma’s execution protocol is unconstitutional.