Plaintiff, )
v. ) No. 14-2163
Defendants. )


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
Cir. 2014)(en banc) and Clemons v. Delo, 535 F.3d 1119 (8
Cir. 2009). En banc consideration is necessary to maintain the uniformity of this Court’s
decisions, and the case presents a question of exceptional importance: Do the United
States Supreme Court precedents in Baze and Brewer and this Court’s 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?
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I. This Court should vacate the stay of execution because the Panel’s 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
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 Court’s 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
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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 Bucklew’s 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
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III. Conclusion
This Court should grant rehearing en banc and vacate the stay of execution.

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Respectfully submitted,

Attorney General

/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

I hereby certify that a true and
correct copy of the foregoing was
electronically filed by using the
CM/ECF system on this 20
of May, 2014. This Court’s
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

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