U S C A T C: Plaintiffs-Appellants

Appellate Case: 21-6139 Document: 010110602130 Date Filed: 11/08/2021 Page: 1
No. 21-6139
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
JOHN M. GRANT, et al.,
Plaintiffs-Appellants,
v.
SCOTT CROW, in his official capacity, et al.,
Defendants-Appellees.
On appeal from the United States District Court

for the Western District of Oklahoma
The Hon. Stephen P. Friot
No. 5:14-CV-665-F
BRIEF OF APPELLEES
BRYAN CLEVELAND MITHUN MANSINGHANI

ANDY N. FERGUSON Solicitor General
ZACH WEST OFFICE OF ATTORNEY GENERAL
Assistant Solicitors General STATE OF OKLAHOMA
313 N.E. 21st Street
Oklahoma City, OK 73105
Phone: (405) 521-3921
mithun.mansinghani@oag.ok.gov
Counsel for Appellees
ORAL ARGUMENT IS NOT REQUESTED

Table of Contents
TABLE OF AUTHORITIES.......................................................................................................... iii
JURISDICTIONAL STATEMENT .................................................................................................. 1
PRIOR OR RELATED APPEALS .................................................................................................. 1

INTRODUCTION ......................................................................................................................... 2
STATEMENT OF THE CASE........................................................................................................ 3
SUMMARY OF THE ARGUMENT .............................................................................................. 11

ARGUMENT............................................................................................................................... 14
I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT APPELLANTS ARE
UNLIKELY TO SUCCEED ON THE MERITS. ................................................................. 15
A. Appellants are not likely to succeed on their claim that Oklahoma’s

midazolam protocol is sure or very likely to cause them severe pain...... 15
Appellants’ arguments and evidence presented to the district court do
not show likelihood of success..................................................................... 15
The summary judgment record does not warrant reversal. ........................... 17
Judicial notice of extra-record evidence regarding John Grant’s execution

is improper. .............................................................................................. 26
B. Appellants are not likely to succeed on their claim that they plead and
prove alternative methods of execution. ...................................................... 29
Discovery confirmed that Appellants refused to plead an alternative
method of execution. .................................................................................. 30
Appellants’ later shifts in position did not warrant reversing summary

judgment. .................................................................................................. 35
C. Appellants are not likely to succeed on Counts VI and VII (Ex Post
Facto and Due Process).................................................................................. 39
i
D. Appellants are not likely to succeed on Count VIII (Religious

Freedom from Complying with Supreme Court Precedent). ................... 41
E. Appellants are not likely to succeed on Count IX (human
experimentation). ............................................................................................. 46
II. THE BALANCE OF EQUITIES DOES NOT FAVOR A STAY OF EXECUTION............... 49

CONCLUSION............................................................................................................................ 53
CERTIFICATE OF COMPLIANCE.............................................................................................. 54
CERTIFICATE OF DIGITAL SUBMISSION ............................................................................... 54
CERTIFICATE OF SERVICE ...................................................................................................... 54
ii
TABLE OF AUTHORITIES
CASES
Abdur’Rahman v. Parker,
558 S.W.3d 606 (Tenn. 2018) ............................................................................................ 16
Arthur v. Comm’r, Alabama Dep’t of Corr.,

695 F. App’x 418, 428 (11th Cir. 2017) ............................................................................ 16
Arthur v. Comm’r, Alabama Dep’t of Corr.,

840 F.3d 1268 (11th Cir. 2016) .......................................................................................... 16
Barr v. Lee,
140 S. Ct. 2590 (2020) ............................................................................................ 15, 20, 23
Baze v. Rees,
553 U.S. 35 (2008) ............................................................................... 21, 24, 30, 31, 36, 47
Bormuth v. Cty. of Jackson,

870 F.3d 494 (6th Cir. 2017) .............................................................................................. 31
Brooks v. Warden,
810 F.3d 812 (11th Cir. 2016) ..................................................................................... 16, 30
Bucklew v. Precythe,
139 S. Ct. 1112 (2019) ........ 15, 30, 32, 35, 36, 37, 38, 41, 42, 43, 44, 45, 47, 49, 50, 53
Buell v. Sec. Gen. Life Ins. Co.,

987 F.2d 1467, 1472 (10th Cir. 1993) ............................................................................... 38
Celotex Corp. v. Catrett,

477 U.S. 317 (1986) ............................................................................................................. 31
City of Boerne v. Flores,

521 U.S. 507 (1997) ............................................................................................................. 45
Cole v. Trammell,
358 P.3d 932 (Okla. Ct. Crim. App. 2015) ...................................................................... 41
Collins v. Youngblood,
497 U.S. 37 (1990) ............................................................................................................... 40
iii
Cooey v. Strickland,
589 F.3d 210 (6th Cir. 2009) ....................................................................................... 29, 46
Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405 (1990)..................................................................................................... 17
Cottriel v. Jones,
588 F. App’x 753 (10th Cir. 2014) .................................................................................... 26
Cummings v. Missouri,
4 Wall. 277 (1867) ................................................................................................................ 40
Dunn v. Price,
139 S. Ct. 1312 (2019) ......................................................................................................... 15
Ellis v. J.R.’s Country Stores, Inc.,

779 F.3d 1184, 1192 (10th Cir. 2015). .............................................................................. 26
Emp’t Div. v. Smith,

494 U.S. 872 (1990) ............................................................................................................. 43
Fulton v. City of Philadelphia, Pa.,

141 S. Ct. 1868 (2021) ......................................................................................................... 44
Glossip v. Gross,
576 U.S. 863 (2015) ........................... 2, 15, 16, 19, 20, 21, 23, 24, 25, 30, 36, 44, 46, 47
Grant et al. v. El Habti et al.,

No. 21A116 (S. Ct.) ............................................................................................................... 8
Grant v. Crow,
No. 21-6129 (10th Cir.) ........................................................................................................ 6
Gray v. McAuliffe,
No. 3:16CV982-HEH, 2017 WL 102970 (E.D. Va. Jan. 10, 2017) ............................. 16
Grayson v. Warden,
672 F. App’x 956 (11th Cir. 2016) .................................................................................... 16
Gregg v. Georgia,
428 U.S. 153 (1976) ............................................................................................................. 42
iv
Hamilton v. Jones,
472 F.3d 814 (10th Cir. 2007) ............................................................................................ 15
Hayes Family Tr. v. State Farm Fire & Cas. Co.,

845 F.3d 997 (10th Cir. 2017) ............................................................................................ 38
Heideman v. S. Salt Lake City,

348 F.3d 1182 (10th Cir. 2003) .......................................................................................... 14
Hill v. McDonough,
547 U.S. 573 (2006) ................................................................ 14, 15, 17, 45, 49, 50, 52, 53
In re Fed. Bureau of Prisons’ Execution Protocol Cases,

980 F.3d 123 (D.C. Cir. 2020) .................................................................................... 15, 23
In re Ohio Execution Protocol Litig.,

881 F.3d 447 (6th Cir. 2018) ...........................................................................16, 20, 21, 22

946 F.3d 287 (6th Cir. 2019), cert. denied sub nom.
Henness v. DeWine, 141 S. Ct. 7 (2020) ....................................................................... 16, 22

994 F.Supp.2d 906 (S.D. Ohio 2014). .............................................................................. 48

No. 2:11CV1016, 2017 WL 2964901 (S.D. Ohio July 12, 2017) ................................. 48
In re Ohio Execution Protocol,

860 F.3d 881 (6th Cir. 2017) ................................................................................. 16, 21, 22
In re Setting of Execution Dates,

Nos. D-2000-653 et al. (Okla. Crim. App. Sept. 20, 2021) .............................................. 6
Jordan v. State,
266 So. 3d 986 (Miss. 2018) ............................................................................................... 16
Leary v. Daeschner,
228 F.3d 729 (6th Cir. 2000) .............................................................................................. 17
v
Loden v. State,
264 So. 3d 707 (Miss. 2018) ........................................................................................ 16, 20
Lundgren v. Freeman,
307 F.2d 104 (9th Cir. 1962) .............................................................................................. 31
Malloy v. South Carolina,

237 U.S. 180 (1915) ............................................................................................................. 40
Marbury v. Madison,
5 U.S. 137 (1803) ................................................................................................................. 44
Matter of Fed. Bureau of Prisons’ Execution Protocol Cases,

No. 05-CV-2337, 2021 WL 127602 (D.D.C. Jan. 13, 2021) .................................. 39, 40
Mazurek v. Armstrong,
520 U.S. 968 (1997) ............................................................................................................. 16
McGehee v. Hutchinson,
463 F. Supp. 3d 870 (E.D. Ark. 2020)....................................................................... 16, 21
McGehee v. Hutchinson,
854 F.3d 488 (8th Cir. 2017) (en banc) ..................................................................... 16, 21
Neal v. Bolton,
No. 3:06CV17, 2008 WL 5156685 (N.D. Fla. Dec. 9, 2008) ........................................ 27
One Chi. Coin’s Play Boy Marble Bd., No. 19771 v. State ex rel. Adams,
212 P.2d 129 (Okla. 1949) .................................................................................................. 40
Poland v. Stewart,
117 F.3d 1094 (9th Cir. 1997) ............................................................................................ 40
Rochin v. California,
342 U.S. 165 (1952) ............................................................................................................. 48
The Est. of Lockett by & through Lockett v. Fallin,

841 F.3d 1098 (10th Cir. 2016) .......................................................................................... 27
United States v. Chandler,

996 F.2d 1073 (11th Cir. 1993) .......................................................................................... 40
vi
United States v. Tipton,

90 F.3d 861 (4th Cir. 1996) ................................................................................................ 40
Warner v. Gross,
776 F.3d 721 (10th Cir. 2015) ....................................................... 2, 14, 17, 46, 47, 50, 52
Whitaker v. Livingston,
732 F.3d 465 (5th Cir. 2013) ....................................................................................... 39, 41
Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008) ................................................................................................................. 14
Zink v. Lombardi,
783 F.3d 1098 (8th Cir. 2015) ............................................................................................ 40
CONSTITUTIONAL PROVISIONS
OKLA. CONST. art. V, § 54 ..................................................................................................... 40
OTHER AUTHORITIES
Barbara Hoberock, State prepares for first execution in nearly seven years on Thursday, TULSA
WORLD (Oct. 27, 2021) ...................................................................................................... 51
KOKH Staff, Oklahoma Department of Corrections addresses execution of John Grant,

Fox 25 (Oct. 29, 2021) .......................................................................................................... 9
Lay v. El Habti, No. 21-6101, Amicus Brief (10th Cir. Oct. 12, 2021) ............................. 6
vii
JURISDICTIONAL STATEMENT
This Court has jurisdiction under 28 U.S.C. § 1292 over an order refusing an
injunction. The district court may have had jurisdiction under 28 U.S.C. § 1331.1
PRIOR OR RELATED APPEALS
Lay et al. v. El Habti et al., No. 21-6101 (10th Cir.)
Grant et al. v. El Habti et al., No. 21-6129 (10th Cir.)
Warner v. Gross, 776 F.3d 721 (10th Cir. 2015)
Glossip v. Gross, 576 U.S. 863 (2015)
Grant et al. v. El Habti et al., No. 21A116 (S. Ct.)
1
It is unclear if the district court had jurisdiction over these appellants for whom the
mandate has not issued yet from this Court in prior appeals. See Nos. 21-6101, 21-6129;
see also Price v. Dunn, 139 S. Ct. 1533, 1537 (2019) (Thomas, J., concurring in denial of
certiorari).
1
INTRODUCTION
Appellants’ brief is full of heated rhetoric but short on careful and sober
adherence to the law and to the record. On their Eighth Amendment claims, they argue
that the district court abused its discretion by not granting an injunction based on
arguments and facts never presented below when Appellants moved for a preliminary
injunction. Their religious liberty arguments attempt to sidestep binding Supreme Court
precedent. Their ex post facto claims ignore the holdings of every court to address them
and instead rely on outdated cases that have been abrogated in relevant part. And their
“human experimentation” claims lack any basis in law while grossly mischaracterizing
other courts’ statements on the topic and the statements of the court below.
Years ago, the district court denied a preliminary injunction seeking to prevent
Oklahoma from executing plaintiffs in this case by using a three-drug lethal injection
protocol starting with a 500-milligram dose of midazolam. Both this Court and the U.S.
Supreme Court affirmed. Glossip v. Gross, 576 U.S. 863, 867, 875-76 (2015); Warner v.
Gross, 776 F.3d 721, 724 (10th Cir. 2015). With executions imminent Appellants again
seek to prevent the State from carrying out their lawful sentences, but the Supreme
Court vacated stays of execution in this case. Notwithstanding Appellants’ inaccurate
and exaggerated arguments this time around, the same result now twice sanctioned by
the Supreme Court should obtain: the district court’s denial of an injunction must be
affirmed.
2
STATEMENT OF THE CASE
I. Background of this Case
In October 2015, after this Court and the Supreme Court affirmed denial of a
preliminary injunction, the parties stipulated to stay the case while investigations into
the State of Oklahoma’s execution procedures took place. The parties also stipulated
that the Oklahoma Attorney General would not seek execution dates until 150 days
after certain information was provided to the plaintiffs, such as the results of any
investigations. The State completed its investigations on May 19, 2016 with the release
of a grand jury report, but after that point, the State was unable to acquire the
appropriate drugs necessary to perform lethal injections under Oklahoma law. After
years of efforts, the State announced in early 2020 that it had secured a source for the
necessary execution drugs. As a result, on February 13, 2020, the Department of
Corrections finalized its new and improved protocol based in part on the grand jury’s
recommendations, and the Office of the Attorney General provided the plaintiffs with
the information specified in the October 2015 stipulation.
After, the plaintiffs reopened the case and the district court held an off-the-
record status conference in March 2020. At that conference, the court expressed
concern about being rushed to adjudicate plaintiffs’ claims if executions restarted as
quickly as the State was entitled to begin them. Then-Attorney General Mike Hunter
offered remarks that he would not rush the Court’s adjudication of the Plaintiffs’ claims.
3
No formal agreement was entered, nor any specific terms discussed, and Attorney
General Hunter never requested any execution dates for the subsequent 14 months of
his tenure. See ROA.Vol.13, 182-83, 336-37.
The plaintiffs filed their Third Amended Complaint on July 6, 2020. ROA.Vol.1,
118-85. Appellees moved to dismiss three of the claims, including Count VIII, which
argued Appellants had a religious liberty right to eschew the constitutional standards
for advancing an Eighth Amendment claim that require pleading and proving a viable
alternative execution method. ROA.Vol.1, 309-14. The court granted the motion.
ROA.Vol.1, 366-67. Discovery began in August 2020, during which the plaintiffs
refused to identify the alternative methods of execution being pled by each plaintiff. See
ROA.Vol.9, 641.
Appellees moved for summary judgment on February 19, 2021. On April 2, 2021,
the court ruled that the plaintiffs had failed to dispute each of Appellees’ facts and failed
to comply with the requirements for a method of execution case by not pleading
constitutional alternatives to the current method of execution. ROA.Vol.13, 640. The
court nonetheless “decline[d] to impose on these individual plaintiffs the consequences
of the derelictions of their counsel” and gave them a second chance to file a rule-
compliant opposition brief and to answer which plaintiff was relying on which
execution alternative(s) to support their claims. Id. Although some plaintiffs identified
one or more alternative methods without reservation, Appellants here declined entirely
4
to identify an alternative method of execution. See ROA.Vol.10, 603 (Donald Grant);
id. at 651 (Jones); id. at 358 (Postelle); id. at 375 (Lay). The court granted summary
judgment to Appellees in part on August 11, 2021. ROA.Vol.11, 376-418. In regard to
Appellants, the court granted summary judgment against them on all claims for failure
to meet the alternative method requirement of Baze, Glossip, and Bucklew. Id. at 393-97.
With respect to the other plaintiffs, the court concluded there were genuine issues of
material fact regarding the risk of pain in Oklahoma’s execution protocol and the
availability of the alternatives identified by those plaintiffs, and so denied summary
judgment. Id. at 383-91, 398-401.
Because Appellants, unlike their co-plaintiffs, no longer had any live claims in
the case, the State sought execution dates. Appellants then moved for reconsideration,
ROA.Vol.11, 459-484, arguing that they should be allowed to introduce new evidence
on picking alternatives since their earlier failure to comply with Supreme Court
precedent resulted in a loss in district court. The district court denied this request for
three reasons. First, it was not supported by developed argument. ROA.Vol.11, 623.
Second, it was not based on any change in law or any previously-unavailable evidence
because “the Supreme Court has repeatedly told the plaintiffs they are obliged to
designate an alternative method, and [the district court] gave them several opportunities
to do so”—opportunities that all of their co-plaintiffs used but they failed to use. Id.
Third, a change in litigation strategy after summary judgment is not evidence of a
5
misapprehension of facts or law that would justify reconsideration. Id. at 623-24. On
September 20, 2021, the Oklahoma Court of Criminal Appeals set execution dates for
Appellants. Order Setting Execution Dates, In re Setting of Execution Dates, Nos. D-2000-
653 et al. (Okla. Crim. App. Sept. 20, 2021).
Meanwhile, Appellant Wade Lay appealed the summary judgment order, and all
other Appellants in an amicus brief urged dismissal of his appeal for lack of jurisdiction,
arguing the district court improperly certified Rule 54(b) judgments against them. See
Lay v. El Habti, No. 21-6101, Amicus Brief (10th Cir. Oct. 12, 2021). The remaining
Appellants filed appeals as well. See Grant v. Crow, No. 21-6129 (10th Cir.). Appellants
Jones, Postelle, and Donald Grant then adopted the arguments of their prior amicus
brief and sought dismissal of their own appeal. Id., Notice (10/15/2021). Appellees, for
their part, argued in favor of this Court entertaining the appeals in part because the
Appellants’ executions were forthcoming. Nevertheless, with knowledge of the
impending executions, this Court dismissed these earlier appeals. Id., Order Dismissing
Case (10/15/2021).
II. The Ruling on Appeal.
Back at the district court, on October 22, 2021, Appellants sought an injunction
staying their executions based on claims the district court had already held were
unmeritorious. ROA.Vol.11, 1129-1152. Importantly, Appellants did not argue in their
injunction motion that they were likely to succeed on the merits of their claim that
6
Oklahoma’s execution protocol is sure or very likely to result in severe pain to
Appellants. Id. Rather, they contended that merely because the claim was not foreclosed
at summary judgment, it was likely to succeed at trial. ROA.Vol.11, 1129-52. The district
court held an evidentiary hearing on October 25 on that motion. See id. at 1265-66.
At the hearing, Appellants’ sole witness was Spencer Hahn, an assistant public
defender. He testified to the movements of inmates he observed during two Alabama
executions using midazolam. ROA.Vol.13, 225-52. Appellees’ rebuttal witness was Dr.
Joseph Antognini, an expert in medicine and anesthesiology. Dr. Antognini testified as
to why the movements described by Mr. Hahn were not inconsistent with the inmates
being unconscious and unaware of pain, and why a 500-milligram dose of midazolam
will render an inmate unconscious and insensate to pain. Id. at 254-313.
The district court denied the injunction. ROA.Vol.13, 335-47; ROA.Vol.11,
1267-68. As to the claims for an injunction other than their Eighth Amendment claim
(Counts VI, VII, VIII, and IX of their Complaint), the court held Appellants were
unlikely to succeed on the merits, citing to its prior rulings on the motion to dismiss,
summary judgment, and reconsideration. ROA.Vol.13, 337-38. As to Appellants’
Eighth Amendment claim (Count II), the court held Appellants had not carried their
burden to show that they are likely to prove that Oklahoma’s protocol is sure or very
likely to cause severe pain, noting that Dr. Antognini’s “unrebutted testimony”
demonstrated the lack of “medical significance of Mr. Hahn’s observations” and instead
7
showed midazolam “would render an individual unconscious and insensate to pain.”
ROA.Vol.13, 337-38. And the court held the Eighth Amendment claim is also not likely
to succeed because Appellants had repeatedly refused to plead an alternative method of
execution as required by precedent. Id. at 342-45. He cited all of his prior rulings on the
matter, including his rulings at summary judgment and on reconsideration, as a basis
for his ruling. ROA.Vol.13, 345. He also explained that he had “read all of the expert
reports that were referred to by the parties in their briefs” at the summary judgment
stage, emphasizing that he was “not going to have a lobotomy” and forget the “gist of
those expert reports.” ROA.Vol.13, 257-258.
The district court also concluded Appellants had not shown any of the other
factors for an injunction. The factual evidence Appellants presented on irreparable
harm through an unconstitutionally painful execution was “speculative” and
inextricably tied to their failed showing on the merits, and the State’s and public’s
compelling interest in timely enforcement of judgments “cannot be ignored.” Id. at 346.
III. The Execution of John Marion Grant.
Appellants appealed the denial of the injunction and sought a stay. This Court
granted a stay as to two of the inmates based only on Count II, their Eighth Amendment
claim. See Order (10/27/2021). The Supreme Court vacated the stay of execution. See
Grant et al. v. El Habti et al., No. 21A116 (S. Ct.).
8
On October 28, the State executed John Marion Grant. Appellants improperly
attempt to introduce new, extra-record evidence regarding this execution based on
reports from the news media and their own unfounded speculation. Appellants’ Br. 2-
3. As explained below, this is improper and should not be permitted. See infra I.A.3. But
to the extent this Court is nonetheless willing to consider such evidence, the most
informed public account of that execution was provided in a live media event by
Appellee Department of Corrections Director Scott Crow. See KOKH Staff, Oklahoma
Department of Corrections addresses execution of John Grant, Fox 25 (Oct. 29, 2021),
https://okcfox.com/news/local/oklahoma-department-of-corrections-addresses-
execution-of-john-grant (embedding video). Director Crow made these statements to
clarify what he observed during the execution, since there are “different opinions as to
what occurred,” and some information given to the public is “either embellished or is
not exactly on point” (such as whether Grant “convulsed” and how many times any
such movement occurred). Id. at 1:00-1:30, 4:00-4:20, 8:55-9:08, 13:41-14:30.
Director Crow stated that the execution was carried out in accordance with the
execution protocol. Id. at 2:00-2:10. Although Grant was highly agitated and screaming
expletives throughout the pre-execution process, within a few seconds of being
administered midazolam, Director Crow said Grant “started the process of being
sedated” and began “a light snoring.” Id. at 3:20-3:55.
9
After about a minute, while he was sedated, Director Crow said Grant moved
(though not convulsed) around ten times, and then regurgitated. Id. at 3:55-4:17, 13:41-
14:30. Director Crow conferred with the on-site physician monitoring the process, who
advised that “regurgitation is not a completely uncommon instance or occurrence with
someone that is undergoing sedation.” Id. at 4:18-4:43. (Grant last ate a full meal at
breakfast at 7:10 a.m. on the day of his execution, when a stay from this Court was in
effect, but also consumed snacks already in his cell throughout the day. Id. at 8:00-8:40.)
“Even though he was sedated,” Director Crow continued, “he regurgitated for
approximately for several seconds,” at which point the physician was sent into the room
to tilt Grant’s head and wipe his face. Id. at 4:56-5:30. So while “Grant’s regurgitation
was not pleasant to watch,” Director Crow stated it only lasted “a short period of time”
and during that time “according to the physician that was monitoring the process,
inmate Grant was in fact sedated.” Id. at 4:44-4:55, 13:25-13:40, 14:00-14:11.
Five minutes after the midazolam was administered, “the physician went in,
verified through a sternum rub that the inmate was in fact unconscious, and the drug
protocol proceeded from there.” Id. at 5:44-6:05. “At 4:21 p.m., the doctor pronounced
the inmate deceased,” so in all the execution process took around 12 minutes to
complete. Id. at 6:10-6:35.
10
SUMMARY OF THE ARGUMENT
The district court made no errors in law or clear errors in fact when it held
Appellants had not shown they were entitled to a preliminary injunction based on claims
they had already lost at summary judgment. Appellants are unlikely to succeed on the
merits of their arguments—which stretch far beyond both binding precedent and the
record on preliminary injunction below—and the balance of equities do not favor the
extraordinary and drastic remedy of a preliminary injunction here.
On their Eighth Amendment claim, Appellants below did not even attempt to
argue they satisfied the first element of making out such a claim: that they are sure or
very likely to suffer severe pain during their execution. Any arguments on this score
have therefore been waived. And Appellants’ sole argument below—that because there
is a material dispute of fact on this issue they are necessarily likely to succeed on the
merits—badly conflates the different standards for surviving summary judgment and
being entitled to a preliminary injunction. Nor was the district court required to rely
upon Appellants’ expert affidavits filed in their summary judgment brief for purposes
of adjudicating the preliminary injunction when (1) Appellants never asked the district
court to do so, (2) Appellants (unlike Appellees) refused to produce those expert
witnesses to give live testimony and be subjected to cross-examination; and (3) no case
law requires district courts to sua sponte consider such evidence.
11
Moreover, the district court explicitly stated it did consider the expert reports
filed at summary judgment when issuing the ruling below, and careful examination of
that record confirms Appellants are unlikely to succeed at showing that Oklahoma’s
execution protocol is sure or very likely to result in severe pain. Finally, judicial notice
of an extra-record press report regarding John Grant’s is inappropriate and, in any
event, nothing that transpired during that execution undermines the district court’s
conclusions.
Appellants are also unlikely to succeed in showing they validly pled an alternative
method of execution under the requirements of Glossip and Bucklew. Their complaint
objected to this requirement, identified alternatives only “through counsel,” and
reserved the right to object to the identified alternatives. Such attempts to avoid
advancing an alternative, and instead leave open the possibility that new rounds of
litigation could challenge the identified alternatives and function as a challenge to the
death penalty itself, is contrary to binding Supreme Court precedent. In any event,
discovery revealed that, unlike their co-plaintiffs, Appellants either withdrew any
pleading of alternatives in the complaint or clarified that the complaint never in fact
pled those alternatives on behalf of Appellants. Far from only failing to “check a box”
to select an execution method for their own execution, Appellants instead have
repeatedly and explicitly repudiated the Supreme Court’s requirements for making out
12
an Eighth Amendment claim. And the district court properly rejected relying on any
post-judgment shifts in position to form the basis of an injunction.
Appellants’ other claims for relief are similarly without merit. Their federal and
state ex post facto and due process challenges have been rejected by every court to
address them because Oklahoma’s change in lethal injection drugs does not change the
penalty incurred for Appellants’ capital crimes—death. Their claim of a religious liberty
right to not comply with Bucklew’s alternative requirement has no basis in law—Bucklew
grounded that requirement in the Constitution and thus cannot be said to violate the
Constitution or religious liberty statutes—and in any event that complaint is properly
directed at the Supreme Court, not Appellees. And Appellants’ “human
experimentation” claim has been properly rejected by this Court and the court below,
notwithstanding Appellants’ mischaracterization of rulings from other district courts
and the ruling of the district court below.
Finally, the district court did not abuse its discretion in holding the equities did
not merit a stay. Appellants allege the irreparable harm of an unconstitutionally painful
execution but failed to actually make arguments and adduce evidence in their request
for an injunction showing that such harm was to occur, while Appellees provided expert
evidence showing that it was not. Meanwhile, the Supreme Court has repeatedly
recognized the State’s and victims’ important interests in seeing valid state judgments
enforced, and an injunction would serve only to delay justice and inflict further
13
emotional trauma on Appellants’ victims. As the Supreme Court has made clear, stays
of execution should not be lightly granted and are not warranted merely because a
challenge to a method of execution exists—much less here, where other plaintiffs are
headed to trial but Appellants have already lost. The district court did not abuse its
discretion in denying a preliminary injunction.
ARGUMENT
This Court reviews rulings on injunction motions for abuse of discretion. Warner,
776 F.3d at 727-28. The district court abuses its discretion if it “denied the preliminary
injunction on the basis of a clearly erroneous factual finding or an error of law.” Id. at
728. “A preliminary injunction is an extraordinary and drastic remedy.” Id. (citation and
internal marks omitted).
A plaintiff seeking any injunction must show that (1) the movant is substantially
likely to succeed on the merits, (2) the movant is likely to suffer irreparable injury if the
court denies the injunction, (3) the threatened injury, absent the injunction, outweighs
the opposing party’s injury from the injunction, and (4) the injunction is not adverse to
the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Hill v.
McDonough, 547 U.S. 573, 584 (2006). The movant bears the burden of proof on each
of the factors. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188-89 (10th Cir. 2003). As
is relevant here, last-minute execution stays are especially disfavored. See Dunn v. Price,
14
139 S. Ct. 1312, 1312 (2019); Bucklew v. Precythe, 139 S. Ct. 1112, 1133-34 (2019); Hill,
547 U.S. at 583-84; Hamilton v. Jones, 472 F.3d 814, 816 (10th Cir. 2007).
I. The district court correctly concluded that Appellants are unlikely to

succeed on the merits.
A. Appellants are not likely to succeed on their claim that

Oklahoma’s midazolam protocol is sure or very likely to cause
them severe pain.
In order to succeed on their Eighth Amendment claim, Appellants “face an
exceptionally high bar.” In re Fed. Bureau of Prisons’ Execution Protocol Cases, 980 F.3d 123,
143 (D.C. Cir. 2020) (Rao, J., concurring in part); see also Barr v. Lee, 140 S. Ct. 2590,
2591 (2020). First, they must show “that Oklahoma’s lethal injection protocol creates a
demonstrated risk of severe pain”—a risk that is “sure or very likely.” Glossip, 576 U.S.
at 877-78. Second, they must “plead and prove a known and available alternative.” Id.
at 880. The district court correctly concluded that Appellants are unlikely to succeed on
Count II because they cannot meet either, much less both, of these two elements.
Appellants’ arguments and evidence presented to the district

court do not show likelihood of success.
In moving for an injunction in the district court, Appellants did not even argue
they are likely to succeed on the first element of the test reaffirmed in this case by the
Supreme Court’s decision in Glossip. See ROA.Vol.11, 1125-54. On some level, this is
15
not surprising: both precedent (including the Supreme Court’s decision in this case)2
and the evidence presented at the injunction hearing regarding midazolam,3 is squarely
against them. Any arguments on this score presented now for the first time on appeal
are therefore waived.
Instead, Appellants argued that because their co-plaintiffs survived summary
judgment on Glossip’s first element, Appellants need not show their likelihood of
success on the merits. ROA.Vol.11, 1136; Appellants’ Br. 17-18. But whether a claim is
likely to succeed is very different from whether it is so lacking in material factual
disputes as to be subjected to summary judgment. See Mazurek v. Armstrong, 520 U.S.
968, 972 (1997). “[T]he proof required for the plaintiff to obtain a preliminary
injunction is much more stringent than the proof required to survive a summary
2
See, e.g., Glossip, 576 U.S. at 881-93; In re Ohio Execution Protocol Litig., 946 F.3d 287 (6th
Cir. 2019), cert. denied sub nom. Henness v. DeWine, 141 S. Ct. 7 (2020); In re Ohio Execution
Protocol Litig., 881 F.3d 447 (6th Cir. 2018); In re Ohio Execution Protocol, 860 F.3d 881
(6th Cir. 2017); McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en banc);
Grayson v. Warden, 672 F. App’x 956 (11th Cir. 2016); Arthur v. Comm’r, Alabama Dep’t of
Corr., 840 F.3d 1268, 1303 (11th Cir. 2016); Brooks v. Warden, 810 F.3d 812 (11th Cir.
2016); McGehee v. Hutchinson, 463 F. Supp. 3d 870 (E.D. Ark. 2020); Gray v. McAuliffe,
No. 3:16CV982-HEH, 2017 WL 102970 (E.D. Va. Jan. 10, 2017); Loden v. State, 264 So.
3d 707 (Miss. 2018); Jordan v. State, 266 So. 3d 986 (Miss. 2018); Abdur’Rahman v. Parker,
558 S.W.3d 606, 613 (Tenn. 2018) (noting trial court ruling).
3
ROA.Vol.13, 225-52, 254-313. Other courts have also found Mr. Hahn’s testimony
insufficient to warrant an injunction, including in relation to Dr. Antogini’s testimony.
See, e.g., In re Ohio Execution Protocol, 860 F.3d at 889-90; Arthur v. Comm’r, Alabama Dep’t
of Corr., 695 F. App’x 418 (11th Cir. 2017).
16
judgment motion. . . .” Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000) (collecting cases).
Claims can involve disputed facts and still be unlikely to succeed. One involves
determining whether there is a contention; the other involves a merits determination of
which side is likely to succeed in that contention. A stay of execution “is not available
as a matter of right” merely because an inmate has a still-viable claim. Hill, 547 U.S. at
584; see also Warner, 776 F.3d at 727-28 & n.5. Rather, they must still show a likelihood
of success on the merits. Id. Here, Appellants failed to do so. There is nothing
“incongruous and irreconcilable,” Appellants’ Br. 17, about a court holding that an issue
presents a material dispute of fact and holding that, when those facts are weighed, one
side is not likely to succeed on the merits.
The district court’s denial of an injunction based on the live testimony evidence
presented at the injunction hearing was entirely proper. There was no “erroneous view
of the law” or “clearly erroneous assessment of the evidence” on the first Glossip
element. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). On this basis alone,
the district court’s denial of an injunction should be affirmed as to Count II, without
even having to reach Glossip’s second element.
The summary judgment record does not warrant reversal.
After failing to contest Glossip step one in their injunction motion below,
Appellants now want this Court to consider arguments they never made to the district
court. They argue that the district court “erroneously disregarded” record evidence that
17
was presented at the summary judgment stage. Appellants’ Br. 14. That is misleading:
Appellants did not proffer any of that evidence at the injunction hearing, nor did they
ask the district court to consider it. Again, this argument is therefore waived.
In fact, in advance of the hearing Appellants proposed submitting one of their
expert witness affidavits used at summary judgment as an exhibit, ROA.Vol.11, 1250,
but then they did not proffer it to the district court during the hearing itself, have it
admitted as an exhibit, or otherwise argue its contents. As a result, the district court
correctly concluded that Dr. Antognini’s live testimony was “unrebutted” at the motion
hearing. ROA.Vol.13, 340. Appellees subjected their expert to credibility
determinations and cross-examination in order to ensure his testimony was properly in
the injunction record and validly considered by the district court; Appellants did not
and now cry foul. The district court did not commit an error of law or clear error fact
by not giving dispositive weight to experts Appellants refused to produce for sworn
oral testimony and cross-examination in open court. And Appellants cannot now
prevail based on expert opinions they deliberately blocked Appellees from cross-
examining in court.
None of Appellants’ cited authority requires a district court to sua sponte consider
record evidence not actually asserted or identified by Appellants in an injunction motion
or hearing in support of the requested injunction. The three cases Appellants cite, see
Appellants’ Br. 16-17, all involve acknowledgment by district courts that they
18
considered other evidence in the record, not any statement that such consideration was
required. Indeed, Appellants apparently cannot find a single court that requires sua sponte
consideration of uncited portions of a record.
Even so, Appellants fail to flag that the district court below actually did
acknowledge the summary judgment record, despite the lack of arguments on that point
from Appellants. In particular, the judge explained that he had personally read all of the
(eleven) expert reports the parties submitted for summary judgment, and he was “not
going to have a lobotomy” in regard to those materials when assessing likelihood of
success. ROA.Vol.13, 257-58. Nevertheless, the court only admitted Dr. Antognini’s
report as substantive evidence at the hearing because he alone was testifying in court
and subject to cross-examination. See id. Any obligation the district court had to sua
sponte consider the summary judgment record was therefore satisfied, especially since
the court was weighing un-cross-examined affidavits against live cross-examined
testimony that it could evaluate for credibility.
In the end, no amount of misdirection or meritless arguments against the district
court’s reasonable approach can change the fact that Appellants are unlikely to succeed
at Glossip’s first element. As the Supreme Court has observed, “numerous courts have
concluded that the use of midazolam as the first drug in a three-drug protocol is likely
to render an inmate insensate to pain.” Glossip, 576 U.S. at 881-82 (collecting cases).
Since then, more states have adopted and used a 500-milligram midazolam protocol
19
without incident, and more courts have arrived at the same conclusion as the Supreme
Court in Glossip. See supra n.2; Cf. Barr, 140 S. Ct. at 2591 (noting similar reasons to
uphold the use of pentobarbital). As the district court has recognized, “in the last ten
years, authorities in various states have accumulated a significant body of experience
using midazolam as a lethal injection drug.” ROA.Vol.1, 537. Thus, this Court—
affirmed by the U.S. Supreme Court—rejected previous attempts to enjoin executions
using Oklahoma’s 500 milligram midazolam protocol. See Glossip, 576 U.S. at 881-93.
Appellants offer little reason or evidence that would cast doubt on those rulings.
To go further into the specifics, the execution protocol’s dose of midazolam “is
highly likely to render a person unable to feel pain during an execution.” Glossip, 576
U.S. at 881. Midazolam at sufficient doses (including a 500 milligram dose) is capable
of putting patients in general anesthesia for surgery—a standard higher than required
for executions—as seen during midazolam’s regular use in endotracheal intubation and
in studies using midazolam or other benzodiazepines while monitoring brain activity.
Defs’ Ex. 1,4 Antognini Report at ¶¶ 24, 33-36, 45-47; ROA.Vol.3, 270-71 at ¶¶ 8-10,
11; ROA.Vol.2, 94-95 at ¶¶ 19-20; see also In re Ohio Execution Protocol, 860 F.3d at 888;
Loden, 264 So. 3d at 713. Indeed, midazolam is approved by the FDA for the induction
of anesthesia, has been used to induce anesthesia both clinically and in medical research,
4
This document was admitted as evidence at the injunction hearing, ROA.Vol.13, 257-
258, and is also on the docket at ROA.Vol.3, 206-267.
20
is used regularly for short procedures, and produces surgical anesthesia in animal
studies. ROA.Vol.3, 213-25 at ¶¶ 13-15, 17-20, 23, 32; ROA.Vol.3, 271-73 at ¶¶ 11, 13-
14; ROA.Vol.2, 94-104 at ¶¶ 18, 20, 23-25, 27, 31, 37; cf. Glossip, 576 U.S. at 884-85.
And the “fact that a low dose of midazolam is not the best drug for maintaining
unconsciousness during surgery says little about whether a 500-milligram dose of
midazolam is constitutionally adequate for purposes of conducting an execution.”
Glossip, 576 U.S. at 886; see also McGehee, 463 F. Supp. at 881, 884, 913. Even if there is
any uncertainty as to whether midazolam can reliably produce general anesthesia, this
is insufficient to show likelihood of success on the high bar of Glossip’s first step, which
requires showing that the risk of severe pain is both demonstrated and sure or very
likely. See In re Ohio Execution Protocol Litig., 881 F.3d at 451-53; see also In re Ohio Execution
Protocol, 860 F.3d at 886-88; McGehee, 854 F.3d at 492-93; McGehee, 463 F. Supp. 3d at
913.
Of course, Glossip’s first step does not require general anesthesia or a deep
coma—i.e. an absolutely painless execution—only that a method of execution does not
produce a demonstrated and sure or very likely risk of severe pain See In re Ohio Execution
Protocol Litig., 881 F.3d at 452-53. “Some risk of pain is inherent in any method of
execution,” so “the Constitution does not demand the avoidance of all risk of pain in
carrying out executions.” Baze, 553 U.S. at 47. Midazolam at sufficient doses can reliably
produce at least deep sedation, and sedation generally and with midazolam specifically
21
reduces the conscious experience of pain. See ROA.Vol.3, 217-28 at ¶¶ 21, 25-28, 37;
ROA.Vol.3, 270-71 & 274-75 at ¶¶ 10, 20. Appellants have not put forward any
evidence from the medical literature showing that inmates, at the reduced consciousness
of deep sedation, are sure or very likely to experience severe pain from the drugs used in
the execution. See Antognini, supra n.4, ¶¶ 32, 49; ROA.Vol3, 276, ¶ 25; ROA.Vol2, 101-
104, ¶¶ 32, 37; ROA.Vol3, 160-161; ROA.Vol.3, 463, 465-466.; cf. In re Ohio Execution
Protocol Litig., 946 F.3d at 290-91; In re Ohio Execution Protocol Litig., 881 F.3d at 452-53
(“rendering a subject completely insensate to pain, is not constitutionally required”); In
re Ohio Execution Protocol, 860 F.3d at 890.
Thus, while Appellants point to the opinion of Dr. Stevens regarding the
potential pain of vecuronium bromide and potassium chloride while sedated by
midazolam, Appellants’ Br. 15-16, the record on summary judgment shows Appellants
are unlikely to succeed in proving this opinion. In endotracheal intubation, midazolam
is used alongside muscle relaxants like vecuronium bromide without reports of patient
suffering or severe distress. Antognini, supra n.4, ¶¶ 25-31; ROA.Vol.3, 279-280. Studies
cited by both sides show that sedation, including with benzodiazepines, can relieve the
distress caused by muscle relaxants. See Antognini, supra n.4, ¶ 48; ROA.Vol3, 369-372.
Meanwhile, Dr. Stevens is not aware of any studies that describe any suffering from
muscle relaxants while a person is sedated with midazolam or any other central nervous
system depressant. See ROA.Vol.3, 138-139, 149. And while Appellants point to Dr.
22
Stevens’ report stating that potassium chloride will feel like being “burned alive from
the inside,” Appellants’ Br. 15, this characterization is not present in any medical
literature and Dr. Stevens admitted it instead is “a little hyperbole.” ROA.Vol.3, 154-
156.
Appellants’ allegations about pulmonary edema are unlikely to succeed, as well.
Appellants’ Br. 14-15. They allege that autopsies of executed inmates (whether by
midazolam or some other drug) often show signs of pulmonary edema. Doc. 1 ¶ 72.
But this isn’t surprising: pulmonary edema is commonly found in autopsies, especially
in those who die of a drug overdose. Antognini, supra n.4, ¶ 33. “[T]he mere fact that a
method of execution might result in some unintended side effects does not amount to
an Eighth Amendment violation.” Glossip, 576 U.S. at 883 n.3. The relevant questions
are the level of consciousness of a prisoner being executed when any pulmonary edema
occurs, the severity of pulmonary edema at that point, and the quantum of pain a
prisoner is likely to experience at that severity and level of consciousness. See Barr, 140
S. Ct. at 2591; In re Fed. Bureau of Prisons’ Execution Protocol Cases, 980 F.3d at 137. And
on these points Appellants lack evidence.
Appellants have produced no proof that pulmonary edema developed before
death rather than post-mortem. See Antognini, supra n.4, ¶¶ 34-36. And even if it were
ante-mortem, only a fraction of inmates showed signs of severe pulmonary edema,
which does not satisfy Glossip’s “sure or very likely” requirement, while the pain of
23
asymptomatic or mild pulmonary edema does not meet Glossip’s test of “severe” pain.
See ROA.Vol.1, 742-743 (collecting record evidence). Moreover, even if there was
evidence of ante-mortem edema, Appellants and their experts offer no evidence beyond
ipse dixit with respect to the time in which the edema would be begin, its duration, and
the level of consciousness during these moments. See ROA.Vol.3, 408-409; ROA.Vol.4,
113, 210-214. Appellants and their experts have also not provided any medical literature
on the quantum of pain a person anesthetized or deeply sedated with midazolam would
feel even if undergoing severe pulmonary edema. See ROA.Vol.4, 98-101, 222; see also
ROA.Vol.2, 106, ¶ 43; ROA.Vol.3, 275, ¶ 21. Indeed, benzodiazepines (the class of drugs
that includes midazolam) are used in the treatment of pulmonary edema. Antognini, supra
n.4, ¶ 33.
Appellants’ remaining allegations are no better. Contrary to their arguments here,
Appellants did not appear to plead below that Oklahoma’s procedures or consciousness
checks themselves violated the Eighth Amendment. See ROA.Vol.1, 168-69 at ¶¶ 121-
126. But to the extent Appellants did intend to make that argument, such claims are
foreclosed by precedent. Baze examined many similar claims seeking more procedural
fail-safes, held them not constitutionally required, and then foreclosed any future claims
by stating: “A State with a lethal injection protocol substantially similar to the protocol
we uphold today would not create a risk that meets this standard.” 553 U.S. at 61.
24
Here, Oklahoma’s protocol has more safeguards than the one upheld in Baze.
Compare 553 U.S. at 45, 55-56 with ROA.Vol.1, 774 – Vol.2, 47. Rather than a potential
Eighth Amendment problem, the many procedural safeguards in Oklahoma’s protocol
solve or reduce any uncertainty about whether the drugs used create a sure or very likely
risk of severe pain. Glossip, 576 U.S. at 863. For example, even according to Appellants’
expert, a physical consciousness check like a sternum rub confirms a state of general
anesthesia, see ROA.Vol.3, 15, 46, 48-49, eliminating any purported risks of the
“reliability” of midazolam to induce that state. And the physician performing
Oklahoma’s consciousness check has said he could perform a sternum rub, see
ROA.Vol.3, 490, and evidently used one during John Grant’s execution, see supra
Statement of the Case Part III.
The director’s discretion under the protocol does nothing to change that
conclusion. Director Crow, who signed the protocol, has testified that it only gives him
limited discretion and that his discretion would not reach issues like the consciousness
check. See ROA.Vol.11, 135, 145-48, 150-53. Appellants’ witness Wilkinson, the former
director of Ohio’s Department of Rehabilitation and Correction, testified that in Ohio
he too had discretion for at least “minor” deviations from the protocol in appropriate
circumstances and that directors need such discretion “to a degree.” ROA.Vol.11, 210-
11, 157-58; see also id. at 222-23, 225-26, 203-31; ROA.Vol.10, 88 at ¶ 21. Wilkinson thus
25
admitted that Director Crow’s testimony “reflected a lot of what I would have agreed
with.” ROA.Vol.11, 228-29; see also id. at 210, 211-12.
For these reasons, whether based on the district court’s record on this motion,
which included Dr. Antognini’s unrebutted testimony, or based on the entire district
court record, Appellants are unlikely to succeed on Glossip’s first step. Midazolam
produces unconsciousness and thereby eliminates or substantially reduces the
experience of pain, and none of Appellants’ allegations about how the protocol may
cause pain are likely to hold up under scrutiny.
Judicial notice of extra-record evidence regarding John Grant’s

execution is improper.
Going farther afield, Appellants ask this court to consider evidence of the recent
execution that was not presented to the district court. See Appellant’s Br. 18-19. A
district court cannot abuse its discretion by failing to consider evidence that was not
presented to it—to the contrary, the court would abuse its discretion if it made any
rulings based on evidence not in the record. See Ellis v. J.R.’s Country Stores, Inc., 779 F.3d
1184, 1192 (10th Cir. 2015). Thus, Appellants cannot prevail in this appeal based on
evidence never available to the district court. See Cottriel v. Jones, 588 F. App’x 753, 757–
58 (10th Cir. 2014) (unpublished) (“[Cottriel] asks this court to take judicial notice of
an undated newspaper article, as well as prison grievances he filed in June, July, and
August of 2014. These documents were not submitted to the district court, so we do
not consider them.”).

26
Judicial notice is also inappropriate for a news article, regardless of the procedural
posture. News articles are a classic example of inadmissible hearsay. See, e,g., Neal v.
Bolton, No. 3:06CV17, 2008 WL 5156685, at *13 & n.3 (N.D. Fla. Dec. 9, 2008). For
good reason: the person authoring the article is offering an out-of-court statement for
the truth of the matter asserted, not subject to cross-examination, and may be giving an
inaccurate or uninformed view on the matter reported. See The Est. of Lockett by & through
Lockett v. Fallin, 841 F.3d 1098, 1111 (10th Cir. 2016) (“We will not take judicial notice
of the news articles to which Lockett’s Estate directs us because this is not the
appropriate setting for judicial notice. Judicial notice is proper when a fact is beyond
debate, for instance, what time the sun sets on a given day. When courts have taken
judicial notice of contents of news articles, they have done so for proof that something
is publically known, not for the truth of the article’s other assertions.”).
That problem applies with particular force here, where the proffered reporter’s
story is uninformed and inconsistent with Director Crow’s public account. See supra
Statement of the Case Part III. This is seen, for example, with respect to the differing
accounts on whether Grant was having “convulsions.” So it can hardly be said that the
events during Grant’s execution and the medical significance thereof are “beyond
debate,” Lockett, 841 F.3d at 1111, or “not subject to reasonable dispute,” Appellants’
Br. 18-19. Tellingly, Appellants cherry-pick Director Crow’s comments without citing
the source for those comments—obfuscation at its most obvious. See id. at 2, 11-12, 19.
27
Moreover, the reporter Appellants rely upon lacks the medical training necessary
to distinguish between “convulsions” and unconscious attempts to breathe that are
expected to occur with a large dose of an anesthetic drug. The medical relevance of
such movements make them legally irrelevant: as Dr. Antognini explained in his
testimony—evidence that actually is in the preliminary injunction record—under
anesthesia airway obstruction can cause labored breathing, and such movements are not
indications that a person is in pain but instead that they are “at fairly deep levels of
anesthesia.” ROA.Vol.13, 258-270. The district court credited this testimony, like other
courts have, in holding that such movements by inmates fail to show a substantial risk
of severe pain. ROA.Vol.13, 338-342; In re Ohio Execution Protocol, 860 F.3d at 889-90;
Arthur, 695 F. App’x at 428. And Dr. Antognini’s expert report, also admitted as an
exhibit during the preliminary injunction hearing, similarly explains that such “lurching”
and “paradoxical movement of the chest and abdomen during attempts to breathe”
with an airway obstruction induced by anesthesia, “are commonly observed during
anesthesia” and “do not likely represent conscious awareness” or “an awake person
struggling to breathe.” Antognini, supra n.4, ¶ 44; see also ROA.Vol.3, 276 at ¶ 24
(movements like “generalized body jerking are not particularly uncommon … under
general anesthesia”).
Nor is the relatively common occurrence of regurgitation from a person
undergoing anesthesia reason to believe they are in extreme pain. Cf. Cooey v. Strickland,
28
589 F.3d 210, 231 (6th Cir. 2009) (“Even if a person [undergoing an execution with
midazolam] did vomit, they would not suffer pain because they would be
unconscious.”). Nausea and vomiting are known side effects in midazolam patients
according to the FDA label. ROA.Vol.8, 233. While Appellants criticize Director Crow
because he is not a physician, Appellants then turn around and offer their own uncited
and unsupported medical speculation regarding the effects of the regurgitation. See
Appellants’ Br. 2-3. By all accounts John Grant quickly was sedated after the midazolam
started to flow—his previous yelling and agitation disappeared within seconds. See supra
Statement of the Case Part III. And death occurred rapidly: within 12 minutes. See id.
Of course, the facts of John Grant’s execution were not before the district court
and therefore cannot form the basis for concluding that court made an error of law or
clear error of fact. If this Court nonetheless wants to consider evidence of John Grant’s
execution beyond unsworn disputed media reports, Appellees are prepared to file an
affidavit with this Court should it grant leave to do so. Regardless, Appellants have not
shown they are likely to succeed in Glossip’s first step, and John Grant’s recent execution
gets them no closer to clearing that significant hurdle.
B. Appellants are not likely to succeed on their claim that they plead
and prove alternative methods of execution.
The district court also correctly concluded that Appellants are unlikely to succeed
on Glossip’s second element. The burden of each Appellant is to show alternatives with
“constitutionally permissible” degrees of pain in order to challenge the existing

29
procedure. Bucklew, 139 S. Ct. at 1126; see also Brooks v. Warden, 810 F.3d 812, 822 (11th
Cir. 2016). This necessarily requires each of them to plead, and concede, that the
alternative methods they proffer are constitutional. The alternative requirement is not
solely so that courts can engage in a theoretical comparison, but also to avoid
embroiling the courts in never-ending litigation, “with each ruling supplanted by
another round of litigation touting a new and improved methodology.” Baze v. Rees, 553
U.S. 35, 51 (2008). It ensures Appellants are “more interested in avoiding unnecessary
pain than in delaying [their] execution.” Bucklew, 139 S. Ct. at 1128-29. Appellants’ tactic
of arguing that they can avoid pleading an alternative they contend can be
constitutionally used in their execution, and not subject to future challenge,
impermissibly seeks to challenge “the death penalty itself.” Glossip, 576 U.S. at 879-81.
Thus, as the district court held, “[p]leading a theoretically available method, while
declining to designate that method for actual use and reserving the right to litigate its
constitutionality, does not suffice.” ROA.Vol.11, 621.
Discovery confirmed that Appellants refused to plead an

alternative method of execution.
Appellants’ refusal to comply with this Court’s precedent is clear and adamant.
Their mere proffering of alternatives in their Complaint, while they “reserve the right
… to object to any proffered alternatives” in that same Complaint, ROA.Vol.1, 164-
166 ¶ 114, flouts the central purposes of the Eighth Amendment’s alternative
requirement. That requirement ensures that the alternative is a viable one (i.e. not itself
30
unconstitutional and subject to further challenge) and ensures that States are not mired
in endless rounds of litigation and thus practically unable to carry out lawful death
sentences. Order (10/27/2021) at 10-11 (citing Bucklew, 139 S. Ct. at 1115, 1126 and
Baze, 553 U.S. at 51-52) (Tymkovich, J., dissenting). The district court was not bound
“to accept pleading games” by Appellants meant to circumvent the Supreme Court’s
precedent. Id. at 11.
Even if Appellants’ faux-proffering of alternatives in their Complaint was
sufficient to make out an Eighth Amendment claim, this case has progressed far beyond
the Complaint stage, through discovery and summary judgment. And at summary
judgment, what is relevant is not “the mere pleadings themselves,” but the actual
evidence developed during discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
see also Bormuth v. Cty. of Jackson, 870 F.3d 494, 524 (6th Cir. 2017) (Sutton, J., concurring)
(“At the summary judgment phase of a case, parties no longer may rely on the pleadings.
… A complaint is not evidence. Briefs are not evidence.”); Lundgren v. Freeman, 307 F.2d
104, 118 (9th Cir. 1962) (“the conclusory statements in Lundgren’s complaint and his
list of contentions in the pre-trial order are not evidence on a motion for summary
judgment”).
Here, the facts at summary judgment revealed the actual nature of each plaintiff’s
proffer. Appellants claim they lost at summary judgment merely because they each did
not “‘check a box’ and select the specific alternative method by which he will be
31
executed.” Appellants’ Br. 20. But rather than rely on these characterizations, the Court
should carefully review the record to see what actually transpired below.
Plaintiffs’ Third Amended Complaint recognized Bucklew’s alternative
requirements but stated “Plaintiffs cannot be required to plead or prove an alternative
method of execution because such a requirement is a substantial burden on their
sincerely held religious beliefs.” ROA.Vol.1, 162 at ¶ 111. Then, rather than plaintiffs
directly proffering alternatives, the Complaint said “counsel alleges on behalf of Plaintiffs
(each of whom reserve the right following consultation with counsel to object to any
proffered alternative)” a set of four different possible alternatives. Id. at 164-66, ¶ 114
(emphasis added).
Given the outright rejection of Bucklew, the unusual alleging-through-counsel
rather than straightforward pleading, and the absolute reservation to object to the listed
alternatives, Appellees sought further clarity regarding the nature of Appellants’ claim.
Moreover, because Appellants and their co-plaintiffs did not bring a class action and
because Bucklew emphasized that for every plaintiff the alternative requirement is “a
requirement of all Eighth Amendment method-of-execution claims,” 139 S. Ct. at 1126,
the State also sought to clarify which alternative(s) each individual plaintiff was
advancing. So, in discovery, Appellees asked the following interrogatory: “For each
Plaintiff, identify which pled alternatives in ¶ 114 are being pled on behalf of that
particular Plaintiff.” In response, the plaintiffs all refused to respond, stating that
32
“alleging an alternative method of execution would make Plaintiffs complicit in their
own deaths in a way that is akin to suicide or assisting suicide, which is contrary to and
violates their sincerely held religious beliefs.” ROA.Vol.6, 344. Moreover, to confirm
that Appellants would not subject the State to endless rounds of litigation and instead
actually allege that the alternatives listed are constitutional, for each alternative listed in
the Complaint, Appellees sought an admission that the plaintiff will “waive all future
challenges to your method of execution if the State uses the [alternative] execution
protocol” listed. Id. at 339. Those requests for admission were denied. Id. Thus, far from
being a “red herring,” Appellants’ Br. 21, Appellants both in their complaint and in
discovery refused to concede the listed alternatives were constitutional and thus not
subject to a future challenge, and later in summary judgment again asserted that such
future challenges were “for another day,” ROA.Vol.9, 958.
Appellees sought summary judgment on these grounds as a clear violation of
Baze, Glossip, and Bucklew. ROA.Vol.1, 761-62. Although summary judgment was
warranted, the district court nonetheless gave all plaintiffs yet another bite at this apple
by ordering them to answer Appellees’ interrogatories instead of entering judgment
against them. ROA.Vol.9, 641. The district court did not provide a form for counseled
plaintiffs to “check a box,” but instead plaintiffs’ counsel drafted sworn statements
for each plaintiff with places for the inmate to identify the alternative(s) they were
pleading. Almost all plaintiffs, in these sworn statements, then expressly pled one or
33
more alternatives without reservation. See generally ROA.Vol.10, 529-Vol.11, 42. These
responses also clarified that the Complaint did not set forth alternatives for every
plaintiff because several plaintiffs did not select all of the alternatives in their Complaint.
See id. But the four Appellants here explicitly “decline[d] to identify an alternative
execution method” or otherwise “[s]uggest[] a method.” See ROA.Vol.10, 603 (Donald
Grant); id. at 651 (Julius Jones); id. at 358 (Gilbert Postelle); see also id. at 375 (Wade Lay).
Thus, the facts in the record unequivocally demonstrate Appellants refused to
identify an alternative by explicitly stating so in their interrogatory responses. Discovery
revealed that Appellants either withdrew any valid pleading of alternative contained in
their complaint or at least clarified that they, in their complaint and afterwards, were
refusing to meet Bucklew’s standards. In this manner, they are decidedly not similarly
situated with their co-plaintiffs or subject to disparate treatment. The district court did
not merely give Appellants’ co-plaintiffs a benefit not offered to Appellants, but instead
gave those co-plaintiffs “the benefit of the literal import of their supplemental
responses to defendants’ interrogatories,” which “intimate no reservation of a right to
challenge a proffered alternative.” ROA.Vol.11 392-93. Thus, Appellants’ Eighth
Amendment claim does not fail merely because they did not designate a method of
execution to be used in their case by “checking a box”; rather, their claim fails because
the evidence shows they repeatedly and explicitly repudiated the Supreme Court’s
precedent by refusing to identify an alternative method of execution in discovery unlike
34
their co-plaintiffs—despite the district court bending over backwards to allow them
every opportunity to do so.
The court below correctly rejected Appellants’ position as “wholly untenable”
under the Eighth Amendment. ROA.Vol.11, 392; see also ROA.Vol.11, 621-22;
ROA.Vol.13, 342-45. Each plaintiff’s individual assertions under Count II must comply
with Baze, Glossip, and Bucklew. Indeed, Appellants all-but-concede that they seek to
overturn the Supreme Court’s precedent by stating they should not be required to
“demonstrate[] [their] chosen method is ‘feasible and readily implemented,’”
Appellants’ Br. 25 (quoting Bucklew, 139 S. Ct. at 1125), in direct contravention of the
case they quote. Many parts of litigation can be derided as mere “checking a box”—like
the jurisdictional requirement to file a timely notice of appeal—but failure to meet such
requirements can validly end a plaintiff’s case.
Appellants’ later shifts in position did not warrant reversing

summary judgment.
Although Appellants’ position on these matters appeared to shift in inscrutable
ways after summary judgment was granted against them, these shifts are not enough to
warrant a preliminary injunction. Rather, as the district court noted, Appellants’ post-
judgment shifts appear to be gamesmanship “responsive to the exigencies of the
moment,” ROA.Vol.13, 344, and entertaining post-summary judgment changes in
litigation strategy “risks rewarding Appellants for playing delay games with the court
rather than serving the true function of their Glossip claim: to avoid unnecessary and
35
superadded pain associated with an unconstitutional method of execution.” Oct. 27
Order at 9 n.1 (citing Bucklew, 139 S. Ct. at 1129; Glossip, 576 U.S. at 879-80)
(Tymkovich, J., dissenting).
One of these many shifts that they raise in support of an injunction—for the first
time on appeal—arises from their reconsideration motion. See Appellants’ Br. 21. On
reconsideration, they alleged that they were not informed of the potential consequences
of their failure to select an alternative, and they offered newly-created evidence in the
form of affidavits to support this allegation. ROA.Vol.11, 474. The district court
rejected this argument. ROA.Vol.11, 623. Appellants did not raise this argument to the
district court in their preliminary injunction motion and it is therefore waived. The
district court cannot have abused its discretion by failing to further address an argument
that was not even presented to it.
Even so, Appellants’ allegations of having no reason or ability to know of the
potential consequences of their legal strategy are implausible at best. Appellants’ Br. 21.
It has been clear that failure to select an alternative is fatal to a method-of-execution
claim since at least Baze v. Rees, 553 U.S. 35, 61 (2008). The Supreme Court then
reminded Oklahoma inmates in particular of this requirement in Glossip v. Gross, 576
U.S. 863, 878-79 (2015). All plaintiffs explicitly acknowledged that requirement in their
Complaint, citing yet more recent Supreme Court case law affirming that requirement.
36
See ROA.Vol.1, 162 at ¶ 110 (citing Bucklew, 139 S. Ct. at 1125). Yet they persistently
refused to comply, as described above.
Moreover, the district court expressly gave all plaintiffs one last chance to
provide their pleaded alternatives instead of having judgment entered against them,
ROA.Vol.9, 641, and Appellees for a second time sought judgment on those grounds,
ROA.Vol.9, 677-85. Thus, Appellants cannot possibly have been surprised when the
district court granted summary judgment against them on August 11, 2021, having been
told by the courts and Appellees many times of this reality, and having acknowledged
the reality in their Complaint.
Even setting aside these notices, it also beggars belief that these Appellants—
represented by some of the most experienced capital defense litigators in the country
and a major international law firm—were kept in the dark by their counsel and thus
“did not know, and had no reason to believe” that a potential consequence of their
refusals in this litigation was entry of judgment against them. Appellants’ Br. 21.
Tellingly, counsel for plaintiffs have never confessed—not in the district court, and not
here—that they failed to perform their most basic duties as attorneys to inform their
clients of their legal rights and obligations, as well as the potential ramifications of a
particular legal strategy.
The district court correctly concluded Appellants’ change in position cannot
form the basis of reversing summary judgment under Rule 59(e). Doc. 493 at 14-15.
37
Appellants’ Rule 59(e) motion did not meet the “limited circumstances” of “(1) an
intervening change in the controlling law, (2) when new evidence previously was
unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Hayes
Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1004 (10th Cir. 2017). Their
position-switching affidavits after summary judgment was granted against them are not
evidence that “is newly discovered [and] if the evidence was available at the time of the
decision being challenged, that counsel made a diligent yet unsuccessful effort to
discover the evidence.” Buell v. Sec. Gen. Life Ins. Co., 987 F.2d 1467, 1472 (10th Cir.
1993). In any event, this Court has already ruled that the summary judgment granted
against them, and the denial of reconsideration, is not appealable at this time. See Nos.
21-6101, 21-6129, Order (10/15/2021). Appellants cannot backdoor a reversal of those
orders through an injunction appeal. Rather, the question here is, given that summary
judgment was granted against Appellants on Glossip’s second element, did the district
court abuse its discretion in holding they are not likely to succeed on the merits? The
answer is no.
It is the law of the case in Glossip, further reinforced by Bucklew, that failure to
plead a constitutional alternative is a “dispositive shortcoming.” Bucklew, 139 S. Ct. at
1121. Appellants therefore cannot be likely to succeed on the merits of this claim, and
their post-summary judgment attempts at shifting their strategy are no basis for
38
reversing the denial of an injunction. Thus, for this second and independently sufficient
reason, Appellants are unlikely to succeed on Count II.
C. Appellants are not likely to succeed on Counts VI and VII (Ex

Post Facto and Due Process).
Appellants’ arguments on Counts VI and Count VII are unlikely to succeed
because they have been rejected by every court to review them. “[M]ultiple Circuits
have found that a change in the method of execution does not increase a condemned
inmate’s punishment and, thus, does not implicate the Ex Post Facto Clause.” Matter of
Fed. Bureau of Prisons’ Execution Protocol Cases, No. 05-CV-2337, 2021 WL 127602, at *2
(D.D.C. Jan. 13, 2021) (collecting cases); see also ROA.Vol.11, 410-11. Because
Oklahoma’s execution law does not alter the punishment for Appellants’ crimes (death),
only the means to effectuate that punishment, neither the Ex Post Facto nor Due
Process Clauses are implicated.
As with many of Appellants’ claims, Counts VI and VII seek merely to backdoor,
via other constitutional provisions, extra requirements for executions beyond those
imposed by the Eighth Amendment. See Appellants’ Br. 33 (asserting that the claims
concerned whether midazolam inflicts “[a] significantly more painful lethal execution
method”). But “we know of no case, in the context of executions, in which the Supreme
Court has found a liberty interest to exist, based on the contours of the Eighth
Amendment, that goes beyond what that Amendment itself protects.” Whitaker v.
Livingston, 732 F.3d 465, 467 (5th Cir. 2013).

39
The ex post facto prohibition forbids the enactment of any law “which imposes a
punishment for an act which was not punishable at the time it was committed; or
imposes additional punishment to that then prescribed.” Cummings v. Missouri, 4 Wall.
277, 325-326 (1867). When the penalty remains death, changing the mode of death does
not violate this prohibition. See Malloy v. South Carolina, 237 U.S. 180, 183, 185 (1915);
Poland v. Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997) (citing Collins v. Youngblood, 497
U.S. 37, 52 (1990)); United States v. Tipton, 90 F.3d 861, 903 (4th Cir. 1996); United States
v. Chandler, 996 F.2d 1073, 1096 (11th Cir. 1993). “The substitution of the drugs used
in lethal injection does not alter [a plaintiff’s] sentence of death—it changes only the
way his sentence will be implemented.” Matter of Fed. Bureau of Prisons’ Execution Protocol
Cases, No. 05-CV-2337, 2021 WL 127602, at *3 (D.D.C. Jan. 13, 2021). Even an
allegation of a higher risk of pain and suffering imposed by the new protocol does not
change the analysis under the Ex Post Facto Clause. Zink v. Lombardi, 783 F.3d 1098,
1108 (8th Cir. 2015).
The analysis is the same for Okla. Const. art. V, § 54. A change in the method of
execution does not change the “penalty incurred,” id., which is still the death penalty,
let alone affect any accrued rights. Appellants’ reference to a case about whether a
marble board is still an unlawful slot machine after amendments to a law regarding slot
machines, One Chi. Coin’s Play Boy Marble Bd., No. 19771 v. State ex rel. Adams, 212 P.2d
129, 133 (Okla. 1949), is not remotely on point and adds nothing to the analysis. And
40
Appellants’ citation to a 1914 Oklahoma case omits the subsequent narrowing of that
case under Oklahoma law. See Cole v. Trammell, 358 P.3d 932, 941 (Okla. Ct. Crim. App.
2015). There, Oklahoma’s highest criminal court held a plaintiff was entitled to no relief
under that clause of the Oklahoma Constitution where the “penalty of ‘death’ as well
as the method, lethal injection, both remain unchanged.” Id.
For largely the same reason, the Due Process Clause is not implicated. Because
substituting drugs used in lethal injection does not amount to an additional punishment,
additional process is not required. Appellants have received all process due for the death
penalty—through the criminal justice system with its attendant procedural and
constitutional protections. The lack of a cognizable due process interest is fatal. See
Whitaker, 732 F.3d at 467. Appellants are unlikely to succeed on any of these claims.
D. Appellants are not likely to succeed on Count VIII (Religious

Freedom from Complying with Supreme Court Precedent).
Appellants are unlikely to succeed on appealing Count VIII because it is not
directed at actions of Appellees and is foreclosed by Supreme Court precedent, which
holds that alternative pleading is “compelled by our understanding of the Constitution.”
Bucklew, 139 S. Ct. at 1129.
To start, Appellants’ alleged free exercise burdens are not actually caused by
Appellees; instead Appellants argue the courts would infringe their sincerely held religious
beliefs by following Supreme Court precedent requiring them “to plead or prove an
alternative method of execution.” ROA.Vol.1, 162 at ¶ 111. But pleading a valid

41
alternative method of execution is a specific requirement that the Constitution places
on Appellants—a reality the U.S. Supreme Court repeatedly made clear in Bucklew. See
Bucklew, 139 S. Ct. at 1125-27. The “Eighth Amendment is the supreme law of the
land,” after all, and it “requires” “anyone bringing a method of execution claim” to put
forth a “comparative assessment.” Id. at 1128-29. Without properly advanced execution
alternatives, the “Eighth Amendment does not come into play.” Id. at 1125.
Appellants conceded the existence and origin of the alternative pleading
requirement in their complaint, as they must. See ROA.Vol.1, 177 at ¶ 165 (“Bucklew
assigns that [alternative pleading] requirement to the United States Constitution.”); id.
at 179, ¶ 175 (“[T]he alternative pleading requirement of Glossip burdens their exercise
of religion.”). This basic truth—and concession—renders Appellants’ religious exercise
claims untenable no matter how sincere or substantial Appellants’ underlying beliefs.
Just as the Fifth and Fourteenth Amendments’ contemplation of the permissible
deprivation of life with due process means that the Eighth Amendment cannot be
interpreted to categorically bar such deprivation of life, Gregg v. Georgia, 428 U.S. 153,
177 (1976), so too the First Amendment cannot be interpreted to forbid the very
pleading requirements demanded by the Eighth Amendment. In short, there can be no
religious exemption from a specific constitutional requirement, unless the exemption is
itself specifically spelled out in the Constitution.
42
The district court properly dismissed Appellants’ claim. ROA.Vol.1, 366. It then
later reaffirmed this conclusion, stating: “The notion that the Supreme Court, in
repeating the requirement to designate an alternative method in no less than three cases,
was oblivious to a possible religious liberty argument, is wholly untenable.”
ROA.Vol.11, 662 n.14.
Nonetheless, Appellants argued for the first time in their injunction motion—
their fourth attempt at relief overall—that the Eighth Amendment’s alternative-method
requirement discriminates on religious grounds and is therefore not neutral or generally
applicable. ROA.Vol.11, 1141.
Beyond forfeiting this argument, Appellants are also wrong on the merits. The
requirement to plead an alternative method is constitutional in origin. Bucklew, 139 S.
Ct. at 1125-27. So Appellants appear to be contending that the United States
Constitution itself “demonstrates a hostility toward religion.” Appellants’ Br. 24. Even
if true—and it hardly is—the First Amendment restricts what Congress (and, through
the Fourteenth Amendment, States) can do, not what other constitutional provisions
can dictate.
Setting that interpretive problem aside, the Eighth Amendment’s alternative-
method requirement is non-discriminatory and generally applicable, meaning that under
Employment Division v. Smith, the First Amendment’s Free Exercise Clause is not
triggered here. 494 U.S. 872, 879 (1990). There is “no doubt” that this requirement—
43
which is consistent with the “original and historical understanding of the Eighth
Amendment”—applies to “all Eighth Amendment method-of execution claims.”
Bucklew, 139 S. Ct. at 1125-26 (emphasis added) (quoting Glossip, 576 U.S. at 867). The
Bucklew test requires ruling against any plaintiff that fails to plead an alternative,
regardless of religion and regardless of whether the reason for failing to do so was
religious. It admits no exceptions. Cf. Fulton v. City of Philadelphia, Pa., 141 S. Ct. 1868,
1879 (2021) (“The creation of a formal mechanism for granting exceptions renders a
policy not generally applicable ….”). In the end, Appellants are not being executed
because of their religion or because of religious discrimination; they are being executed
because they committed capital murder and they haven’t met the Constitution’s
requirements for making an Eighth Amendment claim.
Furthermore, federal statutes cannot overcome constitutional requirements.
Neither the Religious Freedom Restoration Act (RFRA) nor the Religious Land Use
and Institutionalized Persons Act (RLUIPA) can undermine the Constitution’s
requirements because Congress cannot supersede the Eighth Amendment’s mandates
with regular legislation. Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is a proposition
too plain to be contested, that the constitution controls any legislative act repugnant to
it; or, that the legislature may alter the constitution by an ordinary act.”). The Appellants
cite no case where RFRA or RLUIPA has altered what the Constitution demands. Nor
could Congress make such an imposition on the States without amending the
44
Constitution. See City of Boerne v. Flores, 521 U.S. 507, 519-36 (1997). Thus, this Court
need not be distracted by the RFRA/RLUIPA test.
Even if RLUIPA was somehow applicable here, Appellants have not established
that their objection to the Baze/Glossip/Bucklew requirement is based on their religion;
rather, they only state their objection is “on moral, ethical, and/or religious grounds.”
ROA.Vol.10, 603, 651; see also ROA.Vol.1, 175-79. Thus, because Appellants could be
objecting based on non-religious moral or ethical grounds, it is not clear that religion is
at issue.
And contrary to Appellants’ claims, the State does have a compelling interest in
seeing sentences imposed by its juries carried out. “Both the State and the victims of
crime have an important interest in the timely enforcement of a sentence.” Hill, 547
U.S. at 584. Appellants can no more request an exemption from Bucklew than could a
plaintiff claim that a religious objection to using the court system would entitle them to
a stay of execution, even if those without such beliefs could challenge their judgment,
sentence, or method-of-execution in court. Of course, no one is compelling Appellants
to bring an Eighth Amendment claim, so no one is compelling them to identify
alternatives. But if they choose not to identify alternatives, the “Eighth Amendment
does not come into play.” Bucklew, 139 S. Ct. at 1128-29.
45
In short, Appellants argue that the courts are infringing on their religious
freedom through pleading requirements. These are not claims against Appellees, are
foreclosed by Supreme Court precedent, and have no likelihood of success.
E. Appellants are not likely to succeed on Count IX (human

experimentation).
Appellants are unlikely to succeed on Count IX because this Court has already
rejected it in this case. The court below was correct that Count IX lacks any foundation
in law. See ROA.Vol.11, 414; ROA.Vol.8, 181-83. This Court affirmed that legal
conclusion. See Warner, 776 F.3d at 727; see also Cooey, 589 F.3d at 229-30. So Appellants’
claim is foreclosed both by precedent and as law of the case. And since then, the
“experimentation” claim has only gotten weaker because although there has long been
experience with use of midazolam for executions, see Glossip, 576 U.S. at 881, that
experience has only grown: the parties agreed that states have used the 500-milligram
midazolam three-drug protocol over 36 times. Compare ROA.Vol.1, 731 at ¶ 16 with
ROA.Vol.9, 928.
Nor are Defendants aware of any court holding that a lethal injection method—
or any other execution method, for that matter—constitutes “experimentation” in
violation of the Constitution. Indeed, the Supreme Court has repeatedly lauded states
46
for their flexibility in execution methods to ensure they are humane. See Bucklew, 139 S.
Ct. at 1124; Glossip, 576 U.S. at 868; Baze, 553 U.S. at 40-42, 51, 62.5
Appellants’ attempts to distinguish this Court’s prior ruling on their
experimentation claim was soundly rejected by the court below. See ROA.Vol.11, 615-
21. Far from “suggest[ing] that such a claim is viable,” Appellants’ Br. 29, this Court’s
conclusion that human experimentation claims should be evaluated under Baze was, in
context, a clear rejection of such claims. Warner, 776 F.3d at 733, 736. When analyzing
the arguments against the dismissal of Count VII, this Court wrote that it had “already
considered and rejected a similar, if not identical, argument above.” Warner, 776 F.3d at
736. In its analysis of that “argument above,” this Court stated that:
Nothing in Baze . . . supports these arguments. To be sure, the protocol at

issue in Baze enjoyed widespread use at the time of the Supreme Court’s
decision. But that fact was not critical to, nor was it made a part of, the
Supreme Court’s key holdings in Baze. Indeed, if that were a requirement,
it would effectively prevent any state from revising its execution protocol.
Id. at 733. In short, this Court has already held in this case that human experimentation
claims should fail under Baze—a failure as a matter of law.
5 Indeed, if this Court accepts Appellants’ invitation to examine the entire district court record,
it should also note that Appellants’ primary witness who testified on experimentation concedes
that his theory is “novel”—a “bioethical theory or reflection or commentary” that is “not
subject to scientific assessment” and that has “not been picked up” by the bioethics
community at large. See ROA.Vol.3, 165-68
47
Appellants’ legal arguments based on Ohio cases rely on misleading quotations.
See ROA.Vol.11 614-15& nn.3-4. For example, the 2014 case that they quote,
Appellants’ Br. 28, says in the very next two sentences after their quotation:
But as odd as it sounds, this is not a problem until it is actually a problem.

The law teaches that Ohio is free to innovate and to evolve its procedures
for administering capital punishment until such experimentation
sufficiently risks running afoul of the constitutional protections afforded
every citizen, regardless of his or her status, crime, or punishment.
In re Ohio Execution Protocol Litig., 994 F.Supp.2d 906, 913 (S.D. Ohio 2014). Meanwhile,
the 2017 Ohio case Appellants cite was an order granting a motion to dismiss a similar
claim, noting that changing the protocol for a lethal injection method “does not amount
to a violation of Plaintiff’s substantive due process rights.” In re Ohio Execution Protocol
Litig., No. 2:11CV1016, 2017 WL 2964901, at *17 (S.D. Ohio July 12, 2017).
Appellants’ quotation from Rochin is no more helpful. See Appellant’s Br. 28
(quoting Rochin v. California, 342 U.S. 165 (1952)). It is true as a general matter that there
are constitutional limitations on bodily intrusions by government actors, but the case
cited for that proposition has nothing to do with human experimentation. Rochin dealt
with a defendant who “was handcuffed and taken to a hospital.” Rochin, 342 U.S. at 166.
A police officer then directed a doctor to pump the defendant’s stomach against his
will, finding two morphine capsules in the process. See id. Nothing in this case creates a
liberty interest against lethal injection punishment or otherwise modifies the applicable
Eighth Amendment standards.
48
Nor can Appellants’ arguments that the district court is attempting to engage in
human experimentation be taken seriously. The court below simply acknowledged the
State was likely to move forward with the executions of Appellants because they are the
plaintiffs without any live claims in the case, while noting that additional evidence from
those executions might be useful to the court in the upcoming trial. See ROA.Vol.11,
390-91 n.13; see also ROA.Vol.11, 620. Regardless, Count IX is foreclosed by law as this
Court has affirmed in this case. By definition it is unlikely to succeed.
II. The balance of equities does not favor a stay of execution.
Courts “should police carefully against attempts to use such [method-of-
execution] challenges as tools to interpose unjustified delay.” Bucklew, 139 S. Ct. at 1134.
“Last-minute stays should be the extreme exception, not the norm.” Id. And “equity
must be sensitive to the State’s strong interest in enforcing its criminal judgments
without undue interference from the federal courts.” Hill, 574 U.S. at 584.
On irreparable harm, Appellants are not challenging their convictions and
sentences. They will be condemned to die irrespective of the outcome of this litigation.
Rather, Appellants are challenging the method by which their executions will be carried
out. But they fail to demonstrate that the method of execution will cause irreparable harm,
for example, by showing they will suffer a constitutionally impermissible level of pain
as compared to another available and constitutional method they propose. See supra I.A.
49
The public interest will only be served by carrying out these executions without
further delay. Being executed while there are federal claims pending is no basis for an
injunction because that is the status with every condemned inmate who does so much as
file a complaint until after a full trial (or appeal). The existence of yet another lawsuit
has never been the standard for staying an execution. See Hill, 547 U.S. at 584; see also
Warner, 776 F.3d at 727-28 & n.5. And accepting a standard where an inmate is owed a
stay every time they have a live claim in federal court would as a practical matter halt
executions altogether.
Meanwhile, the State and the family members of the Appellants’ victims have an
important, protectable interest in the timely enforcement of the sentence imposed by
the jury. Bucklew, 139 S. Ct. at 1133-34. It has been twenty-two years since Julius Jones
murdered Paul Howell; twenty years since Donald Grant murdered Brenda McElyea
and Suzette Smith; seventeen years since Wade Lay murdered Kenneth Anderson; and
sixteen years since Gilbert Postelle murdered Amy Wright, James Alderson, Terry
Smith, and Donnie Swindle. “The people of [Oklahoma], the surviving victims of [the
Plaintiffs’] crimes, and others like them deserve better.” Id. at 1134. So “[b]oth the State
and the victims of crime have an important interest in the timely enforcement of a
sentence.” Hill, 547 U.S. at 584.
These interests are all the more heightened with executions soon to take place.
The State has invested much effort in preparing for the executions. Moreover, the
50
setting of new execution dates triggered clemency hearings that involved not only
significant preparation for State entities, but also burdensome emotional labor and
trauma for the victims’ families. An injunction now, which would require the setting of
an execution date at some later date, could potentially lead to yet another clemency
hearing, further impacting the victims. The victims do not deserve the retraumatization,
dashed expectations, and delayed justice granting an injunction would entail. Nor does
the recent recommendation of clemency for Appellant Jones counsel in favor of an
injunction, Appellants’ Br. 35, because the Governor has the discretion to grant
clemency prior to the execution even if the execution is not enjoined.
Nor should this Court set aside these concerns because of any alleged delay in
developing a new execution protocol. Regardless of the time it took the State to
improve its protocol, the lack of executions since the Supreme Court’s 2015 decision
in Glossip was primarily due to inability to find execution drugs (until 2020)6 and the
prior Attorney General’s remarks about seeking execution dates while Appellants still
6
See Barbara Hoberock, State prepares for first execution in nearly seven years on Thursday,
TULSA WORLD (Oct. 27, 2021), https://tulsaworld.com/news/state-and-
regional/crime-and-courts/state-prepares-for-first-execution-in-nearly-seven-years-on
-thursday/article_2c171cda-3692-11ec-9b21-53c803003c65.html (noting that “[i]n
March 2018, Oklahoma announced that it would use nitrogen gas to execute
condemned inmates because it could not find the drugs for the lethal-injection process”
but that “[t]wo years after the announcement about using nitrogen gas, the state said it
had secured a reliable source for the drugs and would resume executions by lethal
injection.”).
51
had live claims at the district court, supra p.4—which, after summary judgment was
granted on all claims against Appellants in August 2021, is no longer the case. In any
event, the State’s care in crafting an execution protocol and pursuit in acquiring
execution drugs is no reason to discount the State’s interest in timely execution of
sentences.
This Court also should not discount the State’s interests because of the upcoming
February 28, 2022 trial. Even after the trial, the district court will take an unknown
amount of time to enter a ruling—and then there are post-judgment rulings, appeals,
and more appeals. This Court’s prior ruling that a stay is appropriate until all claims are
finally litigated—a ruling vacated by the Supreme Court—is not the standard for a stay
that the Supreme Court has ever countenanced. See Hill, 547 U.S. at 584; Warner, 776
F.3d at 727-28 & n.5.
Finally, there is the matter of Appellants’ timing. They could have moved for an
injunction when the execution dates were requested on August 25 or set on September
20. After all, both their Rule 59(e) motions in district court and their Rule 54(b) appeals
at this Court, even if successful, wouldn’t have stayed their executions. And even with
respect to their prior appeals, Appellants chose to forego their right to an immediate
appeal and argue the district court’s entry of a final judgment was improper under Rule
54(b). Last-minute stays should be the extreme exception, not the norm, and “the last-
52
minute nature of an application” that “could have been brought” earlier “may be
grounds for denial of a stay.” Bucklew, 139 S. Ct. at 1134 (quoting Hill, 547 U.S. at 584).
For all of the reasons above, the district court correctly concluded that the
balance of equities weighs against an injunction, which would only put the family
members of Appellants’ victims through yet another postponement for claims that have
no merit.
CONCLUSION
This Court should affirm the district court’s denial of an injunction.
Respectfully submitted,
s/ Mithun Mansinghani
BRYAN CLEVELAND MITHUN MANSINGHANI
ZACH WEST Solicitor General
ANDY N. FERGUSON OFFICE OF ATTORNEY GENERAL
Assistant Solicitors General STATE OF OKLAHOMA
313 N.E. 21st Street
Oklahoma City, OK 73105
Phone: (405) 521-3921
mithun.mansinghani@oag.ok.gov
Counsel for Appellees
53
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Fed. R. App. P. 32 and 10th
Cir. R. 32 because it was prepared in a proportionally spaced font (Garamond, 14-point)
using Microsoft Word 2016. The document complies with the type-volume limitation
of Fed. R. App. P. 32, because it contains 12,952 words, excluding the parts exempted.
MITHUN MANSINGHANI
CERTIFICATE OF DIGITAL SUBMISSION
All required privacy redactions have been made as required by 10th Cir. R. 25.5 and the
ECF Manual. Additionally, this filing was scanned with Symantec Endpoint Protection
antivirus using the latest version (14.2), most recently updated on November 8, 2021.
MITHUN MANSINGHANI
CERTIFICATE OF SERVICE
I certify that on November 8, 2021, I caused the foregoing to be filed with this Court
and served on all parties via the Court’s CM/ECF filing system. The seven required
paper copies, each of which is an exact replica in form and content, will be dispatched
via commercial carrier for receipt within five business days after the court issues a notice
that the electronic version is accepted for filing.
MITHUN MANSINGHANI
54

U S C A T C: Plaintiffs-Appellants

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Appellate Case: 21-6139 Document: 010110602130 Date Filed: 11/08/2021 Page: 1

UNITED STATES COURT OF APPEALS

JOHN M. GRANT, et al.,

On appeal from the United States District Court

BRYAN CLEVELAND MITHUN MANSINGHANI

ORAL ARGUMENT IS NOT REQUESTED

TABLE OF AUTHORITIES.......................................................................................................... iii

JURISDICTIONAL STATEMENT .................................................................................................. 1

PRIOR OR RELATED APPEALS .................................................................................................. 1

STATEMENT OF THE CASE........................................................................................................ 3

SUMMARY OF THE ARGUMENT .............................................................................................. 11

A. Appellants are not likely to succeed on their claim that Oklahoma’s

The summary judgment record does not warrant reversal. ........................... 17

Judicial notice of extra-record evidence regarding John Grant’s execution

Appellants’ later shifts in position did not warrant reversing summary

D. Appellants are not likely to succeed on Count VIII (Religious

II. THE BALANCE OF EQUITIES DOES NOT FAVOR A STAY OF EXECUTION............... 49

CERTIFICATE OF SERVICE ...................................................................................................... 54

Arthur v. Comm’r, Alabama Dep’t of Corr.,

Arthur v. Comm’r, Alabama Dep’t of Corr.,

Bormuth v. Cty. of Jackson,

Buell v. Sec. Gen. Life Ins. Co.,

Celotex Corp. v. Catrett,

City of Boerne v. Flores,

Cooter & Gell v. Hartmarx Corp.,

Ellis v. J.R.’s Country Stores, Inc.,

Emp’t Div. v. Smith,

Fulton v. City of Philadelphia, Pa.,

Grant et al. v. El Habti et al.,

Hayes Family Tr. v. State Farm Fire & Cas. Co.,

Heideman v. S. Salt Lake City,

In re Fed. Bureau of Prisons’ Execution Protocol Cases,

In re Ohio Execution Protocol Litig.,

In re Ohio Execution Protocol Litig.,

In re Ohio Execution Protocol Litig.,

In re Ohio Execution Protocol Litig.,

In re Ohio Execution Protocol,

In re Setting of Execution Dates,

Malloy v. South Carolina,

Matter of Fed. Bureau of Prisons’ Execution Protocol Cases,

The Est. of Lockett by & through Lockett v. Fallin,

United States v. Chandler,

United States v. Tipton,

Winter v. Nat. Res. Def. Council, Inc.,

OKLA. CONST. art. V, § 54 ..................................................................................................... 40

KOKH Staff, Oklahoma Department of Corrections addresses execution of John Grant,

PRIOR OR RELATED APPEALS

Lay et al. v. El Habti et al., No. 21-6101 (10th Cir.)

Grant et al. v. El Habti et al., No. 21-6129 (10th Cir.)

Warner v. Gross, 776 F.3d 721 (10th Cir. 2015)

Glossip v. Gross, 576 U.S. 863 (2015)

Grant et al. v. El Habti et al., No. 21A116 (S. Ct.)

Court vacated stays of execution in this case. Notwithstanding Appellants’ inaccurate

STATEMENT OF THE CASE

I. Background of this Case

necessary execution drugs. As a result, on February 13, 2020, the Department of

the information specified in the October 2015 stipulation.

concern about being rushed to adjudicate plaintiffs’ claims if executions restarted as

his tenure. See ROA.Vol.13, 182-83, 336-37.

constitutional alternatives to the current method of execution. ROA.Vol.13, 640. The

court nonetheless “decline[d] to impose on these individual plaintiffs the consequences

to identify an alternative method of execution. See ROA.Vol.10, 603 (Donald Grant);

judgment to Appellees in part on August 11, 2021. ROA.Vol.11, 376-418. In regard to