Petition for Rehearing en Banc

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

RUSSELL BUCKLEW, ) )

Plaintiff, ) ) ) v. ) No. 14-2163 ) GEORGE LOMBARDI, et al. ) ) Defendants. )

PETITION FOR REHEARING AND REHEARING EN BANC

The decision of the panel conflicts with the decisions of the United States

Supreme Court in Baze v Rees, 535 U.S. 35 (2008) and Brewer v. Landrigan, 131 S.Ct.

445 (2010). The decision of the panel also conflicts with the decision of this court in In re

Lombardi, 741 F.3d 888 (8th Cir. 2014)(en banc) and Clemons v. Delo, 535 F.3d 1119 (8th

Cir. 2009). En banc consideration is necessary to maintain the uniformity of this Court’s

decisions, and the case presents a question of exceptional importance: Do the United

States Supreme Court precedents in Baze and Brewer and this Court’s decision in In re

Lombardi control in cases making “as-applied” challenges to a method of execution as

well to cases making facial challenges to a method of execution?

Appellate Case: 14-2163 Page: 1 Date Filed: 05/20/2014 Entry ID: 4156138

2

I. This Court should vacate the stay of execution because the Panel’s holding

that Baze and In re Lombardi do not control as-applied challenges to execution

methods is contrary to precedent and bad policy.

The thrust of the panel decision is that this Court need not follow the decisions in

Baze and In re Lombardi because those decisions involved a facial challenge to a

method of execution, but Bucklew alleges Missouri execution procedures are

unconstitutional only as applied to him because of a physical infirmity that might

increase the risk of pain from an execution. But Clemons v. Crawford, 585 F.3d 1119

(8th Cir. 2009) was an as-applied challenge that used the controlling Baze standard. The

plaintiffs in Clemons alleged not that the execution protocol itself was defective but

rather that the lack of training of execution team members made the protocol

unconstitutional as applied to particular inmates. The proposition that In re Lombardi

and through it Baze do not control as applied challenges directly conflicts with Clemons.

Rehearing en banc is necessary to maintain uniformity of the Court’s decisions.

Baze and In re Lombardi dictate the plaintiff must set out a feasible alternative

method of execution that will substantially reduce a serious risk of pain. Only if a State

does not adapt a feasible readily implemented alternative that in fact significantly reduces

a substantial risk of severe pain does the execution violate the Eighth Amendment. Baze,

553 U.S. at 52. The standard is high and intentionally so, so that the court does not

become a “best practices” committee, “with each ruling supplemented by another round

of litigation touting a new and improved methodology.” Id. at 51. Bucklew does not even

purport to offer an alternative. Instead he alleges he cannot be executed at all because his


3

medical condition may increase pain from the execution. The panel decision therefore

conflicts with Baze, In re Lombardi and Clemons. The panel rejects the Baze requirement

that the condemned must allege and demonstrate an alternative to the criticized portion of

the protocol in as applied challenges. No precedent of this Court or the United States

Supreme Court supports that proposition. The holding is in fact a way to avoid the

requirements of Baze and In re Lombardi that would swallow those precedents, because

one could always make some as-applied challenge. The panel cites Baze to support its

conclusion (Panel Op. at 13). But the Baze Court noted that an execution with torture has

a lawful alternative, an execution without torture.

II. The panel decision also conflicts with United States Supreme Court precedent

because Bucklew’s speculation does not show he is sure or very likely to endure

serious illness and needless suffering as a result of an execution.

As the dissent in the panel opinion pointed out, Baze and Brewer require Bucklew

show an execution is sure or very likely to cause serious illness and needless suffering,

Panel Decision at 16 (Loken J. dissenting). Bucklew has fallen “well short of that

standard.” Id. at 17. See also District Court Document 17 at 8, holding Bucklew does not

indicate the extremity of pain he might suffer, or the length of such pain and his pain and

that his claim is based on speculation. Therefore, the panel decision conflicts with United

States Supreme Court precedent for a reason independent of the reasoning of In re

Lombardi. That is as the dissent points out, the speculation he presents about what might

go wrong falls well short of the standard in Brewer and Baze, creating an independent

conflict.


4

III. Conclusion

This Court should grant rehearing en banc and vacate the stay of execution.


5

Respectfully submitted,

CHRIS KOSTER Attorney General /s/ Michael J. Spillane Michael J. Spillane Assistant Attorney General Missouri Bar No. 40704 PO Box 899 Jefferson City MO 65102 Phone: 573.751.0967 Fax: 573.751.3825 [email protected] ATTORNEYS FOR RESPONDENT

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was electronically filed by using the CM/ECF system on this 20th day of May, 2014. This Court’s electronic filing system should serve counsel for the plaintiffs, as all are electronic filers. s/ Michael J. Spillane Michael J. Spillane Assistant Attorney General


Petition for Rehearing en Banc

Documents

Transcript of Petition for Rehearing en Banc