924 F.3d 1171
11th Cir.2019Background
- Bobby Joe Long was convicted and sentenced to death for the 1985 murder of Michelle Denise Simms; his convictions became final in 1993 after resentencing and appellate review.
- After multiple state and federal postconviction proceedings and a denied clemency, Florida set Long's execution for May 23, 2019.
- Seven days before the execution, Long filed a 42 U.S.C. § 1983 suit challenging Florida's lethal injection protocol and related procedures, and sought an emergency TRO/preliminary injunction/stay.
- Long raised five principal claims: (1) three-drug protocol generally unconstitutional; (2) etomidate facial challenge as the first drug; (3) etomidate unconstitutional as-applied given his medical conditions; (4) state obstructed public-records requests and refused protocol information; (5) warden denied requested execution-witness and attorney-access exceptions.
- The district court denied emergency relief, concluding Long’s claims were barred by res judicata; the Eleventh Circuit affirmed, also noting Long’s inexcusable delay in filing as an independent basis for denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of three-drug protocol under Eighth Amendment | Three-drug protocol (vs single-drug) risks severe pain and is unconstitutional | Protocol has been used long-term; claim is untimely and precluded by state-court adjudication | Denied — barred by inexcusable delay and res judicata |
| Facial challenge to etomidate as first drug | Etomidate creates substantial risk of severe pain compared to pentobarbital; facially unconstitutional | Etomidate adoption was public; delay in bringing challenge; claim precluded | Denied — barred by delay and res judicata |
| As-applied challenge to etomidate given Long’s medical conditions | Long’s traumatic brain injury and epilepsy make etomidate uniquely dangerous to him | Long knew of conditions for decades; could have raised claim when etomidate adopted; claim precluded | Denied — barred by delay and res judicata |
| Public-records refusals and denial of witness/attorney exceptions | State improperly objected to records requests and refused accommodations for witnesses/attorney access | These claims were or could have been raised in state postconviction proceedings; res judicata applies | Denied — barred by res judicata |
Key Cases Cited
- Hill v. McDonough, 547 U.S. 573 (2006) (stay of execution under § 1983 is equitable; delay matters)
- Gomez v. United States District Court for the Northern District of California, 503 U.S. 653 (1992) (courts may consider last-minute nature of stay applications)
- Nelson v. Campbell, 541 U.S. 637 (2004) (equitable presumption against last-minute stays; consider delay)
- Bucklew v. Precythe, 139 S. Ct. 1112 (2019) (courts should police against use of method-of-execution claims to cause unjustified delay)
- Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982) (federal courts must accept state rules of preclusion under § 1738)
- Gissendaner v. Commissioner, Georgia Department of Corrections, 779 F.3d 1275 (11th Cir. 2015) (standard of review for TRO/PI denial)
- Chavez v. Secretary, 742 F.3d 1267 (11th Cir. 2014) (stay/preliminary-injunction principles in execution context)
- Muhammad v. Secretary, 739 F.3d 683 (11th Cir. 2014) (stay-of-execution standard)
- Brooks v. Warden, 810 F.3d 812 (11th Cir. 2016) (denial of stay where prisoner delayed filing)
- Jones v. Allen, 485 F.3d 635 (11th Cir. 2007) (delay can forfeit entitlement to stay)