Fears v. Morgan
860 F.3d 881
6th Cir.2017Background
- Three Ohio death-row prisoners (Phillips, Otte, Tibbetts) challenged Ohio’s 2016 three-drug lethal-injection protocol, which begins with 500 mg midazolam followed by a paralytic and potassium chloride, claiming it creates a constitutionally unacceptable risk of severe pain under the Eighth Amendment.
- The district court held a five-day evidentiary hearing, found a "substantial risk of serious harm" from midazolam, concluded Ohio was judicially estopped from using the paralytic and KCl based on prior 2009 statements, and issued a preliminary injunction staying executions.
- Ohio appealed; the Sixth Circuit majority reviewed the record, expert testimony, and eyewitness accounts and reversed the preliminary injunction, finding plaintiffs failed to show the protocol is "sure or very likely" to cause severe pain and that barbiturate alternatives were not "available" or "readily implemented."
- The majority applied Glossip/Baze standards (requiring plaintiffs to show a method is "sure or very likely" to cause severe pain and that a feasible alternative exists) and rejected the district court’s lower standard and some of its inferences from prior executions.
- The court also rejected judicial estoppel, concluding Ohio’s prior representations were reasonably explained by changed circumstances (drug shortages and litigation) and that estoppel was inapplicable.
- Judges Moore (dissent) and Stranch (concurring in dissent) would have affirmed the preliminary injunction, crediting the district court’s factual findings (including eyewitness testimony) and holding Ohio should be estopped from reverting to the three-drug combination it had renounced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eighth Amendment risk from midazolam-first three-drug protocol | Midazolam (500 mg) cannot reliably produce unconsciousness; inmates are therefore likely to suffer severe pain from the paralytic and KCl | Midazolam at 500 mg is highly likely to render persons unable to feel pain; plaintiffs’ evidence is speculative or anecdotal | Reversed: plaintiffs did not meet Glossip/Baze burden to show the method is "sure or very likely" to cause severe pain |
| Burden/standard of proof for method-of-execution challenges | District court applied "substantial risk" standard and found plaintiffs met it | Glossip/Baze require showing method is "sure or very likely" to cause severe pain; higher, rigorous burden | Applied Glossip/Baze: plaintiffs must show a risk that is "sure or very likely"; district court erred by using a lesser showing |
| Availability and feasibility of alternatives (e.g., barbiturate one-drug protocol) | Barbiturates (or compounded pentobarbital) are available and readily implemented alternatives | Barbiturates are effectively unavailable due to manufacturer refusals, DEA/import constraints, and practical obstacles | Reversed: barbiturate one-drug alternative is not sufficiently "available" or "readily implemented" to satisfy Glossip second prong |
| Judicial estoppel re: Ohio’s 2009 renunciation of paralytic and KCl | Ohio told courts/public it would stop using pancuronium bromide and KCl and mooted prior challenges; it should be estopped from reverting | Ohio’s change was sincere and driven by changed circumstances (drug shortages, litigation); estoppel inapplicable or narrow against a State | Reversed: judicial estoppel inapplicable here; Ohio not estopped from using the three-drug protocol due to changed circumstances and lack of prejudice showing |
Key Cases Cited
- Glossip v. Gross, 135 S. Ct. 2726 (2015) (sets the "sure or very likely" standard and requires plaintiffs to identify feasible alternatives)
- Baze v. Rees, 553 U.S. 35 (2008) (plurality opinion establishing the substantial-risk framework for method-of-execution claims)
- Cooey v. Strickland, 589 F.3d 210 (6th Cir. 2009) (procedural history related to Ohio’s prior protocol litigation)
- Cooey v. Strickland (Cooey II), 604 F.3d 939 (6th Cir. 2010) (discussion of burdens in execution-method challenges)
- McGehee v. Hutchinson, 854 F.3d 488 (8th Cir. 2017) (upholding a midazolam-based three-drug protocol; persuasive circuit authority)
- Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007) (discusses use of paralytic to limit involuntary movements and related state interests)
- New Hampshire v. Maine, 532 U.S. 742 (2001) (describes the doctrine of judicial estoppel and its purpose)