777 F.3d 286
5th Cir.2015Background
- Robert Charles Ladd, convicted of capital murder in Texas (1997), sentenced to death; execution scheduled for January 29, 2015.
- After the Supreme Court granted certiorari in Glossip v. Gross, Ladd filed a 42 U.S.C. § 1983 suit (Jan. 27, 2015) challenging Texas’s method of execution as violative of the Eighth and Fourteenth Amendments and sought injunctive relief.
- The district court denied Ladd’s motion for a temporary restraining order / preliminary injunction; Ladd appealed and moved for a stay of execution and to proceed in forma pauperis.
- Ladd’s challenge targeted Texas’s single‑drug pentobarbital protocol (compounded pentobarbital from a pharmacy); he argued the drug or process posed a substantial risk of severe pain.
- The State relied on Fifth Circuit precedent upholding the July 9, 2012 Texas one‑drug pentobarbital protocol, including evidence of pharmacy sourcing, lab potency testing, and lack of contamination incidents.
- The Fifth Circuit panel, citing circuit precedent and Baze framework, affirmed denial of injunctive relief and denied a stay, allowing the execution to proceed absent Supreme Court intervention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for preliminary injunction | Ladd argued likelihood of success on merits of Eighth Amendment method‑of‑execution claim warrants stay | State argued plaintiff must meet the Baze/Brewer framework and show substantial demonstrated risk | Court: movant must satisfy four‑factor injunction standard and Baze risk/alternative test; Ladd failed |
| Whether Texas pentobarbital protocol creates a demonstrated risk of severe pain | Ladd contended compounded pentobarbital and execution process create a substantial risk of severe pain | State presented evidence of pharmacy sourcing, independent lab potency testing, and safe prior use | Court: Ladd’s evidence was speculative/hypothetical and insufficient under Baze; denied relief |
| Challenge based on compounded drug reliability (contamination/quality) | Ladd asserted compounded drugs are unregulated and may be contaminated or ineffective | State offered testing and chain‑of‑custody evidence showing >100% potency and no contaminants | Court: speculation cannot substitute for proof; must show state's specific process is suspect; Ladd failed |
| Effect of Supreme Court grant in Glossip on this case | Ladd argued Glossip indicates law may change and warrants a stay pending resolution | State and court noted Glossip addresses a three‑drug protocol and does not directly govern Texas’s one‑drug protocol | Court: grant of certiorari in Glossip does not override binding Fifth Circuit precedent; stay improper here; seek relief from Supreme Court if appropriate |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (2008) (plurality) (Eighth Amendment method‑of‑execution framework requiring demonstrated substantial risk compared to available alternatives)
- Atkins v. Virginia, 536 U.S. 304 (2002) (individuals with intellectual disability are ineligible for death penalty)
- Hill v. McDonough, 547 U.S. 573 (2006) (§ 1983 is proper vehicle for method‑of‑execution challenges)
- Whitaker v. Livingston, 732 F.3d 465 (5th Cir. 2013) (applying Baze and upholding Texas one‑drug pentobarbital protocol)
- Trottie v. Livingston, 766 F.3d 450 (5th Cir. 2014) (denying stay where plaintiff failed to demonstrate substantial risk under Baze)
- Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010) (concluding Texas lethal‑injection protocol did not create demonstrated risk of severe pain)