Docket No. 2014-01
In the
Supreme Court of the United States
October Term 2014
Jamie Lannister, in his official capacity as the Governor of the State of Harrenhal, et al,
Petitioners,
v.
Ramsay Bolton,
Respondent.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
BRIEF FOR PETITIONER
Team No. 19
Counsel for Petitioner
QUESTIONS PRESENTED
I. Whether Harrenhal’s lethal injection protocol creates a substantial risk of harm in
violation of the Eighth Amendment’s ban of cruel and unusual punishment.
II. Whether the police use of an individual’s real-time and historic cell-phone location data
without a warrant is a violation of the Fourth Amendment protection against
unreasonable searches and seizures.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................................................................................... i
TABLE OF CONTENTS ........................................................................................................... ii
TABLE OF AUTHORITIES ..................................................................................................... v
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ............................... viii
STATEMENT OF THE CASE .................................................................................................. 1
SUMMARY OF THE ARGUMENT ........................................................................................ 3
ARGUMENT ............................................................................................................................... 4
I.
RESPONDENT HAS FAILED TO DEMONSTRATE THAT
HARRENHAL’S LETHAL INJECTION PROTOCOL UTILIZING
COMPOUNDED MIDAZOLAM FROM AN UNDISCLOSED
PHARMACY IMPOSES A CONSTITUTIONALLY SIGNIFICANT
RISK OF UNNECESSARY PAIN, IN VIOLATION OF THE EIGHTH
AMENDMENT’S BAN PROHIBITION AGAINST CRUEL AND
UNUSUAL PUNISHMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Respondent Has Failed to Suggest an Available Alternative That
Substantially Reduces Any Alleged Risks Associated with the
Current Harrenhal Lethal Injection Protocol. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
B. There Are No Inherent Deficiencies in the Current Harrenhal
Lethal Injection Protocol So As to Demonstrate a Substantial
Risk of Unnecessary Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Respondent has not proven that the use of midazolam
creates a substantial risk of unnecessary harm. . . . . . . . . . . . . . . . . . . . . 11
2. Respondent has not proven that the use of compounded
midazolam creates a substantial risk of unnecessary harm . . . . . . . . . . . .12
3. The use of an undisclosed compounding pharmacy to
compound the midazolam does not create a substantial
risk of unnecessary harm and the confidentiality of the
compounding pharmacy is necessary to preserving
Harrenhal’s ability to carry out lawful execution sentences. . . . . . . . . . . 15
ii
C. The Occurrence of Problematic Executions in Arizona, Ohio,
and Oklahoma Does Not Demonstrate a Substantial Risk
of Unnecessary Harm in the Current Harrenhal Lethal
Injection Protocol. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
D. There is No Substantial Risk of Harm Due to Administration
of Lethal Injection Protocol. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
II.
THE POLICE USE OF AN INDIVIDUAL’S REAL-TIME
AND HISTORIC CELL-PHONE LOCATION DATA
WITHOUT A WARRANT IS NOT A VIOLATION OF
THE FOURTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. No Violation of the Fourth Amendment Exists Because
There Was Neither a Search nor Seizure by This Court’s
Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1. This Court held in Katz that a search involves an
infringement on a reasonable expectation of privacy,
which does not exist unless an individual manifests his
intent to privacy, and society is willing to accept that
individual’s expectation of privacy as reasonable. . . . . . . . . . . . . . . . . . .22
2. The Third Party Doctrine applies to cell-phone
location data, and therefore the data does not warrant
any expectation of privacy for Fourth Amendment
protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
3. Neither physical trespass nor trespass to chattel as
discussed in Jones is applicable in this case because
the location technology was on Bolton’s phone when
he originally purchased it from Red Viper Wireless. . . . . . . . . . . . . . . . .26
B. Even If The Police Use of an Individual’s Real-Time and
Historic Cell-Phone Location Data Is Deemed To Be a
Fourth Amendment Search, There Is No Violation Because
The Search Was Reasonable Under Payton and Steagald . . . . . . . . . . . . . . . . . . 27
CONCLUSION ......................................................................................................................... 30
iii
TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES:
Baze v. Rees, 553 U.S. 35 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Brewer v. Landrigan, 131 S. Ct. 445 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 14
California v. Ciraolo, 476 U.S. 207 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Coolidge v. New Hampshire, 403 U.S. 443 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Farmer v. Brennan, 511 U.S. 825 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Gregg v Georgia, 428 U.S. 153 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 5, 6, 7
Helling v. McKinney, 509 U.S. 25 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13
In re Kemmler, 136 U.S. 436 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
Katz v. United States, 389 U.S. 347 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Kyllo v. United States, 553 U.S. 27 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (2010) . . . . . . . . . . . . . . . . . . . . . .18, 19, 20
Oliver v. United States, 466 U.S. 170 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
Robinson v. California, 370 U.S. 660 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Silverman v. United States, 365 U.S. 505 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 27
Smith v. Maryland, 442 U.S. 735 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22, 23, 24, 25
Steagald v. United States, 451 U.S. 204 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 30
United States v. Jones, 132 S.Ct. 945 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim
United States v. Karo, 468 U.S. 705 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 27, 28
United States v. Knotts, 460 U.S. 276 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 27, 28
UNITED STATES CIRCUIT COURT OF APPEALS CASES:
Cooey v. Strickland, 689 F.3d 210(6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Emmett v. Johnson, 532 F.3d 291(4th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
iv
In Re Application of the United States of America For Historical Cell Site Data, 724 F.3d 600
(5th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25
In re Lombardi, 741 F.3d 888 (8th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 16
Mann v. Palmer, 713 F.3d 1306 (11th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 19
United States v. Forrester, 512 F.3d 500, 503 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . .25, 28
Valle v. Singer, 655 F.3d 1223 (11th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8
UNITED STATES DISTRICT COURT CASES:
Beaty v. Food & Drug Admin., 853 F.Supp 2d 30 (D. D.C. 2012), aff’d sub nom. Cook v. Food &
Drug Admin., 733 F.3d 1 (D.C. Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Cook v. FDA, 733 F.3d 1, 3 (D.C. Cir. 2013) 15
In re Application of United States for an Order Authorizing Disclosure of Location Information
of a Specified Wireless Telephone, 849 F. Supp. 2d 526 (D. Md. 2011). . . . . . . . . . . . . . . . .25, 26
In re Smartphone Geolocation Data Application, 977 F. Supp. 2d 129, 147 (E.D.N.Y. 2013).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29
Zink v. Lombardi, No. 2:12-CV-4209-NKL, 2013 WL 6080358 (W.D.Mo. Nov. 19, 2013) rev’d
in part In re Lombardi, 741 F.3d 888 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 17
STATE COURT CASES:
Am. Civil Liberties Union of N. Cal. v. Super. Ct., 134 Cal. Rptr. 3d 472, 481 (Cal. Ct. App.
2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Meisler v. State, 321 P.3d 930, 933–34 (Nev. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
CONSTITUTIONAL PROVISIONS:
U.S. CONST. Amend. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
U.S. CONST. Amend. VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4
STATUTES AND RULES:
Harrenhal Stat. § 397-04 (2011-2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Har. Code Ann., § 12-122. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
v
OTHER AUTHORITIES:
Bill Cotterell, Florida Executes Man With New Lethal Injection Drug, REUTERS, Oct. 9, 2013,
available at http://www.reuters.com/article/2013/10/16/us-usa-florida-executionidUSBRE99F00020131016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
DEVELOPMENT & APPROVAL PROCESS (DRUGS),
http://www.fda.gov/drugs/developmentapprovalprocess (last visited Feb. 11, 2015). . . . . . . . . .13
FDA, Merck, and Vioxx: Putting Patient Safety First?: Hearing Before the Committee on
Finance, 108th Cong. 13-17 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
H.L. Kaul & Neerja Bharti, Monitoring Depth of Anaesthesia, 46 INDIAN J. ANAESTH. 323
(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Jeremy H. Rothstein, Track Me Maybe: The Fourth Amendment and the Use of Cell Phone
Tracking to Facilitate Arrest, 81 Fordham L. Rev. 489, 535 (2012). . . . . . . . . . . . . . . . . . . 28, 29
Marc Kaufman, Many FDA Scientist Had Drug Concerns, 2002 Survey Shows, WASH. POST.,
Dec. 16, 2001, at A1, available at www.washingtonpost.com/wp-dyn/articles/A31352004Dec15.html. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Owen Dyer, The Slow Death of Lethal Injection, 348 The BMJ g2670 (2014). . . . . . . . . . . . . . 12
Understanding Privacy and Location Services on iPhone, iPad, and iPod Touch with iOS 8,
APPLE.COM, http://support.apple.com/en-us/HT203033 (last visited Feb. 12, 2015)) . . . . . . . . .25
vi
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
Constitution of the United States, Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Constitution of the United States, Amendment V
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
vii
STATEMENT OF THE CASE
I.
Statement of the Facts
The Arrest. After a five-year long investigation, the Hornwood County Police
Department obtained an arrest warrant for Ramsay Bolton (Bolton), the individual responsible
for kidnapping, torturing, and murdering at least fifteen victims within a span of five years. R.
20. Bolton, however, became impossible to find. R. 15. He had minimal friends or family in the
area, and never returned home. Id. Police grew concerned Bolton had fled. Id.
Harrenhal law mandates that cell-phone providers furnish location information to the
police upon proper request. R. 10. The law does not require a warrant for this request. Id. After
the officers had exhausted their usual resources, they acquired real-time and historic cell-phone
location data in order to pinpoint Bolton’s location and arrest him. R. 15. Bolton signed a
contract agreement with Red Viper Wireless informing him that his cellular location data may be
relayed to numerous third parties, such as social networks and advertising entities. R. 2–9. One
section specifically includes supplying data to law enforcement in the event of an investigation.
R. 6–7. With this data, police were able to locate Bolton at his remote northwestern Harrenhal
hideout. R. 15. Bolton was subsequently arrested, tried, and sentenced to death by lethal injection
for his crimes. R. 21.
The Sentence. On January 1, 2013, the Harrenhal Department of Corrections announced
that it had added a compounding pharmacy to its execution team, and that the pharmacy would
be responsible for providing midazolam, a sedative, for executions carried out in the state. R. 21.
Respondent, a Harrenhal death-row inmate responsible for the abduction, imprisonment,
torture, dismemberment, and murder of fifteen people, filed a civil rights complaint challenging
Harrenhal’s new protocol on the basis that its use of compounded midazolam as the first drug of
1
the three-drug protocol constitutes cruel and unusual punishment in violation of the Eighth
Amendment, and seeking enjoin the Harrenhal Department of Corrections from executing him
under this protocol. See U.S. CONST. Amend. VIII; 42 U.S.C. § 1983 (2012)1; 28 U.S.C. § 2201;
R. 21.
II.
Procedural History
The District Court. Bolton filed in the United States District Court in the District of
Harrenhal seeking to enjoin the Harrenhal Department of Corrections from carrying out his
execution under the new protocol and seeking money damages for the alleged violation of his
Fourth Amendment rights against unreasonable searches and seizures. R. 21. The court denied
Respondent’s request for relief, concluding that Respondent’s execution did not create a
substantial risk of pain in violation of the Eighth Amendment, and that the police’s use of the
cellular location data without a warrant was permissible under the Fourth Amendment. R. 29, 37.
The Court of Appeals. That decision was then reversed by the United States Court of
Appeals for the Fourteenth Circuit. R. 38 et seq. The Court of Appeals found that the use of
compounded midazolam, obtained from an unknown source, did demonstrate a substantial risk of
severe pain, and was therefore in violation of the Eighth Amendment. R. 51. The court also
found that the lack of a warrant in relation to the cell phone location data rendered the police’s
use of such information a violation of the Fourth Amendment. R. 59–60.
1
Section 1983, which authorizes a suit in equity against any state official who subjects a citizen to the
deprivation of any constitutional rights, privileges, or immunities, is the appropriate vehicle for an inmate’s
Eighth Amendment claim seeking a temporary stay and permanent injunctive relief. Nelson v. Campbell ,
541 U.S. 637, 64249 (2004).
2
This Court granted the Petition for Writ of Certiorari to address whether Harrenhal’s
lethal injection protocol creates a substantial risk of harm in violation of the Eighth
Amendment’s ban of cruel and unusual punishment, and whether the police use of an
individual’s real-time and historic cell phone location data without a warrant is a violation of the
Fourth Amendment’s protection against unreasonable searches and seizures. R. 61.
SUMMARY OF THE ARGUMENT
The State of Harrenhal is due deference with regard to its selected method of carrying out
death sentences for capital cases, which is not facially unconstitutional. Respondent has failed to
demonstrate that the State has implemented anything other than the most humane of methods for
its executions. Therefore, Respondent has failed to carry his heavy burden to prove that the
State’s use of compounded midazolam from an undisclosed compounding pharmacy for
executions by way of lethal injection created a substantial risk of significant pain and harm so as
to overcome this deference and constitute cruel and unusual punishment in violation of the
Eighth Amendment.
The police use of Respondent’s real-time and historic cell-phone location data without a
warrant was not a violation of Respondent’s Fourth Amendment rights. Cell-phone location data
is not subject to a reasonable expectation of privacy because the Third Party Doctrine applies.
Respondent voluntarily conveyed his location data to Red Viper Wireless, and thus, he has
neither a subjective nor an objective reasonable expectation of privacy. Conversely, traditional
trespass doctrine does not apply to Respondent’s case since the police did not physically plant
the location tracking technology on Respondent’s phone; he bought the phone with the
technology already in place.
3
Moreover, even if the use of the data constitutes a search, the limited privacy intrusion is
permissible because it is reasonable. Arrest warrants implicitly authorize probable cause
necessary to enter and search an individual’s home pursuant to an arrest warrant. Therefore, it
would be absurd to afford higher protections to cell-phone location data than to the home.
ARGUMENT
I.
RESPONDENT HAS FAILED TO DEMONSTRATE THAT HARRENHAL’S
LETHAL INJECTION PROTOCOL UTILIZING COMPOUNDED
MIDAZOLAM FROM AN UNDISCLOSED PHARMACY IMPOSES A
CONSTITUTIONALLY SIGNIFICANT RISK OF UNNECESSARY PAIN, IN
VIOLATION OF THE EIGHTH AMENDMENT’S BAN PROHIBITION
AGAINST CRUEL AND UNUSUAL PUNISHMENT.
The Eighth Amendment of the United States Constitution states, “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
CONST. Amend. VIII. In 1972, this Court found the Eighth Amendment to be applicable to the
states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660 (1972). The
Supreme Court has made clear that the imposition of the death penalty is not per se cruel and
unusual. Baze v. Rees, 553 U.S. 35, 47 (2008); Gregg v Georgia, 428 U.S. 153 (1976).
Therefore, it follows that there must be some means to carry out that sentence. Baze, 553 U.S. at
47.
Historically, Eighth Amendment based challenges immediately followed any change or
alteration of a state’s existing execution method; however, the Supreme Court has never found a
method of execution unconstitutional due to infliction of cruel and unusual punishment. Baze v.
Rees, 553 U.S. at 48; see generally In re Kemmler, 136 U.S. 436 (1890) (upholding a death
4
sentence by the newly established electrocution method); Wilkerson v. Utah, 99 U.S. 130 (1879)
(upholding a death sentence by firing squad).
Although it is difficult to define with particularity what is constitutionally implicated by
the term “cruel and unusual,” it is safe to assert that punishments of torture, such as drawing,
quartering, disembowelment, beheading, dissection, and burning alive are all cruel and unusual,
and thus are forbidden. In re Kemmler, 136 U.S. at 447. Beyond this traditional understanding of
cruel and unusual, the Court has advised that the Eighth Amendment should be interpreted in a
“flexible and dynamic manner,” so as to reflect evolving standards of public opinion and
humanity. Gregg, 428 U.S. at 171.
Still, remote and insubstantial risks do not rise to the level of an Eighth Amendment
violation. Baze, 553 U.S. at 61-62; In re Kemmler, 136 U.S. at 447 (“Punishments are cruel when
they involve torture or a lingering death. . . . It implies something inhuman and barbarous,
something more than the mere extinguishment of life”). Therefore, the Supreme Court has
cautioned that an inmate challenging a death sentence method must carry a considerable and
heavy burden to prove his case. Baze, 553 U.S. at 53; Gregg, 428 U.S. at 175.
Additionally, this Court has acknowledged that there is an inherent risk of pain in any
execution method, no matter how humane, whether from accident, human error, or merely a
consequence of death, itself. Baze, 553 U.S. at 47 (“Simply because an execution method may
result in pain...does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as
cruel and unusual” under the Eighth Amendment.). The definitive inquiry then is whether the
protocol itself, or its challenged portion, inherently imposes a constitutionally significant risk of
pain.
5
In the case sub judice, in order for Respondent to succeed in his claim for injunctive
relief, he must affirmatively show that by using compounded midazolam in its lethal injection
protocol, Harrenhal ignores a sure or very likely risk of serious and imminent pain, or that the
use of compounded midazolam creates a demonstrated and objectively intolerable risk of severe
pain that is substantial when compared to the known and available alternatives. Baze, 553 U.S. at
50; Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993); Farmer v. Brennan, 511 U.S. 825, 842,
845-46 and n.9 (1994); Cooey v. Strickland, 689 F.3d 210, 220 (6th Cir. 2009); Emmett v.
Johnson, 532 F.3d 291, 302 (4th Cir. 2008); Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir.
2011).
A. Respondent Has Failed to Suggest an Available Alternative that
Substantially Reduces Any Alleged Risks Associated with the Current
Harrenhal Lethal Injection Protocol.
Respondent has offered no alternative to Harrenhal’s current lethal injection protocol, nor
any proof that any alternative protocol would be significantly feasible, readily available, and
significantly safer. See Baze, 553 U.S. at 35.
In Baze, this Court established that in order to address a substantial risk of harm in a
state’s protocol effectively, the challenger of the protocol must proffer an alternative procedure
that is “feasible, readily implemented, and in fact significantly reduce substantial risk of severe
pain” found in the existing protocol. Baze, 553 U.S. at51. Justice Alito explained the Baze
holding in his concurrence in order to clarify how that holding should be implemented:
The opinion concludes that ‘a State’s refusal to change its method [of execution]
can be viewed as ‘cruel and unusual’ under the Eighth Amendment is the State,
‘without a legitimate penological justification,’ rejects an alternative method that
is ‘feasible’ and ‘readily’ available and that would ‘significantly reduce a
substantial risk of severe pain.’
6
Baze, 553 U.S. at 63 (Alito, J., concurring).
This requirement is meant to ensure that judicial oversight does not overcome the
deference afforded to states in passing lawful legislation. Baze, 553 U.S. at 51(stating that
permitting an Eighth Amendment violation on a showing of a slightly or marginally safer
alternative “would threaten to transform courts into board of inquiry charged with determining
‘best practices’ for executions…”); Gregg, 428 U.S. at 176 (acknowledging that “[c]aution is
necessary lest this Court become . . . the ultimate arbiter of the standards of criminal
responsibility...throughout the country”). States have a recognized legitimate interest in the
timely enforcement of criminal sentences, and enjoy broad discretion to decide their procedure
for conducting executions. Baze, 553 U.S at 58; Emmett, 532 F.3d at 303. Because the
constitutional language of the Eighth Amendment is intertwined with an assessment of
contemporary standards, the democratically elected legislatures of the states are the appropriate
vehicle through which the standards are realized. See Gregg, 428 U.S. at 175. While courts have
a responsibility to ensure that constitutional bounds are not overreached, unless the state’s
selected method by which to carry out death sentences is cruel and unusual on its face, that
method is presumed valid, and not cruel and unusual. Gregg, 428 U.S. at 174-75.
Therefore, when evaluating a challenge to a selected method of carrying out death
sentences, courts do not consider whether the challenged protocol is the best possible procedure,
but rather limit themselves to inquire whether the protocol itself presents a substantial risk of
serious harm when compared to other known and available alternatives. Baze, 553 U.S. at 52, 53
and n.2; see also Gregg, 428 U.S. at 175 (Courts “may not require the legislature to select the
least severe penalty possible so long as the penalty selected is not cruelly inhumane . . . we may
7
not act as judges as we might as legislators . . .in assessing a punishment selected by a
democratically elected legislature against the constitutional measure, we presume its validity”).
Many circuit courts have adopted this reading of Baze, including the Fourth Circuit, the
Sixth Circuit, the Eighth Circuit, and the Eleventh Circuit. See also Mann v. Palmer, 713 F.3d
1306, 1315 (11th Cir. 2013) (“After Baze, an inmate who seeks a stay of execution must
establish that the lethal injection protocol of his state creates a demonstrated risk of severe pain
that is substantial when compared to the known alternatives.”).
The lower court in In re Lombardi had found that Baze did not require inmates to propose
an alternative method as an element of an Eighth Amendment challenge to a death sentence;
however, the Court of Appeals reversed this decision, stating unequivocally that “this is a plain
misreading of the Supreme Court’s decision in Baze v. Rees and the Eighth Amendment.” In re
Lombardi, 741 F.3d 888 (8th Cir. 2014). Because the inmate did not propose an alternative, more
humane method, he could not establish that his Eighth Amendment challenge would succeed on
its merits. Id. He was not entitled to the evidence sought of the identity of the physician,
pharmacy, and laboratory of the relevant compounding pharmacy in Missouri. In re Lombardi,
741 F.3d 888 (8th Cir. 2014).
In Valle, the court dismissed the petitioner’s motion for a temporary restraining order and
preliminary injunction to stay his execution. Valle, 655 F.3d at 1225 (citing Baze, 553 U.S. at
61). The court found that the petitioner had failed to demonstrate a substantial likelihood of
success on the merits of his claim. Id. It based its finding solely on the petitioner’s failure to
proffer any alternative procedure or drug. Id. He failed to show that any such alternative
procedure or drug was feasible, readily implemented, and in fact significantly reduced a
8
substantial risk of severe pain. Id. The court saw these factors as necessary components of
petitioner’s Eighth Amendment claim. Id.
In Cooey, the court stated that in order for the petitioner to demonstrate that the Ohio
lethal injection protocol sought to impose cruel and unusual punishment, the petitioner must
show not only that the protocol ignores a sure or very likely risk of serious pain and needless
suffering, but that the protocol also “‘creates a demonstrated risk of severe pain’ that is
‘substantial when compared to the known and available alternatives. . . .’” Cooey, 689 F.3d 210
(citing Baze, 553 U.S. at 50, 61).
In Emmett, an inmate challenged the Virginia “rapid-flow” method of delivering
execution drugs, and offered the implementation of a brief pause between administration of the
first and second drugs as an alternative, similar to the methods of Harrenhal and many other
states. Emmett, 532 F.3d at 303. The United States Court of Appeals for the Fourth Circuit
employed the Baze standard to uphold Virginia’s protocol, finding that there was no evidence
that the alternative method offered by the inmate was substantially safer than the current method.
Id. The court explained that the difference in safety between the existing protocol and the
proffered protocol must be significant in order to require a change and that a court is not at
liberty to dictate what is in its own judgment, or in an expert’s judgment, a “better” or “less
risky” procedure. Id.
The Baze Court, in promulgating this standard, discussed an aversion to “embroil[ing] the
courts in ongoing scientific controversies beyond their expertise” to determine the “best
practices” for execution methodology. Baze, 553 U.S. at 35, 50. Therefore, challengers of an
execution protocol must present at least one alternative to the challenged protocol to the court so
that the court may evaluate the challenged protocol by comparison. By failing to assert an
9
alternative, safer method of execution, Respondent has failed to allege that Harrenhal has
employed anything other than the most humane method of execution available. See In re
Lombardi, 471 F.3d at 896.
B. There Are No Inherent Deficiencies in the Current Harrenhal Lethal
Injection Protocol So As to Demonstrate a Substantial Risk of Unnecessary
Harm.
Amid immense pressure from anti-death penalty advocates, in 2011, the United States
manufacturer of the drug sodium thiopental announced that it would no longer be producing the
drug for use in lethal injections. R. 23. Sodium thiopental had previously been widely used
throughout the states as the first sedative drug in three-drug lethal injection protocols. R. 22. In
response, states turned to United Kingdom manufacturer, Dream Pharma, to resupply their
dwindling stores of thiopental. R. 23. This relief was short-lived. In 2012, the District Court for
the District of Columbia ordered the Food and Drug Administration (FDA) to prohibit states
from acquiring imported, non-regulated thiopental. See Beaty v. Food & Drug Admin., 853
F.Supp 2d 30 (D. D.C. 2012), aff’d sub nom. Cook v. Food & Drug Admin., 733 F.3d 1 (D.C.
Cir. 2013). At the same time, the European Union announced strict regulations on the export of
drugs that could be used for lethal injections to countries that authorize the death penalty. R. 23,
41.
Sodium thiopental was a crucial component of three-drug lethal injection protocols in
over thirty states. Baze, 553 U.S. at 44. Acting as an anesthetic, the drug ensures that inmates
undergoing lethal injection minimally perceive the pain and suffocation associated with the
administration of the second and third drugs of a given protocol. Baze, 553 U.S. at 53; R. 22. It is
well settled that an improper administration of this first drug would render the process of the
three-drug protocol unconstitutional based on the risk of substantial pain. Baze, 553 U.S. at 53.
10
Unable to obtain sodium thiopental, states sought a drug sufficient to replace the drug by
achieving the same sedative purpose. Some states chose pentobarbital as a substitute sedative,
See Baze, 553 U.S. 35; Harrenhal has chosen compounded midazolam. R. 22.
Harrenhal’s lethal injection protocol consists of a three-drug combination: midazolam
hydrochloride, a sedative; rocuronium bromide, a paralytic to cause apnea; and potassium
chloride, an electrolyte to induce cardiac arrest. R. 24, 15. Respondent does not make any
allegations regarding the second and third drugs in the protocol. R. 27. Instead, he argues that the
use of compounded midazolam from an undisclosed compounding pharmacy creates a
substantial risk of harm to him in violation of the Eighth Amendment.
1. Respondent has not proven that the use of midazolam creates a
substantial risk of unnecessary harm.
Respondent submitted evidence alleging the drug, midazolam, will not sufficiently render
an inmate unconscious to relieve him of his pain caused by the rocuronium bromide and
potassium chloride at the dosage required by the Harrenhal protocol. R. 22. His evidence,
however, does not rise to the level required to meet the burden on an Eighth Amendment claim.
Respondent alleges that even if the Harrenhal lethal injection protocol is followed as
instructed, the use of midazolam is unlikely to produce a deep and lasting unconsciousness, and
therefore, presents a substantial risk of harm, because the drug does not induce analgesia, only
sedation and amnesia.2 R. 26.
Respondent cites medical reports and affidavits regarding the executions of Mr. Dennis
McGuire, Mr. Joseph Wood, and Mr. Clayton Lockett, to support his claim. R. 91–147. All of
2
Analgesia in this instance is used to describe a state of insensibility to pain. Douglas Harper, Online
Etymology Dictionary: “Analgesia”, accessed 2/11/15
11
the executions involved the use of midazolam. Id. The only document that directly addresses
midazolam’s ability to induce unconsciousness is the medical report of Kent Diveley, M.D. R.
92–94. Dr. Diveley is a board certified anesthesiologist with 25 years of practical experience in
clinical anesthetic care. Id. In his report, Dr. Diveley provides his general opinions regarding
Ohio’s protocol as applied to Dennis McGuire’s execution. See R. 92–94. The Ohio Department
of Rehabilitation and Correction implemented a two-drug protocol of midazolam and
hydromorphone. R. 93. Dr. Diveley concluded that the 10 mg dose of midazolam used in the
Ohio protocol could not dependably produce a rapid loss of consciousness. R. 93 para. 7, 9.
It is important to note that Dr. Diveley’s conclusion is narrow. It only addresses the 10
mg dosage required by Ohio’s protocol. R. 93. While Dr. Diveley found that the Ohio dosage
was insufficient, he did acknowledge that the administration of midazolam could, under certain
conditions, render sufficient unconsciousness. Id. He stated that in order “[t]o render an
individual unconscious much higher doses would be needed.” R. 93 para. 9. Dr. Diveley does not
provide a strict figure as to what dosage would be sufficient; however, it is reasonable to
presume doubling the dose to 20 mg may qualify as a “much higher dose” to effectively render
unconsciousness. Id. Harrenhal’s protocol doubles the dose of midazolam.
Additionally, neither sodium thiopental nor pentobarbital induce analgesia. See Owen
Dyer, The Slow Death of Lethal Injection, 348 The BMJ g2670 (2014). Therefore, the use of
midazolam presents no more of a risk than the use of these other two drugs, of which the
Supreme Court has verified the constitutionality. See Baze, 553 U.S. 35.
Moreover, the Harrenhal protocol provides an additional safeguard of a perpetually
observed heart monitor, which measures the inmate’s heart rate throughout the execution
process. R. 158; See Professor H.L. Kaul & Dr, Neerja Bharti, Monitoring Depth of Anaesthesia,
12
46 INDIAN J. ANAESTH 323, 326 (identifying heart rate variability as an objective method of
assessing the depth of anaesthesia). Therefore, the inmate’s consciousness could be verified
before administrating the other two drugs, thereby reducing any risk of pain attributed to
consciousness.
2. Respondent has not proven that the use of compounded
midazolam creates a substantial risk of unnecessary harm.
In addition to risk of pain associated with the midazolam itself, Respondent also alleges
that the use of the compounding process to produce midazolam exacerbates the risk posed by the
drug. R. 27. Respondent argues because the midazolam is compounded, instead of manufactured,
the drug carries an inherent risk of severe pain attributable to possible sub- or super-potency,
contamination, or adulteration of the drug. See R. 91-147. Furthermore, Respondent alleges that
the lack of regulation and oversight of the compounding industry by the Food and Drug
Administration creates a substantial risk of future harm. See Helling v. McKinney, 509 U.S. 25
(1993); R. 16.
Mainly, Respondent lists the fact that compounded drugs are not FDA approved, and that
compounding processes are not FDA regulated for his reasons why using compounded
midazolam creates an unconstitutional risk of harm. R. 28. However, this lack of FDA
involvement in relation to compounded drugs does not rise to the level of indicating a “sure or
very likely” risk of pain as required by the Eighth Amendment.
As stated above, in order for a risk of future harm to rise to the level of
unconstitutionality, the risk must be imminent and “sure or very likely” to cause severe and
needless pain. Helling v. McKinney, 509 U.S. 25, 34-35 (1993). Furthermore, “speculation
13
cannot substitute for evidence that the use of a drug is sure or very likely to cause harm.” Brewer
v. Landrigan, 131 S. Ct. 445 (2010).
The mere fact that a drug is not approved by the FDA does not indicate that the drug is
unsafe or ineffective, rather the lack of FDA approval in this case is due to the fact that
compounded drugs are not subject to FDA regulations. See Zink v. Lombardi, No. 2:12-CV4209-NKL, 2013 WL 6080358 (W.D.Mo. Nov. 19, 2013) rev’d in part In re Lombardi, 741 F.3d
888 (Statement of Dr. Larry Sasich and Dr. Mark Heath that compounding pharmacies are
generally not subject to the drug approval process). This means that compounded drugs are not
necessarily unsafe or ineffective, but instead have not been evaluated and verified as such.
Furthermore, the existence of FDA approval for a drug is not conclusive evidence that the
drug in question is in fact safe and effective. See Brewer v. Landrigan, 131 S. Ct. 445 (2010)
(vacating a stay of execution based on the fact that it is mere speculation that the use of sodium
thiopental not approved by the FDA created a substantial and unnecessary risk of serious harm in
violation of the Eighth Amendment). FDA approval merely means that the health benefits
outweigh any known risk. DEVELOPMENT & APPROVAL PROCESS (DRUGS),
http://www.fda.gov/drugs/developmentapprovalprocess (last visited Feb. 11, 2015). Moreover,
the FDA itself does not test drugs; it relies on the company seeking approval to conduct its own
testing and then send its data to the FDA for consideration. Id. This reliance presents the
possibility that drugs that are indeed approved are not as safe and/or effective as one is lead to
believe. Id; See FDA, Merck, and Vioxx: Putting Patient Safety First?: Hearing Before the
Committee on Finance, 108th Cong. 13-17 (2004) (Statement of David J. Graham, M.D., MPH,
Associate Director for Science, Office of Drug Safety, Center for Drug Evaluation and Research,
14
U.S. Department of Health and Human Services, Food and Drug Administration, Washington,
DC).3
A 2002 Health and Human Services survey of almost 400 FDA scientist found that over
one-third of scientists were not confident that the agency had the ability to assess a drug’s safety.
Marc Kaufman, Many FDA Scientist Had Drug Concerns, 2002 Survey Shows, WASH. POST.,
Dec. 16, 2001, at A1, available at www.washingtonpost.com/wp-dyn/articles/A31352004Dec15.html. Eighteen percent stated that they have been “pressured to approve or
recommend approval for a [new drug application] despite reservations about the safety, efficacy,
or quality of the drug.” Id. More than half stated that they did not feel that the six month period
granted to “priority status drugs” was an adequate time in which to conduct an in-depth, sciencebased review of a drug. Id.
Since FDA approval of a drug cannot be said to be conclusive of that drug’s efficacy and
safety, lack of FDA approval cannot be indicative of a lack of efficacy and safety. Therefore, the
lack of FDA approval of compounded midazolam demonstrates only a possibility that the drug is
unsafe and ineffective, and thus does not satisfy the “sure or very likely to” standard required by
the Eighth Amendment.
3
Dr. Graham presented testimony regarding FDA drug Vioxx which was approved despite
studies evincing substantial increase in risk of heart attack associated with taking the drug
leading to approximately 100,000 deaths. He cited undue influence by pharmaceutical
companies, and pointed out that the same group that the same group that approves a drug is also
the same group that is responsbible for taking regulatory action against it, creating an inherent
conflict of interest leading to the presence of public safety risks even with FDA approval and
oversight.
15
Furthermore, although thiopental has been used as an anesthetic since the 1930s, it is still
technically classified as an unapproved new drug by the FDA. Cook v. FDA, 733 F.3d 1, 3 (D.C.
Cir. 2013). Since the use of sodium thiopental, the first sedative drug used in lethal injections,
was never found to be unconstitutional, it would be illogical to find the use of any other drug
unconstitutional based solely on a lack of FDA approval.
In the instant case, Respondent has only raised as series of uncertainties: that the
compounding process may lead to particles in the drug, or may lead to sub-potency, that there
could be something wrong with the drug. However, “uncertainties built on so many other
uncertainties cannot show a substantial risk of severe pain and needless suffering.” Cooey v.
Strickland, 689 F.3d 210, 231 (6th Cir. 2009).
3. The use of an undisclosed compounding pharmacy to
compound the midazolam does not create a substantial risk of
unnecessary harm and the confidentiality of the compounding
pharmacy is necessary to preserving Harrenhal’s ability to
carry out lawful execution sentences.
Respondent further alleges that the confidentiality of the compounding pharmacy
Harrenhal employs exacerbates the risks associated with compounded midazolam since the
credentials of the pharmacy cannot be investigated, nor its methods and practices in
compounding. R. 27.
Many states have taken steps to keep the identities of physicians, pharmacies and
laboratories associated with state executions confidential. See In re Lombardi, 741 F.3d 888 (8th
Cir. 2014). Harrenhal statute, Har. Code Ann., § 12-122, which outlines Harrenhal’s method of
infliction of the death penalty, provides that “[t]he identity information of any person or entity
that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical
equipment utilized in the execution of a death sentence shall be confidential and shall not be
16
subject to disclosure under any other laws under judicial process. Such information shall be
classified as a confidential state secret.” R. 158.
As in Lombardi, evidence of identity of the compounding pharmacy is irrelevant to
Respondent’s claim since Respondent has failed to allege that a different method of execution
would be safer and more humane. As discussed above, in order to present a successful Eighth
Amendment claim against a state’s execution method, the challenger must proffer an alternative
that it alleges to be substantially safer. Since Respondent has proffered no alternative, he cannot
demonstrate that lack of knowledge of the compounding pharmacy and its procedures creates a
substantial risk of harm. See R. 26.
Even if the Court of Appeals is correct in asserting “that the interests of the prisoners in
obtaining this information far outweighs the interests of the State in keeping the pharmacy
secret,” R. 48, the prisoner is still required to demonstrate this evidence’s relevance to his claim
in order for such evidence to be considered. Within the context of an Eighth Amendment
challenge to a state’s existing execution protocol based on the Eighth Amendment, the prisoner
must first propose alternative method of execution. See Baze, 553 U.S. at 53, 61. Absent this
proposition, evidence concerning the deficiencies in the existing protocol does not constitute a
case that the risks associated with that protocol are more or less substantial than other known and
available alternatives. Id.
Furthermore, the disclosure of the compounding pharmacy would deprive the state of its
ability to obtain the drugs necessary to carry out execution sentences. The events leading to
Harrenhal’s use of compounded pharmaceuticals illustrates the necessity of protecting the safety
and reputation of companies involved in facilitating execution sentences. Maintaining
confidentiality prevents the various associations, consumers, and associates of these companies
17
with anti-death penalty agendas from censuring or boycotting the drug suppliers. In Texas, the
identity of the compounding pharmacy that had been supplying the Department of Criminal
Justice with compounded pentobarbital for lethal injections was exposed. Due to a “firestorm” of
backlash, including constant inquiries from the press, hate mail and messages, the supplier
demanded the return of a shipment of compounded pentobarbital and refused to continue to
supply the drug. In re Lombardi, 741 F. 3d 888, 894 (8th Cir. 2014).
In determining whether the California Department of Corrections and Rehabilitation
could deny an inmate’s request for information regarding the state’s acquisition of sodium
thiopental, the First Circuit engaged in a balancing test. Am. Civil Liberties Union of N. Cal. v.
Super. Ct., 134 Cal. Rptr. 3d 472, 481 (Cal. Ct. App. 2011). This test weighs the policies behind
the state law privilege against the policies favoring disclosure. Id.
The lower appellate court asserted that Respondent’s interests in obtaining the
confidential information outweighs the State’s interest in keeping the pharmacy secret. R. 48.
Even if this were true, the Eighth Amendment is not the appropriate vehicle through which an
individual should request the disclosure of information. Respondent argues that the uncertainty
of the drugs’ source used for his lethal injection constitutes an Eighth Amendment claim. R. 48.
This is not a valid challenge to Harrenhal’s protocol as a lack of evidence cannot demonstrate a
risk of substantial harm. Respondent would need to use the evidence itself, and not merely the
existence of that evidence, to support his claim that a substantial risk of harm exists. The risk to
Respondent is not altered by his knowledge of the risk, but by the actual existence of the risk.
Respondent would first need to challenge the secrecy statute in order to obtain information, and
then use the information to state a successful constitutional claim. See Am. Civil Liberties Union
of N. Cal. v. Super. Ct., 134 Cal. Rptr. 3d 472, 480 (Cal. Ct. App. 2011) (Inmate seeking
18
information regarding supplier pharmacy of compounded sodium thiopental brought his case for
the request of that information under the California Public Records Act, which required the
disclosure of all public records unless expressly provided otherwise, not the Eighth Amendment).
C. The Occurrence of Problematic Executions in Arizona, Ohio, and Oklahoma
Does Not Demonstrate a Substantial Risk of Unnecessary Harm in the
Current Harrenhal Lethal Injection Protocol.
The Court of Appeals for the Fourteenth Circuit was particularly occupied with three
cases of “botched” executions which took place in Arizona, Ohio, and Oklahoma. However, of
the three, Oklahoma is the only state that utilizes the same protocol as Harrenhal: a three-drug
protocol featuring midazolam as the first drug. Ohio and Arizona both utilize a 2-drug protocol
of midazolam and hydromorphone. See Cooey, 589 F.3d 210; R. 170. Therefore, the only
incident relevant to the constitutionality of the Harrenhal protocol is the Oklahoma incident.
An isolated mishap alone does not give rise to an Eighth Amendment violation. Such an
event does not suggest cruelty, or that the procedure immediately at issue gives rise to a
substantial risk of serious harm. Baze, 553 U.S. at 50; See also Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459 (2010); Mann v. Palmer, 713 F.3d 1306 (11th Cir. 2013). However,
adherence to an execution method that repeatedly fails to work as intended under the conditions
intended creates a demonstrated and objective risk of harm in violation of the Eighth
Amendment. See Cooey, 589 F.3d 210.
For an illustration of this point, in Louisiana ex rel. Francis v. Resweber, the Court
determined that a second attempt to execute a prisoner by electrocution due to a failure of the
first attempt was not unconstitutional. Louisiana ex rel Francis, 329 U.S. 459. However, in his
concurring opinion, Justice Frankfurter articulated that although the second attempt was indeed
constitutional, a situation involving multiple unsuccessful attempts implicating a single
19
execution protocol would demonstrate an inherent risk such that a continuation of the
problematic protocol would constitute cruel and unusual punishment. Louisiana ex rel. Francis,
329 U.S. at 471 (Frankfurter, J., concurring).
Here, the three cases Respondent cites do not demonstrate an objectively intolerable risk
of harm inherent in Harrenhal’s three-drug protocol employing compounded midazolam. As
stated above, two of the three cases do not implicate Harrenhal’s protocol at all. In the case of
Mr. Clayton Lockett in Ohio, it was found that improper IV placement failed to deliver enough
midazolam into Mr. Lockett’s bloodstream so as to be effective. Therefore, it was an
administration error, not the midazolam itself, which caused complications in Mr. Lockett’s
execution. Moreover, the only other state to utilize a three-drug midazolam protocol, Florida,
which was also the first state to utilize such a protocol, has not experienced any complications in
its executions. Bill Cotterell, Florida Executes Man With New Lethal Injection Drug, REUTERS,
Oct. 9, 2013, available at http://www.reuters.com/article/2013/10/16/us-usa-florida-executionidUSBRE99F00020131016. Therefore, the three cases Respondent presents do not form a “series
of abortive attempts” at execution by way of a three-drug lethal injection protocol featuring
compounded midazolam from undisclosed sources. See In re Louisiana ex rel v. Resweber, 329
U.S. 459, 471 (1947) (Frankfurter, J., concurring).
Furthermore, complications associated with lethal injections in other states using other
protocols have no bearing on the risk of harm imposed by the Harrenhal protocol. Poland v.
Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997). Aside from the differences in the protocols
themselves, Respondent has failed to introduce evidence to suggest that Harrenhal’s drugs are
obtained from the same pharmacy as Arizona, Ohio, and Oklahoma. Therefore, there are no links
20
between the alleged problematic protocols above and the protocol employed by Harrenhal so as
to establish that the risks those executions demonstrate will arise in Respondent’s own execution.
D. There is No Substantial Risk of Harm Due to Administration of Lethal
Injection Protocol
The usual challenge to the constitutionality of a lethal injection protocol asserts a risk in
the administration of the protocol. See Baze, 553 U.S. 35; Cooey, 589 F.3d 210; Emmett, 532
F.3d 291. In these cases the challenger usually admits that, if administered as instructed, the
challenged protocol would result in a constitutionally painless death. It has been established that
an allegation of undue risk from improper implementation of an otherwise constitutionally sound
protocol will not stand where the protocol demonstrates safeguards and redundancies to
minimize these risks. See Baze, 553 U.S. 35; Cooey, 589 F.3d 210; Emmett, 532 F.3d 291. The
Harrenhal protocol demonstrates various safeguards and redundancies such as adequately trained
personnel, the establishment of a back-up IV, and the warden’s presence in the execution room.
Harrenhal Execution Protocol. These safeguards effectively preclude any undue risk that could
exist due to improper administration of the lethal injection protocol. See Baze, 553 U.S. 35;
Cooey, 589 F.3d 210; Emmett, 532 F.3d 291.
II.
THE POLICE USE OF AN INDIVIDUAL’S REAL-TIME AND HISTORIC
CELL-PHONE LOCATION DATA WITHOUT A WARRANT IS NOT A
VIOLATION OF THE FOURTH AMENDMENT
The Fourth Amendment protects an individual from unreasonable searches and seizures.
Therefore, in order for there to be an established violation of a person’s Fourth Amendment
rights, the state action must satisfy two prongs: (1) There must be a search or seizure; and (2)
That search must be unreasonable. U.S. CONST. Amend. IV. We ask this Court to reverse the
findings of the Fourteenth Circuit Court of Appeals for two reasons: First, there was neither a
21
search nor seizure for Fourth Amendment standards; and second, even if deemed a search, that
search was reasonable despite being warrantless.
A. No Violation of the Fourth Amendment Exists Because There Was Neither a
Search nor Seizure by This Court’s Standards
While it is true that police violated Harrenhal Stat. § 397-04 (2011-2012) by failing to
procure a court order for the data records, but that is not what is at issue. What is at issue is
whether Respondent’s Fourth Amendment protections from unreasonable searches and seizures
were violated by the state’s use the historic and real-time cell-phone location data without a
warrant. The simple fact that a statute is violated does not mean that there has been a per se
violation of an individual’s Fourth Amendment rights. See Oliver v. United States, 466 U.S. 170
(1984) (holding that while the police committed an illegal trespass, there still was no search, and,
therefore, no Fourth Amendment violation).
Under Katz, government action constitutes a search if it violates a “reasonable
expectation of privacy.” Katz v. United States, 389 U.S. 347 (1967) (Harlan, J., concurring);
accord Kyllo v. United States, 553 U.S. 27, 32 (2001), Smith v. Maryland, 442 U.S. 735, 741
(1979). Government action is also considered a search if it penetrates the sanctuary of the home
under traditional trespass doctrine. See United States v. Jones, 132 S.Ct. 945 (2012); United
States v. Karo, 468 U.S. 705 (1984), United States v. Knotts, 460 U.S. 276 (1983); see also,
Silverman v. United States, 365 U.S. 505, 511 (1961) (“The Fourth Amendment, and the
personal rights which it secures, have a long history. At the very core stands the right of a man to
retreat into his own home and there be free from unreasonable governmental intrusion.”).
Furthermore, a search or seizure occurs when there is a physical trespass interfering with an
individual’s possessory interests in his own property. Jones, 132 S.Ct. at 951.
22
The use of Respondent’s real-time and historic cell-phone location data did not violate
Respondent’s “reasonable expectation of privacy” because the data falls under the Third Party
Doctrine, nor was there any trespass on Respondent’s property, by interference or otherwise.
Jones, 132 S.Ct 945; Smith, 442 U.S. 743–44; Katz, 389 U.S. 347 (Harlan, J., concurring).
1. This Court held in Katz that a search involves an infringement
on a “reasonable expectation of privacy,” which does not exist
unless an individual manifests his intent to privacy, and society
is willing to accept that individual’s expectation of privacy as
reasonable
The Katz Court created a two-step analysis to determine whether a search or seizure has
occurred. Katz, 389 U.S. at 360. First, an individual must manifest his subjective intent or
expectation of privacy. Id.; accord California v. Ciraolo, 476 U.S. 207, 211 (1986). The
appellant in Katz, for example, closed the door to a telephone booth, which the Court found
manifested his intent to keep the conversation private. Katz, 389 U.S. at 353. Similarly, the
appellant in Kyllo conducted his illegal operations in the privacy of his own home, thereby
manifesting his intent to keep his operations private. Kyllo, 553 U.S. at 32.
Second, although an individual may have established his subjective expectation of
privacy, the individual’s expectation must be such that society is willing to accept it as
reasonable. Katz, 389 U.S. at 360; accord Ciraolo, 476 U.S. at 211. In Ciraolo, the Court held
that even though defendant put a fence around his property, the officers’ observations made
while flying overhead in an aircraft did not constitute a search; there was no reasonable
expectation of privacy. Ciraolo, 476 U.S. at 213. Anyone flying overhead could see the
defendant’s property. Id.; see also Oliver, 446 U.S. 170 (holding that Fourth Amendment
protection does not extend to areas outside of the immediate curtilage of the home, even though
defendant posted “No Trespassing” signs on his property, therefore there was no reasonable
23
expectation of privacy); cf. Katz, 389 U.S. at 352 (holding that Katz had a reasonable expectation
that his private telephone conversation would not be overheard or broadcasted). Additionally,
what an individual knowingly exposes publically is not privy to Fourth Amendment protection,
even if what the individual seeks to protect occurred in his home or office. Katz, 389 U.S. at 351.
2. The Third Party Doctrine applies to cell-phone location data,
and therefore the data does not warrant any expectation of
privacy for Fourth Amendment protection
The holding from Smith v. Maryland renders it unreasonable to expect that information
given to third parties will remain private (the “Third Party Doctrine”). Smith, 442 U.S. at 743–44
(pen registers of telephone contain information voluntarily given to telephone companies);
accord United States v. Forrester, 512 F.3d 500, 503 (9th Cir. 2008) (“[E]-mail to/from
addresses and IP addresses are not merely passively conveyed through third party equipment, but
rather are voluntarily turned over in order to direct the third party's servers.”). The Court in Smith
also held that records exchanged and collected during the ordinary course of business are not
subject to a reasonable expectation of privacy under the Third Party Doctrine. Smith, 442 U.S. at
743 (“[T]he phone company does in fact record this information for a variety of legitimate
business purposes . . . . [I]t is too much to believe that telephone subscribers, under these
circumstances, harbor any general expectation that the numbers they dial will remain secret.”).
Many courts have recently declined to extend Fourth Amendment privacy protections to
cell-phone location data under the Third Party Doctrine. The Fifth Circuit Court of Appeals held
that cell-phone location data records are considered business records, and therefore are not
subject to a reasonable expectation of privacy. In Re Application of the United States of America
For Historical Cell Site Data, 724 F.3d 600, 610 (5th Cir. 2013) [hereinafter Historical Cell
Site]. The Sixth Circuit Court of Appeals held that cell-phone users do not have a reasonable
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expectation of privacy of their cell-phone location data. United States v. Skinner, 690 F.3d 772,
777 (6th Cir. 2012). In these cases, the information was obtained in the course of an investigation
of a crime. Historical Cell Site, 724 F.3d 600; Skinner, 690 F.3d 772. Since information used to
obtain evidence to convict an individual is much more intrusive on privacy rights than
information used to obtain locations pursuant to an arrest warrant, it logically follows that it is
also unreasonable to expect the cell-phone location data used to execute an arrest warrant to
remain private.4 Though the individual may have a subjective expectation that the data records
will remain private, the objective societal expectation is absent. Smith, 442 U.S. at 743.
The United States District Court for the District of Maryland has decided one case on
point, which discusses using cell-phone location data to execute an arrest warrant. In re
Application of United States for an Order Authorizing Disclosure of Location Information of a
Specified Wireless Telephone, 849 F. Supp. 2d 526 (D. Md. 2011) [hereinafter Specified
Wireless]. Magistrate Judge Gauvey held:
The Court has concluded that current Fourth Amendment jurisprudence neither
sanctions access to location data on the basis of an arrest warrant alone, nor
authorizes use of a search warrant to obtain information to aid in the apprehension
of the subject of an arrest warrant where there is no evidence of flight to avoid
prosecution[.]
Id. at 536 (emphasis added). The facts in the instant case are distinguished from those in
Specified Wireless because the Hornwood County police did believe Respondent to be a flight
risk. R. 15. He had “few friends or family” tying him to the area, and he was “not at his home or
4
The only information the officers intended to obtain was Respondent’s location pursuant to his
arrest warrant, not evidence of his crimes. R. 52.
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any of the places he frequented.” Id. Therefore, the police were justified in suspecting that
Respondent had fled. Even under Specified Wireless’s analysis, the actions of the Hornwood
County Police Department did not constitute a search.
Furthermore, the intermediate appellate court argues that warrantless access to cellular
data is unreasonable because wireless providers give their consumers the option to decline
provider access to their data. R. 57 (citing Understanding Privacy and Location Services on
iPhone, iPad, and iPod Touch with iOS 8, APPLE.COM, http://support.apple.com/enus/HT203033 (last visited Feb. 12, 2015)). This concept only further strengthens the argument
that any expectation of privacy with regards to cell-phone data is unreasonable. If Respondent
wanted to remain hidden, he could have turned off his phone, or his data, but he chose not to do
so. R. 18:11-14. The choice was voluntary. One Federal District Court judge opined:
[C]ell phone users who fail to turn off their cell phones do not exhibit an
expectation of privacy and such expectation would not be reasonable in any
event. This conclusion is supported by the execution of standard industry
agreements by which users agree to collection of their geolocation data by third
parties, and the provision of such data upon the receipt of a subpoena.
In re Smartphone Geolocation Data Application, 977 F. Supp. 2d 129, 147 (E.D.N.Y. 2013)
[hereinafter In re Smartphone].
Respondent was put on constructive notice that the cell-phone location data Red Viper
collected would be available to law enforcement officers upon lawful request. R. 7. His signature
documents his understanding on record. R. 2. Red Viper Wireless’s privacy policy explicitly
states that it collects location data as a means to provide its customers with certain location
related services such as weather, emergency services, and navigation. R. 6. Respondent either
knew, or should have known that he was voluntarily conveying location information. Therefore,
the information was collected through the ordinary course of business. Any subjective
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expectation Respondent possessed for his cell-phone records was, therefore, unreasonable. Under
Katz, there was no search, and, thus, no Fourth Amendment violation.
3. Neither physical trespass nor trespass to chattel as discussed in
Jones is applicable in this case because the location technology
was on Respondent’s phone when he originally purchased it
from Red Viper Wireless
Recently, this Court has returned to traditional trespass doctrine, in conjunction with the
reasonable expectation of privacy doctrine, in order to define a Fourth Amendment search. See
Jones, 132 S.Ct. 945; see also Karo, 468 U.S. 705 (trespass in the home constitutes a search).
The reason for that return stems from the original premise in Silverman that “[a]t the very core
[of the Fourth Amendment] stands the right of a man to retreat into his own home and there be
free from unreasonable governmental intrusion.” Silverman, 365 U.S. at 511.
The Jones majority held that a search or seizure occurs when there is a physical trespass
on an individual’s property that interferes with his possessory interests. Jones, 132 S.Ct. at 951.
The Court found that the defendant in Jones was subjected to an illegal search when officers
attached a GPS device to his vehicle without a warrant, and followed him on public roads. Jones,
132 S.Ct. at 952. This decision seemed to be at odds with those of Knotts and Karo, which
concluded that travelling on public roads does not warrant a reasonable expectation of privacy;
the car is in constant public view. Karo, 468 U.S. 705; Knotts, 460 U.S. 276. Justice Scalia
distinguished the facts in Karo and Knotts from those in Jones by reasoning that the canisters in
Karo and Knotts, which contained the tracking devices, were not in the defendants’ possession at
the time those devices were planted; whereas in Jones, the defendant was already in possession
of his car when police planted the GPS device. Jones, 132 S.Ct at 952. Therefore, Jones’s right to
privacy was infringed when the police attached the device using physical trespass. Id.
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The Sixth Circuit Court of Appeals in Skinner discussed trespass as it applies to cellphones. It concluded that, “[the defendant] himself obtained the cell-phone for the purpose of
communication, and that phone included the GPS technology used to track the phone's
whereabouts.” Skinner, 690 F.3d at 780. Such reasoning can be applied to the instant case. There
was no physical intrusion on Respondent’s property. Just as in Karo and Knotts, Respondent was
not in possession of the property (cell-phone) before the tracking technology was installed; he
purchased the cell-phone, which came equipped with the location tracking technology. R. 3–9.
The data used did not interfere Respondent’s possessory interest in his phone in any way. In fact,
the location data collected by Red Viper perpetuates the cell-phone’s purpose of use and
enjoyment. See R. 6 (listing applications and services that require location data to operate).
Therefore, Jones’s majority holding, as binding precedent, does not apply to Respondent’s case.
B. Even If The Police Use of an Individual’s Real-Time and Historic Cell-Phone
Location Data Is Deemed To Be a Fourth Amendment Search, There Is No
Violation Because The Search Was Reasonable Under Payton and Steagald
Warrantless searches are presumed unreasonable; however, there are “a few delineated
exceptions” where warrantless searches are deemed acceptable. Katz, 389 U.S. at 357; Coolidge
v. New Hampshire, 403 U.S. 443, 454–455 (1971). These exceptions include searches incident to
arrest, and exigent circumstances, among others. See Katz, 389 U.S. at 357; Coolidge, 403 U.S.
at 454–455. A search necessary to execute an arrest warrant should be added to this list of
exceptions. “While precise, persistent tracking of a cell phone is a search, it can be reasonable if
used to facilitate arrest pursuant to an arrest warrant.” Jeremy H. Rothstein, Track Me Maybe:
The Fourth Amendment and the Use of Cell Phone Tracking to Facilitate Arrest, 81 Fordham L.
Rev. 489, 535 (2012).
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This Court has authorized police officers to enter a suspect’s home pursuant to an arrest
warrant on a limited basis. Payton v. New York, 445 U.S. 573, 602–03 (1980) (“[F]or Fourth
Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the
limited authority to enter a dwelling in which the suspect lives when there is reason to believe
the suspect is within.”); see also Steagald v. United States, 451 U.S. 204, 214 (1981) (“Because
an arrest warrant authorizes the police to deprive a person of his liberty, it necessarily also
authorizes a limited invasion of that person’s privacy interest when it is necessary to arrest him
in his home.”).
Recently, courts have extended Payton and Steagald to include a “digital invasion” of an
individual’s privacy in order to locate him to execute an arrest warrant. See e.g., Meisler v. State,
321 P.3d 930, 933–34 (Nev. 2014) (“Because an arrest warrant would have justified an entry into
[defendant’s] home, an arrest warrant likewise justifies a digital entry into his cell-phone to
retrieve GPS coordinates for the purpose of locating him.”); see also In re Smartphone, 977 F.
Supp. 2d at 147 (“[T]he issuance of the arrest warrant for the defendant undermines any privacy
interest in prospective geolocation data.”).
As previously discussed, the home the most protected area under the Fourth Amendment.
See e.g., Payton, 445 U.S. at 585 (“physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.”) (quoting United States v. United States District
Court, 407 U.S. 297, 313 (1972)). Thus, since this Court allows a limited invasion of the home
under Payton, courts have reasoned that it would be absurd to give cell-phone data a higher level
of protection. See In re Smartphone, 977 F. Supp. 2d at 147 (“The Fourth Amendment cannot
accord protection to geolocation data associated with a defendant's cell-phone while denying
such protection against a physical invasion of his home, as the latter is entitled to the highest
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order of defense.”). “Because Payton authorizes police entry into the home, it allows the lesser
intrusion of cell phone tracking.” Jeremy H. Rothstein, Track Me Maybe: The Fourth
Amendment and the Use of Cell Phone Tracking to Facilitate Arrest, 81 Fordham L. Rev. at 535.
The Court of Appeals in this case argued that “either [the police] did not have probable
cause, or they did not bother to prove that they did.” R. 51. Under, Payton and Steagald, this
presumption cannot be correct. Payton, 445 U.S. 573; Steagald, 451 U.S. 204. The Hornwood
County Police had obtained an arrest warrant with probable cause. R. 14. Therefore, the arrest
warrant implicitly “authorize[d] a limited invasion of [Respondent]’s privacy interest.” Steagald,
451 U.S. at 214. The police requested Respondent’s data for the sole purpose of locating and
apprehending him. R. 52. Police had exhausted all of their resources, yet still were not able to
locate Respondent to arrest him. R. 15. Police used this data as a last resort to finalize their
search and arrest the alleged serial killer of fifteen victims. Id. Though one could argue that there
was a home intrusion, and therefore a search, the arrest warrant and the diminished privacy rights
under Payton and Steagald justified the intrusion.
CONCLUSION
We, therefore, ask this Court to REVERSE the judgment of the Fourteenth Circuit Court of
Appeals in all respects, and REINSTATE the judgment of United States District Court for the
District of Harrenhal.
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