without informing medical members of the execution team of the well documented and extremely uncommon medical condition that will very likely cause his execution to involve severe harm and suffering from the time they begin to gain venus access all the way through his eventual death mr foxman can you tell me the current condition of your client in light of footnote to your opening brief and in particular but not exclusively does he still have a tree in his through and if he does doesn't that move certain of your claims particularly i thought much of the prep work and dangers related to him choking on his own clothes doesn't the trick minimize that now you know so first to answer questions you know we've we've requested leave to lodge the medical records from the summer i'm happy obviously outside the record just want to make that clear right now as far as i know he still has a trait and there is no indication about how long he's going to continue down the tree the tree could be removed at any time that the medical people determine it's appropriate to do so i don't think you can move it out the case because without if the trache is removed all of the problems were turned as for what would happen if the trait wasn't removed i think it would still be complications that would need to be investigated it's a completely different set of circumstances it's certainly true that we appear to be issuing at the situation on an advisory decision because if the trick stays it's a totally different case than if it is removed i don't think it's an advisory decision your honor i think i think the problem is you have a judgment right now that says missouri can go ahead and execute mr buck little according to the protocol that they have in place and we don't we at this point we cannot say he certainly is in imminent danger if that protocol is used at that the act there is no priming execution date if that protocol is used in the future i don't know whether the bleeding problems complicate the trait for him that's just never been investigated and i also don't know if the chance even to be there at the trade is going to be there how long has he had it now i was put in june part of the reason he may is to find out if it can be removed more and he certainly can be removed the question is it's his he's got a progressive condition that's you know discussed in the record i can so i'm a little bit upset that you would come in and launch medical records without having secured the information of whether he's physically capable of having the trick removed or not so this is what we know about why i don't know whether this is the precise reason but he is scheduled to have dental surgery a for two things you that you know because his mouth is so prone to infection so he's going to have dental surgery my suspicion is that they're leaving the trachea and for the surgery you don't want to take the tr soldiers but go ahead assuming nothing because i don't know what's going to happen it appears that your doctors see that was mistreating the horse study that his four minute estimate had to do with a different study having to do with a dog and a different agent not the agent that issue here given that without that study there's no basis to believe that this is the kind of a patrol would take four minutes to take effect it would likely be i think it was the figures were at maximum fifty two when the average is twenty to thirty seconds that's the only evidence in the record is there anything left to your case once that information is eliminated then an actual misstatement yes there is you are two things to say about that first in fact the maximum period of time in that study is if you if you actually time it from the beginning of the infusion all the way through the time with  g zero is one hundred sixty one seconds almost three minutes it is true that he missed that that he misremembered the time that you what you have to do is you have to look at the study that went back and we look at the study there is a wide range of infusion times in that study twenty eight seconds to one hundred fifteen seconds and that just for reference here on or on the infusion times in the study referred to are that thinks and i think it's about j two sixty five appendix page two sixty five and talks about the the infusion rate the other thing that study indicates which is also confirmed by dr antigone's testimony at page three sixteen is that the slower you infuse the longer it will take for the drug to take effect now here's what happened in the horse study it was that of the slowest horse that the slowest infusion rate one hundred fifteen seconds that horse took the longest time which is exactly what you'd expect right that the horses were infused with four times four times the amount of pentobarbital they're much bigger than their and human beings and so it's a bit take about four times dr had to need testified that he would expect  hundred seconds just about one second percy see so something a little bit more than one hundred seconds for mr or mr buckley's infusions to take place so it's the same amount of infusion time for the horse except it's four times as much that's there's no way to measure exactly when there is no studies and there's no way to measure exactly when you passed through the various stages of consciousness and so on the undertake major surgery with the igi at a much higher level that there's no but there's no particular reason to believe that you get it well but first of all that that this read that that reading those those ranges are somewhat disputed in the science but regardless the point is there's no reason to believe that it well at this point there's nothing in the record but there's also no such there's no real way to measure how one way or the other there's by and there's it's a difficult situation to measure for obvious reasons we don't do we don't conduct experiments in this work in the sort of field and so we're working with the information as best we can and what i'm trying to emphasize here is that the infusion rate for mr buckler especially compared to the horse study is substantially slower as a proportional matter and that's a good reason to believe but doctors if it's fundamentalism it is going to be a pro long period of suffering he admitted lee wasn't precise and just a sort of where you're absolutely right that i think he just crossed up the numbers in his head from the study but that doesn't change the fact that there's going to be several politan dissent specifically talked about the trial of the one of the things he thought needed to be hashed out at a trial is not only you know this debate between doctors if it in acting he would also whether he'll be required to lie flat which we've now  that he will lie flat he will not by fully supine at the time they administer the lethal drug which i take to be strong evidence actually they had time to think about this they had time to make a decision about what they wanted to represent and what they chose to say is will make sure he's not lying flat at the time they begin the infusion that's critical because a large part if we must prove as as judge khalid observed if we must pro that the available alternative method will substantially reduce mr buckley's risk of suffering and as you know we don't we don't think that's necessary but if we must we will explain that the risk rises early in the execution process and remains high throughout through the period that do less agreed that at this some remember this is summary judgment so at this posture of the case there is substantial reason why a fact finder would conclude that the peripheral access is going to fail and as i read the respondents brief when they make nods and in the other direction but essentially they accept the district court except to the court of appeals accepted but there's going to be going to access from roving we do not deny we do not deny that they can access the femoral vein that's going to happen we're not denying that the question is how horrible is that going to be for the last time they access the family vein of an inmate because they failed to gain venous access and this is that page six eleven and six twelve of the appendix they did it through this cut down procedure the cut down  procedure they have the kit in the room that's page six fifteen to sixteen this is entirely within the contemplation what they expect to do they are dealing with inmates after all compromise means is hardly an unusual circumstance for access the femoral thing without a cut down procedure dr anthony did say that but then the but the board certified answer you out there contrary happened yes because the board certified anesthesiologist that i'm referring to who previously accessed the femoral vein by a cut down is the same person who's going to do mr buck was execution unless they've changed they haven't told us it's the same person so whatever generally speaking what and what dr had to mean he said let's be absolutely clear about this doctor acting dean explained in his in his deposition he said everyone who's board survey is trained to access the family but when asked point blank does everyone have experience jim he said no he said you can go decades without doing it at all and you could lose the ability to do it and now we have of course we haven't had discovery of m two and on three separate issues that i'll get to in a moment but what we know given what we've had access to is that this person did a cut down and a cut down the testimony is take fifteen minutes and maybe more and it's carving into his legs so let's paint the whole picture here he's lying fat flat that's what the oils affidavit says there carving into his leg causing a tremendous amount of stress this is the worst possible set of circumstances there's little doubt in my mind if he doesn't have a trade that's absolute truth justice and if he doesn't have a train he would he would be suffering enormously suffocating having difficulty breathing and if this is not a short period of time if you look i can't stay is there another alternative to the cut down to access a camera so so it may if we had discovery of m two m three we could have a conversation with about whether they would use an alternative some other procedure but we haven't had the chance to talk are there any i believe there are your honor i do i believe that some people who are skilled and have and have a lot of experience with this can you know just can do it sort of visualize where the federal brain is and effectively do it the best way to do it that you would use in a surgical setting korean testimonies you bring in alter sound there's no suggestion that there be an ultrasound in this case but i want to emphasize that when they what the record shows is when they sit when they start this process they're not going to be aware of the breathing issues that's what happened last time they got a one page summary of his condition it mention that  the face and lip it didn't mention the tumor in his throat it did not indicate any breathing issues nothing in the record indicates they would check mr black was the only nothing in the record indicate they normally in the normal course would monitor an inmate's restriction nothing in the record suggests they would have the equipment present in the room to deal with the airway collapse while he's on the to the table waiting for the drug to be infused which is a very long period of time it was about to say before if you look at pages nine seventy eight and nine seventy nine of the appendix you'll see how far in advance of the time the administer the lethal drug that they begin the efforts to gain venus access is lying flat that entire time the boy is affidavit tells us he struggled through a cut down procedure he's probably bleeding from his tumor the risk of a airway collapse is very high and there's nothing in the room to deal with it so i don't think i think there's a question the trait is they've come to us just to sort of mine and said you know what we'll give you access to get you can talk to him two and three and what we think they're going to they're going to do is we're going to give them the information that they need to know what problems are very likely to arise we'll let them think about it you can talk to them and maybe what they'll be able to do is at the start of the process will adjust the protocol and portray can and develop might let me stop you right there you know let's assume and they're going to i'm going to ask them this directly it does seem very logical that the state would give an affidavit a lot better than the one they did through mr boyles that would say no we're not going to put him something line from the minute he's laid down the gurney will have the top part raised we've talked to the medical team they have experience by their own requirements they have training education and experience with two or three different ways to reach ephemeral lie there's at least one of the two people who do we've told them about the breathing problem it's not going to be the same as the the last time and they're prepared assume they came in with that you know we're not going to let you talk to them no we are not going to permit discovery and its traditional way but we are making these affirmative representations to the court would you have a case left at that point i think i think if the judgment were based on that kind of those kinds of assurances i would probably want to add a few i think given the passage of time in the progressive nature of illness i think to be adequately informed and one of the as as you as you point out you know adequate information is critical here to be adequately informed you probably have to do imaging studies at some reasonable time in advance of of the execution i'd want to know i'd want to know what kind of experience they have not only with the cut down but remember doctors if it was very clear that he would not want to just interview hate on the fly someone in this to block his condition why because that tumor is extremely sensitive and if you've got a struggling maybe convulsing person even strapped down and you're trying to put a tube down his throat so that he can breathe the chances of a catastrophic hemorrhage are very very high so this has to be taken care of thought through in advance i think it's very complicated in the judgment we have right now just doesn't do it for us and i think you have to vacate in remained what you were proposing just a sort of more is entirely sensible and could happen on remand before the trial court and that's what should happen but it should have happened before could i ask you to address the reasonable alternative question i know you think it's not required in your case but assuming that it is how can it be a reasonable alternative if it's never been used before your honor i think i think there are couple of reasons why that so first i don't think that this court ever said in base that it has to have been used before for it to be a reasonably available alternative when i understand the language of base to say is it's the key passages a page fifty seven of the opinion no other state has adopted the method that was being proposed in bays and petitioners proffered no showing that is an equally if active manner of imposing a death sentence what do we have oklahoma mississippi alabama have adopted lethal gas as as methods of execution edition now to missouri and it's not only not only have we shown that it's an equally effective manner of imposing a death sentence dr anthony said so that's his that's his opinion that's the evidence in the case there's the study from oklahoma which was done which went through the process that would be involved in some in some detail talked about the right to die communities favorable experiences with lethal gas now it doesn't mean there's nothing to be worked out of course there are details to be worked out i don't i don't doubt that it would have to be one hundred percent pure nitrogen because i think it's actually potentially horrible if you have either a leak in the in the in the system and one of the things we see often in the eighth amendment cases is the point allegation that things can go wrong regardless of the method of execution it seems to me that if you have a method that no state has ever used that that danger is magnified possibly your honor but and yet your claim is that this is a better and better alternative because here's here's why i mean when you think about what our claim it says as applied claim our claim is that the officials in missouri are going to do everything that their protocol directs them to do i'm not assuming that there's going to be a mishap i'm not assuming that something's going to go haywire i'm assuming everything's going to go exactly the way they intend and that the process of things playing out exactly that way is going to be severe suffering for mr buckley so now we move to a situation where a method where i'd where i think it's made substantially less the risk is pain if the desk death penalty is constitutional as it now is there must be a way to administer it but if you can show that there's another way that is less painful then the theory is again that it's an eighth amendment claim because it's unnecessary pain but again it seems to me that you can't make that showing with respect to something that's never been there or been used by any other state i don't think i don't think that's true your honor i think what happened in bay's was you had a method that assuming it went well that's what the background the basis was member that the analysis was comparative you start with the background assumption and bays that if everything goes according to plan there's there's not constitutionally significant suffering here but it's exactly the opposite if everything goes according to there is constitutionally significant suffering so the the the relative risk of the just unknown you know not quite sure because it's never been played out before which has no purchase against the background base has enormous purchase here its what do you do with the it do i understand where we are is that the district court and the court of appeals assume the huge shown enough to deny summary judgment of the state shown enough that this method because of his special condition in the terrible tumors and so forth could cause serious suffering and now they overturned you on the second part and said but you haven't shown that that serious suffering wouldn't occur anyway even with your new method all right that's where we are so as of this moment though you talk about the first part and even you say a lot of conditions of change and some have changed and some might have changed and we're missing a piece of evidence about an affidavit that says hey the nurses and so forth do it they're supposed to do it now as to the second part which is pretty hard to look at alone without the first part as to the second part what in your opinion should we do because the only the evidence in the record said y if we use nitrogen doctor the doctor that you mention said you use not huge in twenty seconds thirty seconds still he'll be unconscious ok but the chief justice i mean that is a point never been used before the even hit there doctor is there listening in and or knows about all this and it all is on an assumption that now seems not to be accurate in your own view of the  horse studies misread so so what are your opinion should the court do i have a proposal thank you just as prior because i have a proposal i think it will address just a sort of my hours concern as well if you look at the appendix of the for the many complain page eighty five of the appendix and page ninety of the appendix among the allegations in the complaint is not only do we think lethal gas would be a viable alternative method but we also say if after adequate discovery it turns out it might be possible we just don't know but it might be possible to alter a lethal injection protocol in a way that would satisfy constitutional standards so if you vacate the judgment if you re mandate to the district court in part because circumstances have changed we don't know whether the change circumstances will prevail at the time an execution is scheduled but in part because circumstances have changed if you vacate and remand then we can go back we can not only look into the question of what's what how the comparison in light of any new circumstances would be to delete unknown aspects of the class but we can also figure out whether there are other ways to modify a lethal injection pro protocol that alleviate this grave concern what is your basis for or arguing that there would be a shorter twilight period with lethal gas so this is you relying on dr anthony's testimony for that so no so just to be clear you're not ok so what are you relying on so so the way i understand it is the issue is not that there would be a sure twilight period the issue is what's the degree of suffering that takes place during the twilight periods the twilight period is what it is it a period there's a period of time where you are unconscious doctors if it thinks there's a period of time even where e g the readings very are very but you can still from his experience sitting by patients for it's the same say you don't want to accept him you want to accept his number may i maybe there's more that's why i'm asking this or do you want to accept his number for gas but reject this number for pentobarb significant incident petitioner offers an extremely many people have had the same condition as mr buckley zero your honor i'm not right so let's go to his unique circumstance you don't deny that he has this condition absolutely not you don't deny that he has a small tumor but a tumor in his throat the evidence is quite sizable and far right very sizable you so  earlier question it doesn't i don't believe i would hate to think that us any state would intend to gratuitously subject a prisoner to pain because they don't want to get a gurney that moves the head up or that they don't want to have personnel use required in your own regulations you need i think the words are that you have to have someone i read them earlier with the training education and experience to do everything that's necessary to reach the vein sick cetera some assuming you're looking for those people and have them in place correct around so why haven't you represented that you're going to take the basic steps necessary to avoid the horrific circumstances that your adversary says can and will have we've bigger asli dispute that horrific circumstances will arise but i believe we have made those representatives why do you dispute there because there's a whole every every stage every stage of the predictions that are made by the petitioner is contradicted by evidence in the record i do want to address the question about what representations we have made at five thirty one of the joint appendix the director of adult institutions testified this is in the record it's not a supplemental affidavit that we submitted in opposition to a stay in motion evidence in the record from the warden of the institution is that i know he received his complete medical records and i will supplement that right now by representing to the court that the anesthesiologist has access to all the medical records the one page summary the devitt director of adult institutions is a higher level in department of corrections said that's the only thing that i give him but the warden testified that he is good he has access to the entire medical records and the one page summary does say he in the lower maxell in the jaw so what actually flags the issue so to speak for the industries you we know it seems to be what do you recommend that we do i mean the difficult discussion to me that you're having right now it's unusual for us to go into a record like this i think and then reverse both court so then we're stuck with the other part of it which we don't know all that i'm out much about and the nitrogen they have a good reason for thinking that the nitrogen won't be painful that it works in a different way and yet it isn't quite there in the record and you could argue that that's why there was a dissent so that strikes me is it that court at that point you should go deal with this as a person rather than a lawyer go back and hold a full hearing on it and go back and find out if this man really is bestial if there really is a special problem what we know about the alternatives all the questions that you pointed out and that they pointed out which we don't have answers to no i why not i would say two things in response to that just as prior first the state of missouri has a compelling interest in seeing this just and lawful senses sense carried out as quickly as possible it remained for further fact finding which is the principal request the petitioner here would interject yet more delay before the execution of a sentence that's been in place for twenty two years now secondly the evidence in the record decisively decisively supports in a form it's on either of the two alternative grounds either of the glossop elements and i'll address if i may the one that you raise which is the second about a feasible readily implemented alternative solution nitrogen hypoxia has never been tried by any state at this time no protocol exists for execution by night no state has ever tried it in the controlling you because pinion and bays this court said six times including twice in the opening three paragraphs of that opinion that an alternative method of execution that is untried and untested that no state has ever used that no study support showing its efficacy is not an alternative it could i mean reaction to that is a question mark i mean that it hasn't been tried certainly a strike against it but is it a fatal strike against it and the other thing that's going on in the problem ok so you cannot be guarded against here they've sworn up and down no we're not going to do that i mean we're we're this is really an unusual case and you know you've read all that stuff so generalized attack to a system of execution and it basically said if you like this system you've got to get it out there because you have to propose another because otherwise what you're trying to do i abolish the death penalty your intent is to do away with the death penalty and we're not going to let you do that i don't actually know where in the eighth amendment in its history the court made up this alternative remedy idea because the constitution certainly doesn't prohibit cruel and unusual punishment unless we can unless we can kill you at all but putting it aside this is and as suppl challenge is not going to abolish the death penalty with respect to everybody it's going to tell the state if you have an individual with a unique circumstance in which a method of execution is going to cost that person excruciating pain cruel and unusual pain you better find a different way i don't understand why we would extend to an ass apply challenge to start with number two if a statute your statute the court hasn't made it up list available alternatives it's your job to find them and your job to put them into place it's not the inmates job to do that putting aside that he neither has the resources to do it or the expertise to do it but i'm wondering why we're assuming that they should be extended to him as supply challenge at all i secondly address the question of why feasibility the courts who have now held the only feasible alternative is an alternative mentioned in a state statute so now we're in a hub see and circle state gives us an an option i can't point to it state doesn't give me an option now there is no alternative we're really in a circle that you can't get out of why don't we just simply say once the first meant and the courts below didn't they assume that they said they were material issues of fact we should have got on trial for that i don't think the child would have taken very long and once that happened you figure out how to kill there was a lot there i'd like to address first if i may the question of whether why the second element of base should apply and as applied challenge i'd offer four reasons for the court's consideration the first reason is that it is dictated by the holding in the reasoning of the big case keep in mind that because it was decided two years after him against madonna and hill against madonna the argument was a challenge to a method of execution is really a challenge it's an attempt to seek a de facto exemption from the death penalty and therefore it ought to be treated as a second or successive p b s protection and this court and hill said no no no this petition is actually leaving open the option that it could be executed by different method therefore it's not a de fact attack on the validity of the sentence but then when bays came around two years later this court held that we're adopting a second element in part because we did not want petitioners to be able to seek a de facto exemption from the death penalty or  certain people from the death penalty the mentally ill the incompetent people who are young we haven't seen that is abolishing the death penalty we see it as as an as  d exemption to particular person or individual for whom this method is cruel and unusual you know all or virtually all of those contacts the person who is exempt from the death penalty possesses a characteristic that unusual punishment i think every individual has said that the right that is correct in the scope of that eighth amendment right is what is set forth in bays are you saying even if the method creates gruesome and brutal pain you can still do it because there's no alternative i believe that any petitioner who is claiming that it would create gruesome and brutal pain must under base and gloss up offer an alternative method that's significant so you're saying that even if the method imposes gruesome brutal pain that is you can still go for well i would say again that that petition has to if it's not a yes yes it is your honor and that is the holding of the loss the holding up lo of there is a limit your honor i think there is a limit would occur if the method of execution were viewed as super adding terror pain or discrete within the meaning of the court's earlier method of execution cases so if the method of execution was so gruesome and brutal or or or was even relatively similar to the historical gruesome methods of execution that are categorically prohibited by the eighth amendment there would certainly be a claim in that context where or in the words of basing glossop there is an attempt to deliberately inflict pain for the sake of pain that would be categor exact in that context the alternative method is not required but if a petition of claims that well i'm predicting that i will suffer under these circumstances that petition i must under the logic of bays and blossom plead employ proven alternative methods and one of the compelling reasons that this court offered for that was that this court recognize that it is to eliminate the risk of pain completely is impossible and that's why the bays and gloss of context is very different isn't the first prong deal with that namely that you have to have a substantial showing of severe pain doesn't that get at the concern you just identified which is there's always going to be some degree but it has to be a substantial risk of severe pain i don't think it gets all the way to what i believe that is why bays and blossom adopted this rare medical condition that makes the method of execution to him feel exactly like being burned at the stake ok with the constitution would rule that out wouldn't the constitution would rule out burning at the stak absolutely you have any and he doesn't he has a mental condition of some kind it makes it exactly the same that is feels exactly the same are we have to know more about the how that's it i'm making it up as i go along ok but what i believe is it it's exactly the same to him as if you burned him at the stake and i guess if you're going to rule out the one you'd rule out the other that's my thought because i'm going to say next he this particular individual will because of his rare medical condition feel exactly the same as if he didn't drown to death over slowly over a period of time ok so that's why i think just as cavanagh brought that up but my my my my and i and that seems to me to be the factual issue that's underlying your first point but now we're back in the weeds with this individual so i'm interested in your experience and as far as you read about it and know about it what do we do about in your opinion forty two years in prison twenty years in prison thirty years in prison and people thinking well the reason is it's the courts that don't like the death penalty and therefore there's one thing after another and it goes on and on and on and when we send it back here we'll see that they'll think of a new one after this one and so forth so i think it's a serious  question and i would like to know if you think if i may your honor i understand the question if there is an exceptional delay before the implementation of the death penalty does that raise a question as to whether or not i'm not doing it that technically i'm doing it because this case really exhibits as i it's a special case and i think of the burning of the example of that i know that other people think that it's just something they're going to bring up and lose or win and then they go on to the next one after that and the next one after that general argument if this petitioner were to predict that he would experience a sensation like burning at the stake he would be the third petitioner of the third set of petitioners in the last ten years to make that prediction that was the precise prediction that was made in  those petitioners predicted that my days of lamb for example in glossop would not suppress the feeling that would be akin to being burned at the stake and this court house twice that these people mush owed it is a sure a very likely to happen and they must show that there is an alternative method of execution that is readily feasible and of course these hypotheticals about being burned at the stake aren't really implemented in the real world what's implemented in the real world is a situation where capital petitioners have every incentive to engage in interminable it a geisha in terminal litigation multiple challenges so absent that second element accept that second base element would almost certainly happen in every case is once the petition had made a threshold showing on the first element and the state came up with an alternative there would be a subsequent lawsuit or an amendment of the petition resulting in a second attack and that's exactly what we have here we have about an eight will be but the reality is that there are alternatives many of them have not been implemented because people one don't want to see them the firing squad electrocution there's a whole lot of things that people don't want to accept the reality of what they're there and if you're going to make the person find the choice of how to kill himself i simply haven't answered my question is if the statute permits it why shouldn't they be able to choose if they have proven and i understand that's a big to speak here if they have proven that the method chosen will create cruel and unusual ok i believe statutory authorization alone is insufficient to demonstrate that something is readily implemented or known in available within the meaning of bed now if there were  petitions for example in ohio have been pleading things like firing squad and hanging as alternative methods of execution where there is a historical pedigree to it this court has previously affirmed that as a viable method of execution that is constitutional there is a dispute in the courts of appeals about whether or not statutory authorization is a necessary condition to show that things are free readily available but right now in the eighth circuit statutory authorization is not required in the mcguinty case last year the eighth circuit said we do not statutory authorization is required so there are options available if someone really thought that i will suffer experience like burning at the stake presumably that person would plead you know lethal gas would plead so are you saying mr sauer that we would be in a different situation in this case right now if the petitioner head instead requested and electrocution or a firing squad it would certainly have been a stronger case now what actually happened was in the second page  complaint he dropped a footnote saying i'm not asking for filing swat he mentioned firing squad but he did not ask for it saying that because it is not statutory authorized so he first had to jigger inadvertent reasons has never presented the issue in this case and missouri's never taken a position on it as to whether or not statutory authorization is a is required general retail is a different question which you know one of the things that strike me strikes me when i went back and and looked at bay is there's a lot about a kind of deference to a state legislature and state officials about determining the appropriate method of execution about giving a kind of considered judgment to the sort of pain that would be expected from an execution as well as their interests in carrying out legitimate sentences and making decisions on that basis but what strikes me is that when we think about that those officials really are thinking in gross if you know what i mean they're thinking about a method of execution as applied to the general class of people and deciding that it's appropriate and what of course makes this case very different is that it's not engross it's a particular person that says i have a highly unusual condition that will make the execution highly unusual that will have me suffer highly unusual pain and in that context i think all of that stuff that we talked about  about why we should refer to state considered judgments really falls away because there's been no considered judgment surely by the lead legislature and in general by officials about about one particular person and it strikes me that because that's true the way we look at a case like this has to change so i'm wondering you know what your response to that is i think what i would say to that is the deference that basan loss of if you describe gay just like the legislature you know as to the generalized method of execution it would be appropriate it would be deeply consistent with this court's precedents to give that same kind of deference to the state officials who  implementing the at the execution in the concrete in this individual case missouri has a board certified in its using ologist who will be in charge of putting out this particular i'm not sure that that's true because those officials are working within the system th working within a set of legislative rules that have been made in this sort of general sense and for them to go outside that system would be you know and say it's not appropriate for this particular person would be an extraordinary person for it's an extraordinary thing for an individual person to do so i don't think we could realistically give the same kind of deference to that sort of decision i think the difference that i had in mind the your opposing counsel said even if everything goes according to plan will still be significant suffering can you respond to that absolutely absolutely disagree with that the other testimony about this of dr anthony is that the only suffering that would occur in this execution that could be medically predicted was the suffering associated with the actual entry of the i v in other words the pinpricks or the cut down procedure now i said cut down procedure in truth and fact the record decisively shows that a cut down procedure is not done in  the one time to cut down was done describes it as being done in the leg so there is no evidence and in fact dr anthony said there is no need to do a cut down on the femoral because it is called easily accessed and in fact it is not standard of care to use an ultrasound and accessing the peripheral veins in his arms so there's really nothing in the summary judgment record that supports the predictions that are being made i'm sorry there was a prior execution were cut down was done by he says the same person who's going to do this one and there was problems then why isn't it a predictive a reliable predictive tool to show that the same person who's going to do it now botched it earlier there is no evidence problems and the only testimony on the record is from the warden who is not a medical person who said that a local anesthetic was given and a cut down was done in the leg the testimony of a doctor is that a cut down is typically not done in the femoral which is high in the leg but is typically done in the required to show that alternative i'm not sure we got past the first of those four i'm not even sure we got the first one out there actually but i'm curious what what what all four are the first reason is that the of logic and the holding of values and gloss it requires hold that this is a substantive element of any method of execution challenge the second one is that as bays and law suppose said the death penalty is constitutional and there must be a means much greater and much more sweeping that have been presented in this case because they would apply to every single petitioner who was subjected to the two three drug protocols that were disputed in that case here we're talking about the suffering of a single petitioner exactly the same balance that of subjective blameworthiness in this context for there to be an eighth amendment violation and wilson said that one critical factor in whether or not there is subjective blameworthiness is a constraint facing the official if there is no alternative method of execution available and the official is under a directive from a jury verdict that there is a just and lawful sentence that must be carried out then the there it is very difficult if not impossible to draw the inference that they were subject to blameworthiness in that particular you didn't get three quickly that was three year i was away for four story and number four of course is the rest that we had to have discussed that there is a risk of interminable but a geisha and justice course which i would direct your attention to the way that the alternative method was pled and proven in this particular case we have a petitioner who said lethal gas with no further specification in his complaint and in the course of discovery set nothing more specific than nitrogen and possibly a hooter mask if missouri came up with anything specific anything specific any way to do this in the first prong of bayes deal with your second third and fourth arguments that you just listed i don't think it deals with a very very probably applied in other words substantial risk of severe harm i don't think it does so effectively and one of the reasons is that this court in vegas and los of course keenly aware of this fourth concern which is the concern of adopting a rule that would leave open the possibility of challenge  challenge after challenge after challenge that i see the good here is a person who has some have it and so anyway that when you execute him it's going to be like slowly drowning him to death and there's a good chance of that so in your opinion should the person given the eighth amendment not even have the right to make that argument this going to be has the right to make that argument then how do we avoid the situation that we're in of having to decide it and if he has the right to make the argument but i want this alternative how do we avoid the situation of fifteen years of testing every possible method of execution i would say two things in response to that first we figure asli dispute this a gesture and that he presented any competent evidence of the actual experience something like a prolonged drowning if you get into the details of the record there is no evidence competent evidence that supports that secondly if you really thought that he was going to suffer in this had to leave pleaded firing squad it's possible that missouri could have executed him by firing squad but his litigation conduct indicates that that is not the goal here the goal is to have challenge after challenge after challenge this is his method of execution challenge he had two prior challenges going back to two thousand and twelve the ringgold litigation bringing a preemption challenge to missouri's protocol the zinc litigation bringing in a facial challenge to missouri's protocol and now fourteen days before his first scheduled execution for the very first time he comes forward with an as applied challenge that is based on a medical condition that he has had since birth and that has been for decades and we present the same thing you define  feasibility i'm sorry because the statute have to authorize it for it to be feasible that missouri does any statute in a particular state have to authorize that you choose missouri has never taken a position on that question take it that i do i do not believe i'm compelled to do so by the way the record is presented however there are compelling arguments or strong arguments that that shouldn't be a requirement your honor i see my time as executor consul three minutes mr h thank you mr chief justice so that to make two points first about the alternative method requirement and second about the disposition in this case starting with the alternative method requirement justice kagan i think you have it exactly right that if you imagine that the state of missouri thought about how to build a method of execution that was going to create the subjective experience that the record indicates here for everyone that the record indicates here mr buckley who would experience nobody would do it they wouldn't do that and i don't i don't think so ill of missouri or work or counsel you know side to imagine they would do that yet the alternative method requirement as it plays out imagines that because they would think about something else and because there's a way to carry out executions for lots of people which this case doesn't call into question at all that you can nonetheless do it in that way to this person unless this person is able to come up with what they consider to be a specifically highly detailed way to manage their own and propose their own execution respectfully i don't think that makes any sense and i'll tell you why  cell he's got pro trouble breathing they give him a biohazard back they give him dogs they put him on a soft diet because eating hard food can cause his throat to bleed of course they take into consideration his physical unless he has some idea on this he's the one who comes forward the obligation not to do that the language of the eighth amendment is clear cruel and unusual punishment shall not be inflicted that's all we're saying here and just were right the first the threshold issue in an base that takes care of this that is a demanding standard has to be a substantial risk severe stuff and doesn't this isn't the role of the second prong at least in part and maybe in for what has been called by the lower courts as the second prong something that informs the first prong so you determine whether something is severe and substantial in relation to other known methods of execution on the assumption that any execution can cause pain it certainly is going to cause a lot of emotional pain that's probably going to exceed the physical pain i think that's true when you're talking about a facial challenge because remember in a facial challenge or trying to figure out as this court said all methods of execution of some degree of pain and suffering right so you need something to compare it to was this too much well compare it to tell me what you want to compare it to here we have already compare it's a healthy maybe it's the people missouri had in mind when they designed this protocol this debacle is experience is going to be nothing at all like that and miserably so why not why wouldn't we want to do the comparison if we're going to do it in gross on a facial challenge why wouldn't we do the comparison if you can see it's valid there why wouldn't we want to do the same comparison specifically when it comes to your client perhaps we have to look outside to what missouri's authorized of this court that make clear that the constitution in general does not define death the death penalty as cruel and so there has to be a way to carry out this claim about this individual person doesn't call that into question at all thank you