make note you filed a complaint well over four hundred pages of testimony attached to it from arthur yes or ok as a matter of fact it was all of the lawyers don't do that unless they intend all of that evidence to be incorporated into the complaint by reference you didn't do that but that's the way the rules are yes or a findings in another case that was tried to the badge and summary judgment setting there are we did not so we have i speak for myself i have a hard time understanding what is in this record for summary judgment purposes your honor i assume because of what you did that the whole archer case is in the record for summary judgment purposes your honor given that the district court did in this case yes your honor hopefully i might be able to clarify some of some of that your honor tell us how how huge this record it when this case started the first two complaints that were filed in this case one record that is not in this record there are obviously depositions and things like that your i know you well know of that you attach to testimony that was before says judge fuller we attach that from the two thousand and twelve hearing we did not attach anything from  we with that with respect to the second glossop wrong we had there was no chain genuine issue of material fact basically he found that there was a complete failure of proof on the second prong  glossop we believe that the evidence that we presented in this case differs from the previous cases and that there is sufficient evidence to allow this case to go try not to get to the specifics  are different facts we had different experts and different evidence than they had at the arthur truck specifically your honor we had two experts these are aspart and defendants expert who both testified that it was possible for the department of corrections to get pentobarbital in fact defendants expert upon questioning at deposition said it was a result of the proposition he also honor we didn't get to that stage seems to me that's what you get to first we know whenever asked for one your honor we had experts we had discovery and there was summary judgment motions  pentobarbital what the record indicates is that experts said it was possible to get pentobarbital up we know three states already get it that's what we played it originally the the defendants put on testimony that the department of corrections had tried to get cunto barba tall and couldn't get it in fact they had their expert after his deposition call pharmacists to ask if they could compound pentobarbital he put in his affidavit that he did not find one that would but he specifically reiterated what he said was that he believed one was a vailable and one could do it the same testimony came from our expert your honor that that a pharmacist who is trained could compound pentobarbital and that the person that they did not have the name of a person specifically one could be found that was the evidence so we had a conflict of evidence here with the department saying they couldn't get it and we saying they could i'd like to change the subject for just a moment if that's all right  would you agree that they said that absolutely ok so if that's the case and your argument is that the first drug does not anesthetize is there a problem with the district court not haven't decided that issue in the first place are after glossop we believe that the order would be that you had to decide whether the protocol was unconstitutional before you got to whether the alternatives we understand all of that when the method of death or the method of execution causes pain but not an unconstitutional amount of pain and that's when we do the two step process but then it seems if there is an unconstitutional amount of pain that there might be some other test that applies what are your thoughts on that i would actually agree with that your honor it would seem that if there is a protocol but be unconstitutional for example taking the bay's example your honor if if the state devised a protocol that was just an injection of potassium chloride with no anesthetic it would seem clear that under bates that would be unconstitutional so that would be unconstitutional in its phase then we would have to then if it's unconstitutional on its face then we don't even get to the second primary because because otherwise we would be saying it's ok for the state to execute someone in an unconstitutional way absolutely your honor would would the answer then be that the state has to come up with an alternative that is not unconstitutional i mean the burden would be on the state as opposed to being on th petitioner at that point your honor if it is facially unconstitutional as we described i would think the burden would have to be on the state because otherwise what you have is as you noted a situation where the state has unconstitutional protocol but it might be permitted to use it because the defense can't come up with a feasible alternative for whatever reason that is ok so if your argument here is that the protocol is facially unconstitutional because the first drug my dad slam does not actually anesthetize the condemned then don't we need to have that issue decided before we even get to the issue of whether there might be alternatives that your client come up with because your client wouldn't have to come up with alternatives if you're right about the fact that there are two different tests if the if the court yes your honor if the if the court wanted to remain for the district court to actually decide the eighth amendment claim then we could have full hearings on the question of whether this prototype how could you compare the alternative when you don't know what the protocol is as in knowing what that just a plain comparison you're a lawyer you don't know that your are weak we do we have a heavily redacted copy of the protocol so we'd know i understand you don't understand my question counsel let's suppose you have findings about my dad's lemon the protocol some kind of fine yes or you don't know whether the alternative satisfies a lot let's assume that you could find that that that's unconstitutional you can't decide whether the alternative satisfies the law without knowing exactly what the court does require us to plead a protocol that we understand that counsel but we're here our summary judgment now exactly and that's why your honour's questions seem to go to what would happen at a trial when we finally got to this point i think if if the court took this as a two stage process where first we decide if the protocol that exists is unconstitutional then at that point once that question is decided we look at the alternatives which go our separate sergeant this is how i'm understanding it but i may be mistaken and i want to ask opposing counsel the same question it seems to me like the first question we ask is is this execution protocol on its face unconstitutional if yes then we go this pran and the state has to come up with an alternative your client doesn't it's the state's job because the state cannot execute someone in a way that i unconstitutional if no right it may be it causes pain but it's not an unconstitutional amount of pain as the supreme court has described that in gossip then then we have to look at alternatives that your client has come up with that's what we have to do in my mis understanding this in some way i rather i think that's a fair interpretation of glossop and pays the alternative should never come into play unless there is either the alternatives proposed by the the plaintiff let me clarify that alternative proposed by the plaintive shouldn't come into play until we have decided whether the protocol that the states using if there is a potential issue with it i would have added a a protocol that is equally feasible and doable then should the state be allowed to use a protocol that could cause pain when it when there's another protocol out there that we know wouldn't cause but whether you know it i'm assuming a hypothetical it would have to be there would have to be a substantial reduction in the risk of pain the risk of pain but that only comes into play if the method of execution that the state has chosen is not on its face unconstitutional that executing someone with a second and third drugs without giving them an ass and anesthesia beforehand would be unconstitutional yes absolutely or the court was very clear about that in days that what made that three drug protocol constitutional was the injection of sodium thiopental than as the aesthetic so that that made that constitutional made that protocol constitutional your honour's wanted me to go through the very the but again both pharma cut off both pharmacists expert stated it could be compound and it could be made the department of corrections says they have not been able to get thiopental this would seem to be the classic dispute of material fact on the question of this alternative however it's the third alternative that we proposed where the only dispute in the record seems to be the actual amount necessary expert stated in his deposition that five hundred milligrams of the dow's land was more than toxic by itself would be completely phaedo and would be painless he said that the district court granted summary judgment on the ground that our experts proposal was different from what we plaid not acknowledging at all in fact there is no reference in the order that there is no reference in order to what defendant's experts that so we have a dispute in the record on that claim but the dispute really is only on the amount that would be fatal there is no dispute in the record on whether m a liam would actually work both sides experts said it would so with that alone regardless of whether your honors thought that the burden was properly met for summary judgment with state also made two other arguments for why the district court decision should be affirmed one was the law of the case specifically citing to the brooks argument almost no that's out thank you your honor that i was and the last was it's not stated in in the reason given by the district court of course you will agree that the court decided the case based in part on what was decided in arthur correct your honor and so the entire arthur record as it is before this court of summ was not relevant to this particular consolidated action there was an ass applied challenge in arthur after that is not a park any of the evidence that we have to we have that's just it's a fifty four b judge but we're dealing with the alternatives correct your hon ok correct and that was one of the relevant issues in our thought that there was a trial on but in this case please what i'm tom is going from the state of alabama the discourse grant a summary judgment in this case was correct an inmate challenging a method of execution as unconstitutional must establish two things under base and lost at first they must establish there's a substantial risk of serious harm to share likely to cause needless suffering and second they must establish a known and available alternative that is feasible can be year position that let's say that a state adopts as its only method of execution trying and quarter of a tank clearly that would you agree with me that that is an unconstitutional method of execution  make as much so at that point is it ok for the state then to go ahead and execute the person using drawing and quartering if the person doesn't come up with some alternative that's known if the method of execution is on its face unconstitutional is it ok for the state to go ahead an employer if the defendant doesn't come up with his own means of execution what you are if it is a method of execution challenge they would be under base and gloss it over can you answer my question please your honor is it ok for the state to employ an unconstitutional method of execution if the defendant does not come up with his own i'm not talking about a constitutional method that made impose some pain the supreme court has said that's ok there's a certain amount of pain that has to be expected in can be tolerated hundred eighth amendment i am talking about an unconstitutional method of execution is it ok for the state to go ahead and execute unconstitutional there is no you catch iraq over it your honor ok so that being the case it is the defendant's position or the petitioner i guess in this case it's the petitioners position  and i should start by saying of course and bays the supreme court recognized that if you and minister the second and third drugs without first anesthetizing the can down and that that is and i think they use the word unconstitutional  that that is an unconstitutional method of execution is the defendant or again the petitioners position in this case that my dad's limb does not anesthetize the petitioner ok so petitioner is right about that and then the state has to come up with an alternative as we've just discussed would you agree no your honor in a method of acting in again we would apply the same looking at this protocol this is the exact same protocol that was addressed in glossop glossop the supreme court didn't apply a different standard i understand but a standard but in glossop the court was acting on a finding of fact by the cause why the inmate should be executed with five hundred milligrams of but in accordance with the first drug of the protocol when the court entered that order to show cause the state presented the court in camera with a protocol correct rocko get a district judge would not ever enter a consent judgment if it was unconstitutional if the effect of the judgment was unconstitutional so what the judge decided after looking at the state's protocol that's effectively what the court said but i realize that that in that the inmate backed out but that's that's that's the reason why i say what's on the record in this case and say to me it's a universe but what would you say to that your honor the state made a representation to the court and presented evidence that an execution with five hundred milligrams of men would produce death and would do so commensurate with the eighth amendment you know that your representation your honor we presented a in response to the judge's show cause order we presented a protocol in response  judge's show cause order that was never the state's position that that was a protocol that should be well why would the state presented if it thought it was unconstitutional not of the state thought it was unconstitutional  execute the inmate pursuant to that five hundred milligram bolus and the implication of state's response i speak for myself the implication was that would satisfy the eighth amendment would not amendment and that that was solution fell apart i realize that but the state made that representation we're not and to clarify i don't know if the but everything every word in the record it made the representation of i speak as a judge yes your honor i put myself in the district judges position and the district judg made the representation and you asked and i'm one of the protocol before i'll pass on it nothing was said by the state judge here's the protocol but five hundred milligrams and one bolus would be would violate the constitution you're not a threat we did not make that specific representation but so the judge proceed to correct your own ok and if and if the judge had an effect ordered the execution because the end may consented the judge would have found that it did not violate the eighth amendment if that was the case your honor that the judge would have made that finding and part on the state's representation because it is the a one drug protocol was going to be given that enough and as a name would be need to be given beyond five hundred milligrams whatever the case was it thinks the state made the representation that's what i'm saying correct you're on our right and as far as i'm concerned that's what this record shows and create and i think judge that may be the case but as far as turning to what the district courts granted summary judgment when it was moving back into an inmate i don't think the district judge took into account everything that he should have taken  testify under da but not yours not theirs either because we had a recent trial yet that you never asked pretrial to have the witnesses qualified to testify under defense experts of pine that madonna's lamb can render someone unconscious but doesn't or at least may not reduce the person's perception of pain is that correct i'm sorry it dr tackett your honor  will make someone unconscious but said might not necessarily suspend their feeling of pain dr froehlich initially testified to that and he admitted that there was no that's a con there was a particular evidence supporting that that was a theory that he had that he believed based on habit as i'm work in smaller clinical doses but he admitted that there was no actual evidence establishing that particular fact that there was this ability to render unconscious yet somehow you would still feel insensate not feel   tac it's analogy was kind of apples and oranges what he was referring to in that particular scenario was i guess the analgesic pain relieving qualities but as it will no anesthetic drug as it has analgesic qualities that the relevant question is does it bring you to such  level of unconsciousness that you are not able to perceive pain in this case they admitted it does bring you to a level of of a coma but that that's a question you don't have with the barbiturate right because that does have the  as an anesthetic then we are authorizing execution in a facially unconstitutional way simply because the district court didn't get around to deciding that issue doesn't that seem like a problem what will you know on it and particularly not in this case the supreme court has already looked at this exact same protocol but there's evidence in the record at the council you lose the fact that the supreme court took a case where there had been findings of fact who are the experts had been qualified where the district judge had been very careful and the supreme court's opinion said the tenth circuit did not air and holding the district judge's findings not clearly erroneous what before us correct correct your honor in that case that was that was litigated that was in the entire both prongs of bays but the district court in this case didn't have to proceed to a trial because if the court and proceeded to trial i understand that all the and if i could just get it i'd like to move to that as i see the record both packet forget tackett he wasn't planned that's one of the that's one of the things you have a good time arguing about is that well the sloppy pleading on the part of the plainest that they had they had evidence and theories that they never put in the complaint but let's just take the five hundred milligrams that they put in the complaint which was basically  what what you recommended in the space on the other case let's assume that for sake of discussion my understanding is that both of those with the inferences would produce death without pain your honor that point was never established i understand that but but that but one could infer that it's the point i'm making and that's is in part because these experts were never interrogated like you would interrogate them and  is the relevant issue that none of it was printed summary judgment pain is a substantial risk of harm and so that's his testimony dr buffington that testified that in theory that might be a pain free method but there was no evidence on not reached by the district court but we do know from the supreme court that dahl that particular realm that we don't know anything from the supreme court counsel that was a case that was tried on facts and found not clearly erroneous you know better than that correct your honor that is correct you cite case s to us that have nothing to do with the position where in here on summary judgment yes you're out of that again those were again well pled cases well tried cases with finding court said weren't clearly erroneous and correct your honor but in this case in order to even get to a trial it's the plaintiff's burden to present that particular evidence and this case we would submit he simply did not were his own expert and so what do we do with a case like that where you're on in this case this court still can affirm because the issues with the you mention with the arthur hearing the the one drug protocol with my dad's name that the plaintiffs alleged did not come up and o outside of this consolidated litigation no other plaintiffs are making this claim and in fact this court is already recognising brooks and grace in the internal inconsistency use of this argument and we've decided those on the people brief the case both sides and what the district judge did and that has no bearing on this case your honor and turning to this particular case the plaintiffs were very clear that what in their complaint at least when it came to their cases what does a court do we want to in this case that this trick court went forward and this court still i understand that yeah and this point still can affirm that because based on what they still fail to present evidence sufficient to generate a trial based on should also be affirmed as well one of their allegations was a one drug protocol involving compound of been a barber tell i just want to briefly mention some of the undisputed facts showing how that was not available to the alabama department corrections number one it's undisputed that they failed present any source for that particular drug they did not name at a particular compound pharmacy a particular compound and pharmacist any other type of supplier that could provide that to the it department corrections under brooks and arthur that is the honor there are s for secrecy laws there are no particular for example you may be referring to the ga i think georgia has some statutory laws there's no we're going to say whether there's a law the department of corrections can call it a compounding  say if you provide the drug we will give you could complete anonymity in fact i think this health testified that she sometimes had that conversation and she on occasion of it but actually testified that a lot of times she would even reach that point yet because they either couldn't get the agreement or they at that particular compound pharmacy wasn't even willing to engage with the department i understand that but but that is not an option the promise of anonymity or confidentiality is not an option available to an inmate who makes those calls as it sure you want to i mean that the image obviously couldn't promise something on behalf of the partner corrections but in this particular case we didn't even get that far because the plaintiff didn't present any evidence that they actually tried to contact the compound pharmacy in their inner augured tories they answered that they had no information on a particular source and their expert dr elder testified that she didn't even try to make she didn't make any calls to any competent pharmacy so it might be that there might be a disputed fact if for example they had picked up the phone and call the compound in pharmacy and they got a response from the compound pharmacist that yes we can acquire the drug and yes we can make it in that case maybe there'd be a disputed fact and maybe that would prompt the department corrections to pursue that particular source further or pledge that at a trial but they didn't even go that far they didn't think none of this matters if my dad slammed does not in fact anesthetize the condemned right because then we know from days tha of the second and third drugs is unconstitutional so none of it matters if a person that's correct you're on an unconstitutional method is different from a method that inflicts some pain but a constitutional amount of pain you understand that are you in agreement with that or as far as for constitutional method there can be some method of pain some advice the pain of that yes i said that clearly correct in basic though did the supreme court not say that if you provide the second and third has already told us if that's on constitutional you can't use an unconstitutional method regardless of the alternatives that the defendant comes up with or not right who did know you already say yes to this we had this discussion earlier but what that's what we're presented with here and well but let me tell you why it is because the district court did not decide that issue first if the district court had decided the issue and there were not a material issue of fact about it if the district court had first determined that administration of my dad's lamb anesthetizes the patient the patient the prisoner if that were the case then i think you would you would be on solid ground but we don't have that here so how can we even get to the alternatives if we don't even have a decision about whether the method of execution is on its face unconstitutional what were two things your honor number one ba glossop never said you must resolve the first question for us and second that we began the first in the first question is a different question the first question only comes into play if the method of execution is not unconstitutional on its face if the method of execution may cause some pain but not an unconstitutional amount of pain do we use that base glossop test if the method of execution is facially unconstitutional we don't use the ba because as we've already agreed the state cannot use that method of execution regardless of the alternatives that the defendant provides right your honor i just want to point i would disagree to the extent that it arthur this report didn't make that particular finding in or through either the reason why they granted relief after a trial in that case is because they did implicitly did it implicitly did and when you read through the rest of it in the part about the firing squad it's talk specifically about how