i my intention this afternoon is to speak about the statutory text of section three thousand five hundred and ninety six i'd like to then touch on the history of the consequences of this particular language used and after that i do plan to spend some time talking about the district of mr stood up and said we will follow you are important and i think we need to set a new execution date and here is why i don't want to wait no to put aside how long it takes to do that my question is if the united states said we will conduct this execution and i mean it to be the act of of course in your client's death as opposed to how many witnesses if the united states were doing that would you have a complaint today from whatever arizona law is take the most terrible sub should it conducting your client's execution and again assume for purposes of my question i'm not worried about how many witnesses there are and where execution the lawyers must leave thinking about conducting the execution what i did states depart from arizona law in conducting your client's execution i don't what so in my view they've already departed from arizona law and the st way the decision to use a compound it or not a compound a chemical will be provided to me and made and their counsel of record in writing at the time the state files a request for warrant of execution in the air corps so under that provision we the execution is going to be conducted put aside notices and everything else how do you it's accusing will be conducted by the bureau of prisons in a way that deviates from all prescribed by the state of fairly extensive record in the district of columbia but so far we're just not a preliminary injunction motion and there have been any evidentiary development at this point so i'm i'm relying in part on depositions that have been taken in a separate case i think that eliminate the concern and i i really need it i'm concerned i need to get your answer to that question if the court specifically ordered the government not to use expired drugs it would certainly help help with my concern that they might just expire drugs i can say well if we get would it that's that's trail i mean i would hope they would follow the courts or ye is unlicensed personnel so what let me paula judge christians question what if we were used to have be those lines placed by only people who are islands to do so in the united states if we do that then what but if the courts pacifically order that the arizona protocol be followed then we wouldn't have a complaint that's not that's not where we are right now so if we from my perspective with the matter execution this is the actual conduct of the of the it causes the death of your client this is before handed center so maybe i satisfy your burden that's my starting point your honor i think at the very least anything that relates exactly to the execution itself so i can understand the argument that if for witnesses that wouldn't be included i would have been too and that is we're just talking about the co protocol is law for purposes of this question there is a preference to a peripheral line but the director of the department of corrections could order that enough venous line be used how is that different placement right now quite not not qualifications it seems to me that both protocols leave the eventual placement of the line up to the discretion of the head of the agency in my mistaken bank i think taking into account what the qualified professional said with respect to where the line should be placed so again it goes back to qualification and licensed professional arizona is the one who has the import o guess i think if i think if the correspondence you copy the portions from the arizona protocol about i v access lions and training qualified professionals that would go a long way is it ok protocol is incredibly vague and a lot of it is that we don't you know i just would like to go back to a point that judge what's raised a few moments ago about the botched execution every part of the reason those botched execution was because the director of arizona's up your prisons was constantly changing protocol quoting during the current period and within days of execution and there were several that circuit cases that dealt with dickens terrorism all dealt with that issue and what has now changed in arizona is this settlement agreement in the st amendment case that we have we have filed in that we've allowed quite extensive and that settlement agreement and sure that the arizona protocol will not be changed once you are in its side of the execution takes place on the issue in arizona has now been resolved that issue has not yet perhaps perhaps it's been resolved and i hope we don't see another one like the last several but i'm not sure that some of those weren't the fault of the licensed don't i think that's i think that's a fair point i think everyone certainly makes mistakes but the fact that the reason for these licenses is to win a chip try and get them eyes to the stakes and i think you know the supreme court has been very clear an th amendment attack on the bureau of prisons protocol in this case what you're saying is you're making a statutory attack you're saying that it doesn't correspond sufficiently to the arizona protocol correct that's correct that's very specific thing was ordered by the district judge in this case in two thousand and four and i mean that order was actually drafted by the government it didn't appeal that that order that is the order of this case and so i ask you correct your honor i mean it's a bit tricky because yes that is my best case on it and i'll tell you there have only been these three executions that challenge this there was a very long period of time where the government didn't seek to execute  mean it's as i know the court knows this because we we were involved with a geisha last year but suddenly when the government came out and announce they had a new protocol and just start scheduling executions dates there this issue was not examined and so this is the only time it's come to light and the only case on it is out of d c and what happened in d c was that they got an injunction they were allowed to fall appeal the court took it time to liberate it took several shots going through all the briefs the full briefing and then issued their decision and i think the same thing should happen here and your honor as i see that i'm under five minutes that if there's questions  good afternoon your honor my name is william boy from the panel about practicalities and so i do want to turn to those directly but i would preface it by saying i think i would have an alternative suggestion for the court if it is inclined towards the notion of a limited injunction because that does really require the court to actually go through the really troubling questions about exactly what the f d p a means that have been identified here are areas where there is actual conflict and there is not any practical problem so we're got and i'm just going to start marching through the ones that that my friend identified with respect to disclosure d of the testing of the drugs and the earth reports have been publicly disclosed the is there a disclosure the expiration date the expiration date is not disclosed and that your honor use expired drugs has been disclosed and is very clearly stated provides that the there will be quality assurance testing the results will be verified prior to the execution and that expiration date has not passed it's passed quality assurance testing conducted by at least one independent laboratory and b and i think again given the procedural posture we're in it is the defendant by a clear showing to show there is going to be some likely harm here real world harm and he hasn't done that so in terms of testing that's been disclosed whether injunction it's just that the arizona protocol provides you know it says either a peripheral line or a central line i don't know what would be contemplat the venous access i can i ask the o p s today what were the means of venus access for the three prior executions they were all peripheral lines there's been no evidence and there's any problem with venus access or that or that there's a likelihood of harm from following the same procedures that occurred in the july executions in terms i don't think there's an issue there if if you know the court would like that to be filed in a written document we can do so as well i just don't think the defendant has met its burden to suggest there's any problem with the venus access that could lead to real world arm because of the procedures that there is on the just standard venus access procedures which are the procedures that that the person who places the i v be certified to do so in the united states and there's no such there's a required there's a requirement in the federal protocol the person be qualified but no licensure certification required can you respond that yes your honor and i would be happy although i don't know the specific identity of the person i'd be happy to file a notice if it would be useful but the qualification requirement that is provided includes currently licensed physicians nurses e m t permit about it other medically trained personnel so maybe there's maybe there's some daylight there but i think it's pretty banishing the small and i don't think there's been no public reports no allegation no evidence no showing of any problem with being as access in the three executions that just took place last month and so i think in order even if there is some daylight between you know being an appropriately licensed person appropriately certified person and i don't know the medicine well enough to know if that's true but it seems that would be a pretty narrow i don't understand i don't understand your friend to be arguing the difference between certification and licensing i think he's talking about the scope of their license whether the scope of their license allows them to place intervene or slimes a barber might be certified by the state but not license to place intervening slimes so i'm asking is that is your requirement practically the same as this as the states or is there a material difference i mean i think in candor you could technically read know who would be a qualified licensed medical person in one of these two place the line who wouldn't you know who wouldn't also meet that but i guess my suggestion would be to the court that i could obviously i don't think you want to be just relying on all representations of oral arguments because i'm i  i'm a different agency from below as to that i could file a document with the court this evening or tomorrow morning just confirming that although we wouldn't disclose the identity of the person who would set the i v lines would be certified to do so i think that would if these are all things that you do and are going to do anyway would the government object to us ordering that you said you conduct this execution that way back to that sort of an order your honor and so i would propose sort of a different way of getting at the same point the problem with this you're an injunction at this point is twofold number one it's not the request that's before the court the only thing defendants ask you to do is to stop the execution so it would sort of biased it's also for the record he didn't ask for that in the district court he just asked to stop his execution and i think there's a bigger problem between that and bucking about but secondly in action you have to find that in fact we are required to comply with these parts of the arizona protocol and so you have to reach all of these text you all and legislative history arguments that we would suggest given the abbreviated if the court can avoid doing it would present procedural posture is probably the best and i think that that would simply be if the government that is saying we intend to use you know somebody who certified a central line or access as we privacy concerns which are very serious all what i think the arizona protocol simply says is certified or licensed within the united states to place i v lines and so i think if we could file a notice that simply said is somebody who would meet arizona as part of in this regard is that right that would be best and if i find out between and if i find between now and you know tomorrow morning or whatever like that that i have over represented that then the going well i don't think there is specific in the arizona protocol other than that it access or a central femoral line and so i think it would again be something along the lines of the government will use for  access or a central femoral line again just this is outside the record but i did ask b a p and they said that all three were bribed were peripheral lines and so i think it is just looking at the defendant's burden central line so i don't i don't think he could meet that under under any standard of talk that we never asked him about something and assailing flash honor that oral argument today is the st time the defendant has every and say that i've read the specifics that very deeply i think it is way he did not make any argument about the salient flush below he didn't make it in his briefing here and so i i don't think it would be appropriate for the st time in oral argument especially given the abbreviated posture for him to talk about that my reaction to it is and again i'm not a medical professional but i think the salient flush is something that you  don't know that that is something that you know that he could show that any difference between sailing from the belief that the barber pole is going to lead to unconstitutional suffering or some other rea non speculative injury and even reason i asked the question is that takes us back to judge kristen's question which i'm not sure mr emmett off got a chance to address which is this much the difference is be material in the certain strengths of pheno are between law and the federal government says you know we're worried that that's not enough to cause the death of the inmate quickly and without pain so we will responses your honor the st of course is to reinforce that i don't know yet fair enough take us down to where we're we are arizona protocol is prescribed by law and so there's a difference arizona gives you less drugs less straight thrived in the federal one does with that under the under your view of the act would that be a departure i think it's a challenging question to answer your honor because this question is exactly why we and i'm not resisting the question but i it's if this is the reason why we think that the f t p it can't mean this because where would that where the textual basis for that come from is no like the minimus exception or something in the a and so it's really it's hard to see how that sort of an exception could come from anything other than recognition that the f t p it would actually be unworkable let me let me ch the judge toddles view that it would you know that it be absolute those sorts of things that would seem to that would seem to be a difference of drought you also because she said i'm bound by arizona law and regulations that's why i put it into a grams so it's it is a court question for present purposes i think the government's main reaction to the hypothetical  that's all the practical questions i would like to get on why the also under judge cassis is viewed as the right one but i want to be sure i've addressed all the practical concerns that the court has because i don't think that what the defendant has identified as in any way met his burden and i think it does that he actually has to jump for hurdles if you want to get relief in this motion st you have to show the judge campbell's reasoning is wrong  he has to show that the government's alternative reasoning reading of the f t p rd you have to show that there is some real world the likelihood of irreparable injury not is execution and challenge that and we don't you know for many reasons we don't think he's done that and then for even if he did that you don't have to show that the equities would favor a stay of execution scheduled for next week and so briefing here he has not engaged with the law about the protocol not being it's being specifically a rule making it's not in the arizona administrative code it's not a part of the administrative procedures act  arizona law as it's very firmly and perhaps one of if not the most powerful separation of powers doctrines in arizona and so i don't think he's impeached judge campbell's reasoning under a judge raul like analysis at all and so he would fail that hurdle we do believe that judge katz is that analysis is the more persuasive and my friend alluded to this that the text in the history and practice and i think we argue is that all of those support the government's interpretation of the as as referring just to the top line method everyone seems to agree i think that the seven hundred and ninety act was restricted to the top line method and so the question is in  think i would i would disagree a little that there were executions by firings what happened as well and so i think that the hanging wasn't the only possible method that could have been adopted but i i recognize i think that everyone that there is some sort of you know the statute could be read two ways and so what i have and the burden is to st certainly in a preliminary injunctive posture is to make a clear showing that congress actually intended something that was much more dramatic of a change than the government's best very very substantial one and one that i don't think is favorable to defendants very much either it's not only a change that sort of surrenders all federal authority over procedure executed in two thousand and fourteen and with the government's response would be a protocol don't look at us i think that his reading of the f t p s a is one that that is is has extraordinary broad implications and implications not just make the the federal death penalty on administer a ball because some states keep their protocol secret or they don't update them or you know it's possible some state officials  frustrate federal executions but also because it would also divest the federal government of responsibility for its own executions and i don't think that congress meant that either and so we do have exact numbers congress congress did provide an alternative which is turning over in federal facilities and so the one thousand nine hundred and thirty seven act diversified the method as it's as legislative history said but we don't think that that act in any way required or contemplated that the federal government would give up control over its procedures and i think that's further supported by the one act which again said that the u s marshal will supervise this it's hard to see how you could have a federal official supervising state officials i mean what if there was a difference between the state's view of what the protocol was in the federal government's protocol in the federal official supervising i just think there are a lot of of dragons lurking in the background of his interpretation of that's one further reason for the court to take the most narrow way possible to resolve this and the government does believe that the most narrow in restraint way is just to say he hasn't shown a likelihood of a reparable harm in any deviation the state protocol or state law and the federal protocol and for that reason alone the motion should be denied and save for another day because we were going to use red and i play bills i think very much struggles against the inductive standard and i think nd it's the government's view that the f p p a can't mean that it can't mean that you have to follow all procedures  we i think that we would we would sort of resist that there's any textual basis for that your honor if the court d was going  to i mean certainly materiality at least something for purposes of the injunctive standard that would be relevant and so i think that you can probably a void looking at whether there is some sort of exception unwritten exception in the f t p s simply by looking at the injunctive standard and you have to show irreparable injury the supreme court said you can't get a preliminary injunction over any i guess what an environmental impact statement when you know the sonar training is needed for national security even if that's not a basis for function and here we do think that given a very very d minor i'd the lack of any tom's actual conflict the lack of any proof the government's going to do something that was unconstitutional suffering or pain or anything along those lines and the strong equities that weigh in favor of of the government's interests and the interest of victims execution offer a crime that happened twenty years ago one thousand years ago we just think that unbalanced that is the the best way to resolve this case the narrowest way which is to say whatever i think your honor can you can you hear me ok i mean yes if your eyes were in slightly sort of extraordinary situation here when the federal death penalty act was passed it was the understanding of the head of the marshal the head of the bureau of prisons the chief of the capital case committee and the attorney general of the united states the government cannot do what it's not skiing these courts let it do then the government tried to get congress to change the law tried nine different times and was unsuccessful so instead of following the law and did understood it to be the government has now scheduled mr mitchell correct spew shit and turn the tables and claims that i think now prove that the government is wrong and the fact of the matter is there wasn't on this before and it's only happened now the government doesn't want to follow the law that it's simply claiming it can do this where is the authority for that is totally unclear it to  so then have the marshals supervise implementation of the sentence as prescribed by the state of the law in arizona that is it doesn't have the right to come up with his own execution protocol and he doesn't have the right to something that whatever  to be sure i think your hurdle is really on i one if the government is willing to come in and say that to use the terminology we're using earlier at the federal requirement on these four points are broader bandwidth think we're in a really dangerous we're talking about putting together a patchwork of it execution protocol eight days before the client scheduled it that is not that's not what anyone has contemplated should be a law arizona has a binding protocol that when i listed things in the motion i said some of the most significant differences are not every single difference i think there needs to be an evidentiary hearing to establish what exactly those differences yes i'm i'm aware that it was somewhat limited on space given the ocean requirements i tried to get the most important points before the corps would like to order for everything but we would be very happy to brief this and again this is what happened in the district of columbia they had a junction and then they had an opportunity to brief this can all and have an appeal of the ordinary course i think the same thing should happen here this speed to kill mr mitchell is entirely of the government's own creation the government's given us twenty eight days notice of this than the arizona protocol requires with respect to the method of execution and what i've been asking about is if they use a non expired drug whose compound has been disclosed to you  personnel how will it be different no your honor i thought i'm going to point you specifically to the arizona protocol the arizona protocol specifically says all team members should be currently certified or licensed within the united states to place i flipside of this is you're arguing that there you must be arguing that they are it is probable that they will use somebody without such a certification because the because the federal protocol doesn't specifically require litigating this age before and the appellate court like if this was a hearing in district court they could put on someone from the purer prisons that we would have the opportunity to cross examine to figure out what exactly that licensing certification is and how that person is actually qualify to place these lines because your honor well know it's in lethal injections the problems tend to calm when the line is not correctly placed and what happens it's the prison system then shoots a whole bunch of chemicals into someone's muscle and tissue results in extreme pain and suffering and that's what we're talking about here you know when i made the point that drugs failing quality control that mr boies corrected me that it's public record so i can say that the drugs that they were planning to use in december of last year failed testing protocols in early december they did not disclose that and so february of this year so we really don't know what they're doing and the fact of the matter is they don't either because they have just started doing this again and there has been no judicial review of their protocol outside of the statutory interpretation i think i have another point to make and  one last thing i know i'm out of time and i'll say this quickly you know the government spent a lot of time talking about policy and they're worried about the dragging dragons lurking in the background their solution is to go to congress and have congress change this statute they've tried that several times they have failed each time the solution now is not for them to do what they want and claim that there's going to be policy issues about this it's very simple this could be done very very easily i'll give for an example to the only two deaths that federal lessons out of california where the sentencing order specifically says that the death sentence will be carried out in accordance with the state of california now california doesn't have specifically left in the hands of the courts not in the hands of the federal government and that's what the f t p requires i don't think the solution that the government's proposing this court just cobbling together a lethal injection protocol is