this case occurred after a number of additional executions in other states using the dazzling base protocol so we think the evidence was a little bit more robust than arthur but the difference is there is no precedent in this court or any other court so far as we're aware that would have precluded the district court from making a finding of fact after a trial and that them a dazzling based protocol is inherently barbaric essentially a per se constitutional violation here here's the problem i have and i have to tell you i agree that it seems like if somebody could prove that that that would be a problem because just like in bay's the supreme court said you can't burn people at the stake and you can draw and quarter them if you could prove that in fact the madame's lamb was not having an anesthetic effect you would be essentially demonstrating that the problem though i think is that under our precedents and under the panel precedent raul it seems to me like arthur says it's ok to decide the second question if you will first and if you don't prevail on the second question then there's not really a need to go to the first question what why is that not the case so i'd say this court's decision subsequent decision in grayson suggests that the second prong does illuminate the first prong what we also have a fallback argument here which is that in our view we did satisfy the first prong and we proposed to the district court you agree to try the case on the alternative that it was in the stipulation that the parties stipulated the drivers of the alternative drug well i don't i don't think was stipulated your honor i think what happened was that district court denied the state's motion for summary judgment which is limited to the first question i think they made a passing  certainly didn't i wouldn't say we stipulated that the outcome of the second question has no bearing on the first question no i understand that but it went to trial on this like a issue that that's correct i mean that the district court acknowledged in my view that there was an evidentiary dispute a fat genuine factual dispute on the question whether my dad's name does cause substantial or even a barbaric level of pain but we did only have a trial in the first question which is whether we could show whether we could plead and prove a known and readily available alternative and the district court did not allow us to go to phase two of the bifurcated trial because of how she ruled on the first question now on that first question we argued below that under arthur under it is available to the district court to adopt a burden shifting framework somewhat similar to what they use in title seven cases similar to what they use in fourth amendment if well i have your honor i think i'd respectfully disagree that we're trying to shift the burden of proof to the state the burden of proof the ultimate burden of persuasion is always on the plaintiffs in any case whether it's a constitutional alabama and these other states but we believe that's enough for the prima fascia case and the difficult sort of agreed with you i think i think the district court that as i read the district court's handling of the thing evidence and the state's witness jet it was our witness but the state's general counsel of the alabama department corrections essentially conceded both her deposition and on the stand that the things she did to try to find were futile for example shortly before our trial and she said in the few weeks before a trial she called up the department of corrections from missouri georgia texas and virginia and asked them two questions one is can you give me pentobarbital stock even though she knew the answer was going to be no the state of texas had already made clear that the answer is going to be no and she said alternatively give me the name and contact information of your supplier even though she knows that suppliers that engage in contracts with the partners of corrections sign confidentiality provisions that prevent the department of corrections from giving to anyone even a sister states department of corrections their name and contact information and we propose that the alternative way of calling about finding out a supply finding a supply was for ms hill to simply give her name or contact information and a proposed term sheet to one of these other department of corrections to pass along to their supplier pentobarbital the district court asked miss hill why she didn't do that and her answer was i just simply didn't think of it the district court at the conclusion of the hearing essentially urged ms hill to do that and we don't believe that she did wouldn't have helped case if there had been some effort on whose part is counsel's part to contact these pharmacies for the purpose of determining whether or not they were able to obtain the barber to all and there was no effort on their part we did not personally contact pharmacies there are pharmacies both inside alabama and outside alabama that one could find their phone number and contact them but the thing that we cannot do as mr price is counsel is call up the department pharmacy rather and say we're prepared to and can offer you a term sheet to purchase the drugs from you  confidentiality provision i'm not in a position where i can legally in my view obtain drugs from a compound in pharmacy there's also the ethical concern about whether i can effectively as mr price has counseled call up the pharmacy and have them send me execution drugs but i clearly am not an agent of the alabama department of corrections and i think that the record below is clear that even the state acknowledged that only a department of corrections is in a position to obtain  the case so he was he was one of our experts and the principal purpose of his testimony which we resummon rise i think we read part of his deposition testimony in a trial was to establish that it is relatively easy for a compound in pharmacy to make once they had the underlying ingredients your daughter's going back to the burden shifting approach we don't think that it is precluded by arthur no party in the circuit so far as we're aware had ever argued a burden shifting framework like we're proposing if you look at the six circuits recent opinions they do suggest that a burden shifting framework is appropriate here not given the impossibility of a plaintiff in mr price's position proving a readily available turn of without a burden shifting framework six circuit specifically said that ordinary transactional diligence should be required by the state and here we don't view what ms hill that is ordinary transactional diligence because the thing that she did she acknowledged on the stand was going to be met with a no answer so we would suggest that the district court heard as a matter of loft by not adopting our burden shifting framework what about arthur suggestion that the state really doesn't have to do anything at all i mean are we found by that that's that seems to me like that is a problem for us to be able to adopt the burning shifting framework you're advocating because of the prior precedent or all well i i i do agree your honor that there are some lines in arthur that are somewhat troubling for our position i would first say that on the good faith issue we are not proposing that the state needs to go and they acted in good faith subjective analysis about ms hill's mindset in our view is totally irrelevant and it's not an inquiry that is allowed under the eleven circuits precedents mr has to be that somehow or another we have to write a standard which says that hell's testimony and the other evidence was not enough to go forward in other words they went forward with evidence but it wasn't enough evidence that's what your argument is in a sense your honor it is but ms hill admitted on the stand under ok so we write write an opinion factually what could the state have proven which would have discharged its obligation well so i think there's two things that a state could do your honor one is to call every single compounding pharmacy in the united states and give them a term sheet the other is a much simpler way which is giving a term sheet and the contact information misael give that to the d o sees in georgia texas and missouri which clearly have suppliers we know they happen to barber tell suppliers and say can you pass this information on t hale's contact information and a term sheet and they can dictate whether they're going to reach out and contact ms hill for a summit so your argument is that that's what the state of alabama and that kind of tame that would do you call it a term she confidentiality and there would be no reason for the pharmacies not to provide the drug to the state of alabama i think if a pharmacy has already shown interest that they're going to provide to missouri or georgia or texas there's no reason to believe that they wouldn't also want to provide it to alabama if alabama promised them all of the things that missouri georgia and texas promised and if the pharmacy could dictate whether they wanted to do the reach out ms hill essentially conceded on the stand that she knew if she was just to ask the department of corrections please give me the name and contact number of the pharmacy that you use the department of corrections would say we cannot do that mi l we are contractually barred from doing that and she didn't take the next step of saying ok well here can you can you pass my information and our proposed contract on to your supplier and that's what ordinary transactional diligence would be in a was the next best thing right and we did give our country direction no one has contacted us i think that would pose a massive evidentiary problem for us below if that were the evidential record on on a on a retrial on phase one i think you are starting to tell us and i may have just missed it and i apologize if i did but how do we deal with b s his discussion about how the state doesn't have to do anything first says the burden shifting framework well i i think your honor that this is where i think the phase two question really comes into play i don't i don't believe the baize court or the gloss of court or acting on an assumption that the protocol that the state was using was so it was so barbaric they clearly were not right right i mean bayh's i think it was it was the pinch test and in glossop that case was coming up from a factual finding at the district court not have found had we gone to phase two of the trial we believe we put in a strong evidentiary showing and would have a trial that the men thousand lambastes protocol is a sanitized version of drowning someone and burning him at the stake simultaneously in terms of the level of pain that they show if the court believes that even that type of pain requires showing over of a known available alternatives i agree with you that if you can demonstrate that  speaking for you personally that you know that there there's another alternative but then you get into the whole issue about whether the state makes a to fail we don't have to go there right now but my concern is that under not under being under arthur that that the court that our core already basically decided that you can decide these progs and neither order and if you decide there is not an available alternative then you're done and we are bound by that so i understand you to be saying that you don't think we're bound by dad and i just want to sort of find out why because you might be right but i'm not getting well i don't think if you go back and look at the arthur decision at no point of the arthur court say even assuming that medallion causes a barbaric level of pain it's essentially equivalent to drawing and quartering someone or throwing them in a snake pit or burning them at the stake we don't think you've shown a known and readily available target and the burden is still on you to show that i don't read anything in the arthur opinion to suggest that i think you have to read arthur as having come up on a pair of factual findings both essentially as good as pentobarbital or nearly as good but i don't think we would have much of a case to be frank your honor but judge dubose did not make such a factual finding judge watkins did in arthur but we believe that the evidence that we would have put in below would have been sufficient for a judge to bo's to reasonably find that the mcdowell's lambastes protocol does in fact create an unconstitutional level of pain a level of pain that's categorically unconstitutional and that even if it's the state only alternative they simply can't use it i certainly don't read anything in the supreme court's precedents to suggest that if the state is down to drawing and quartering as its only option it can go forward with that i agree with you on that that current protocol is not what i would say it facially unconstitutional it went off on the on the alternative that's what the court tried was the alternative and  has the burden and you would have a different kind of case in my view had you started off and the state put on nothing then the question does become about this going forward the problem here is a state went forward with the evidence so then you have to argue somehow or another that the state didn't do four or five things you've listed them and that's part pain no i understand that well then you're going back to something the court didn't try correct i mean one of the issues and the first and they were deal of what the court tried that but your point is that it doesn't really matter that that whether there's enough vailable alternative is not an issue that we even get to if the only method that the that the state is proposing and has available is so honor is that in any case the court should if there's a genuine issue of material fact should hold a trial on the bottom of the article that i think the case of never been tried the way it was is your argument we have a problem with the way the case was let's forget the you know presumptions vanish once learned evidence introduced you agree with that yes ok so once the state came farmable it's an explanation of why they couldn't obtain the alternative drug they put forth the evidence your argument has to be that the presumption was not knocked down because that evidence wasn't strong enough correct to put the burden back on you that's the argument you make where the losing party your honor i do think if you go to question one of our brief i know you are the losing part of it you could have crossed appealed on the ground them to court made a terrible mistake well i would point that the court  said question number one in the issues presented whether the eighth and i'm going to read it brief this is on page one of our brief whether the eighth amendment requires per se a death row inmate challenging the constitutionality of a state's lethal injection protocol identify a specific a supplier that is willing and presently able to provide an alternative more humane drug to the state's department of corrections we think the answer to that is no there at is that should not be a per se requirement but i agree your honor that we are also arguing and i feel then then you'd have to say that the court assumed a promise facie case i think that's right your honor but there is also at least a theoretical possibility that the district court could find that ms hill is simply not credible when she says i called up well  a we have to give the district court deference on credibility yes and the district court clearly found that ms hill had called up at least eight hundred pharmacies in alabama and all of them said no we did not argue that that was an incredible response i think ms hill is telling the truth when she says i called up eighteen pharmacies in alabama and they said no and that and this record in effect held that that was a mouth to rebut the presumption i would i would disagree with that your hon i think that she did not adopt the burden shifting framework that we proposed the district court asked and this is that page i thought if page fifty you know she didn't talk about presumptions correct but she at page fifty nine of the trial transcript she specifically ask why did you not do what they are asking it seems simple why did you not do that and she urged alabama to go and do that and i think that is a recognition your honor that the thing that alabama came forward with to rebut our presumption or or argument is  state proved was irrelevant if that's what the district court thought the law was it didn't matter whether hill testified or not by by i say definitely see that view your honor in the state and the state certainly viewed  witness but even if the state doesn't have a legal burden the state still presented evidence and that's perfectly within our right at trial and that's what the evidence of the court can consider that's why this case is as a relatively straightforward case that the  held that mr price had the burden to prove he failed to prove the compound of been a barber to always available to the partment and there's no clear errors in that particular fact finding by by the court if if mr price is right conclude that that the second prong can be looked at first and if it's found that the second prong is unproven then there's no need to look at the the first prong being whether or not the form of execution actually violates the eighth amendment if if he's right then would you agree that it was error for the district court to have ruled on this on solely the second prong without considering whether under the first prong the madame's lam protocol is a violation of the eighth amendment in its own right no your honor we would take issue with his perspective but no even even if for some reason i'm not exactly sure still what the argument is on arthur but from  parts of perspective but the availability of an alternative is required element in a method of execution claim well so what yes and no right i mean if for example we know from days because the supreme court specifically said that if for example the state had the only available execution method as drawing and quartering that that is unconstitutional under the eighth amendment and it wouldn't matter whether or not there were some alternative that was proposed by the defended the by the defendant by the petitioner i guess i should say or not that would still be unconstitutional the state could not under any circumstances carry that out would you agree with me on that absolutely ok and so what he's arguing is that effectively the my dad's lamb protocol is the equivalent the chemical equivalent of of burning someone at the stake and drowning them both of which i mean presumably would be unconstitutional under the eighth amendment if if in fact you were to actually drown somebody or actually execute them by burning them at the stake so if he's right about that why does it matter whether there's an alternative or not i mean the supreme court has recognized there are some forms of execution that in and of themselves are violations of the eighth amendment and it really doesn't matter whether there's an alternative or not absolutely and because when you actually look at the claim that he raises your plate he's not raising that it in scituate there is no met he raised the method of execution challenge and that requires proving alternatives for example drawing and quartering or public the section there is no method that they could ever be done to make those constitutional because they're as base point out you're on it those are intentionally designed to inflict plain in contrast to what mr  arguing that lethal injection under any circumstances never constitutional he was raising a method of execution challenge on this protocol the department's using and he's alleging that type of protocol you have to be able to prove an alternative under  anesthetized something to this effect does not anesthetized the petitioner and then it would be unconstitutional to administer the second and third drugs and that's essentially what they are arguing and so if the supreme court has said that itself and baze which i believe it has then i don't think you can really say that if they could prove that they can't have an opportunity to prove that necessarily just because they haven't had just because they haven't shown that an alternative is available i mean i recognize there might be a problem in our circuit with arthur and that's why i'm asking you to set that one aside for the moment again your honor i mean look to gloss over because and gloss that was different than in days in glossop they were prong in glossop so again in this her case and the challenge of the same protocol they're making the same type of claims as the petitioners in glossop you have to prove an alternative the trial court the district court analyzed all those facts alternately that price failed to meet his burden of proof as to that particular claim and when you look at the facts that are actually in front of the district court there is no clear error in the trial court's determination  facts and you look at all those facts they can say they had a trial in this they they allowed mr price to present evidence and he simply didn't meet its burden and so the most important facts in that case are our number one that the court noted that the department used to use  protocol but in september twenty fourth team they had to switch because to them as well because they could no longer obtain pennell barba tall and yet that's the exact same drug that mr price is alleging should be used as an alternative the trial in fact some of them couldn't even obtain the ingredients now why could she not have asked for the names of the pharmacies under the same conditions as the other states who were able to get  with that when she had these conversations with these pharmacies she never got to the point where she could discuss could not confidentiality because they either didn't have the ingredients or weren't willing to help and again the court had those they were willing to help because they wanted an assurance of confidentiality what that that's not what she testified to she testified that we couldn't even get to a point in the conversation discuss competency ality because they just wore willing to help with it just seems strange across the country as well that was a problem that occurred in oklahoma that was a problem that occurred in arkansas in the mcgee case there was a problem that occurred in ohio it's for whatever reason missouri is able to obtain in a bar a tall alabama has tried and the district court considered that and in fact said that price still had not met its burden to show that it was available she could not take the next that if you tell me who the pharmacy is and if i contact the pharmacy i will provide you confidentiality the same way had asked those questions that was not evidence that would actually be available there was no evidence again she would that we kind of throwing a shot in the dark because there's no evidence that whether the supply would even return but also it's kind of it's problematic the way this argument from price came up at trial because he never alleged in his a minute complaint that there was these list of questions that the department needed to ask he didn't present them in discovery he didn't ask miss hill about them in her deposition he asking those questions there's but there's no assurance that anything would have changed and by focusing on what the department did instead of looking at what prices were and was he as he admitted here today he didn't contact any pharmacies and so again we called birding shifter not mr price but honestly i mean if he contacts the pharmacies and they're so concerned about confidentiality they're certainly not going to tell him yeah we'll provide it to the state to execute your guy i mean that's that just seems really unreasonable to expect that to happen well it again that the district court didn't care because there's no evidence because he didn't contact so we don't know what the feds are actually i think about what you're asking i mean if it's a completely unrealistic expectation which it seems like it is then why would we require him to go through it well because there needs to begin the burden is on that it's quite clear it's on him and there's a threshold just general question that that mr price is not addressing before we even get to the steps of confidentiality that they live thirty years on him but it's not like he sat around and done nothing i mean he's called pharmacies to fight he's had he's had people say that these drugs can be compound he said people come in  and say and point out that these drugs are available in other states so it's not as though he's done nothing i mean i'm not sure that's accurate well he sent some subpoena about all he did in some subpoenas to four department of correction that's about all know because of the confidentiality requirements what pharmacy is going to say to you you know counsel for you know death penalty petitioner yeah i'll be happy to provide the drugs i mean that's just not going to happen that's just completely i think that's absurd if it was that a bat is that what you think they're his requirement is that he has to meet it should at least be able to pick up a phone your honor if it was that easy to show it could present that evidence but again if something is truly available at least that he could have ridiculous i'm sorry your honor it's kind of ridiculous if a drug was i'm sorry your honor this court tried this case on a available that the court found that it was a valuable it would then have to put on a receive evidence and evidence on the piano bar to call to find out whether or not it fit the equation you agree with that yes you're ok so i would say the court just tried this very narrow question correct it available and correct and mr price has not found any clear errors in the court presumption your honor if that's what i get your honor i don't know that that could be read that way but from our position we read the district court's order she wasn't reply applying a burden i understand no but she still had to have held that hill's testimony was sufficient yes your honor so there is no alternative that's what it was but correct the court is there an alternative and the court held that there whether it's adequate or anything else just whether there's an alternative correct correct court course it's clear that it's going to barber tall is readily available but it's not readily available to alabama is it clear it's readily available in missouri it's readily available georgia  to virginia it is available today that at least in the past it has been available to those states yes but it's not readily available to the corrections in alabama and i would i would just say to but in this particular case that there was no evidence for example if something was truly readily available any other type of drug for example i'm not suggesting this has a role in lethal injection matters but value would be very easy to show that is readily available to anyone you could call a pharmacy you could say do you have access to value presumably the pharmacy would be able to say yes we have access that in fact we drew as a prescription just last week on that now whether that's a step that price could have taken a did it take in this particular case we have never argued nor is the eleventh circuit present ever argue that they have to somehow send out term sheets or prove confidentiality or prove anything like that to submit their burden we would contend that just an initial step which is even showing that is available to anyone would have been a step that they they wanted to get in the gate demonstrate that through their expert testimony that said that it's easily compound to poland and bradley compounded no your honor because in fact with the district court noted that when you boil down the experts testimony all he was saying that if you have the a greeting as he was assuming you could get the ingredients it was a relatively easy process we didn't dispute that the problem is finding the ingredients finding someone who will do it those are the things that weigh in the availability process as well just one final point that i'd like to raise in this particular case is the main point is the  ruling was not clearly erroneous and price hasn't shown that but secondly that this court in arthur and brooks has has set out the standards for these particular cases it's clear the burden does not shift for mr price he has the burden of showing that and that he's admitted in his brief those are the standards and those standards control in this particular case and those are consistent with basing laws of because the trial court did not air its clear it clearly erroneous in any of its fact findings on deny relief to mr price we would ask thank you owners like to first address a question that judge rosenbaum had asked which is about the eleventh circuit precedent and whether you can resolve a case just by looking at the readily available alternative i point the court to  first full actually the second paragraph of section five in the grayson opinion that's eight sixty nine after twelve o four which of course was after arthur and the court said thus the district court cannot properly apply the base standard without first making a finding regarding the risk of pain if any of the current three drug protocol raised that issue and i sat on that panel but if we if we did that in violation of babies and not be cause i don't think it was in violation of b s but if it was in violation of our precedent in our theory then we have to deal with the arthur panel precedent only well i think what that what the grayson opinion how i read it is that there is a path under arthur where if the evidence would have been sufficient for the for so phase one of the trial the only trial we got to get better at this case was tried on one single point was the drug available period not the quality of the drug or not possible to try this way so so we did we did not object to her deciding to hold serve no one if i learned was over their limits not whether or not it was better right now i will say your honor i expected that she would rule in our favor and that we would get based protocol for reason we are confident that pentobarbital will put you in a coma like state where the second and third drugs of the three drug protocol will not cause pain mr price had at the ready evidence that he would have put in at phase t but you tried to question whether it was a valid are not and that's what we have one question isn't available and the question is whether or not to district court your argument has to be that the standard is higher on the she admitted on the stand in response to our questioning that when she tries to obtain the other drugs in the protocol she calls the pharmacy and says here's the terms this is the price we're going to pay we're going to offer you confidentiality here's the amount of stock we're going to buy and she admitted she did not use ordinary transactional diligence when attempting to acquire the pentobarbital from compound pharmacies proved our point that the state had not gone through ordinary transactional diligence and if mr  doesn't believe that the availability of pentobarbital to three or four additional departments of corrections that look exactly like alabama for all intents and purposes is not enough to make a prima case i don't know what would be enough i would also point out that we did more than simply put ms hill on the stand and ask a few questions no we did not call it a compounding pharmacy yes we did serve subpoenas on virginia texas georgia and missouri and we even litigated in the eleventh circuit rather when the state of georgia refused to respond to our subpoena the state of missouri also refused to respond to our subpoena and we had to work out a stipulation on how they would answer it but we did make significant efforts to find out the names of the suppliers that other states use not so we could parade those names out in the newspaper but because our client has an interest if he's going to be executed to be executed in a way that's not going to cost him an extreme in our  unconstitutional amount of pain and the efforts that we went through and the results that we were able to obtain or not obtain as the case maybe proves what the district court said in footnote eight of her opinion which is that the burden that she understands arthur to place on a plaintiff is impossible to meet now i would submit that how she reads arthur how judge dubose read arthur is incorrect it's not it's not dictated by the terms of the supreme court put the burden on the plate for heaven's sake the plaintiff has to prove the alternative yes the supreme court did not do much that out though you're i don't know but it's obvious from the from my reading of the opinion that that's the bird i certainly see that as being one way one way and then the district court reads arthur another way and you know we're going court of the united states i agree with that your honor i don't i don't i certainly don't think that anything in does the following one is say even if you prove that it's a barbaric method of execution you still have to show an alternative i don't think losses on it and then the second thing i don't think loss it does is say even if the plaintiffs can show that the state did not use ordinary transactional diligence in trying to get the alternative the plaintiff still loses i don't think anything in gloss that says that and here all we asked was for the state to undertake ordinary transactional diligence and we think the record is clear that they didn't and as hill essentially admitted that she didn't i say i have two minutes