Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:11-cv-01016—Michael R. Merz, Magistrate Judge.
Argued: June 15, 2017
Decided and Filed: June 28, 2017
Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS,
ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE,
WHITE, STRANCH, DONALD, and THAPAR, Circuit Judges.
KETHLEDGE, Circuit Judge. Roughly two decades have passed since the plaintiffs in
this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so
badly that her internal organs ruptured. For two days she suffered intense abdominal pain and
vomiting, until her heart collapsed. See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995).
Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head. Two
nights later, Otte pushed his way into a woman’s home and did the same things to her. After
each murder Otte went out partying. See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).
Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his
chair with butcher knives protruding from his chest and back. His caretaker lay on the floor in a
pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts,
749 N.E.2d 226, 237-39 (Ohio 2001).
Phillips, Otte, and Tibbetts now claim that Ohio’s Execution Protocol would cause them
to suffer severe pain in violation of the Eighth Amendment. In a sense the claim is
unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for
carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v.
Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted). The State’s chosen
procedure here is the same procedure (so far as the combination of drugs is concerned) that the
Supreme Court upheld in Glossip. Every other court of appeals to consider that procedure has
likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical
challenge in a procedural posture identical to the one here. See McGehee v. Hutchinson,
854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017);
Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th
Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016). Yet here the district court
thought the same procedure is likely invalid. We respectfully disagree and reverse the court’s
grant of a preliminary injunction.