Appellate Case: 21-6153 Document: 010110611284 Date Filed: 11/29/2021 Page: 1

No. 21-6153

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BIGLER JOBE STOUFFER (EXECUTION DATE SET 12-9-2021)

Plaintiff-Appellant,

V.

SCOTT CROW, ET AL.,

Defendants-Appellees.

On Appeal from the United States District Court for

The Western District of Oklahoma (No.5:21-cv-1000)
The Honorable Stephen P. Friot

EMERGENCY MOTION FOR STAY OF EXECUTION

GREGORY W. LAIRD, OBA#18093

GREGORY W. LAIRD, PC
P.O. BOX 52043
TULSA, OK 74152

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I. INTRODUCTION

Oklahoma intends to execute Bigler Jobe Stouffer (“Stouffer”) on December 9,

2021. If allowed to proceed, Stouffer will be the only condemned prisoner in Oklahoma

denied the right to litigate his claim that Oklahoma’s Lethal Injection Protocol (“protocol”)

will subject him to cruel and unusual punishment in violation of his rights under the Eighth

Amendment. The district court’s decision not only denies Stouffer his right to challenge

the protocol, it would allow the State of Oklahoma to execute yet another condemned

prisoner after having botched the previous four attempts. The most recent execution (that

of John Marion Grant) was allowed to proceed on October 28, 2021, even though this Court

concluded that the district court’s refusal to grant injunctive relief to Grant constituted an

abuse of discretion and, accordingly, ordered a temporary stay of his execution. The State

of Oklahoma executed Grant on October 28, 2021. If there was any remaining question

as to whether Oklahoma was capable of executing a prisoner in accordance with the

constitution, what occurred during the Grant execution provides the answer – it cannot.

Affidavits from two eyewitnesses to the Grant execution described what they saw

as “horrifying”. They described what occurred: (1) just after midazolam first entered

Grant’s body, Grant experienced violent and irregular breathing described as full body

convulsions numbering about twelve; (2) Grant appeared to be struggling to breathe while

his mouth moved while he appeared to be gasping for air; (3) about 90 seconds after Grant

began convulsing, he began vomiting, some of which bubbled and popped as air was forced

out of his lungs; (4) although execution personnel entered the chamber and wiped away the

vomit, Grant continued to vomit which covered his face and neck; (5) the “consciousness

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check” of Grant either did not occur or consisted simply of centering Grant’s face and

cleaning vomit off again; (6) after Grant was declared unconscious, additional fluids

flowed, his left cheek fluttered and puffed out over his lips. He was declared dead about

12:41 into the execution. (Supp. RA; 2803-2812; 2814-2816; 2924-2925)

For its part, the State acknowledges that Grant “regurgitated” a substantial amount

of undigested food from his stomach after being injected with Midazolam. The State also

does not contest that “regurgitation” required emergency intervention and members of the

execution team entered the chamber and attempted to clear Grant’s airway and restore his

ability to breathe. Despite what by all accounts was an emergency, the State continues to

insist that the execution was uneventful.

The only witness called by the State to address the Grant execution was Dr. Ervin

Yen, an anesthesiologist and retained expert for the State. At the hearing, Dr. Yen

disclosed that he had been paid by the State to attend the Grant execution. The request was

presumably so that Dr. Yen would be able to describe what he saw, and presumably to

support the opinions he had earlier expressed. (RA II; 181:2-25)

Contrary to the affidavits of the other eyewitness, Dr. Yen described the Grant

execution as being “fast and smooth”. Although Dr. Yen acknowledged seeing Grant

“regurgitate” large amounts of undigested food immediately after receiving a massive dose

of Midazolam, he testified that in his opinion the regurgitation was not caused by the

Midazolam. Instead, Dr. Yen, an anesthesiologist, attributed Grant’s “regurgitation” to the

fact that he had eaten during the eight hours prior to his execution. Of course, and even if

Dr. Yen’s explanation for Grant’s “regurgitation” is correct, it proves that the execution

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protocol – as written – was not followed. (The protocol required that an inmates last meal

be given the night before the execution. The undisputed evidence at the hearing was that

Grant was given breakfast the morning of his execution, and had access to snacks in his

cell throughout the day.) (RA II; 183:4-189:25; Supp. RA; 2768)

Dr. Yen also testified that he (1) did not witness what he would consider a

“consciousness check” during the execution, (2) believed an EKG was attached to Grant;

and (3) realized about halfway into the execution that a video monitor in the viewing room

he occupied appearing to live stream the execution from a camera positioned directly over

Grant. (RA II; 204:24-207:18) 1.

Finally, and when asked to confirm that allowing Grant to ingest food the day of the

execution was a bad idea based on his experience as an anesthesiologist, Dr. Yen demurred,

volunteering that if it was up to him, Grant would be allowed to eat whatever he wanted

the day of the execution up to the time it was scheduled to commence. (RA II; 205:5-10)

In other words, Dr. Yen’s preference apparently would be to ensure that a prisoner would

vomit while strapped to the execution table, rather than to do what was necessary to prevent

it. Regrettably, his preference appears consistent with the benchmark used by the State;

any execution that results in death is considered a success.

Based on the evidence offered at the hearing, including facts relating to the Grant

execution, the refusal of the district court to intervene to prevent yet another calamitous

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If data was recorded from an EKG, or if a video of the execution exists, an order in the
Glossip from October 27, 2021 required the State to preserve the evidence. Although
Stouffer requested any such evidence, the State refused to do so, and did not refer to it or
offer it at the November 22, 2021 hearing.

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execution cannot stand. There is no principled basis to deny Stouffer rights which had

been granted to all other condemned prisoners in Oklahoma.

Stouffer’s request in this motion is modest. Based on the record, the district court’s

failure to correctly apply the law governing Stouffer’s claims of promissory estoppel and

equal protection to a set of undisputed facts constitutes legal error. After this court’s de

novo review, and because the district court’s decision rests on an erroneous legal

conclusion, the failure to grant the requested injunction constitutes an abuse of discretion,

and an immediate stay of Stouffer’s execution should be ordered by this court.

II. RELEVANT FACTUAL BACKGROUND

When Glossip v. Chandler (Civ. No. 14-cv-665-F, U.S. District Court, W.D.

Oklahoma) (“Glossip”) was filed in 2014, Stouffer was not included as a named plaintiff.

To ensure his objections to the protocol were resolved prior to his execution, Stouffer filed

a pro se “Motion for Additional Plaintiff” on December 11, 2014. (RA I; 132) After the

State objected, his Motion was denied on December 22, 2014. (RA I; 136-143) Included in

the Order denying the motion was the following:

Mr. Stouffer states no grounds for relief which indicate that he must be a
named plaintiff in this action in order to receive the benefit of any ruling
which might arguably benefit the named plaintiffs, whether at this or a later
stage. Mr. Stouffer identifies no exigencies which pertain to his personal
situation and which might suggest the need to allow him to intervene.

On October 16, 2015, the parties in Glossip presented a “Joint Stipulation” (RA I;

145-148) which included the following: “It would be in the interests of judicial economy

and comity for the Oklahoma Attorney General not to seek an execution date from the

Oklahoma Court of Criminal Appeals for any of the Plaintiffs or any other condemned

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prisoners until after counsel for Plaintiffs are provided the following. …”. (Emphasis

added). An Order approving the Joint Stipulation was entered the same day. (RA I; 151-

153)

On March 6, 2017, fifteen months after the Joint Stipulation and Order were entered,

the State of Oklahoma filed a notice in the case of Bigler Jobe Stouffer v. State of Oklahoma

pending in the Oklahoma Court of Criminal Appeals (“OCCA”) (Case No. D-2003-277).

The Notice was titled “Notice Pursuant to 22 O.S. 2011, § 1001.1, Regarding Execution

Date” In that notice, the State represented that its obligations under the Joint Stipulation

and Order had not yet been met and, as such, “the setting of Stouffer’s execution date by

this Court is not appropriate at this time.” (RA I; 155-158)

Nearly three years later, in February, 2020, the State claimed to have met all

obligations set forth in the Joint Stipulation and Order, entitling it to begin scheduling

executions 150-days later. During an unreported status conference on March 11, 2020, the

district court requested the State agree not to set any execution dates until Glossip had been

decided. The Attorney General for the State personally attended the March 11, 2020, status

conference, and informed the Court it would agree with the district court’s request. (RA I;

445:10-446:10)

During a May 5, 2020, hearing in Glossip, counsel for the plaintiffs requested

confirmation that an agreement was in place, and the district court assured him of the

commitment made to him by the Attorney General during the status conference on March

11, 2020:

MR. COHEN:

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***

I would like to address and perhaps by agreement get some confirmation

that the State will not seek execution dates until after this case has been
completed. I think that makes sense. I think it's fair. I think it's reasonable.
And I just wanted to throw it out there as --

THE COURT: Well, I'm not even going to invite the defendants to respond to
that because I had the representation last March from none other than the
Attorney General of Oklahoma that that would not happen. And if we
should have any indication that that will happen, I will be, to put it mildly,
immediately available, so it's not necessary to address that.

MR. COHEN: Thank you, Your Honor.

THE COURT: Anything further this afternoon from the defendants?

MR. CLEVELAND: No, Your Honor.

THE COURT: Very well. Court will be in recess.

(RA I; 194:12-195:7 (emphasis added))

Had it been the State’s understanding that the categorical promise described by the

Court applied to all condemned prisoners except Stouffer, it could have said so.

Over a year later, on August 11, 2021, the district court ruled on the Motion for

Summary Judgment filed by the Glossip defendants. The Summary Judgment Order found

contested material facts precluding dismissal of the Eighth Amendment challenge,

although the Eighth Amendment claims as to six of the thirty-two Glossip plaintiffs were

dismissed. The court’s dismissal of the six was based on its belief that to state a method-

of-execution claim, each plaintiff was required to affirmatively and irrevocably designate

a method of execution to be used on them, and to waive any claim as to the constitutionality

of the method selected. Finding the failure or refusal of six of the Glossip plaintiffs to

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make the designation in the form prescribed by the court to be dispositive, the district court

granted the State's motion and dismissed the six from the case. (Supp. RA 2683 passim)

Two weeks later, on August 25, 2021, the State filed a Notice requesting execution

dates for the six Glossip plaintiffs whose claims had been dismissed. The same day, the

State filed a Notice also asking for an execution date for Stouffer. (RA I; 197-199)

Attached to the August 25, 2021 notices, including Stouffer’s, as the only exhibit, was a

copy of the Summary Judgment Order entered by the district court in Glossip. (RA I; 200-

242)

On September 20, 2021, over Stouffer’s objection, his execution was scheduled for

December 9, 2021. (RA I; 244-246, 682-686) On October 12, 2021, Stouffer filed a

Complaint alleging that the protocol was unconstitutional, and shortly thereafter filed a

Motion requesting an injunction prohibiting the State from proceeding with his execution.

(RA I; 7, 14, 25-107, 108-457)

On October 20, 2021, a telephonic status conference was convened in the Glossip

case, during which a discussion as to whether the promise given by the State “not to

schedule executions” until completion of the Glossip case would prohibit the execution of

the six dismissed plaintiffs. The court remarked:

THE COURT:

But I certainly -- forgive the interruption, but I wanted

to make clear that, yes, I had a pointed conversation with
Attorney General Hunter around our table in our conference
room -- I remember it quite well -- and I think I told him it
had been a long time -- I think I put it in terms of the
number of days -- since the Glossip case was decided by the
Supreme Court, and I was not terribly receptive to, while the

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matter was pending in the district court, to have the state

rush to get execution dates.

And I think the net effect of that conversation was that

Attorney General Hunter, to my relief, by the way, acquiesced
in that expression of views on my part. (Supp. RA; 2733:3-2734:6; 2734:8-21)

Later in the hearing, the State acknowledged the existence of the promise. It did not

argue that the promise had not been made, that it was no longer in effect, or that it would

be unenforceable for any reason. Instead, it argued that scheduling dates for the six

dismissed Glossip plaintiffs was permissible because, as to them, the Glossip case was

complete:

MR. MANSINGHANI: Thank you, your Honor. This is

Mr. Mansinghani.

We overall agree with your Honor’s understanding of what

the prior Attorney General had acquiesced to, and we don’t
think that that is applicable anymore for a number of reasons.

(Supp. RA; 2737:24-2738:3)(emphasis added).

And, as the Tenth Circuit said, all the claims against the
inmates in which we set execution dates have been finally –
have been fully adjudicated.

(Supp. RA; 2738:6-8) (emphasis added).

At the conclusion of the October 25, 2021 evidentiary hearing, the district court

addressed whether the State’s promise still applied to the dismissed plaintiffs, concluding

it did not for the reason argued by the State:

The argument of these five plaintiffs for a preliminary

injunction on the basis of an agreement with the Attorney
General of the State of Oklahoma is rejected.

First, all of the claims that these five plaintiffs have

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asserted in this district court have been dismissed under Rule

12 or adjudicated by way of summary judgment under Rule 56.

***

In May of 2020, I effectively assured all of the

plaintiffs that we would be back here quickly if the Attorney
General went back on that understanding.

Because there is nothing more for these five plaintiffs to

litigate in this Court, the State of Oklahoma has not gone back
on that understanding. (RA I; 445:1-446:2 (emphasis added))

On October 27, 2021, this Court entered an Order staying the executions of two of

the dismissed Glossip plaintiffs, finding that the district court’s refusal to do so was an

abuse of discretion. Jones v. Crow, No. 21-6139 (10th Cir. Oct. 27, 2021). This Court

explained that because the August 11, 2021 Summary Judgment Order applied a more

lenient standard to the designating Plaintiffs in Glossip than the one applied to those who

failed to make a designation which, according to the Court resulting in improper disparate

treatment of the dismissed plaintiffs. Specifically, this court could not reconcile the district

court’s decision to dismiss the non-designating plaintiffs, but not to dismiss the other

Glossip plaintiffs who had expressed the same reservations. Id. at 3-6.

A hearing on Stouffer’s request for injunctive relief occurred on November 22,

2021. In its ruling announced the next day, the district court first correctly rejected the

State’s primary argument, that Stouffer’s request was a “quintessential last-minute

execution challenge that the Supreme Court has repeatedly condemned”, stating “[t]he

issue on this equal protection claim is not whether Mr. Stouffer is guilty of laches or of

unconscionable delay in seeking a stay…”. (RA II; 24:2-5)

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In denying relief to Stouffer, however, the district court applied a standard for

injunctive relief stricter than the one set forth by this court in Harmon v. City of Norman,

Oklahoma, 981 F.3d 1141, 1146 (10th Cir. 2020), and committed legal error by incorrectly

applying the law of promissory estoppel and equal protection to a set of undisputed facts.

III. STANDARD OF REVIEW

In its oral ruling, the district court described Stouffer’s burden of proof to be a

“likelihood of success on the merits”. No mention was made of this court’s opinion in

Harmon that the level of success necessary for injunctive relief is a “substantial”

likelihood of success, specifically “to make a prima facie case showing a reasonable

probability that [they] will ultimately be entitled to the relief sought.”

Harmon, 981 F.3d at 1146 (emphasis added). The failure of the district court to

apply the correct standard constituted legal error.

In addition, the district court’s denial of Stouffer’s request for relief on his

promissory estoppel and equal protection clause claims was based on an erroneous

application of legal principles to a set of undisputed facts and as such, its refusal to grant

relief to Stouffer is subject to de novo review by this Court.

In Harmon this court described the standard of review with respect to the denial of

a temporary injunction is described as follows:

“A district court’s decision crosses the abuse-of-discretion line if it rests

on an erroneous legal conclusion or lacks a rational basis in the record.
As we review a district court’s decision to grant or deny a preliminary
injunction, we thus examine the court’s factual findings for clear error and
its legal conclusions de novo.”

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Id. (citations omitted, emphasis added).

IV. ARGUMENT

In its ruling, the district court committed legal error in at least four separate respects.

In addition to the failure to apply the proper standard for injunctive relief set forth in the

Harmon decision, the district court erred in the following three additional ways.

A. The District Court’s Disparate Treatment of Stouffer Constitutes an

Abuse of Discretion

As noted, after this Court earlier concluded that the district court’s disparate

treatment of the plaintiffs in Glossip constituted an abuse of discretion, the district court

repeated its error in denying relief to Stouffer.

The disparate treatment afforded Stouffer was at least as egregious as the error

found by this Court in its decision from October 27, 2021. That is because the refusal of

the district court to grant relief to Stouffer denied him rights afforded all the Glossip

plaintiffs, even those who were dismissed. In particular, Stouffer did not receive the

detailed roadmap provided the Glossip plaintiffs to state a claim under the Eighth

Amendment, nor was he given the opportunity prove his claim at a trial on the merits.

If the ruling from November 23, 2021 is allowed to stand, there can be no doubt

but that the district court’s treatment of Stouffer is not only disparate from the treatment

of the Glossip plaintiffs, but that the treatment of Stouffer is unique to him, and

significantly worse than has been afforded every other condemned prisoners in Oklahoma.

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B. The District Court Erred by Denying Stouffer Relief on his Promissory

Estoppel Claim.
The ten pages of its thirty-four page ruling devoted to Stouffer’s substantive claims,

mostly recited facts which were undisputed, or were the court’s erroneous legal conclusions

based on those facts. To the extent the district court discussed whether Stouffer had

established a likelihood of success on his promissory estoppel claim, the analysis was

almost uniformly contrary to the substantive law. For example, the district court simply

opined that the promise relied on by Stouffer was not “clear and unambiguous” without

explaining how it fell short. (RA II; 27:6-10) Moreover, the district court failed to apply

the definition of a promise in the Restatement, as noted by the Oklahoma Supreme Court

in Russell v. County Com’rs, 952 P.2d 492, 502-504 and n. 40 (OK 1997), “as …a

manifestation of intention to act or refrain from acting in a specified way, so made as to

justify a promisee in understanding that a commitment has been made.” The more

significant error was the conclusion that to prevail on a promissory estoppel claim, Stouffer

was required to prove that a promise was made “to him”:

Mr. Stouffer has not shown that any promise, let alone a clear and
unambiguous promise, was made to him. For that reason, his promissory
estoppel claim fails on the first element of the Restatement test, as adopted
in the Russell v. Board of County Commissioners decision. (RA II; 27:6-10)

This conclusion is simply incorrect. The Russell court recognized that Restatement

(Second) of Contracts § 90, specifically allows a third party to enforce a promise made to

another:

“(1) A promise which the promisor should reasonably expect to induce

action or forbearance on the part of the promisee or a third person and
which does induce such action or forbearance is binding if injustice can

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be avoided only by enforcement of the promise. The remedy granted for

breach may be limited as justice requires. * * *”

(Russell, 952 P.2d, at 503) (Emphasis Added)

In addition, the district court failed to address the other authority cited by Stouffer,

including Stouffer’s contention that silence on the part of the State precludes the State from

contesting the existence of the promise or that it applied to Stouffer. See G.E. Capital

Information Tech. Solutions, Inc. v. Oklahoma City Public Schools, 173 P.3d 114, 118

(OK. App. 2007). Manokoune v. State Farm Mut. Auto Ins. Co., 145 P.3d 1081, 1087 n. 4

(OK 2006) Finally, to the extent the State contends that the promise it made was not made

directly to Stouffer, he was a member of the class of persons for whose benefit the

agreement was intended to benefit, and is therefore able to enforce the agreement as an

intended third party beneficiary with the right to have it enforced on his behalf. Oil Capital

Racing Association v. Tulsa Speedway, Inc., 628 P.2d 1176, 1179 (OK Civ. App. 1981).

The undisputed facts establish all of the elements required to establish Stouffer’s

claim of promissory estoppel. In fact, the circumstances here illustrate why the right to

enforce promises under principles of promissory estoppel was recognized in the first place,

namely; to allow promises to be enforced under certain circumstances when the failure to

do so would be unjust. That the promise at hand was made by the State of Oklahoma –

through its Attorney General – and in a judicial setting later published to the world in the

Glossip record – reasonably relied on by Stouffer to his detriment – amply demonstrates

Stouffer’s right to relief. The failure of the district court to correctly apply the principles

outlined above constitutes legal error requiring intervention by this court.

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C. The District Court Erred by Denying Stouffer Relief on his Equal

Protection Claim

In Count I of his First Amended Complaint, Stouffer alleged the Defendants are

violating his rights under the Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution, which states:

No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.

Equal Protection requires that the laws and actions of a state must treat an individual in

the same manner as other people in similar conditions and circumstances because the

clauseis essentially a direction that all persons similarly situated should be treated alike.’

” Kitchen v. Herbert, 755 F.3d 1193, 1222 (10th Cir. 2014) (quoting City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985)), cert. denied, ––– U.S. ––––, 135 S.Ct.

265.

Although Equal Protection claims typically relate to different treatment of groups,

it can also apply when a “class of one” is receiving unequal protection, such as is the case

with Stouffer. In Village of Willowbrook v. Olech, the Supreme Court held that a plaintiff

may state a “class of one” claim by alleging that he or she “has been intentionally treated

differently from others similarly situated and that there is no rational basis for the

difference in treatment.” 528 U.S. 562, 564 (2000) (per curiam). Where, as here, a plaintiff

brings a class-of-one claim, [he] must demonstrate (1) that “other ‘similarly situated’

individuals were treated differently” from [him], and (2) that “there is no ‘rational basis’

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for [the different treatment].” SECSYS, LLC v. Vigil, 666 F.3d 678, 688–89 (10th Cir.

2012) (citations omitted).

Although, the Tenth Circuit in A.M. v. Holmes, 830 F.3d 1123 (10th Cir. 2016)

stated that “class of one” claims should be approached with caution because “the sample

size in a class-of-one claim is obviously too small to permit a plaintiff to paint the contours

of the claim in broad brushstrokes,” the Tenth Circuit added that “[i]t is therefore

imperative for the class-of-one plaintiff to provide a specific and detailed account of the

nature of the preferred treatment of the [allegedly] favored class. This is because, at its

core, the Equal Protection Clause …. keeps governmental decisionmakers from treating

differently persons who are in all relevant respects alike.” Id. at 1167 (citations and

quotations omitted).

As of August 2, 2021, there were 33 inmates on Oklahoma’s Death Row whose

appeals were exhausted and their cases were ripe for the State to request an execution date.

Thirty-two of them were plaintiffs in Glossip. All 33 have also filed an Eighth Amendment

claim asserting that constitutionally impermissible pain and suffering will result from the

use of the three-drug protocol (midazolam, vecuronium bromide and potassium chloride).

In all 33 cases, the State contends that that the sentences must be carried out in a timely

manner.

However, 32 of the 33 inmates were given the opportunity to choose a “feasible

and readily implemented” alternative to said protocol. 32 of the 33 inmates were given

an opportunity to litigate their claims and to oppose a Motion for Summary Judgment filed

by the State. Moreover, the State agreed not to seek execution dates against 32 of the 33

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inmates until their lawsuit was “complete.” 2 Stouffer is the only member of the 33 who

has not been given the opportunity to make a choice, litigate his claim, oppose summary

judgment and potentially receive a trial on the merits. Stouffer is the epitome of a “class

of one” as defined by the Olech court.

The State of Oklahoma argued and the trial court found that because Stouffer is not

a plaintiff in the Glossip case, he is different from the other 32 death row inmates and

therefore he does not meet the first prong of the Olech test. (RA II; 23:8-25:19) This

rationalization is completely at odds with Olech. The reason Stouffer is not a plaintiff in

Glossip today and, therefore, is different from the other 32 death row inmates, is because

when he moved to join the Glossip case and the plaintiffs did not oppose, the State

objected to his admission and the district court sided with the State. To allow the State to

block his entry to the Glossip case and now claim he is not “similarly situated” because

he is not in the Glossip case is a quintessential “separate but equal” argument and finding.

The logic is circular and is an antiquated interpretation of the dictates of the Equal

Protection Clause.

The second prong of the Olech test requires a plaintiff to “then show this difference

in treatment was without rational basis, that is, the government action was irrational and

abusive, and wholly unrelated to any legitimate state activity.” Kansas Penn Gaming, LLC

v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011)(citations and quotations omitted). The

2
As discussed above, Stouffer argues the State’s promise not to execute condemned
inmates should apply to him; the State contends it does not. Should the Court find that
the promise does not apply to Stouffer, then it is indisputable he is being treated
differently than the other 32 condemned inmates.
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Tenth Circuit in Kansas Penn Gaming held that this standard is “objective—if there is a

reasonable justification for the challenged action, we do not inquire into the government

actor's actual motivations.” Id. (citations and quotations omitted).

On August 25, 2021, when the State requested an execution date for Stouffer, the

State arbitrarily and capriciously categorized Stouffer with the Glossip plaintiffs who the

district court dismissed from that lawsuit for not choosing an alternative method of

execution. (RA I; 197-199) There is no reasonable justification to treat Stouffer, who

requested the opportunity to choose, as one who adamantly refused to choose. Most

compelling with respect to this prong is that the State, other than its circular separate but

equal argument, has never attempted to offer cognizable justification.

Moreover, “In cases not involving judgments that are ‘subjective and

individualized,’ the plaintiff will meet this burden easily. Collins, 656 F.3d at 1218. For

example, in Olech, the defendant village had a longstanding policy of requiring a 15–foot

easement of all property owners who requested access to the municipal water supply,

regardless of cost or circumstance. 528 U.S. at 563. Accordingly, when the village

demanded that the Olechs alone agree to a 33–foot easement, without proffering any

proper reason for the deviation, it was likely that the village was motivated by improper

political animus. Id. Similarly, Oklahoma law, 21 O.S.2021, §1001.1, required the

Attorney General to seek execution dates on all 33 of the death row inmates because they

meet the conditions enumerated therein; however, the State instead allowed 32 of those

inmates to litigate their claims in Glossip.

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Finally, because the facts of this case are so narrow, any concerns that Justice

Breyer’s concurrence in Olech that broadly construing a “class of one” could open the

floodgates to litigation asking for court oversight of government action are easily

obviated. In this case, a death row inmate was originally denied access to a lawsuit alleging

his execution would violate the Eighth Amendment and then later was denied access to an

agreement by the State not to execute any plaintiff in that very lawsuit. The fundamental

constitutional right not to be executed in a cruel and unusual manner could never be

considered quotidian. Moreover, the remaining facts, though seemingly inconceivable to

occur even once, should never happen again.

For the reasons stated above this Catch-22 cannot stand under the dictates of

constitutional precedence and relief must be granted.

D. BASED ON THE ADDITIONAL EVIDENCE FROM THE

GRANT EXECUTION, STOUFFER IS LIKELY TO SUCCEED
ON HIS EIGHTH AMENDMENT CLAIM.

Stouffer is likely to succeed on his claim that the Oklahoma protocol will subject

him to cruel and unusual punishment in violation of the Eight Amendment. In re Kemmler,

136 U.S. 436, 447. “Punishments are cruel when they involve torture or a lingering death

… something more than the mere extinguishment of life.” Id.

The district court referenced a two-prong test, wherein Stouffer must show he is

likely to prove the current protocol is unconstitutional and that he has proposed a “feasible

and readily implemented” alternative. The additional evidence regarding the Grant

execution satisfies the first hurdle and Stouffer’s Affidavit wherein he has made the same

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choices, without reservation, as Glossip plaintiffs, satisfies the second. (RA I; 714-719)

Relief should be granted on this issue.

V. CONCLUSION

Stouffer respectfully requests this Court stay his execution scheduled for December

9, 2021. Stouffer additionally requests the opportunity to more fully brief the issues.

Respectfully submitted this 29th day of November, 2021 by

s/ Gregory W. Laird
Gregory W. Laird, OBA # 18093
Law Office of Gregory W. Laird
P.O. Box 52043
Tulsa, OK 74152
greglairdlaw@gmail.com
(405) 264-3553

COUNSEL FOR PLAINTIFF-APPELLANT

CERTIFICATE OF SERVICE

I certify that on November 29, 2021, I electronically filed the foregoing

motion with the Clerk of Court for the U.S. Court of Appeals for the
Tenth Circuit through the appellate CM/ECF system. I certify that all
participants in the case are registered CM/ECF users and that service
will be accomplished by the appellate CM/ECF system.

/s Gregory W. Laird
Gregory W. Laird

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CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing:

(1) all required privacy redactions have been made per 10th Cir. R.
25.5;
(2) if required to file additional hard copies, that the ECF submission
is an exact copy of those documents;
(3) the digital submissions have been scanned for viruses with the
most recent version of a commercial virus scanning program,
Windows 10 Home, Version 2004 with installed Windows Security,
last updated November 29, 2021 and according to the program are
free of viruses.

Dated this 29th day of November, 2021

/s/ Gregory W. Laird__________________

Gregory W. Laird

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CERTIFICATE OF COMPLIANCE

This motion complies with the word limitation of Fed. R. App. P. 27(d)(2)(A)
because, excluding the parts of the document exempted by Fed. R. App. P. 32(f),
this brief contains 5,190 words.

This document complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
document has been prepared in a proportionally spaced typeface using Microsoft
Word version 16.54 in 13 point Times New Roman.

Dated this 29th day of November, 2021

/s/ Gregory W. Laird__________________

Gregory W. Laird

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