Emmett v. Johnson

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

CHRISTOPHER SCOTT EMMETT, 
Plaintiff-Appellant,
v.
GENE M. JOHNSON, Director,
Commonwealth of Virginia
Department of Corrections; GEORGE
M. HINKLE, Warden, Greensville
Correctional Center; LORETTA K.  No. 07-18
KELLY, Warden, Sussex I State
Prison,
Defendants-Appellees,
and
JOHN DOES 1-100,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(3:07-cv-00227-HEH)

Argued: May 14, 2008

Decided: July 10, 2008

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Traxler wrote the majority
opinion, in which Judge Shedd joined. Judge Gregory wrote a dissent-
ing opinion.
2 EMMETT v. JOHNSON
COUNSEL

ARGUED: Matthew S. Hellman, JENNER & BLOCK, Washington,
D.C., for Appellant. Richard Carson Vorhis, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees. ON BRIEF: Jennifer L. Givens, Michele J. Brace, VIR-
GINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Charlottesville, Virginia, for Appellant. Robert F. McDonnell, Attor-
ney General of Virginia, Richmond, Virginia, for Appellees.

OPINION

TRAXLER, Circuit Judge:

Christopher Scott Emmett brought this action under 42 U.S.C.A.
§ 1983 (West 2003), asserting that the Commonwealth of Virginia’s
method for lethal injection violates his right to be free of cruel and
unusual punishment guaranteed by the Eighth Amendment to the
United States Constitution. The district court granted summary judg-
ment to the defendants. We affirm.

I.

Emmett was convicted by a jury of the robbery and capital murder
of a coworker and sentenced to death in 2001. The Supreme Court of
Virginia affirmed, and the United States Supreme Court denied certio-
rari. See Emmett v. Commonwealth, 569 S.E.2d 39 (Va. 2002), cert.
denied, Emmett v. Virginia, 538 U.S. 929 (2003). After unsuccess-
fully challenging his conviction and sentence in state and federal
habeas proceedings, see Emmett v. Kelly, 474 F.3d 154 (4th Cir.),
cert. denied, 128 S. Ct. 1 (2007), the state scheduled Emmett’s execu-
tion for June 13, 2007.

Emmett no longer challenges the constitutionality of his capital
murder conviction or sentence of death. However, on April 19, 2007,
he initiated this action under § 1983, asserting that the lethal injection
method used by Virginia constitutes cruel and unusual punishment
prohibited by the Eighth Amendment. The district court denied
 EMMETT v. JOHNSON 3
Emmett a preliminary injunction against his impending execution,
and the United States Supreme Court denied his request for a stay of
execution. See Emmett v. Kelly, 127 S. Ct. 2970 (2007). However,
because the Supreme Court had not yet acted upon Emmett’s then-
pending petition for certiorari review of his federal habeas petition,
the Governor of Virginia granted Emmett a temporary reprieve from
execution until October 17, 2007. The Supreme Court denied his cer-
tiorari petition on October 1, 2007.

In the meantime, the district court granted summary judgment to
the defendants in Emmett’s § 1983 action, which he appealed to this
court. On the same day, the Supreme Court granted certiorari to
review a similar § 1983 challenge to Kentucky’s lethal injection
method. See Baze v. Rees, 128 U.S. 34 (2007). The Supreme Court
also granted Emmett a temporary stay of his scheduled October 17
execution pending final disposition of the appeal by our court or fur-
ther order of the Supreme Court. See Emmett v. Johnson, 169 L. Ed.
2d 327 (2007). On April 16, 2008, the Supreme Court issued its opin-
ion in Baze, rejecting the challenge to Kentucky’s procedure. See
Baze v. Rees, 128 S. Ct. 1520 (2008). On May 19, 2008, the Court
granted the defendants’ motion to vacate the October 17 stay of
Emmett’s execution in light of that decision, see Emmett v. Johnson,
No. 07A304, 2008 WL 2078624 (May 19, 2008), and Emmett has
now been scheduled for execution on July 24, 2008.

II.

A.

The Commonwealth of Virginia offers inmates convicted of capital
murder and sentenced to death the choice of electrocution or lethal
injection. See Va. Code § 53.1-234. If the condemned inmate refuses
to make a voluntary choice at least fifteen days prior to the scheduled
execution, lethal injection is imposed as the default method. See id.1
1
Although Emmett alleged in his complaint that Virginia’s method of
electrocution would also violate his Eighth Amendment right to be free
of cruel and unusual punishment, he has not pursued a challenge to the
electrocution method, and the parties agree that this issue is not before
us.
4 EMMETT v. JOHNSON
The Director of the Department of Corrections bears ultimate
responsibility for providing and maintaining the state death chamber,
including all equipment and substances necessary "for the proper exe-
cution of prisoners by . . . continuous intravenous injection." Va.
Code § 53.1-233. The Director or assistants appointed by him "shall
at the time named in the sentence . . . cause the prisoner under sen-
tence of death to be electrocuted or injected with a lethal substance,"
Va. Code § 53.1-234, which "shall be applied until the prisoner is pro-
nounced dead by a physician licensed in the Commonwealth," Va.
Code § 53.1-233. Beyond these broad directives, however, the statu-
tory scheme leaves the development and implementation of the spe-
cific procedures for lethal injection to the discretion of the Director
and those he appoints to assist him. See Va. Code § 53.1-234.

Virginia Department of Corrections’ Divisional Operating Proce-
dure (DOP) 426 has been developed to set forth the various responsi-
bilities, procedures, equipment, and chemicals to be used for lethal
injections, as well as provisions addressing the qualifications, train-
ing, and selection of the execution team.2 DOP 426 also contains a
checklist for use during executions. However, the manual provides
that "the procedures described in th[e DOP] may be amended as
needed on a case by case basis when circumstances require special
procedures to carry out the sentence of death." DOP 426.

Like most other states that have moved away from electrocution
and towards lethal injection as the preferred means of assuring a
humane death, Virginia’s protocol calls for the sequential injection of
three lethal chemicals into the bloodstream by intravenous (IV) cathe-
ters and lines. See Baze, 128 S. Ct. at 1526-27. The first chemical
consists of a 2-gram dose of sodium thiopental ("thiopental" or "Pen-
tathol"), a fast-acting barbiturate, which is divided between two
syringes. When given in the amounts used for lethal injection of
inmates, thiopental results in a deep, coma-like unconsciousness. It
also results in the cessation of breathing, generally within a minute of
its administration. It is followed by a syringe of normal saline to flush
the IV line to ensure full delivery and eliminate the possibility of a
chemical interaction between the thiopental and the next chemical.
2
DOP 426 is subject to a Protective Order in this case, but has been
provided to the court under seal for our review.
 EMMETT v. JOHNSON 5
According to eyewitnesses, the administration of the thiopental is usu-
ally accompanied by a brief period of loud snoring, followed by the
expected cessation of respiration.

The second chemical consists of 50 milligrams of pancuronium
bromide (or "Pavulon"), a neuromuscular blocking agent that para-
lyzes the inmate, preventing all voluntary and involuntary movement
of the skeletal muscles. The pancuronium bromide is followed by
another syringe of normal saline to again flush the IV line.

The third chemical consists of 240 milliequivalents of potassium
chloride, divided between two syringes. Potassium chloride interferes
with the electrical signals that stimulate heart contractions, causing
cardiac arrest and the "flat-line" electrocardiogram (EKG) reading
that Virginia requires for the pronouncement of death. A third syringe
of normal saline is also administered after the potassium chloride to
flush the line.

By statute, "the Director or an assistant, a physician employed by
the Department or his assistant, such other employees of the Depart-
ment as may be required by the Director and . . . at least six citizens
who shall not be employees of the Department" shall be present at
each execution. Va. Code § 53.1-234. In practice, the Director, Dep-
uty Director, and Warden of Greensville Correctional Center (where
the death chamber is located) are all present during lethal injections,
along with an execution team designated and trained to carry out the
procedure. The execution team is comprised of a security team
responsible for transporting and securing the inmate, an IV team to
establish the requisite IV lines, and an executioner who injects the
chemicals into the IV lines. Additional persons are present as needed
to keep the execution records and attend to the equipment. The physi-
cian charged with the task of declaring death is also present and con-
tinuously monitors the inmate’s heart activity via a heart monitor. A
second physician, who is charged with training the IV team, is usually
present as an observer.3
3
By statute, "[t]he identities of persons designated by the Director to
conduct [the] execution, and any information reasonably calculated to
lead to the identities of such persons," remains confidential. Va. Code
Ann. § 53.1-233.
6 EMMETT v. JOHNSON
All members of the execution team are trained in the lethal injec-
tion procedure on an ongoing basis. The IV team receives training in
the insertion and maintenance of IV lines from a physician licensed
to practice medicine by the Virginia Board of Medicine. At least two
members of the IV team must "have received training as military
corpsmen, cardiac emergency technicians, or should receive on-the-
job training from a physician in receiving and dispensing medications,
to include starting and administering IV fluids." DOP 426. The team
members are trained over an initial period of at least twenty hours, but
are not certified as proficient until the training physician is personally
satisfied with their skill level. The executioner has been trained by his
predecessor in the administration of the lethal drugs, including train-
ing on how to assess for obstructions or other problems with the IV
catheters and lines. In addition, the entire execution team receives at
least eight hours of monthly training, which includes participating in
mock executions. In addition to refresher training conducted with the
IV team members in the location and placement of IV catheters and
lines, the team members are educated about how to assess for compli-
cations in the IV lines that might prevent the effective administration
of the chemicals.

The current IV team consists of an individual with 20 years of
medical service and EMT training, and a certified phlebotomist. The
physician responsible for training the IV team testified that he has
never observed any complications or mistakes by the IV team during
an execution and has found the team members to be very proficient.

Before each execution, the Department of Corrections obtains
enough chemicals to prepare three full sets of syringes. In addition,
the IV team examines the inmate to assess venous access and any
anticipated difficulty in establishing the IV lines. On the evening of
the execution, the IV team prepares and fills two complete sets of the
syringes. The syringes are labeled sequentially, placed on a tray, and
kept by the executioner. The death chamber itself consists of a single
room, with an adjacent, windowed room for the witnesses. Immedi-
ately prior to the execution, the inmate is transported to the execution
room, where he is placed on a gurney, restrained, and positioned to
face the adjoining witness room. The window to the witness room is
then temporarily blocked by a curtain while the final preparations are
 EMMETT v. JOHNSON 7
made. A second, rear curtain containing a window and two portholes
is present behind the inmate’s head.

The IV team establishes two IV lines, one primary and one backup,
and attaches tubing to allow for a saline drip and the administration
of the lethal drugs from behind the rear curtain. The IV lines are
passed through the portholes in the rear curtain. The IV catheters are
secured and taped down to avoid movement or migration. Once the
catheters and lines are inserted, the executioner starts a continuous
drip flow of IV fluids to ensure that they are properly placed, open,
and flowing, which is confirmed by the IV team. The electrodes for
the EKG are also connected to the inmate.

Once the IV team completes its work, all team members move
behind the rear curtain. When the execution is ready to proceed, the
curtain that temporarily blocks the witness room is removed. During
the entire process, the Director remains in front of the rear curtain
with the inmate. He is also in constant contact with the Governor’s
office by way of a telephone located in the death chamber. When the
Director receives confirmation from the Governor’s office that the
execution may proceed, he instructs the Warden to start the execution.
The Warden then steps behind the rear curtain and signals the execu-
tioner to begin.

The execution process is conducted in a solemn environment and
the general practice is to conduct the process largely in silence and
to communicate via hand signals. Once the order to proceed is given,
the executioner sequentially injects each of the chemicals and inter-
mittent saline flushes in a "rapid-flow" manner. A member of the IV
team takes each labeled syringe in order from the tray and hands it
to the executioner for administration. The executioner, in turn,
double-checks each label for accuracy before injecting the contents of
the syringe into the IV line. While doing so, the executioner is able
to observe the inmate and the IV site either through the window or
porthole in the rear curtain, but in practice the current executioner
chooses to observe through the porthole. The distance from the port-
hole to the inmate’s arm, where the IV is sited, is approximately three
feet or less. While administering the chemicals, the executioner
watches for swelling or other signs of infiltration at the IV site. The
executioner is trained to feel for any resistance against the injection
8 EMMETT v. JOHNSON
of the syringe contents. If the flow is stopped, he encounters undue
resistance, or he becomes concerned for any reason that the primary
line has ceased to be a patent and flowing portal, he can motion for
the IV team to switch to the back-up IV line.

The physician, who is also positioned behind the rear curtain, con-
tinuously monitors the EKG reading and pronounces death when all
electrical activity ceases, i.e., when the EKG registers a flat-line read-
ing. The EKG is also monitored by an execution team member. The
Deputy Director stands next to the physician. A timekeeper records
the time that each chemical is administered, as well as the time that
death is declared. The DOP 426 checklist provides that "[i]f the heart
monitor does not indicate a flat line reading within ten minutes after
completing the injection of the first set of lethal chemicals, then a sec-
ond set of lethal chemicals will be administered (Pavulon and Potas-
sium Chloride only), using the alternate IV line." DOP 426. In
practice, the Director, who is in front of the rear curtain with the
inmate and the liaison with the Governor’s office, has delegated the
task of overseeing the administration of the lethal drugs to the Deputy
Director, who has been attending executions in Virginia since 1995.
In addition to personally observing the preparations for the execution,
he oversees the entire process, including all activities conducted
behind the windowed curtain. He testified that if the EKG does not
indicate a flat-line reading within a minute or two after administration
of the first set of chemicals, he immediately orders the executioner to
administer the second set of pancuronium bromide and potassium
chloride.

Once the EKG registers a flat-line reading and the physician
declares death, the Warden steps out from behind the back curtain and
signals to the Director that death has occurred. The Director notifies
the Governor’s office that the death sentence has been carried out, and
the curtain to the witness room is closed to prevent further observa-
tion. The body of the inmate is transported to the medical examiner’s
office and the execution team members meet to sign the execution log
and participate in a debriefing on the execution.

B.

Emmett does not dispute that the proper administration of the thio-
pental called for by the Virginia protocol will ensure that he will
 EMMETT v. JOHNSON 9
experience a humane death. Rather, Emmett asserts that Virginia’s
lethal injection procedures pose an unacceptable risk that the thiopen-
tal might not be delivered to him in an amount sufficient to render
him unconscious, which would cause him to experience severe pain
associated with the administration of the pancuronium bromide and
potassium chloride. In light of this risk, Emmett proposes that Vir-
ginia should abandon the three-drug protocol in favor of a one-drug
protocol consisting of the administration of a single, massive dose of
thiopental or similar barbiturate.

The district court rejected Emmett’s challenge and granted sum-
mary judgment to the defendants. On appeal, we review de novo the
district court’s award of summary judgment, viewing the facts and the
reasonable inferences drawn therefrom in the light most favorable to
the nonmoving party. See EEOC v. Navy Fed. Credit Union, 424 F.3d
397, 405 (4th Cir. 2005). Summary judgment is appropriate when "the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law." Fed. R. Civ. P 56(c); see Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

When a party has submitted sufficient evidence to support its
request for summary judgment, the burden shifts to the nonmoving
party to show that there are genuine issues of material fact. See Mat-
sushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-88
(1986). However, "the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no
genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). The party opposing a properly supported
motion for summary judgment may not rest upon mere allegations or
denials of his pleading, but "must come forward with specific facts
showing that there is a genuine issue for trial." Matsushita, 475 U.S.
at 587 (internal quotation marks & emphasis omitted); see Rivanna
Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 240
(4th Cir. 1988). "Mere unsupported speculation is not sufficient to
defeat a summary judgment motion if the undisputed evidence indi-
cates that the other party should win as a matter of law." Francis v.
Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006); see
10 EMMETT v. JOHNSON
Ash v. UPS, 800 F.2d 409, 411-12 (4th Cir. 1986) (per curiam)
("[U]nsupported speculation . . . is not sufficient to defeat a summary
judgment motion."). Nor can the nonmoving party "create a genuine
issue of material fact through mere speculation or the building of one
inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985). "When the moving party has carried its burden under Rule
56(c), its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita, 475 U.S. at
586 (footnote omitted).

III.

The Eighth Amendment, applicable to the states through the Four-
teenth Amendment, prohibits execution procedures that inflict cruel
and unusual punishment. See Baze, 128 S. Ct. at 1530. Challenges to
execution procedures are properly raised by condemned inmates
under § 1983. See Hill v. McDonough, 547 U.S. 573, 576 (2006)
(holding that challenge to state’s lethal injection protocol is cogniza-
ble under § 1983).

A.

In Baze v. Rees, the Supreme Court rejected a nearly identical chal-
lenge by condemned inmates to Kentucky’s lethal injection method,
which also utilized a three-drug combination consisting of 3 grams of
thiopental, 50 milligrams of pancuronium bromide, and 240 millie-
quivalents of potassium chloride. See Baze, 128 S. Ct. at 1528.4 Like
Emmett, the Baze petitioners admitted that proper administration of
the thiopental would eliminate any meaningful risk of pain from the
subsequent injections of pancuronium bromide and potassium chlo-
ride, but claimed there was a significant and unnecessary risk that the
thiopental would not be properly administered to achieve its intended
effect. See id. at 1530-31. The Baze petitioners also advocated that the
state adopt a one-drug barbiturate protocol to eliminate the risk. See
id. at 1531.
4
Because it represents the controlling opinion of the Court, all refer-
ences to Baze, unless otherwise noted, are to the plurality opinion
authored by the Chief Justice.
 EMMETT v. JOHNSON 11
The Court, however, rejected the petitioners’ proposed "unneces-
sary risk" standard, id. at 1532 (internal quotation marks omitted), and
held instead that condemned inmates must demonstrate "a ‘substantial
risk of serious harm,’" or "an ‘objectively intolerable risk of harm’
that prevents prison officials from pleading that they [are] ‘subjec-
tively blameless for purposes of the Eighth Amendment,’" id. at 1531
(quoting Farmer v. Brennan, 511 U.S. 825, 846, & n.9 (1994)).

Noting the settled principle that "capital punishment is constitu-
tional" and that "there must be a means of carrying it out," Baze, 128
S. Ct. at 1529 (citing Gregg v. Georgia, 428 U.S. 153, 177 (1976)),
the Court recognized that "[s]ome risk of pain is inherent in any
method of execution - no matter how humane - if only from the pros-
pect of error in following the required procedure." Baze, 128 S. Ct.
at 1529. "[A] risk of future harm - not simply actually inflicting pain
- can qualify as cruel and unusual punishment," but only if "the condi-
tions presenting the risk [are] ‘sure or very likely to cause serious ill-
ness and needless suffering,’ and give rise to ‘sufficiently imminent
dangers.’" Id. at 1530-31 (quoting Helling v. McKinney, 509 U.S. 25,
33, 34-35 (1993)). "Simply because an execution method may result
in pain, either by accident or as an inescapable consequence of death,
does not establish the sort of ‘objectively intolerable risk of harm’
that qualifies as cruel and unusual" under the Eighth Amendment.
Baze, 128 S. Ct. at 1531.5

The Court also rejected the petitioners’ claims that additional mon-
itoring by trained personnel must be implemented to ensure that the
5
In supplemental briefing, Emmett correctly points out that the Baze
Court did not require a showing of deliberate indifference by the state
separate from a demonstrated risk of substantial harm, observing instead
that a substantial, objectively intolerable standard would "prevent[ ]
prison officials from pleading that they were subjectively blameless for
purposes of the Eighth Amendment." Id. at 1531 (internal quotation
marks omitted). Although the district court in this case indicated that
deliberate indifference was a relevant inquiry, it rejected Emmett’s chal-
lenge upon his failure to demonstrate the threshold requirement of a sub-
stantial risk. In any event, because we review the record and the grant of
summary judgment de novo, with the benefit of the Supreme Court’s
opinion in Baze, the district court’s reference to a deliberate indifference
requirement does not affect our disposition of this appeal.
12 EMMETT v. JOHNSON
first dose of thiopental is adequately delivered, and that a one-drug
protocol should be adopted as a less-risky alternative. See id. at 1533.
Demonstration of "a slightly or marginally safer alternative," the
Court held, will be insufficient to prevail on an Eighth Amendment
challenge, as adoption of a contrary rule "would threaten to transform
courts into boards of inquiry charged with determining ‘best prac-
tices’ for executions, with each ruling supplanted by another round of
litigation touting a new and improved methodology." Id. at 1531. It
would also "embroil the courts in ongoing scientific controversies
beyond their expertise, and would substantially intrude on the role of
state legislatures in implementing their execution procedures - a role
that by all accounts the States have fulfilled with an earnest desire to
provide for a progressively more humane manner of death." Id. (citing
Bell v. Wolfish, 441 U.S. 520, 562 (1979) ("The wide range of ‘judg-
ment calls’ that meet constitutional and statutory requirements are
confided to officials outside the Judicial Branch of Government.")).
Rather, any advocated "alternative procedure must be feasible, readily
implemented, and in fact significantly reduce a substantial risk of
severe pain. If a State refuses to adopt such an alternative in the face
of these documented advantages, without a legitimate penological jus-
tification for adhering to its current method of execution, then a
State’s refusal to change its method can be viewed as ‘cruel and
unusual’ under the Eighth Amendment." Id. at 1532.

Turning to the petitioners’ challenges, the Supreme Court observed
at the outset the difficulty in "regard[ing] a practice as ‘objectively
intolerable’ when it is in fact widely tolerated" across the nation. Id.
"Thirty-six States that sanction capital punishment have adopted
lethal injection as the preferred method of execution. The Federal
Government uses lethal injection as well. This broad consensus goes
not just to the method of execution, but also to the specific three-drug
combination used by Kentucky . . . in varying amounts." Id. (citation
omitted). Yet "[n]o State uses or has ever used the alternative one-
drug protocol." Id. In addition, the Court addressed and rejected each
of the specific challenges to Kentucky’s existing methodology, noting
in particular that the IV team was well-trained, equipped, and edu-
cated in how to detect IV failures that might occur during the execu-
tion process, and that prison personnel were in a position to observe
the inmate for the obvious signs of any IV or anesthetic failure that
might occur. See id. at 1533-34.
 EMMETT v. JOHNSON 13
Finally, the Baze Court considered and rejected the concern that the
articulated standard "leaves the disposition of other cases uncertain,"
holding that "[a] stay of execution may not be granted on grounds
such as those asserted here unless the condemned prisoner establishes
that the State’s lethal injection protocol creates a demonstrated risk
of severe pain" and "show[s] that the risk is substantial when com-
pared to the known and available alternatives." Id. at 1537. If a state
employs "a lethal injection protocol substantially similar to the proto-
col" upheld in Baze, it will "not create a risk that meets this standard."
Id.

B.

Virginia is one of the thirty states that has adopted the three-drug
combination discussed in Baze. Although there are some minor varia-
tions, the protocol is largely identical to that of Kentucky and, like
Kentucky’s, includes a number of safeguards designed to ensure that
the lethal chemicals are properly administered intravenously in a
quick, humane fashion.6 The execution team consists of IV team
members and an executioner who are experienced and well-trained.
The IV team members, who possess prior medical qualifications, are
provided with initial training in the insertion and establishment of IV
catheters and lines for the execution process and with monthly
refresher sessions conducted by a licensed physician. Additionally, all
members of the execution team participate in monthly walk-throughs
of the execution procedure.

As previously discussed, the IV team prepares two full sets of
syringes containing the lethal drugs and saline flushes before each
execution, establishes two IV lines, and ensures that both lines are
patent and flowing before the execution begins. The syringes are
double-checked by an IV team member and the executioner before the
chemicals are administered, and department superiors continuously
6
Although Kentucky’s protocol apparently calls for 2 grams of thio-
pental, Kentucky now voluntarily administers 3 grams of thiopental. See
Baze, 128 S. Ct. at 1528. However, the one-gram difference is insignifi-
cant as it is undisputed that 2 grams of thiopental is independently lethal
and that its proper administration in the three-drug cocktail will result in
a humane death.
14 EMMETT v. JOHNSON
oversee the activities of the execution team, from preparation of the
syringes through the declaration of death by the physician. During the
administration of the chemicals, the executioner observes the IV site
for swelling and monitors the injections for resistance, as he has been
trained to do. The Director is also constantly present with the inmate
and in a position to observe any obvious signs of problems or failures
that might occur.

There is, however, one immediately obvious difference between
the administrations of the lethal injection procedures in Virginia and
Kentucky — Virginia has a much more extensive historical record of
administering the death penalty by lethal injection, having conducted
70 executions by lethal injection compared to the single lethal injec-
tion conducted by Kentucky prior to the Baze decision. Seizing upon
this distinction, Emmett argues that Virginia’s method of lethal injec-
tion is not substantially similar to that of Kentucky because the execu-
tion records and history demonstrate risks that were not present in
Baze. More specifically, Emmett asserts that Virginia’s rapid-flow
administration of the three-drug combination creates the possibility
that the pancuronium bromide and potassium chloride will take effect
before the thiopental has taken full effect; that there is historical evi-
dence of prior inmates exhibiting signs of not receiving a full dose of
thiopental, prompting Virginia to give a second dose of pancuronium
bromide and/or potassium chloride but not thiopental; and that there
is historical evidence of other errors in the implementation of the pro-
tocol. Finally, Emmett asserts that Virginia should adopt alternative
procedures, including the one-drug protocol discussed in Baze, to
eliminate such risks.

Having reviewed the record de novo, we conclude that Virginia’s
protocol is substantially similar to Kentucky’s protocol and that
Emmett has failed as a matter of law to demonstrate a substantial or
objectively intolerable risk that he will receive an inadequate dose of
thiopental, particularly in light of the training and safeguards imple-
mented by Virginia prior to and during the execution process. We also
reject Emmett’s claim that we should remand for further evidentiary
development of the proposed alternatives.
 EMMETT v. JOHNSON 15
IV.

A.

We begin with Emmett’s claim that he has produced evidence suf-
ficient to demonstrate that Virginia’s rapid-flow method of adminis-
tering the lethal drugs creates a substantial risk that the pancuronium
bromide and potassium chloride will take their painful effects before
the thiopental has had an opportunity to take its full effect.7 We dis-
agree.

As noted above, Virginia’s protocol calls for the injection of two
syringes of thiopental, a syringe of saline, a syringe of pancuronium
bromide, a second syringe of saline, two syringes of potassium chlo-
ride, and a third syringe of saline. The time records kept during the
execution are only recorded in whole minutes and are, therefore,
somewhat imprecise. However, they indicate that the pancuronium
bromide has at times been injected as rapidly as one to two minutes
after the thiopental, and that the potassium chloride has been injected
as rapidly as one to two minutes thereafter.

Dr. Mark Dershwitz, an anesthesiologist retained by the state to
review Virginia’s execution protocol and records, performed a phar-
macokinetic and pharmacodynamic analysis, and opined, to a reason-
able degree of medical certainty, that inmates will be sufficiently
anesthetized by the extreme overdose of thiopental to prevent the
experience of pain from the second and third chemicals. According
to Dr. Dershwitz, 2 grams of thiopental is a significant overdose of
the drug. Proper administration of that amount would render over
99.99999% of the population unconscious, and the probability of an
inmate regaining consciousness, and experiencing pain, within 30
minutes of being administered 2 grams of thiopental is 3/100 of 1 per-
7
Although the petitioners in Baze challenged the failure of the Ken-
tucky protocol to establish a rate of injection, they did so on the basis
that rapid administration might lead to a failure of the IV, not upon a
claim that the anesthetization might not be sufficient. See Baze, 128 S.
Ct. at 1533. Accordingly, while it does appear that Kentucky also utilizes
a rapid-flow method of injection, the Baze Court was not called upon to
address this precise issue.
16 EMMETT v. JOHNSON
cent (.03%). Dr. Dershwitz also testified that a rapid-flow method of
induction of drugs is a technique utilized in the surgical anesthesia
environment and, in fact, can result in a neuromuscular blocking
agent being injected before the patient loses consciousness. However,
Dr. Dershwitz was "confident that [such a] person [would] lose con-
sciousness before the paralytic drug has its pharmacological effect" in
the surgical setting, J.A. 1185, and would "invariably" expect the
same in the lethal injection setting, J.A. 1187. Dr. Stuart Lowson, an
anesthesiologist retained by Emmett, agreed that the successful deliv-
ery of the thiopental would render the inmate sufficiently anesthetized
at the time the pancuronium bromide and potassium chloride were
administered.

In support of his claim that Virginia’s rate of delivery creates a
constitutionally unacceptable risk that the pancuronium bromide and
potassium chloride might take their painful effects before the thiopen-
tal has achieved its full effect, Emmett relies instead upon testimony
of Dr. Thomas Henthorn, an expert in pharmacokinetics, presented in
federal court in Missouri in an unrelated case that challenged Missou-
ri’s lethal injection protocol. See Taylor v. Crawford, 487 F.3d 1072
(8th Cir. 2007). Based upon his review of Missouri’s procedure, Dr.
Henthorn testified that it would take more than a minute and a half
for the thiopental to travel from the femoral vein (where it is injected
in that state) to the brain and cause the inmate to achieve a state of
unconsciousness known as "burst suppression." Burst suppression is
indicated by a flat line on an electroencephalogram (EEG), represent-
ing no electrical activity of the brain. Because there is no "cerebral
activity," there would be "no chance of any [conscious] recognition
of pain." J.A. 291.

The district court rejected Dr. Henthorn’s testimony because it
lacked a factual basis and failed to quantify the likelihood of an
inmate actually experiencing such pain, thus finding it of "little proba-
tive value in assessing the likelihood that [Emmett would] experience
such a theoretical reaction" under Virginia’s procedure. J.A. 363.
"Such hypothetical evidence, even if admissible," the district court
noted, "is insufficient to counter the testimony of Dr. Dershwitz that
[Emmett’s] risk of pain is less than 3/100 of one percent (.03%), a
risk that is not constitutionally significant." J.A. 363.
 EMMETT v. JOHNSON 17
Having reviewed the evidence de novo in light of the Baze stan-
dard, we agree that Dr. Henthorn’s testimony is insufficient to demon-
strate that Virginia’s procedure creates a substantial or objectively
intolerable risk of severe pain. While Dr. Henthorn quantifies the time
it would take (based upon Missouri’s procedure) for an inmate to
achieve the state of burst suppression, he acknowledges that the time
necessary to achieve burst suppression is much longer than the time
necessary for a person to achieve the lesser depth of unconsciousness
needed for invasive surgical procedures. And he does not take issue
with Dr. Dershwitz’s observation that such rapid-flow inductions are
utilized in the surgical context. Thus, in this respect, Dr. Henthorn’s
opinion does not directly conflict with Dr. Dershwitz’s opinion
regarding the minuscule risk of pain. Rather, Dr. Henthorn’s opinion
derives from the view that states should wait a sufficient interval to
ensure that the inmate will achieve burst suppression because this
would eliminate all possibility, however slim, of an inmate experienc-
ing some pain from the pancuronium bromide and potassium chloride.8

Under the Baze standard, however, the relevant question is whether
Emmett has produced evidence sufficient to meet his "heavy burden,"
id. at 1533 (internal quotation marks omitted), of demonstrating that
Virginia’s existing protocol presents a "substantial" or "objectively
intolerable" risk of serious harm to Emmett, id. at 1531 (internal quo-
tation marks omitted). Emmett must point to evidence demonstrating
that "the conditions presenting the risk must be sure or very likely to
cause serious illness and needless suffering, and give rise to suffi-
ciently imminent dangers." Id. at 1530-31 (internal quotation marks
omitted). Clearly, he has failed to do so. According to the uncontro-
8
Indeed, it appears that in the Taylor case, the petitioner’s own experts
disagreed as to the level of anesthesia necessary to ensure a humane exe-
cution. The Eighth Circuit observed, as have we, that "Dr. Henthorn tes-
tified that an anesthetic depth known as ‘burst suppression,’ which is
deeper than that required for surgery, must be reached for a humane
lethal injection protocol because absent this depth, it is possible to be
unconscious and still feel pain." Taylor v. Crawford, 487 F.3d 1072,
1076 (8th Cir. 2007) (emphasis added). Dr. Mark Heath, like Dr. Dersh-
witz, appears to have expressed the view that a humane execution under
the three-chemical protocol requires only a state of anesthesia deep
enough for surgery. See id.
18 EMMETT v. JOHNSON
verted expert testimony of Dr. Dershwitz, based upon his review of
Virginia’s protocol and the actual historical records of Virginia’s exe-
cutions, inmates receiving a rapid dose of thiopental will be suffi-
ciently unconscious to render minuscule any risk of pain associated
with the administration of the remaining two drugs. Dr. Henthorn
does not opine that there is a substantial or imminent risk posed by
the rapid-flow induction of the lethal chemicals, nor does he take
issue with the fact that this method of administration is utilized by
anesthesia professionals in the surgical setting. Rather, he deems the
possible risk unnecessary in the lethal injection context because it
could be lessened by delaying the administration. While Dr. Henthorn
is of the view that such delay would be a better practice, we are not
at liberty to dictate what is in our judgment or the judgment of any
expert a "better" or "less risky" procedure.

Like some of her sister states, Virginia may choose to implement
a brief pause between administration of the first and second chemi-
cals. Or it may choose to continue the current rapid-flow method of
administration as one that better serves Virginia’s interest of complet-
ing humane executions as quickly and with as much dignity as possi-
ble. For our purposes, however, it is enough to observe that Virginia
is not constitutionally required to eliminate every possibility that pain
might occur or every unnecessary risk that may exist. Because Virgin-
ia’s rapid-flow induction procedure does not present a "substantial" or
"objectively intolerable" risk of serious harm to Emmett, its use is a
judgment call entrusted to the officials of the Department of Correc-
tions.

B.

Emmett next asserts that there is historical evidence that previously
executed inmates in Virginia have exhibited signs of having not
received a full dose of thiopental and that, in response, Virginia has
given second doses of pancuronium bromide and potassium chloride
but not thiopental. This, he contends, demonstrates a substantial risk
that he will experience severe pain sufficient to run afoul of the
Eighth Amendment. The evidentiary record, however, fails to support
this claim.
 EMMETT v. JOHNSON 19
1.

First, Emmett has failed to produce evidence sufficient to demon-
strate that a single inmate has exhibited signs of not receiving a suffi-
cient dose of thiopental.

According to Dr. Dershwitz, thiopental causes virtually all persons
to stop breathing within a minute of its administration and causes the
blood pressure to immediately fall to dangerously low levels. This, in
turn, results in diminished circulation throughout the body, which
would eventually lead to diminished oxygenation of the blood
(hypoxemia), cardiac damage, and death. Pancuronium bromide is
also independently lethal. As a result of its paralytic properties, it
would result in the cessation of respiration within three minutes or
less, causing the inmate to suffocate and die. However, in neither case
would a flat-line EKG reading be immediate. The potassium chloride
injection, on the other hand, consists of a massive dose that interferes
with the electrical signals that stimulate heart contractions, causing
cardiac arrest and a flat-line EKG. According to Dr. Dershwitz, it
should typically take one circulation time for the potassium chloride
to reach a level in the heart sufficient to stop electrical activity. In a
person with normal cardiac output, this should occur in a minute or
less. In a person whose cardiac output has been depressed by thiopen-
tal, it would generally take longer, although it should still occur
within minutes.

As support for his theory that prior inmates have exhibited signs of
not receiving the full dose of thiopental, Emmett points to the fact that
in 10 of the 70 executions carried out by lethal injection in Virginia,
the inmate’s EKG did not immediately flat-line after administration
of the first dose of the potassium chloride. In the majority of these
cases, the inmate was still pronounced dead within five minutes or
less; however, in the most recent, the inmate was not pronounced
dead until 10 minutes after injection of the first dose of potassium
chloride. From these facts, Emmett argues that the "most likely" rea-
son for the delay in the pronouncement of death was that an insuffi-
cient amount of the first dose of potassium chloride reached the
inmate’s circulation, and that this, in turn, raises the possibility that
a full dose of pancuronium bromide and thiopental might not been
received.
20 EMMETT v. JOHNSON
Contrary to Emmett’s assertion, however, he has not produced evi-
dence that the most likely reason for the delay in the pronouncement
of death in these cases is that an insufficient amount of the first dose
of potassium chloride reached the inmate’s circulation, and he cer-
tainly has not produced evidence that the preceding dose of thiopental
was not appropriately or effectively delivered. As support for his the-
ory, Emmett relies exclusively upon the statement of Dr. Stuart Low-
son, also an anesthesiologist, who stated that the delays in the flat-line
readings "raise[ ] the possibility that the drugs were not properly
administered or did not reach their site of action in the heart." J.A.
100 (emphasis added). Such speculation and building of inferences,
however, is wholly insufficient to create a genuine issue of material
fact that Virginia has a history of failing to properly administer full
doses of thiopental to its condemned inmates. See Francis, 452 F.3d
at 308; Beale, 769 F.2d at 214.

In the 70 executions carried out by Virginia, there has not been a
single incident in which the thiopental failed to render an inmate
unconscious. There is no evidence of any inmate speaking, crying out,
writhing in pain, gasping for breath, or otherwise moving during the
execution process. There is no evidence of an IV catheter becoming
dislodged or of the IV fluids or chemicals infiltrating into the sur-
rounding tissue instead of entering the circulatory system. Clearly,
this attests to the actual experience and proficiency of the execution
team members.

Additionally, there are other, plausible explanations for the delays
in the flat-line readings of those ten inmates. Dr. Dershwitz reviewed
the execution records and testified that it was "very hard to imagine
that something could have gone wrong and still resulted in the
recorded time of death." J.A. 1199. In the majority of the cases, death
was pronounced an average of approximately four minutes after the
first drug was administered. He also reiterated that, while potassium
chloride typically causes a flat-line EKG within a minute of its
administration, thiopental immediately slows the circulatory system
and, thereby, will delay the full delivery of the potassium chloride to
the heart in even a normal and fit individual. With regard to the ten-
minute execution, Dr. Dershwitz noted that the EKG did show an
abrupt change in electrical activity approximately one minute after the
first dose of potassium chloride was administered, which is consistent
 EMMETT v. JOHNSON 21
with the cessation or severe slowing of circulation, and, given that it
is the third drug in the three-drug protocol, a strong indicator that the
thiopental was effectively delivered.

In summary, Dr. Dershwitz testified that the thiopental could have
essentially stopped the circulation before the potassium chloride fully
reached the heart, causing an impairment of the heart’s electrical pat-
tern, but preventing the full dose of the potassium chloride from
reaching the heart and causing an immediate flat-line reading on the
EKG. In contrast to this plausible explanation, Dr. Dershwitz testified
that an intravenous catheter that worked only intermittently would be
"an extraordinary circumstance[ ]" that he has never seen and a sce-
nario that would be "very hard for [him] to imagine." J.A. 1206. Such
an intermittent failure would have to be one that allowed a sufficient
amount of the second chemical (pancuronium bromide) to paralyze,
but not enough of the first chemical (thiopental) to anesthetize and not
enough of the third chemical (potassium chloride) to immediately
stop the electrical activity of the heart. And, it would have to have
been one that went undetected both at the time of the execution and
after it was completed.9

Of course, on summary judgment we do not weigh the relative
statements of these expert witnesses regarding the "possibilities" sur-
rounding the delay in the ten EKG flat-line readings. Emmett’s claim
fails to survive summary judgment because it was incumbent upon
him to present evidence demonstrating that Virginia’s protocol pre-
sents a condition that is "sure or very likely to cause serious illness
and needless suffering, and [which] give[s] rise to sufficiently immi-
nent dangers." Baze at 1530-31 (internal quotation marks omitted).
The possibilities and other speculative scenarios advocated by
Emmett do not carry the day.

9
Emmett’s theory is also not supported by the eyewitnesses, who testi-
fied that the IV was properly placed in a working vein, that the IV lines
at all times flowed smoothly and without leaks or swelling, that there
were no difficulties or problems observed, and that no problems were
raised during the debriefing process.
22 EMMETT v. JOHNSON
2.

Second, Emmett appears to argue that Virginia’s protocol, unlike
the protocol discussed in Baze, presents a substantial risk of severe
pain because it forbids the administration of a second dose of thiopen-
tal even if an inmate were to exhibit signs of not having achieved
unconsciousness. Again, the evidence does not support his claim.

The Kentucky protocol discussed in Baze provides that a second
dose of thiopental can be administered through the secondary line if
corrections officials observe that the prisoner is not sedated after the
first dose of thiopental is given. Baze does not discuss Kentucky’s
protocol for giving second doses of pancuronium bromide or potas-
sium chloride. In Virginia, administration of second doses of
pancuronium bromide and potassium chloride is triggered under the
checklist by a failure of the EKG to exhibit a flat-line reading imme-
diately after the administration of the entire first set of drugs.10 The
10
Much has been made of the fact that there is some disagreement
among execution team members as to whether the language of DOP 426
should be interpreted to require the executioner to wait ten minutes after
administration of the first set of lethal chemicals before giving the sec-
ond set of lethal chemicals. However, the Deputy Director, who orders
the second set, unequivocally testified that he does not consider the pro-
tocol to require him to wait a full ten minutes before administering the
second doses. If the EKG does not indicate a flat-line reading within a
minute or two from the conclusion of the administration of the first set
of chemicals, it is his practice to immediately order the executioner to
administer the second doses of pancuronium bromide and potassium
chloride in order to avoid any prolonged execution process or lingering
death. This is also confirmed by the execution records; in each of the 10
cases relied upon by Emmett, the second dose of pancuronium bromide
and potassium chloride was in fact given within 10 minutes after delivery
of the first set of chemicals.
Dr. Dershwitz testified that it is not medically necessary to wait ten
minutes to repeat a dose of potassium chloride, but was also of the opin-
ion that the second doses given were probably unnecessary given the
massive overdose associated with the first set of drugs. Rather, he
believed the execution team simply did not wait long enough for the first
dose of potassium chloride, which is slowed by the effects of thiopental
 EMMETT v. JOHNSON 23
written protocol in Virginia does not address a second dose of thio-
pental, but it is undisputed that one is prepared in advance and avail-
able on the tray during the entire process. Although there is no
evidence that the first dose of thiopental has ever failed to render an
inmate immediately unconscious, there is also no evidence that the
execution team would be prohibited by the checklist from giving the
second dose of thiopental should either the Department officials or an
execution team member observe a problem with the initial administra-
tion of the drug or observe an inmate failing to lose or regaining con-
sciousness. Certainly, there is no reason to believe that the checklist
somehow strips the Director and Deputy Director of the discretion
otherwise reserved to them by the protocol (which explicitly recog-
nizes the potential need for amendments on a case-by-case basis) to
administer a second dose of thiopental should they encounter such a
need.

In sum, the asserted comparison between Kentucky’s procedure
and Virginia’s procedure on this issue compares apples to oranges and
is insufficient to demonstrate a substantial risk that Emmett will be
administered a second dose of pancuronium bromide or potassium
chloride while insufficiently anesthetized.

C.

Emmett’s remaining claims arise from isolated incidents which he
contends add up to sufficient evidence of an inconsistent history of
implementing the lethal injection protocol and a risk that it will not
be reliably administered in the future. We are unpersuaded.

upon the circulatory system, to result in the flat-line reading. Of course,
giving the second dose of potassium chloride without waiting long
enough for the first dose to circulate would not alone increase the risk
of pain, nor is the likelihood of risk affected by whether the second dose
is given within ten minutes or after ten minutes. Accordingly, while the
varying interpretations of execution team members has some initial facial
appeal in Emmett’s argument, these members do not make the decision
and their testimony regarding how the language should be interpreted
does not create a genuine issue of material fact or properly factor into the
evaluation of the actual risk of pain associated with the procedure.
24 EMMETT v. JOHNSON
We begin with Emmett’s reliance upon three isolated incidents that
occurred in prior executions. In the first incident, the executioner
believed he had encountered some mild resistence when administer-
ing the first syringe of thiopental and, while the inmate exhibited the
normal signs of losing consciousness (snoring followed quickly by
the cessation of respiration), the executioner made the decision to
switch to the backup IV line to administer the second syringe of thio-
pental and the remaining chemical combination. Throughout the pro-
cess, however, the saline fluid continued to flow unimpeded in the
primary IV line and no problem with the IV catheter or line was ever
identified, indicating that there was no actual failure or accompanying
risk. In the second incident, a decision was made to increase the dos-
age of pancuronium bromide for an overweight inmate, but not to
increase the dosages of the other two drugs. However, there is no evi-
dence that the thiopental dose given was not sufficient to achieve the
desired result, and the evidence that was presented demonstrated that
there were no problems observed with the execution. For his part,
Emmett does not claim that the dosages need be increased due to any
of his personal characteristics, and he fails to demonstrate that this
incident somehow poses an unacceptable risk to him. In the third inci-
dent, Emmett complains that an inmate’s history of intravenous drug
use and accompanying scarring required the secondary IV line to be
placed in a smaller vein in the inmate’s thumb, which he asserts was
not an ideal location for administration of the lethal chemicals. How-
ever, even if it were true that the thumb was not the ideal site, the pri-
mary line was well-established in the inmate’s left arm and there is
no evidence that the secondary line was not working or would not
have been sufficient to administer the chemicals in the unlikely event
that the primary line failed. In sum, having reviewed the evidence
regarding these "errors" in the execution process, we believe that
these isolated incidents are insufficient to demonstrate a substantial
risk of future harm to Emmett necessary to establish an Eighth
Amendment violation.

We also summarily reject Emmett’s concern that Virginia’s prac-
tice of conducting executions in a solemn environment, largely with
hand signals, creates a confusing environment rife with the potential
for error. There is no evidence that any member of the execution
team, which trains monthly via walk-throughs in the same degree of
silence, does not understand the nonverbal signals used to communi-
 EMMETT v. JOHNSON 25
cate during the execution or that the team members are prohibited
from verbal communication if necessitated by the circumstances.

Finally, we reject Emmett’s argument that the inmates are not ade-
quately observed during the execution process because the execu-
tioner only observes the inmate through the porthole, and the
Director, although with the inmate, is also on the telephone with the
Governor’s office. Again, Emmett has failed to demonstrate a sub-
stantial risk that he will not be sufficiently anesthetized or that signs
of consciousness will not go detected. While those who are in a posi-
tion to monitor the inmates are charged with other duties, the unrebut-
ted evidence is that the current executioner is able to and does
conduct visual monitoring of the IV site during the administration of
the chemicals, which takes place only three feet away, and that the
Director, who is ultimately responsible for oversight of the entire exe-
cution process, is in a position to fully observe the inmate for any
signs of inadequate anesthetization. Virginia implements a number of
procedures and requirements designed to ensure that the lethal chemi-
cals are successfully administered to the inmates, and Emmett’s con-
cerns regarding the observation process are woefully insufficient to
establish a substantial or imminent risk that he will not be sufficiently
anesthetized.

D.

Finally, Emmett asks that we remand this case to allow him to
develop evidence on the efficacy of alternative methods of carrying
out the lethal injection process that would reduce the risk of pain
under Virginia’s protocol. Specifically, he asserts that Virginia should
prohibit the injection of pancuronium bromide and potassium chloride
until at least three minutes have elapsed since the injection of the thio-
pental and that Virginia should never give second doses of
pancuronium and potassium without first giving a second dose of
thiopental. But, claiming that neither of these additional safeguards
would actually suffice to render the procedure constitutionally suffi-
cient, Emmett primarily asserts that the best and most feasible alterna-
tive procedure would be to adopt the one-drug protocol also
advocated by the Baze petitioners.

As noted previously, Emmett cannot successfully challenge Virgin-
ia’s "method of execution merely by showing a slightly or marginally
26 EMMETT v. JOHNSON
safer alternative." Id. at 1531. Rather, he is required to demonstrate
that the alternative procedure is "feasible, readily implemented, and
in fact significantly reduce[s] a substantial risk of severe pain." Id. at
1532.

In Baze, the Court considered and rejected petitioners’ claims that
additional safeguards should be constitutionally mandated to ensure
that the first dose of thiopental has been adequately delivered, as well
as the identical "one-drug protocol" advocated here, concluding that
none of the proffered alternatives would "significantly reduce a sub-
stantial risk of serious harm." Id. at 1532. For the reasons discussed
above, Emmett has likewise failed to do so. See id. at 1532 n.3 (not-
ing that the "threshold requirement . . . of a substantial risk of serious
harm or an objectively intolerable risk of harm," along with "the sub-
stantive requirements in the articulated standard," should assuage any
concern that courts will "function as boards of inquiry determining
best practices for executions" (internal quotation marks omitted)).

Similarly, Emmett, like the Baze petitioners, has failed to demon-
strate that the one-drug protocol is feasible or readily implemented.
See id. 1532-33 (noting at the outset that "[t]hirty states, as well as
the Federal Government, use a series of sodium thiopental,
pancuronium bromide, and potassium chloride, in varying
amounts[,]" but that "[n]o State uses or has ever used the alternative
one-drug protocol.").

Because Virginia’s current protocol does not create a substantial or
objectively intolerable risk of severe pain, and given the Supreme
Court’s recent rejection of the same claim, we reject Emmett’s
request that we remand for further development of the record.

V.

To conclude, Virginia’s protocol for lethal injection is substantially
similar to that approved by the Supreme Court in Kentucky. The
lethal injection procedures are supervised by Department officials and
the execution is carried out by experienced, well-trained personnel.
And, in the 70 executions previously conducted by Virginia, there
have been no reported problems.
 EMMETT v. JOHNSON 27
For his part, Emmett has failed to produce evidence quantifying the
likelihood of any such problem occurring in the future under Virgin-
ia’s procedures, much less evidence that would demonstrate a sub-
stantial risk of severe pain to him. Instead, Emmett has sought to
avoid defendants’ properly supported summary judgment motion with
allegations and inferences about incidents that could have occurred in
the past, or might occur in the future, none of which are supported by
objective evidence. Such unsupported speculation is insufficient to
defeat the defendants’ properly supported summary judgment motion.
Because Emmett has failed to produce evidence sufficient to create a
genuine issue of material fact that would demonstrate a "substantial"
or "objectively intolerable" risk of harm during his execution, the dis-
trict court did not err in granting summary judgment to the defen-
dants.

AFFIRMED

GREGORY, Circuit Judge, dissenting:

As a court of appeals, we have a "heightened responsibility . . . to
insist, even at the risk of delay, on having the fact-finding process car-
ried out properly at the level intended rather than to assume, even
indirectly, a fact-finding role." Lewis v. Bloomsburg Mills, Inc., 773
F.2d 561, 577 (4th Cir. 1985). In the present case, my colleagues
transgress our role by deciding a factual question never presented to
the district court.

In Baze v. Rees, the Supreme Court issued an extremely narrow
holding, "concluding that Kentucky’s procedure is consistent with the
Eighth Amendment." 128 S. Ct. 1520, 1538 (2008) (plurality opinion)
(emphasis added). Thus, despite the myriad other questions addressed
by the majority, whether Virginia’s protocol is in fact substantially
similar to the procedure upheld in Baze is the singular issue at hand.
Although this legal determination is inextricably tied to complex fac-
tual issues that have never been addressed by the district court in light
of Baze, the majority remarkably concludes that "Virginia’s protocol
for lethal injection is substantially similar to that approved by the
Supreme Court." (Majority Op. 26.) Because I cannot condone usurp-
ing the district court’s unique ability to make factual findings in the
first instance, I must dissent.
28 EMMETT v. JOHNSON
The barbiturate sodium thiopental plays a crucial role in ensuring
the humanity of the execution process. According to the Baze Court,
"[t]he proper administration of the first drug [sodium thiopental]
ensures that the prisoner does not experience any pain associated with
the paralysis and cardiac arrest caused by the second and third drugs."
Baze, 128 S. Ct. at 1527. Additionally, the plurality explained that
pancuronium bromide and potassium chloride, when given absent a
proper dose of sodium thiopental, create "a substantial, constitution-
ally unacceptable risk of suffocation from the administration of
pancuronium bromide and pain from the injection of potassium chlo-
ride." Id. at 1533. As such, Kentucky’s written protocol regarding the
administration of sodium thiopental is essential to the Baze holding.
Virginia’s protocol significantly differs with respect to the safeguards
Kentucky takes to guarantee the proper administration of that essen-
tial first drug. With all due respect, the majority’s conclusion other-
wise is simply wrong.

First, the initial dose of sodium thiopental is different: Kentucky
administers three grams of sodium thiopental, whereas Virginia uses
only two grams. Second, Virginia employs a so-called "rapid flow"
technique, under which the lethal chemicals and saline flushes are
administered quickly one after the other without pause. Conversely,
Kentucky’s written protocol provides a brief pause between the first
and second drugs to ensure that the inmate is sedated properly.1 Third,
in Kentucky, if the inmate is not adequately sedated after the adminis-
tration of the first three grams of sodium thiopental to the primary IV
site, a second three grams of sodium thiopental is administered to the
alternate IV site. Id. at 1528. Conversely, Virginia has no such proce-
dure to ensure that the inmate is properly sedated before proceeding
to the second and third drugs. In fact, Virginia does not even adminis-
ter a second dose of sodium thiopental when the first round of injec-
tions fails to kill the inmate. Virginia’s alternate line allows only for
the administration of additional pancuronium bromide and potassium
1
Kentucky’s protocol notes in writing that "[i]f it appears to the War-
den That [sic] the condemned is not unconscious within 60 seconds to
his command to ‘proceed’, the Warden shall stop the flow of Sodium
Thiopental in the primary site and order that the backup IV be used with
a new flow of Sodium Thiopental." Baze, 128 S. Ct. at J.A. 978-79
(emphasis added).
 EMMETT v. JOHNSON 29
2
chloride. Thus, Kentucky’s protocol provides up to three times as
much sodium thiopental as Virginia.

The majority, however, completely glosses over these significant
distinctions, flippantly referring to them as "minor variations" and
calling Virginia’s procedure "largely identical to that of Kentucky."
(Majority Op. 13.) With respect to the amount of sodium thiopental,
the majority states that "Kentucky’s lethal injection method . . . also
utilized a three-drug combination consisting of 3 grams of thiopental,
50 milligrams of pancuronium bromide, and 240 milliequivalents of
potassium chloride." (Majority Op. 10 (emphasis added).) This state-
ment is misleading, as it implies that both Virginia and Kentucky
administer three grams of sodium thiopental, which quite clearly is
not the case.

Additionally, the majority misconstrues the role of sodium thiopen-
tal altogether, stating that "there has not been a single incident in
which the thiopental failed to render an inmate unconscious." (Major-
ity Op. 20.) Thus, the majority fails to understand that the purpose of
sodium thiopental is not merely to render an inmate unconscious but
to ensure that the inmate does not experience any pain associated with
the administration of the second and third drugs. Moreover, the
majority reveals further misunderstanding, writing that "[t]here is no
evidence of any inmate speaking, crying out, writhing in pain, gasp-
ing for breath or otherwise moving during the execution process."
(Majority Op. 20.) However, even absent a sufficient dose of sodium
thiopental, an inmate would be unable to speak, cry out, writhe, gasp,
or otherwise move. Under Virginia’s "rapid flow" method, the
pancuronium bromide would have been administered moments after
the sodium thiopental, rendering the inmate paralyzed and incapable
of communicating. Thus, the fact that inmates do not move about or
express pain speaks only to the success of the pancuronium bromide
2
According to Emmett, the failure to include a second administration
of sodium thiopental is a procedural idiosyncrasy unique to Virginia.
(Appellant’s Supp. Br. 17 ("Counsel is unaware of any other jurisdiction
that excludes thiopental from a back-up dose as part of its protocol, and
some jurisdictions have added the back-up dose in response to concerns
that omitting it increases the danger of inhumane executions.").)
30 EMMETT v. JOHNSON
and indicates nothing about whether the sodium thiopental has served
its purpose in dulling the inmates’ pain.

Furthermore, the majority dispenses with Virginia’s failure to pro-
vide a second administration of sodium thiopental simply by stating
that

[t]here is . . . no evidence that the execution team would be
prohibited by the checklist from giving the second dose of
thiopental should either the Department officials or an exe-
cution team member observe a problem with the initial
administration of the drug or observe an inmate failing to
lose or regaining consciousness.

(Majority Op. 23 (emphasis in original).) Failing to prohibit some-
thing is quite different than explicitly providing for it. The plurality
in Baze explained that the risk associated with lethal injection "is
already attenuated, given the steps Kentucky has taken to ensure the
proper administration of the first drug." Baze, 128 S. Ct. at 1536
(emphasis added). Thus, it was the explicit measures Kentucky took
to ensure the proper administration of sodium thiopental that made the
protocol in Baze constitutional. Nothing in Virginia’s protocol pro-
vides for an additional amount of sodium thiopental. Something as
serious as the humane extinguishing of a human life, which is
required under the Constitution, demands deliberate care and preci-
sion. We should not be left to conjuring additional, nonexistent safe-
guards from whole cloth and then thinly justifying them with the
argument that they are not prohibited. Despite what the majority
might argue, failing to forbid an additional administration of sodium
thiopental is not an unspoken authorization to administer it as needed.

Unlike the majority, I simply cannot read Baze to condone any
combination of sodium thiopental, pancuronium bromide, and potas-
sium chloride. Merely using identical drugs, but in varying amounts
and at varying times in the procedure, hardly yields "largely identical"
lethal injection protocols. A cocktail of the very same three drugs has
the potential to end in quiet, painless death or excruciating, silent tor-
ture depending upon how those drugs are administered. Furthermore,
which of those outcomes will result can only be determined by assess-
ing the written protocol as it exists, like the Supreme Court in Baze,
 EMMETT v. JOHNSON 31
not by grafting any number of new measures onto the current protocol
based solely on the flawed logic that those procedures are not explic-
itly prohibited. Given the centrality of sodium thiopental to the consti-
tutionality of Kentucky’s procedure, it is clear that Virginia’s use of
a mere third of the sodium thiopental allowed in Kentucky, coupled
with Virginia’s failure to readminister sodium thiopental with the sec-
ond round of pancuronium bromide and potassium chloride, raises
genuine issues of material fact that mandate a remand to the district
court for additional fact-finding. The majority, however, does not
agree.

After concluding that two grams of sodium thiopental is adequate,
the majority appears to take further solace in the facts that
pancuronium bromide on its own "would result in the cessation of res-
piration within three minutes or less, causing the inmate to suffocate
and die" and that potassium chloride stops the heart after one full cir-
culation, something that usually takes a minute or less in a normal
person, yet potentially longer in someone sedated by sodium thiopen-
tal. (Majority Op. 19.) Although Emmett points to evidence that cer-
tain inmates may not have been adequately sedated, the majority
notes that in most of those cases "the inmate was still pronounced
dead within five minutes or less." (Majority Op. 19.) No one contests
the lethal effectiveness of Virginia’s protocol. So far as ensuring
death, the current procedure is one-hundred percent effective: no
inmates have survived execution. The question Emmett poses, con-
versely, is whether Virginia’s lethal injection protocol creates a sub-
stantial risk of severe pain, which Baze clearly prohibits. From the
comfort of a judicial bench, five minutes may pass quickly and with-
out note. However, when in the course of five minutes a lethal chemi-
cal navigates a person’s veins rendering him incapable of breathing,
let alone crying out in anguish, followed by a second deadly chemi-
cal—a salt—that excruciatingly scorches the membrane of every
blood vessel it touches as it travels the length of his circulatory sys-
tem until finally stopping his heart, that same five minutes becomes
a drastically longer period of time. By providing less sodium thiopen-
tal in the first set of chemicals and none in the second, Virginia fails
to employ the same safeguards against this horrific and terrifying out-
come as used in Kentucky. The district court, however, has never had
a chance to address the factual implications of these significant dis-
parities.
32 EMMETT v. JOHNSON
In short, the majority effectively grants summary judgment on a
crucial issue never presented to the district court: whether material
differences exist between Kentucky’s and Virginia’s protocols. The
mere fact that both states use the same three chemicals to execute
inmates does little to establish that the protocols are substantially sim-
ilar, let alone "largely identical," when such glaring differences exist
as to how the executioner administers sodium thiopental, the single
drug vital to the procedure’s humanity. Recently, the Supreme Court
observed that "[w]hen the law punishes by death, it risks its own sud-
den descent into brutality. . . ." Kennedy v. Louisiana, No. 07-343,
2008 U.S. LEXIS 5262, at *24 (June 25, 2008). And failing to
remand to the district court for further fact-finding sends us tumbling
faster into that abyss.