Whether a district court can make factual findings based on evidence that may not be admissible at trial

QUESTIONS PRESENTED On April 11, 2019, at 7:00 p.m. EDT, the State of Alabama will—unless this Court intervenes—execute Christopher Lee Price by lethal injection, using a threedrug cocktail that will cause him severe pain and needless suffering, has been implicated in numerous “botched” executions, and the State of Ohio abandoned due to constitutional concerns. The Eleventh Circuit below agreed with Petitioner, however, that Alabama has an available, readily implemented, and statutorily authorized alternative method of executing Petitioner—nitrogen hypoxia, which Alabama has expressly agreed to use as the method of execution for at least 48 of its 177 death row prisoners. Nevertheless, the Eleventh Circuit held that Petitioner was not entitled to a preliminary injunction staying his execution by lethal injection because, in its view, the district court “clearly erred” in finding that nitrogen hypoxia would be a significantly less painful and more humane way to die. The Eleventh Circuit reached this conclusion despite the fact that the State did not dispute in the district court or on appeal that death by nitrogen hypoxia would be both quick and essentially painless. This petition presents the following questions: (1) Whether a district court, in deciding a motion for a preliminary injunction, is entitled to make factual findings based on evidence that, even if not admissible at trial, demonstrates that the moving party would have little difficulty proving such facts at trial. (D 75385091_1 (2) Where a plaintiff, in moving for a preliminary injunction, submits evidence in support of an essential factual element of his claim, and the defendant does not question the plaintiff's evidence or dispute the plaintiffs allegation, whether a district court is in those circumstances entitled to conclude that the plaintiff has demonstrated a substantial likelihood of prevailing on that factual element. (3) Whether, under Bucklew v. Precythe, an inmate must have an expert specifically testify that his proposed alternative method of execution will be significantly less painful compared to the method the State intends to use, or whether a district court can make that required factual finding based on other evidence that the inmate has put forward. (4) Whether a court of appeals may affirm a district court’s judgment by reversing the district court’s finding of fact on an issue that the appellee did not contest in the district court and waived on appeal. dD 75385091_1