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GLOSSIP v. GROSS SOTOMAYOR, J., dissenting

Id., at 97. The District Court concluded that the State “ha[d] affirmatively shown that sodium thiopental and pentobarbital, the only alternatives to which the [petition­ ers] have even alluded, are not available to the [State].” Id., at 98. The Court of Appeals for the Tenth Circuit affirmed. Warner v. Gross, 776 F. 3d 721 (2015). It, like the District Court, held that petitioners were unlikely to prevail on the merits because they had failed to prove the existence of “ ‘known and available alternatives.’ ” Id., at 732. “In any event,” the court continued, it was unable to conclude that the District Court’s factual findings had been clearly erroneous, and thus petitioners had also “failed to estab­ lish that the use of midazolam in their executions. . . creates a demonstrated risk of severe pain.” Ibid. Petitioners and Charles Warner filed a petition for certiorari and an application to stay their executions. The Court denied the stay application, and Charles Warner was executed on January 15, 2015. See Warner v. Gross, 574 U. S. ___ (2015) (SOTOMAYOR, J., dissenting from denial of certiorari). The Court subsequently granted certiorari and, at the request of the State, stayed petition­ ers’ pending executions. II I begin with the second of the Court’s two holdings: that the District Court properly found that petitioners did not demonstrate a likelihood of showing that Oklahoma’s execution protocol poses an unconstitutional risk of pain. In reaching this conclusion, the Court sweeps aside sub­ stantial evidence showing that, while midazolam may be able to induce unconsciousness, it cannot be utilized to maintain unconsciousness in the face of agonizing stimuli. Instead, like the District Court, the Court finds comfort in Dr. Evans’ wholly unsupported claims that 500 milligrams of midazolam will “paralyz[e] the brain.” In so holding,