Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/51

Rh 234, that lethal injection would not “result in ‘rapid unconsciousness,’” id., at 233, and that from the time of injection to “Mr. Bucklew’s death several minutes to as long as many minutes later, Mr. Bucklew would be highly likely to experience… the excruciating pain of prolonged suffocation,” id., at 222. In discounting this evidence, the majority simply fails “to adhere to the axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tolan, 572 U. S., at 651 (internal quotation marks and alteration omitted).

The majority additionally believes that Bucklew’s evidence fails to show that nitrogen hypoxia would be easy to implement. Ante, at 21. But the reports from Oklahoma and Louisiana tell a different story. The Louisiana report states that nitrogen hypoxia would be “simple to administer.” App. 737. The Oklahoma report similarly concludes that “[d]eath sentences carried out by nitrogen inhalation would be simple to administer.” Id., at 746; see also id., at 696. The reports explain that nitrogen hypoxia would “not require the use of a complex medical procedure or pharmaceutical products,” id., at 747, would “not require the assistance of licensed medical professionals,” id., 736, and would require only materials that are “readily available for purchase,” id., at 739. Further, “[b]ecause the protocol involved in nitrogen induced hypoxia is so simple, mistakes are unlikely to occur.” Id., at 748. And both studies recommend the development of protocols for actual implementation. See id., at 697 (Oklahoma report recommending development of “a nitrogen hypoxia protocol”); id., at 736 (Louisiana report noting that although “the exact protocol” has not been finalized, the report recommends “that hypoxia induced by the inhalation of nitrogen be considered for adoption”); see also Murphy, Oklahoma Says It Plans To Use Nitrogen for Executions, USA Today, Mar. 15, 2018 (quoting the Oklahoma attorney general’s