                  Cite as: 582 U. S. ____ (2017)            1

                   SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
                          _________________

                      No. 17A78 (17–5198)
                          _________________


    GARY OTTE, ET AL. v. DONALD MORGAN, ET AL.
   ON APPLICATION FOR STAY AND PETITION FOR WRIT OF 

      CERTIORARI TO THE UNITED STATES COURT OF

            APPEALS FOR THE SIXTH CIRCUIT

                         [July 25, 2017] 


   The application for stay of execution of sentence of death
presented to JUSTICE KAGAN and by her referred to the
Court is denied. The petition for a writ of certiorari is
denied.
   JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting from the denial of application for stay and
denial of certiorari.
   The question before this Court, as appropriately sum-
marized by Judge Moore in dissent, is narrow: “Should
Gary Otte, Ronald Phillips, and Raymond Tibbetts have a
trial on their claim that Ohio’s execution protocol is a cruel
and unusual punishment, or should Ohio execute them
without such a trial?” In re Ohio Execution Protocol, 860
F. 3d 881, 892 (CA6 2017). The District Court, after ex-
tensive review of the evidence, held that a trial was war-
ranted and granted a preliminary injunction. It did so
after a 5-day evidentiary hearing, issuing a 119-page
opinion finding that petitioners had presented enough
evidence to demonstrate that they were likely to prevail on
their claim that the Ohio execution protocol posed a sub-
stantial risk of severe pain, and that an alternative meth-
od of execution was sufficiently available. Although a
panel of the Sixth Circuit initially affirmed those findings,
a divided en banc court later reversed over the dissent of
six of its members.
2                     OTTE v. MORGAN

                   SOTOMAYOR, J., dissenting

   In reversing, the Sixth Circuit en banc court failed to
afford the District Court due deference. See Glossip v.
Gross, 576 U. S. ___, ___, ___ (2015) (slip op., at 14, 16)
(reviewing findings by the District Court regarding both
risk of pain and available alternatives for clear error). As
Judge Moore carefully detailed in her dissent, the District
Court thoroughly reviewed the evidence firsthand and
found that the petitioners demonstrated a likelihood of
success on their claim that they will be unconstitutionally
executed. The Court of Appeals and this Court should not
so lightly disregard those findings.
   For this reason, and others set forth in McGehee v.
Hutchinson, 581 U. S. ___ (2017) (SOTOMAYOR, J., dissent-
ing from denial of application for stay and denial of certio-
rari), I dissent again from this Court’s failure to step in
when significant issues of life and death are present.
