                Case: 17-11879       Date Filed: 05/25/2017      Page: 1 of 5


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 17-11879-P
                              ________________________

THOMAS D. ARTHUR,

                                                                        Plaintiff-Appellant,

                                           versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
ANNE ADAMS HILL,
General Counsel, Alabama Department of Corrections, in her official capacity,
HOLMAN CF WARDEN,


                                                                     Defendants-Appellees.
                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                            ________________________


Before GERALD BARD TJOFLAT, Acting Chief Judge, HULL, MARCUS,
WILSON, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES and JILL
PRYOR, Circuit Judges.*

BY THE COURT:



       *
          Chief Judge Ed Carnes and Judge William H. Pryor Jr., having recused themselves, did
not participate.


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      A member of this Court in active service having requested a poll on whether

this case should be reheard by the Court sitting en banc, and a majority of the

judges in active service on this Court having voted against granting a rehearing en

banc, it is ORDERED that this case will not be reheard en banc. The motion for a

stay of execution is DENIED.




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MARTIN, Circuit Judge, dissenting to the denial of rehearing en banc:

      A judge of this court asked for en banc consideration of Thomas Arthur’s

access to the court claim. A majority of judges has now voted against en banc

review. I would have preferred for the whole court to consider Mr. Arthur’s claim,

so I respectfully dissent.

      The State of Alabama plans to execute Mr. Arthur tonight. Mr. Arthur has

made the quite modest request of Alabama that his attorney, who will be with him

when the State takes his life, be allowed to have a telephone with her at the time of

Mr. Arthur’s execution. This is so the lawyer would have a way to contact the

courts if something goes wrong. There are reports from recent executions about

problems resulting from the administration of lethal injection drugs. Still,

Alabama has denied Mr. Arthur’s request. I don’t know whether Alabama’s

refusal to allow possession of a telephone rises to the level of a violation of Mr.

Arthur’s “constitutional right of access to the courts.” Bounds v. Smith, 430 U.S.

817, 828, 97 S. Ct. 1491, 1498 (1977). Nevertheless, I vote with my colleagues

who want to consider this issue en banc, so we can give it proper consideration.

      Judges on the United States District Court and this Court have spent

countless hours considering and debating Mr. Arthur’s simple request. See Arthur

v. Comm’r, Ala. Dep’t of Corr., No. 17-11879, ___F. App’x ___ (11th Cir. May

24, 2017) (unpublished); Grayson v. Warden, No. 16-17167, ___F. App’x ___


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(11th Cir. Dec. 7, 2016) (per curiam) (unpublished); Arthur v. Dunn, No. 2:16-cv-

00866-WKW (M.D. Ala. Apr. 12, 2017); Grayson v. Dunn, No. 2:12-cv-00316-

WKW, 2016 WL 6832630 (M.D. Ala. Nov. 18, 2016). Other states allow attorney

witnesses to use a phone during their client’s execution,1 and I can’t think of any

good reason for Alabama’s policy prohibiting telephone access. Neither, to my

mind, has Alabama given any explanation for why its policy is necessary.2 Having

gotten no discernable explanation from Alabama about why it needs to deny a

lawyer a phone as she witnesses her client’s death, I am hard pressed not to see the

refusal as unreasonable and an unbecoming use of the State’s power. Of course we

don’t know what will happen during Mr. Arthur’s execution tonight. Yet we do

know with full certainty that Alabama’s telephone policy will completely foreclose

Mr. Arthur’s access to the courts if the worst should happen. It may be that

Alabama can, consistent with the Constitution, block Mr. Arthur’s ability to seek

judicial relief from a botched execution by cutting off all lines of communication.

But even if the Constitution allows Mr. Arthur’s counsel to be held

incommunicado, is it wise?


1
  See Ariz. Dep’t of Corr., Department Order Manual, Order 710.13 (1.5.1.3) (Oct. 23, 2015) (allowing attorney
execution witness to access a mobile phone “in exigent circumstances”); Ohio Dep’t of Rehab. & Corr., No. 01-
COM-11, § VI.G.2 (Oct. 7, 2016) (allowing attorney execution witness “free access” to a phone). Arizona and Ohio
allow telephones by regulation. There has been no time to investigate since the panel issued its opinion last night,
but I assume that other states allow telephones as a matter of routine, even where no regulation expressly permits it.
2
  In Alabama’s District Court filings in Mr. Arthur’s case, the State simply offers the conclusion that the regulation
prohibiting telephones is “reasonably related to legitimate penological interests.” In the State’s pleadings in this
Court, it implies that counsel with a telephone could result in courts interfering with the execution. I do not read
either of these references to explain the necessity for separating counsel from a phone during an execution.


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      I also voted to hear this case en banc, because I am troubled by an idea

floating through the filings of the State of Alabama, as well as this court’s Majority

opinion denying Mr. Arthur’s claim. That idea is, if we allow counsel for an

inmate to have a telephone, the courts may receive “contradictory claims” from the

prison while the execution is going on. Maj. Op. at 32 n.13; see Appellee Br. 26–

28; Arthur, No. 2:16-cv-00866-WKW, D.E. 18 at 13–14 (M.D. Ala. Nov. 23,

2016). But the very reason courts exist as one of the three branches of our

government is to hear “contradictory claims” and decide the merits of those claims.

I suppose it could make things easier for judges to say that hearing “contradictory

claims” makes things too complicated, so we will simply make it impossible to

receive the account from one party or the other. I reject this view, which elevates

the impact on judges above whatever rights Mr. Arthur is accorded in the process

of the State taking his life. It is safe to presume that the State of Alabama will

have access to the phones in the prison where it will put Mr. Arthur to death

tonight. Mr. Arthur only seeks the same. If there is a dispute about whether

something untoward or maybe even unconstitutional is going on during his

execution, it is the job of the courts to resolve that dispute.

      For these reasons, I respectfully dissent from deciding the issues Mr. Arthur

raises here in an unpublished opinion issued by a divided panel of this Court. I

would hear this case en banc.


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