On July 18, 2013, Judge Gail S. Tusan of the Fulton County Superior Court issued an order granting Warren Hill’s Emergency Motion for Preliminary Injunction, staying the July 19th execution date. Hill’s underlying civil complaint challenges a Georgia statute that precludes Hill and the public from accessing information about the source of the drug to be used in his execution, as well as information about the professional qualifications of those involved in creating the drug.
Judge Tusan first found that "[t]o be executed without being aware of basic information regarding the protocols the State will use to carry out [Hill’s] execution is surely an irreparable harm." That Hill had learned some things about the State’s intended practice at a hearing on the issue did not dispel the irreparable harm given that the experts who testified could not provide basic information about the particular drug that would be used to execute Hill. Without additional information, Judge Tusan found that Hill "cannot possibly determine whether or not the pentobarbital in question was somehow contaminated or otherwise improperly compounded." Judge Tusan rejected arguments by Georgia that any risk to Hill was purely speculative and therefore he could not satisfy his burden under Supreme Court precedent. Judge Tusan concluded those cases were distinguishable because they involved execution protocols that were regular and known.
Judge Tusan next found that the balance of injuries to the parties weighed in favor of granting the preliminary injunction. As for the public interest, Judge Tusan noted the public’s "clear interest in ensuring that the Constitutions, both Federal and State, are followed by Defendants with regard to protections afforded individuals against cruel and unusual punishment." She also found that Hill’s current action was not dilatory but "instead a legitimate and substantive question of law . . .."
Turning to the likelihood of success on the merits, Judge Tusan ruled that Hill had established the requisite likelihood as to his claim that the statute at issue unconstitutionally limits his access to the courts and therefore his due process rights by foreclosing any Eighth Amendment challenge he might otherwise be able to maintain. Judge Tusan also held that Hill had met the likelihood of success test for his claim that the statute violates the Separation of Powers Clause in the Georgia Constitution by exempting from judicial review the very information that would be necessary for a court to determine the constitutionality of an inmate’s execution. Finally, Judge Tusan ruled that Hill showed a substantial likelihood of success on his claim that the statute is unconstitutionally broad.