Petition for Writ of Certiorari — Jessie Hoffman, Petitioner v. Gary Westcott, Secretary, Louisiana Department of Public Safety and Corrections, et al.

Supreme Court briefMar 16, 2025

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No. _____

IN THE

Supreme Court of the United States

_________

JESSIE HOFFMAN,

Petitioner,

v.

GARY WESTCOTT, SECRETARY, LOUISIANA

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;

DARREL VANNOY, WARDEN, LOUISIANA STATE

PENITENTIARY, IN HIS OFFICIAL CAPACITY; JOHN

DOES, UNKNOWN EXECUTIONERS,

Respondents.

________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

________

PETITION FOR A WRIT OF CERTIORARI

________

Cecelia Trenticosta

LOYOLA CENTER FOR

SOCIAL JUSTICE

7214 St. Charles Avenue

New Orleans, LA 70118

(504) 861-5735

ctkappel@defendla.org

Andrianna D. Kastanek

Counsel of Record

Alexis E. Bates

Andrew L. Osborne

JENNER & BLOCK LLP

353 North Clark Street

Chicago, IL 60654

(312) 222-9350

akastanek@jenner.com

i

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether a method of execution that superadds

psychological suffering—including terror and mental

anguish—compared to an available alternative method

violates the Eighth Amendment’s bar on cruel and

unusual punishment.

2. Whether execution by nitrogen gassing

substantially burdens Mr. Hoffman’s Buddhist faith, in

violation of the Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. § 2000cc et seq. (“RLUIPA”), by

denying him the opportunity to meditatively breathe

during his final moments.

ii

PARTIES TO THE PROCEEDING

Petitioner is Jessie Hoffman. Respondents are Gary

Westcott, Secretary, Louisiana Department of Public

Safety and Corrections; Darrel Vannoy, Warden,

Louisiana State Penitentiary, in his official capacity; and

John Does, Unknown Executioners.

RELATED PROCEEDINGS

Hoffman v. Westcott, No. 25-169-SDD-SDJ, 2025 WL

763945 (M.D. La. Mar. 11, 2025)

Hoffman v. Westcott, No. 25-70006, 2025 WL 816734

(5th Cir. Mar. 14, 2025)

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................ i

PARTIES TO THE PROCEEDING ..............................ii

RELATED PROCEEDINGS...........................................ii

TABLE OF AUTHORITIES ......................................... vi

OPINIONS BELOW .......................................................... 1

JURISDICTION ................................................................. 1

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED ............................................. 1

INTRODUCTION .............................................................. 2

STATEMENT OF THE CASE ........................................ 4

I. Factual Background. ..................................................... 4

A. Louisiana Authorizes Nitrogen Gassing. ............. 5

B. Louisiana Sprints To Execute Mr.

Hoffman By Nitrogen Gassing After

Creating A Protocol. ............................................... 6

II. Proceedings Below. ....................................................... 7

A. District Court Proceedings. ................................... 7

B. The District Court’s Findings And

Decision. .................................................................... 9

1. The Eighth Amendment................................... 9

2. RLUIPA. .......................................................... 13

C. The Fifth Circuit’s Decision. ................................ 16

REASONS FOR GRANTING THE PETITION........ 19

iv

I. The Court Should Grant Certiorari To

Resolve The Issue Of Whether Superadded

Psychological Terror By A Method Of

Execution Can Be Cruel And Unusual

Punishment................................................................... 19

A. The Fifth Circuit’s singular focus on

physical pain conflicts with this Court’s

precedent. ............................................................... 19

B. The Fifth Circuit’s singular focus on

physical pain is inconsistent with the case

law of other circuits. .............................................. 21

C. The Fifth Circuit reached its result only by

disregarding the district court’s factual

findings, which is inconsistent with this

Court’s longstanding precedent and that of

other circuits. ......................................................... 24

II. The Judgment Below Does Not Faithfully

Apply This Court’s Ramirez Precedent. ................. 27

III. This Case Provides An Ideal Vehicle To

Resolve Issues Of Nationwide Importance As

States Innovate With New Methods Of

Execution. ..................................................................... 31

A. The questions presented are important. ............ 32

B. This case is a good vehicle. ................................... 33

CONCLUSION ................................................................. 35

Appendix A

Hoffman v Westcott, No. 25-70006, 2025

WL 816734 (5th Cir. Mar. 14, 2025)............ 1a–10a

v

Appendix B

Ruling, Hoffman v Westcott, No. 25169-SDD-SDJ, 2025 WL 763945 (M.D.

La. Mar. 11, 2025) ....................................... 11a–51a

Appendix C

Order, Hoffman v. Westcott, No. 25169-SDD-SDJ (M.D. La. Mar. 11, 2025) .. 52a–53a

Appendix D

Transcript of Hearing on Motion for

Preliminary Injunction before the Hon.

Shelly D. Dick (Vol. 1 of 2), Hoffman v.

Westcott, No. 25-169-SDD-SDJ (M.D.

La. Mar. 7, 2025) ......................................... 54a–66a

Appendix E

Transcript of Hearing on Motion for

Preliminary Injunction before the Hon.

Shelly D. Dick (Vol. 2 of 2), Hoffman v.

Westcott, No. 25-169-SDD-SDJ (M.D.

La. Mar. 7, 2025) ......................................... 67a–68a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Bessemer City,

470 U.S. 564 (1985).................................................... 25

Apodaca v. Raemisch,

586 U.S. 931 (2018).................................................... 20

Babcock v. White,

102 F.3d 267 (7th Cir. 1996)..................................... 23

Baze v. Rees,

553 U.S. 35 (2008).................................................. 2, 31

Bucklew v. Precythe,

587 U.S. 119 (2019)........................ 2, 16, 20, 24, 32, 33

CAE Integrated, L.L.C. v. Moov Techs., Inc.,

44 F.4th 257 (5th Cir. 2022) ..................................... 25

Clark v. Coupe,

55 F.4th 167 (3d Cir. 2022)....................................... 22

Deckert v. Indep. Shares Corp.,

311 U.S. 282 (1940).................................................... 15

In re: Federal Skywalk Cases,

680 F.2d 1175 (8th Cir.), cert. denied, 459

U.S. 988 (1982)........................................................... 15

vii

Gerling Global Reinsurance Corp. of Am. v.

Low,

240 F.3d 739 (9th Cir. 2001)..................................... 15

Glossip v. Gross,

576 U.S. 863 (2015).......................................... 2, 25, 32

Grayson v. Comm’r, Alabama Dep’t of Corr.,

121 F.4th 894 (11th Cir.), cert. denied sub

nom. Grayson v. Hamm, 145 S. Ct. 586

(2024) .......................................................................... 22

Grayson v. Hamm,

145 S. Ct. 586 (2024) ................................................. 34

Holt v. Hobbs,

574 U.S. 352 (2015).................................................... 27

Hudson v. McMillian,

503 U.S. 1 (1992)........................................................ 20

Inwood Lab’ys, Inc. v. Ives Lab’ys, Inc.,

456 U.S. 844 (1982).................................................... 25

Jordan v. Gardner,

986 F.2d 1521 (9th Cir. 1993)................................... 23

Leiser v. Kloth,

933 F.3d 696 (7th Cir. 2019)..................................... 23

Munaf v. Geren,

553 U.S. 674 (2008).................................................... 15

viii

Murphy v. Collier,

587 U.S. 901 (2019).................................................... 30

Nance v. Ward,

597 U.S. 159 (2022).................................................... 24

In re Ohio Execution Protocol Litig.,

881 F.3d 447 (6th Cir. 2018)............................... 21, 22

Perkins v. Kansas Dep’t of Corr.,

165 F.3d 803 (10th Cir. 1999)................................... 23

Ramirez v. Collier,

595 U.S. 411 (2022).................................... 4, 27, 28, 30

Scher v. Engelke,

943 F.2d 921 (8th Cir. 1991)..................................... 23

Shakka v. Smith,

71 F.3d 162 (4th Cir. 1995)....................................... 23

Smith v. Hamm,

144 S. Ct. 414 (2024) ............................... 24, 32, 33, 34

Swint v. Chambers Cnty. Comm’n, 514 U.S.

35 (1995) ..................................................................... 15

Thomas v. Farley,

31 F.3d 557 (7th Cir. 1994)....................................... 23

Trop v. Dulles,

356 U.S. 86 (1958)...................................................... 20

ix

Watts v. Indiana,

338 U.S. 49 (1949)...................................................... 20

White v. Napoleon,

897 F.2d 103 (3d Cir. 1990) ...................................... 22

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008).......................................................... 9

Constitutional Provisions and Statutes

U.S. Const. amend. VIII.................................................. 1

28 U.S.C. § 1254(1) ............................................................ 1

28 U.S.C. § 1292(a)(1) ..................................................... 15

42 U.S.C. § 1983 ............................................................ 1, 7

42 U.S.C. § 2000cc ............................................................. 2

42 U.S.C. § 2000cc-1(a) ............................................... 2, 27

La. Rev. Stat. § 15:569 (1991).......................................... 5

La. Rev. Stat. § 15:569(A)(1)–(3) .................................... 5

Other Authorities

La. Acts 2024, 52nd Ex. Sess., No. 5, §1 (eff.

July 1, 2024) ................................................................. 5

Religious Land Use and Institutionalized

Persons Act of 2000, Pub. L. 106–274,

codified at 42 U.S.C. § 2000cc et seq. ........................ 2

1

OPINIONS BELOW

The ruling of the United States District Court for the

Middle District of Louisiana is not published but is

reproduced in the Appendix hereto at Pet. App. 11a–51a.

The opinion of the Fifth Circuit is not yet published in

the Federal Reporter but is reproduced in the Appendix

hereto at Pet. App. 1a–10a; see also Pet. App. 52a-53a.

JURISDICTION

On March 14, 2025, the Fifth Circuit entered

judgment vacating the preliminary injunction entered

by the District Court on March 11, 2025. Pet. App. 1a–

10a. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment of the U.S. Constitution

provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII.

42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State … subjects, or causes to be subjected, any

citizen of the United States or other person

within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or

other proper proceeding for redress[.]

2

The Religious Land Use and Institutionalized

Persons Act of 2000, Pub. L. 106–274, codified at 42

U.S.C. § 2000cc et seq. (“RLUIPA”), provides:

No government shall impose a substantial burden

on the religious exercise of a person residing in or

confined to an institution, as defined in section

1997 of this title, even if the burden results from

a rule of general applicability, unless the

government demonstrates that imposition of the

burden on that person-(1) is in furtherance of

governmental interest; and

a

compelling

(2) is the least restrictive means of furthering

that compelling governmental interest.

42 U.S.C. § 2000cc-1(a).

INTRODUCTION

The Eighth Amendment forbids forms of execution

that intensify a death sentence with “superaddition of

terror, pain, or disgrace.” Bucklew v. Precythe, 587 U.S.

119, 133 (2019) (quoting Baze v. Rees, 553 U.S. 35, 48

(2008)) (cleaned up). To succeed on a methodof-execution challenge under the Eighth Amendment, an

inmate must show that a “feasible, readily implemented”

alternative procedure that would “significantly reduce a

substantial risk of severe pain.” Baze, 553 U.S. at 52;

Glossip v. Gross, 576 U.S. 863, 877 (2015).

The district court faithfully applied that standard,

exercising its discretion to conclude that Mr. Hoffman

was likely to succeed on the merits of his Eighth

3

Amendment challenge to Louisiana’s newest method of

execution: nitrogen hypoxia, which is the deprivation of

oxygen through the forced inhalation of pure nitrogen

until a person dies. The district court’s determination

was based on its findings of fact after hearing hours of

expert testimony that nitrogen gassing inflicts sustained

psychological terror far more severe than the

alternative of execution by firing squad.

The Fifth Circuit incorrectly disregarded the district

court’s findings as irrelevant, vacating the injunction on

the basis that the Eighth Amendment analysis focuses

on comparative physical pain; psychological suffering, it

reasoned, no matter how severe, does not suffice. The

Fifth Circuit’s categorical rejection of psychological

suffering as a constitutional consideration ignores

Supreme Court precedent holding that psychological

terror is a component of cruel and unusual punishment,

and it is flatly at odds with the approaches of other

circuits that have long recognized that psychological

terror and distress is relevant in the constitutional

analysis.

The Fifth Circuit also departed from this Court’s

precedent in its refusal to consider Mr. Hoffman’s

RLUIPA claim. Mr. Hoffman is a long-practicing

Buddhist. The record evidence unrebutted by the State

establishes that, in Buddhist tradition, meditative

breathing at the time of death carries profound spiritual

significance, founded in the core belief that meditation

and unfettered breath at the time of transition from life

to death determines the quality of rebirth.

4

This Court held in Ramirez v. Collier, 595 U.S. 411

(2022), in the analogous context of a pastor laying hands

on an individual being executed, that RLUIPA prohibits

a state from substantially burdening a condemned

inmate’s religious exercise in his final moments (unless

it is the least restrictive way to advance a compelling

state interest). Significantly, the district court found in

the context of its Eighth Amendment analysis that, with

nitrogen gassing, “conscious terror and a sense of

suffocation endures for 35 to 40 seconds” and potentially

“3 to 5 minutes if an unwilling inmate holds his breath.”

Pet. App. 35a. Execution by nitrogen hypoxia is thus

fundamentally incompatible with a Buddhist meditative

state and breathing practice. Yet, the Fifth Circuit

inexplicably, and incorrectly, did not even mention—

much less provide reasons to reject—Mr. Hoffman’s

argument on his cross-appeal that the district court’s

preliminary injunction should be affirmed on the

alternative ground that his scheduled method of

execution violates his rights under RLUIPA.

This Court should grant the petition and reverse the

Fifth Circuit’s order, with instructions to remand to the

district court for full consideration of the merits.

STATEMENT OF THE CASE

I. Factual Background.

In 1998, Mr. Hoffman was convicted of first-degree

murder. Pet. App. 12a. He was sentenced to death and is

currently on Death Row at the Louisiana State

Penitentiary in Angola, Louisiana. Id. He is scheduled to

be executed on March 18, 2025, by nitrogen hypoxia. Pet.

5

App. 12a–13a. Mr. Hoffman does not challenge the

validity of his conviction or death sentence.

A. Louisiana Authorizes Nitrogen Gassing.

From 1991 until 2024, Louisiana law authorized only

lethal injection as the method of execution. La. Rev.

Stat. § 15:569 (1991). In 2024, the Louisiana legislature

added nitrogen hypoxia and electrocution as authorized

methods of execution for condemned inmates. See La.

Acts 2024, 52nd Ex. Sess., No. 5, §1 (eff. July 1, 2024).

Louisiana is one of four states that authorize execution

by nitrogen hypoxia, which is the forced deprivation of

oxygen through the inhalation of pure nitrogen until a

person dies. Alabama is the only state that has actually

used the method for execution; it has done so four times

since January 2024.

The State’s nitrogen gassing protocol mirrors

Alabama’s. Mr. Hoffman will be strapped to a gurney

with a secured full-face silicon mask. ROA.3642-43. The

nitrogen hypoxia system uses industrial grade, not

medical grade, nitrogen. ROA.3297. When the system is

activated, the industrial grade nitrogen will be

introduced into the mask “at a flow rate of 70 L/minute”

for fifteen (15) minutes or five minutes following a

flatline indication on the electrocardiogram. ROA.3644.

But the circumstances here differ fundamentally

from the nitrogen hypoxia executions in Alabama in one

critical respect. All four of the inmates executed in

Alabama by nitrogen hypoxia affirmatively chose this

method. Pet. App. 48a–49a. By contrast, in Louisiana,

the prisoner is not provided a choice of method of

execution. See La. Rev. Stat. § 15:569(A)(1)–(3)

6

(granting Secretary of the Department of Public Safety

and Corrections unfettered authority to choose between

the methods in carrying out a sentence of death). Mr.

Hoffman thus would not only be the first inmate

executed by nitrogen gassing in Louisiana; he would be

the first inmate in the nation executed by nitrogen

gassing without having elected this method of execution.

B. Louisiana Sprints To Execute Mr. Hoffman By

Nitrogen Gassing After Creating A Protocol.

Before the State served Mr. Hoffman with his

warrant of execution less than one month ago, he

repeatedly attempted to raise method-of-execution

claims. In March 2024, in light of the new legislation

authorizing nitrogen gassing, Mr. Hoffman filed a

grievance with the prison challenging all three statutory

methods of execution. This grievance was rejected as

“premature” as the law had “yet to take legal effect.”

Pet. App. 21a (capitalization omitted). Mr. Hoffman tried

again in July 2024, as soon as the statute went into effect.

Id. He received the same response in part because no

valid death warrant had issued. Id.; Pet. App. 4a–5a.

Things changed drastically in the last five weeks. On

February 10, 2025, the State announced for the first

time, via press release, that it had established a nitrogen

hypoxia protocol—but it did not release or disclose the

protocol. See Pet. App. 57a. On the same day, the State

sought execution warrants for Mr. Hoffman and others.

On February 12, 2025, Mr. Hoffman’s execution warrant

was signed, and his execution was set for March 18, 2025.

When Mr. Hoffman filed an emergency grievance,

ROA.1901௅03, the State told him that it would issue him

7

a response within 40 days—that is, after the thenscheduled execution date, ROA.1900.

In the State’s race to execute Mr. Hoffman with a

month’s notice, it only informed Mr. Hoffman as to the

method of execution on February 20, 2025, eight days

after the issuance of his warrant. ROA.136; see Pet. App.

12a. And the State first disclosed a redacted copy of its

nitrogen hypoxia protocol to Mr. Hoffman’s counsel only

upon order of the district court on February 28, 2025,

and even then, it was not until three days before the

evidentiary hearing that, by order of the district court,

“the State produced the protocol to Hoffman pursuant to

a protective order.” Pet. App. 15a.

II. Proceedings Below.

A. District Court Proceedings.

On February 25, Mr. Hoffman filed this suit pursuant

to 42 U.S.C. § 1983, challenging the State’s nitrogen

gassing execution method under the Eighth

Amendment and RLUIPA. ROA.21–73. He moved for a

preliminary injunction the next day. ROA.86–88.

On February 28, 2025, the district court entered a

scheduling order that required all discovery to be

conducted, and witness and exhibit lists exchanged,

within one week. See ROA.12.

On March 6, 2025, the district court granted in part

and denied in part the State’s motion to dismiss the

complaint. See ROA.18 (Text Entry Only, Corrective

Order (M.D. La. Mar. 6, 2025), ECF No. 79). Pertinent

here, the district court dismissed Mr. Hoffman’s

RLUIPA claim, finding that the nitrogen gas protocol

8

did not substantially burden the practice of his religion.

Pet. App. 55a–56a; Pet. App. 61a–63a. It denied the

motion to dismiss Mr. Hoffman’s Eighth Amendment

claim. Pet. App. 63a.

The district court held a nearly 12-hour evidentiary

hearing on March 7, 2025. Pet. App. 17a. The hearing

included extensive testimony of the parties’ competing

medical experts regarding whether execution by

nitrogen hypoxia would superadd terror or pain in

violation of the Eighth Amendment. See Pet. App. 30a–

44a. Mr. Hoffman and two Buddhist clerics also testified

regarding Mr. Hoffman’s religious practices, the

importance of meditative breathing to traditional

Buddhist religious practices, and the role of meditative

breathing at the time of death. ROA.3145–48, 3154-56;

ROA.3163, 3169–72; ROA3219, 3222–25.

Dr. Philip Bickler, a Board-certified anesthesiologist

who the State stipulated was an expert in the fields of

anesthesiology and human hypoxia, testified on behalf of

Mr. Hoffman. Pet. App. 30a. The district court found Dr.

Bickler “to be superbly qualified in the field of human

hypoxia, owing to his long and extensive clinical work in

the effect of low oxygen (hypoxia) on humans.” Pet. App.

30a–31a. Dr. Bickler “has conducted at least 5,000

hypoxia studies on humans involving administering low

oxygen containing gas and monitoring the subjects’

responses” and “has published extensively in peerreviewed scientific and medical journals regarding the

physiological effects of hypoxia on humans and other

animals.” Pet. App. 31a.

9

Dr.

Joseph

Antognini,

a

Board-Certified

anesthesiologist, testified for the State. Pet. App. 30a.

Unlike Dr. Bickler, “Dr. Antognini has never clinically

studied the effects of hypoxia on humans” and he has

neither “published nor presented any studies regarding

the effects of nitrogen hypoxia.” Pet. App. 31a. Dr.

Antognini has served as an expert for the State of

Alabama—the only other state that has used nitrogen

hypoxia—in every case the state has had concerning

execution by nitrogen hypoxia, but he has never

observed an execution using this method. Pet. App. 37a.

B. The District Court’s Findings And Decision.

1. The Eighth Amendment.

After finding that Mr. Hoffman exhausted

administrative remedies under the Prison Litigation

Reform Act, Pet App. 23a–24a, the district court found

that Mr. Hoffman satisfied the elements necessary to

secure a preliminary injunction on his Eighth

Amendment claim. Pet App. 24a; see Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008).

a. The district court applied the correct legal

standard, guided by this Court’s precedent: “whether

the State’s chosen method of execution intensifies the

sentence of death with a (cruel) superaddition of terror,

pain or disgrace” and that “[t]o establish that a State’s

chosen method cruelly ‘superadds’ pain to the death

sentence, a prisoner must show a feasible and readily

implemented

alternative

method

that

would

significantly reduce a substantial risk of severe pain and

that the State has refused to adopt without a legitimate

penological reason.” Pet. App. 26a–27a (quoting

10

Bucklew, 587 U.S. at 119–20, 133) (cleaned up). The

district court also correctly acknowledged that the

analysis requires a “comparative exercise.” Pet. App.

27a (quoting Nance v. Ward, 597 U.S. 159, 164 (2022)).

Applying this standard, the district court concluded

that Mr. Hoffman is likely to succeed on the merits of his

Eighth Amendment claim. Its factual findings were twofold: (1) “nitrogen hypoxia superadds psychological pain,

suffering, and terror to [Mr. Hoffman’s] execution when

compared to execution by firing squad,” Pet. App. 43a;

and (2) “execution by firing squad is a feasible and

readily available alternative that the State has no

legitimate penological reason for not adopting.” Id.

The district court’s first finding—that nitrogen

hypoxia “poses a substantial risk of conscious terror and

psychological pain,” Pet. App. 37a–38a—had three

components.

First, the district court found that nitrogen hypoxia

“produces a terror response.” Pet. App. 32a. “[T]he

deprivation of oxygen to the lungs causes a primal urge

to breathe and feelings of intense terror when inhalation

does not deliver oxygen to the lungs.” Pet. App. 35a. The

physiological effects of oxygen depletion, including that

when nitrogen replaces oxygen in the lungs of a subject,

amounts to “forced asphyxiation” where the subject

would feel “extreme discomfort, distress, pain, and

terror … up to the point of losing consciousness.” Pet.

App. 32a (citation omitted). And given the reservoir of

air in the lungs, “it may take a number of minutes

depending on the breathing volume for nitrogen to wash

out all the oxygen that is remaining in the lungs.” Id.

11

Second, nitrogen hypoxia causes “emotional terror”

and “severe psychological pain [] until the loss of

consciousness.” Pet. App. 32a, 35a. The State’s expert

agreed that “severe emotional suffering” occurs when

“oxygen deprivation in the lungs triggers an instinctual

response driven by respiratory centers in the brain that

tell [the] body to breathe,” yet “breathing will kill you”

because of the nitrogen. Pet. App. 33a. There was thus

“agreement among the experts that the inability to quiet

the primal urge to breathe is severe emotional

suffering.” Id. Based on this testimony, the district court

found that “the deprivation of oxygen to the lungs causes

a primal urge to breathe and feelings of intense terror

when inhalation does not deliver oxygen to the lungs,”

which causes “severe psychological pain” that endures

until consciousness is lost. Pet. App. 35a

Third, the conscious terror and sense of suffocation

from nitrogen hypoxia can last up to three to five

minutes. Pet. App. 33a–35a. While a person

administered pure nitrogen will lose consciousness in

less than one minute if he breathes normally, “the ability

to cooperate (repeatedly inhale deeply) would require

the condemned to mentally overcome the primal urge to

breathe that is triggered by lack of oxygen.” Pet.

App. 33a–34a. The experts agreed that the primal urge

to conserve oxygen through holding one’s breath would

increase the time until loss of consciousness. Pet.

App. 34a. For this reason, the district court declined to

credit Dr. Antognini’s estimate that unconsciousness

will occur “within 35 to 40 seconds or perhaps sooner,”

an estimate the court found was “nothing more than a

12

scientific hypothesis” that “remains untested and

unsubstantiated.” Pet. App. 36a–37a (citation omitted).

In making these factual findings, the district court

credited Dr. Bickler’s testimony, informed by 30 years

of clinical research experience studying hypoxia in

humans, over Dr. Antognini’s “untested scientific

hypotheses” and reliance on “irrelevant or

unpersuasive” studies. Pet. App. 34a, 37a. Despite his

work supporting Alabama in its four nitrogen hypoxia

executions, Dr. Antognini had not observed a single

execution to corroborate whether his hypotheses hold

water. Pet. App. 37a. Dr. Bickler’s opinions, on the other

hand, were “corroborate[d] and reinforce[d],” not only

by his studies but by reports from eyewitnesses to the

four Alabama nitrogen hypoxia executions. Id.

b. The district court also concluded that Mr.

Hoffman “clearly demonstrated that he is substantially

likely to prevail in his assertion that nitrogen hypoxia

superadds pain and terror as compared to firing squad.”

Pet. App. 40a.

The district court credited the unrebutted testimony

of the only expert at the hearing with firearms

expertise—Dr. James Williams—who the State

stipulated was an expert in emergency medicine and

firearms. Pet. App. 38a–40a; ROA.3226–27. Execution

by firing squad is the “process of firing multiple high

caliber bullets” at someone’s heart. Pet. App. 39a. Based

on Dr. Williams’ testimony, the district court found that

when the bullets strike the heart, the individual will

become unconscious in about three to four seconds. Pet.

App. 38a–40a. The district court thus reasonably

13

concluded that nitrogen hypoxia superadds conscious

pain and terror as compared to a firing squad. Pet. App.

40a.

c. The district court also concluded that there is no

legitimate penological reason why Louisiana could not

adopt Mr. Hoffman’s proposed alternative method of

execution. Pet. App. 40a–41a. Five other states use the

firing squad as a method of execution, suggesting its

viability, and the Louisiana Department of Public Safety

and Corrections has a supply of firearms, ammunition,

and trained officers. Pet. App. 41a.

d. On the other preliminary injunction factors, the

district court found that Mr. Hoffman “will most

certainly suffer irreparable harm if his claim for

injunctive relief is not decided prior to his March 18, 2025

execution date.” Pet App. 25a. And the court determined

that the balance of the equities and public interest favor

a preliminary injunction. Pet. App. 47a–50a. The court

reasoned that “[t]he State’s desire for swiftness does not

prevail over well-informed deliberation[,]” Pet. App.

48a, and “[i]t is in the best interests of the public to

examine [the State’s] newly proposed method of

execution on a fully developed record,” Pet. App. 50a.

2. RLUIPA.

Based on evidence presented at the preliminary

injunction hearing, Mr. Hoffman moved to reconsider

the district court’s March 6, 2025 decision dismissing his

RLUIPA claim. Pet. App. 67a, 68a. In addition to the

testimony presented at the hearing about the prolonged

psychological suffering caused by nitrogen gassing, Mr.

Hoffman presented the lay and expert testimony of two

14

Buddhist clerics, Reverend Michaela Bono and Brother

Reimoku Gregory Smith, who testified that a traditional

religious practice of Buddhists is meditative breathing;

that Buddhist practices emphasize maintaining clear,

mindful awareness during the dying process; that

nitrogen gassing would prevent Mr. Hoffman from

engaging in conscious meditation by altering the

breathing process and creating psychological distress;

and that by creating feelings of panic and air hunger,

nitrogen hypoxia would contradict the calm state sought

in Buddhist religious practice. ROA.3171௅74;

ROA.3223௅25. Mr. Hoffman also testified about his own

religious practices: that he started practicing Buddhism

in 2002 and engages in twice-daily meditative breathing

as part of his religious and spiritual practice. ROA.3145௅

46. In short, the evidence established that Mr. Hoffman’s

religious beliefs call for him to die in a state of meditation

and rhythmic breathing.

The district court declined to reconsider its dismissal

of Mr. Hoffman’s RLUIPA claim and thus to

preliminarily enjoin Mr. Hoffman’s execution on this

ground. Pet. App. 19a–20a. Effectively converting the

motion to reconsider as a motion for summary judgment,

the court considered the evidence from the hearing and

held that the evidence did not support Mr. Hoffman’s

RLUIPA claim.

Specifically, the court found based on the record

evidence that “meditative breathing is an exercise

attendant to practicing Hoffman’s chosen faith of

Buddhism,” which “calls its adherents to a ritual of

breathing rhythmically to achieve a meditative state”

15

“analogous to Western religions’ practice of prayer.” Id.

It also found, in the context of the Eighth Amendment

claim, that nitrogen gassing “causes a primal urge to

breath and feelings of intense terror when inhalation

does not deliver oxygen to the lungs” and “severe

psychological pain[,]” for minutes until the “loss of

consciousness.” Pet. App. 35a. The district court

nonetheless—and quite inexplicably—concluded that

“substituting nitrogen for atmospheric air does not

substantially burden Hoffman’s ability to breath,” Pet.

App. 19a. As discussed below, the district court’s

rejection of the RLUIPA claim cannot be reconciled

with its factual findings on the Eighth Amendment

claim.1

1

Where a party, like the State, appeals interlocutorily from the

entry of a preliminary injunction, see 28 U.S.C. § 1292(a)(1), the

appellate court’s jurisdiction extends to other claims that are

intertwined with the injunction order. See Deckert v. Indep. Shares

Corp., 311 U.S. 282, 287 (1940) (the “power [to hear interlocutory

appeals from the entry of a preliminary injunction] is not limited to

mere consideration of, and action upon, the order appealed from”);

Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 50–51 (1995)

(jurisdiction extends to other issues where “necessary to ensure

meaningful review” of injunction); In re: Federal Skywalk Cases,

680 F.2d 1175, 1180 (8th Cir.), cert. denied, 459 U.S. 988 (1982)

(jurisdiction under § 1292(a)(1) extends to the denial of an

injunction, and where “the injunction is interdependent with the

remainder of the appealed order, ... the entire order insofar as it has

been appealed”). Here, Mr. Hoffman filed a cross-appeal of the

district court’s denial of his motion to reconsider dismissal of his

RLUIPA claim. The validity of the RLUIPA claim is bound up with

the injunction: The district court erred in finding that nitrogen

gassing does not substantially burden Mr. Hoffman’s exercise of his

16

C. The Fifth Circuit’s Decision.

On March 14, 2025, a divided panel of the Fifth

Circuit

vacated

the

preliminary

injunction.

Disregarding the district court’s factual findings, and

ignoring the evidence adduced at the hearing, a majority

of the panel held that Mr. Hoffman cannot succeed on an

Eighth Amendment challenge to nitrogen hypoxia as a

method of execution because death by gassing does not

cause physical pain, while Mr. Hoffman’s suggested

alternative method of execution, a firing squad, is “more

painful.” Pet. App. 2a–3a.

Implicit in the majority’s holding is a legal rule and

findings of fact, both of which are wrong. First, the

majority suggested a categorical rule that the Eighth

Amendment requires a petitioner to show that the

alternative method of execution is less physically

painful than the chosen method, regardless of

psychological effect. While giving lip service to the

Court’s recognition that the “superaddition” of terror

can violate the Eighth Amendment, Bucklew, 587 U.S.

at 133, the majority reasoned that “expert testimony

from both parties” established “that nitrogen hypoxia is

painless,” while “death by firing squad can cause pain.”

Pet. App. 6a–7a. From this differential in physical pain,

the court concluded that “[Mr.] Hoffman cannot possibly

prevail under the legal standards set forth by the

Supreme Court in Glossip and Bucklew.” Pet. App. 7a.

religion. Once that error is corrected, the valid RLUIPA claim

provides a basis to preliminarily enjoin Mr. Hoffman’s execution

because Mr. Hoffman has demonstrated a likelihood of success on

the merits of that claim.

17

Second, this conclusion was based on a factual finding

about the comparative physical pain caused by a firing

squad, versus nitrogen gassing, unsupported by any

evidence in the record. Id.

The majority addressed psychological terror in a

single paragraph, again ignoring the evidence: “Hoffman

presented no [ ] evidence of superadded terror to the

court—let alone evidence of how execution by a firing

squad would substantially mitigate that terror.” Pet.

App. 8a. The majority appeared to believe that the

psychological terror of hypoxia is reducible to the fear of

death, inherent in any method of execution, which

cannot be squared with the expert testimony. Expert

testimony established that nitrogen hypoxia causes an

involuntary response (threat to sympathetic nervous

system, convulsions, gasping for air) because the body

recognizes that it is performing the function of breathing

but instead is inhaling something that is not air,

triggering extreme panic. ROA.3356–57, 3359, 3350–51,

3348–49 (Bickler testimony). This response is separate

from the fear of death—it is superadded torturous harm.

The panel majority entirely ignored Mr. Hoffman’s

RLUIPA claim, pressed by Mr. Hoffman as an

alternative basis for affirming the district court’s

preliminary injunction and the subject of his crossappeal. See Pet. App. 1a–8a.

Judge Haynes dissented. The majority, in Judge

Haynes’s view, failed to “adequately address the facts as

properly found by the district court[.]” Pet. App. 10a.

The majority’s legal analysis overlooked factual findings

“crucial to the Eighth Amendment analysis” without

18

finding clear error. Pet. App. 9a–10a. “For example,”

Judge Haynes wrote, “the majority opinion states that

breathing pure nitrogen causes unconsciousness in less

than a minute. But it fails to address the district court’s

finding that ‘[o]n the low end, conscious terror and a

sense of suffocation endures for 35 to 40 seconds,’ while

‘[o]n the high end, conscious psychological suffering

endures for 3 to 5 minutes if an unwilling inmate holds

his breath.’” Pet. App. 9a. The alternative method of

execution by a firing squad, by contrast, would render

the inmate unconscious in three to four seconds. Pet.

App. 10a. That is a significant difference that is crucial

to the Eighth Amendment analysis. Id.

In addition, in Judge Haynes’ view, “the district

court properly exercised its discretion in granting a

preliminary injunction given the limited amount of time

Hoffman had to challenge his execution by nitrogen

hypoxia, which is new in Louisiana.” Pet. App. 9a. The

dissent explained: “Hoffman tried throughout and did

not wait until the last minute. Instead, the state did not

let him challenge earlier.” Id. Judge Haynes noted that

the rushed nature of these proceedings was attributable

solely to the State: “The timeline in which [Mr. Hoffman]

could challenge it and the setting of his execution date,

which is March 18, all happened within the last month.

As the district judge thoroughly discusses, there are

issues that need more time to be resolved and decided.

Obviously, that cannot be done once he is dead.” Id.

Mr. Hoffman timely filed this petition for certiorari.

19

REASONS FOR GRANTING THE PETITION

I. The Court Should Grant Certiorari To Resolve The

Issue Of Whether Superadded Psychological

Terror By A Method Of Execution Can Be Cruel

And Unusual Punishment.

The Fifth Circuit departed from this Court’s

precedent, and the well-established rule in other circuits

that psychological terror can constitute cruel and

unusual punishment, by holding that Mr. Hoffman did

not show a likelihood of success on his Eighth

Amendment claim because death by firing squad is

purportedly more painful than suffocation. Because all

executions purportedly “involve[] some measure of

psychological terror,” the majority reasoned, the

evidence credited by the district court—that “nitrogen

hypoxia superadds pain and terror as compared to firing

squad”—was not relevant. Pet App. 7a–8a.

This analysis, which categorically disregards the role

of psychological distress in the constitutional analysis, is

wrong. It is inconsistent with the direction given by this

Court in case after case, including Bucklew. It is

inconsistent with the approach of other circuits. And it

flouts the well-established rule of appellate review that

a district court’s findings of fact must be given deference

by an appellate court.

A. The Fifth Circuit’s singular focus on physical

pain conflicts with this Court’s precedent.

The majority’s decision is flatly inconsistent with this

Court’s Eighth Amendment precedent, which has

20

consistently recognized psychological suffering as a

component of cruel and unusual punishment.

Just five years ago, this Court defined cruel and

unusual punishment in a way that lays bare the Fifth

Circuit’s error. While the Eighth Amendment does not

guarantee a painless death, the Court explained, the

Eighth Amendment forbids forms of execution that

intensify a death sentence with “superadditions of

terror, pain, or disgrace.” Bucklew, 587 U.S. at 133

(cleaned up). And of course, “terror” and “disgrace” are

emotional states that require no physical injury. Indeed,

the Court explained that the established recognition of a

form of punishment as “cruel” if “disposed to give pain

to others, in body or mind” goes back centuries. Id. at

130 (emphasis added) (quoting 1 N. Webster, An

American Dictionary of the English Language (1828)).

Bucklew’s approach comports with the long-standing

recognition that punishment need not be physically

painful to be cruel and unusual. See Trop v. Dulles, 356

U.S. 86, 101 (1958). For example, in Watts v. Indiana,

338 U.S. 49 (1949), the Court explained: “There is torture

of mind as well as body; the will is as much affected by

fear as by force. And there comes a point where this

Court should not be ignorant as judges of what we know

as men.” Id. at 52 (emphasis added); see also Apodaca v.

Raemisch, 586 U.S. 931, 931, 937 (2018) (Sotomayor, J.,

dissenting from denial of certiorari). Indeed, “the Eighth

Amendment prohibits the unnecessary and wanton

infliction of ‘pain,’ rather than ‘injury.’” Hudson v.

McMillian, 503 U.S. 1, 16–17 (1992) (Blackmun, J.,

21

concurring). And “‘[p]ain’ in its ordinary meaning surely

includes a notion of psychological harm.” Id.

The decision below reflects a troubling narrowing of

this jurisprudence. By focusing almost exclusively on

the comparative physical pain from a firing squad versus

nitrogen gassing, and largely dismissing psychological

suffering as constitutionally irrelevant, the majority’s

approach represents a stark departure from the Court’s

precedent. It erects—from thin air—a barrier at the

threshold of an Eighth Amendment challenge to a

method of execution that finds no support in the text, or

this Court’s precedent.

B. The Fifth Circuit’s singular focus on physical

pain is inconsistent with the case law of other

circuits.

The Fifth Circuit’s physical-pain-only approach also

is in tension with the approach of most courts of appeals.

On the one hand, the Fifth Circuit has now endorsed

the view favoring nitrogen hypoxia over a firing squad

based on physical pain alone. The Sixth Circuit appears

to adhere to that view, too, agreeing in In re Ohio

Execution Protocol Litig., 881 F.3d 447 (6th Cir. 2018),

“with th[e] assessment” that “[u]nless accompanied by

serious physical pain, the mental suffering associated

with being under a sentence of death is not material to

the Eighth Amendment inquiry under Baze and

Glossip.” Id. at 450 (citation omitted).

Other circuits have taken the opposite view. For

example, in a case involving Alabama’s nitrogen hypoxia

protocol, the Eleventh Circuit specifically disagreed

22

with the Sixth Circuit’s holding in In re Ohio Execution

Protocol Litig., 881 F.3d 447, that “psychological pain or

mental suffering cannot by itself support an Eighth

Amendment claim” Grayson v. Comm’r, Alabama Dep’t

of Corr., 121 F.4th 894, 900 n.3 (11th Cir.), cert. denied

sub nom. Grayson v. Hamm, 145 S. Ct. 586 (2024).

Instead, the Eleventh Circuit explained that “[t]here

may exist a form of execution that induces psychological

terror or pain that is severe enough to support an Eighth

Amendment claim,” given that this Court has “explained

that ‘what unites the punishments the Eighth

Amendment was understood to forbid’ includes the

‘superaddition of terror, pain, or disgrace.’” Id. (citing

Bucklew, 587 U.S. at 133). The Sixth Circuit emphasized

that from the Founding, cruel punishment could be

physical or mental, id. (citing Bucklew, 587 U.S. at 130),

and concluded that “[n]othing in [its] Eighth

Amendment jurisprudence suggests a special exemption

for psychological terror or pain from the prohibition on

cruelty.” Id.

The Third, Fourth, Seventh, Eighth, Ninth, and

Tenth Circuits agree, long holding that infliction of

psychological mental pain can violate the Eighth

Amendment. The Third Circuit has noted “general

consensus among the Courts of Appeals” that “a threat

of serious psychological injury invokes Eighth

Amendment protection.” Clark v. Coupe, 55 F.4th 167,

184–85 (3d Cir. 2022); cf. White v. Napoleon, 897 F.2d

103, 111 (3d Cir. 1990) (“We are not prepared to hold that

inflicting mental anxiety alone cannot constitute cruel

and unusual punishment.”). The Fourth Circuit has

recognized that “significant physical or emotional harm”

23

can constitute an Eighth Amendment violation. Shakka

v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (emphasis

added).

Meanwhile, the Seventh Circuit has described the

Eighth Amendment bar on cruel and unusual

punishment as “includ[ing] both physical and

psychological harm.” Leiser v. Kloth, 933 F.3d 696, 703

(7th Cir. 2019). See also Babcock v. White, 102 F.3d 267,

273 (7th Cir. 1996) (“[T]he Constitution does not

countenance psychological torture merely because it

fails to inflict physical injury.”); Thomas v. Farley, 31

F.3d 557, 559 (7th Cir. 1994) (“Mental torture is not an

oxymoron, and has been held or assumed in a number of

prisoner cases, … to be actionable as cruel and unusual

punishment.” (emphasis added)). The Eighth, Ninth, and

Tenth Circuits, too, have recognized that infliction of

psychological injury can violate the Eighth Amendment.

Scher v. Engelke, 943 F.2d 921, 924 (8th Cir. 1991)

Jordan v. Gardner, 986 F.2d 1521, 1529–30 (9th Cir.

1993) (en banc); Perkins v. Kansas Dep’t of Corr., 165

F.3d 803, 810 (10th Cir. 1999).

The Fifth Circuit’s decision thus deepens a divide

between the circuits on whether superaddition of

psychological terror, pain, or disgrace may be discarded

in the Eighth Amendment analysis. This Court should

grant the petition to resolve the split.

24

C. The Fifth Circuit reached its result only by

disregarding the district court’s factual

findings, which is inconsistent with this Court’s

longstanding precedent and that of other

circuits.

The Fifth Circuit’s opinion also ignored the district

court’s findings of fact, including findings based on

extensive expert testimony about the effects of nitrogen

gassing on the human body. In so doing, the court

departed from fundamental principles of appellate

review to vacate the injunction.

1. Showing that “the risk of pain associated with the

State’s method is substantial when compared to a known

and available alternative,” Bucklew, 587 U.S. at 134

(internal quotation marks and citation omitted), requires

a “comparative assessment” between methods, see

Nance v. Ward, 597 U.S. 159, 164 (2022). The assessment

of relative terror or pain thus requires a court to make

factual findings about the respective methods, including

based on expert opinion and eyewitness observations.

Cf. Smith v. Hamm, 144 S. Ct. 414, 416 (2024) (Kagan, J.,

dissenting from the denial of application for stay and

denial of certiorari) (“[The] standard can work fairly

only when more is capable of being known about an

execution method.”).

The district court faithfully made detailed findings of

fact, as part of the required comparative assessment,

and based on those findings, “properly exercised its

discretion in granting a preliminary injunction given the

limited amount of time Hoffman had to challenge his

25

execution by nitrogen hypoxia, which is new in

Louisiana.” Pet. App. 9a (Haynes, J., dissenting).

2. In reviewing the district court’s grant of a

preliminary injunction, the Fifth Circuit was required to

review the district court’s findings of fact for clear error,

meaning it could not “overturn a finding ‘simply because

[it is] convinced that [it] would have decided the case

differently.’” Glossip, 576 U.S. at 881 (quoting Anderson

v. Bessemer City, 470 U.S. 564, 573 (1985)).

This limit on the Fifth Circuit’s authority is an

elementary principle of appellate review. Inwood

Lab’ys, Inc. v. Ives Lab’ys, Inc., 456 U.S. 844, 855 (1982)

(reviewing court “must accept the trial court’s findings”

unless highly deferential standard applicable to factual

findings is satisfied); CAE Integrated, L.L.C. v. Moov

Techs., Inc., 44 F.4th 257, 261 (5th Cir. 2022) (“We

review factual findings for clear error … giving due

regard to the trial court’s opportunity to judge the

witnesses’ credibility.” (internal quotation marks and

citation omitted)). When “a trial judge’s finding is based

on his decision to credit the testimony of one of two or

more witnesses, each of whom has told a coherent and

facially plausible story that is not contradicted by

extrinsic evidence, that finding, if not internally

inconsistent, can virtually never be clear error.”

Anderson, 470 U.S. at 575. An appellate court cannot

evade the clear error standard simply by ignoring the

facts.

That is precisely what the panel majority did here—

it ignored the district court’s key factual findings on

conscious terror and made its own findings to avoid the

26

issue. Pet App. 7a. Just two examples suffice. As Judge

Haynes observed in dissent, the panel majority never

acknowledged the district court’s finding that conscious

terror and a sense of suffocation endures for at least 35

to 40 seconds but can last up to three to five minutes. Pet.

App. 9a. Rather than engage with that finding, the panel

majority made its own factual finding that “[b]reathing

100% pure nitrogen causes unconsciousness in less than

a minute.” Pet. App. 3a.

The majority also ignored the district court’s finding

that execution by firing squad would render Mr.

Hoffman unconscious in three to four seconds. Pet. App.

39a. Rather than engage with the district court’s

comparative assessment of conscious terror caused by

the two methods, the Fifth Circuit summarily concluded

that Mr. Hoffman had presented “no [ ] evidence of

superadded terror.” Pet. App. 8a (emphasis added). In

other words, the majority found an abuse of discretion

by simply ignoring the facts and evidence on which the

district court based preliminary injunctive relief. And

that tactic, in turn, is what allowed the majority to

conclude that the “district court’s theory would render

capital punishment itself unconstitutional—because

surely every method of execution necessarily involves

some measure of psychological terror.” Id.

The Fifth Circuit thus effectively disregarded the

district court’s factual findings regarding the

psychological suffering associated with nitrogen hypoxia

execution. The majority’s willingness to substitute its

own factual conclusions without even attempting to

demonstrate the clear error in the district court’s

27

findings was flat wrong—and at odds with fundamental

principles of appellate review. This provides sufficient

grounds to grant the petition and summarily reverse.

II. The Judgment Below Does Not Faithfully Apply

This Court’s Ramirez Precedent.

The district court’s dismissal of Mr. Hoffman’s

RLUIPA claim, and the Fifth Circuit’s refusal to even

consider it as an alternative basis for affirming the

preliminary injunction, cannot be squared with

Ramirez, the factual record, or common sense. The

district court’s detailed factual findings on the Eighth

Amendment claims directly undermine its conclusory

analysis of the burden on Mr. Hoffman’s religious

practice.

A. RLUIPA aims to provide “greater protection for

religious exercise than is available under the First

Amendment.” Holt v. Hobbs, 574 U.S. 352, 357 (2015).

The law provides that “[n]o government shall impose a

substantial burden on the religious exercise of a person

residing in or confined to an institution, … even if the

burden results from a rule of general applicability,

unless the government demonstrates that imposition of

the burden on that person -- (1) is in furtherance of a

compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000cc–1(a). It

applies to state prisoners. Ramirez, 595 U.S. at 424–25.

A plaintiff must show “that a prison policy ‘implicates

his religious exercise[,]’” the burden on his religious

exercise is “substantial,” and his requested

accommodation is “sincerely based on his religious belief

28

and not some other motivation.” Id. at 425 (quoting Holt,

574 U.S. at 360–61). The burden then flips, and the State

must prove that imposition of the burden on the plaintiff

“is the least restrictive means of furthering a compelling

governmental interest.” Id. (citation omitted).

B. There is no question that Mr. Hoffman is a

practicing Buddhist: He converted to Buddhism

approximately 20 years ago, and practices meditation

twice daily. ROA.3145–46. There also is no question that

meditative breathing is an exercise attendant to

practicing Buddhism, and that meditation at the time of

death holds particular import. ROA.3172 (Reverend

Bono testifying: “[I]n Buddhism, your final moments are

very important, and ... they can negatively impact what’s

called the Bardo, which is the realm between death and

then your next rebirth.”). The only question is whether

the district court erred in finding that suffocating Mr.

Hoffman using nitrogen hypoxia does not substantially

burden his religious practice, and whether the Fifth

Circuit erred in refusing to even consider the RLUIPA

claim in vacating the district court’s preliminary

injunction.

The answer to both questions is Yes.

C. The district court’s own findings on the Eighth

Amendment claim make clear that nitrogen gassing is

incompatible with meditative breathing and thus

substantially burdens Mr. Hoffman’s religious practice.

According to the district court, and supported by

testimony and evidence presented at the March 7, 2025

hearing.

29

1. Eyewitness accounts of all four Alabama

executions by nitrogen gassing reveal that the prisoners

experienced “conscious terror for several minutes,

shaking, gasping, and other evidence of distress.” Pet.

App. 29a. The eyewitnesses to those executions

observed “vigorous convulsing and shaking for four

minutes,” “repeated gasping while conscious,” and “two

minutes of shaking and trembling ‘followed by about six

minutes of periodic gulping breaths before [becoming

still].”’ Id.

2. Medical expert testimony at the preliminary

injunction hearing was consistent with the eyewitness

accounts. Pet. App. 32a. Having conducted clinical

studies about hypoxia on humans for 30 years, the

district court found that Dr. Bickler is well-familiar with

the physiological effects of oxygen depletion and

credited his explanation that nitrogen hypoxia

“hyperactivates our sympathetic nervous system,”

resulting in the individual “feel[ing] like [he’s] gasping

for air.” Id. It “produces a terror response” that makes

it impossible to breathe normally. Id. As the district

court found, in reliance on Dr. Bickler’s testimony, the

process of suffocating via nitrogen results in “terror”:

“the deprivation of oxygen to the lungs causes a primal

urge to breathe and feelings of intense terror when

inhalation does not deliver oxygen to the lungs. … [T]his

causes severe psychological pain,” which could endure

for up to “3 to 5 minutes.” Pet. App. 35a.

In other words, one cannot breathe normally—much

less practice meditative breathing—when being gassed.

30

D. These findings, made in the context of the district

court’s Eighth Amendment analysis, require reversing

the Fifth Circuit’s judgment. They pit objective

scientifically-supported facts about the reality of

nitrogen gassing, on the one hand, against the Court’s

RLUIPA precedent, on the other.

The Court in Ramirez recognized the profound

importance of religious practice at the time of

execution—in Ramirez, the right to have a pastor touch

the prisoner and pray audibly during his final moments,

595 U.S. at 426–27; here, meditative breathing that is a

component of a Buddhist transitioning to death and

determines the quality of rebirth. As a matter of

religious equality, the same analysis that governed the

religious right of a Christian in Ramirez should govern

Mr. Hoffman’s asserted right to practice as a Buddhist

at the time of death. See Murphy v. Collier, 587 U.S. 901,

901–02 (2019) (Kavanaugh, J., concurring in grant of

application for stay) (Texas policy “allow[ing] a

Christian or Muslim inmate to have a state-employed

Christian or Muslim religious adviser present” in the

execution room, but not providing Buddhist inmates a

similar right, constitutes “governmental discrimination

against religion”); Ramirez, 595 U.S. at 439–40

(Kavanaugh, J., concurring) (noting the same).

Just as Ramirez’s Christian faith required pastoral

touch and prayer in his final moments, Mr. Hoffman’s

Buddhist faith requires the ability to maintain conscious,

meditative breathing during his final moments—a

practice at the core of Buddhist spiritual tradition to

maintain mindfulness during their transition from this

31

life. ROA.3172. Nitrogen hypoxia execution, which

forcibly disrupts breathing and induces unconsciousness

through oxygen deprivation, precludes Mr. Hoffman

from engaging in this protected, essential religious

practice. Under Ramirez, Louisiana should be required

to demonstrate that completely foreclosing this central

religious practice is the least restrictive means of

achieving a compelling interest—a burden it cannot

meet merely by asserting generalized interests in

execution protocol uniformity.

The Court should grant certiorari to clarify that,

where a Buddhist has a deeply rooted religious

commitment to maintaining conscious, meditative

breathing during the process of death, the state must

carry its burden of showing that execution via nitrogen

hypoxia is the least restrictive means of carrying out the

execution.

III. This Case Provides An Ideal Vehicle To Resolve

Issues Of Nationwide Importance As States

Innovate With New Methods Of Execution.

The newness of nitrogen gassing as a method of

execution, and the Fifth Circuit’s disregard for this

Court’s jurisprudence, demonstrates the importance of

providing clarity as to how courts should weigh

psychological impact in the constitutional analysis. This

case presents the ideal vehicle to do so, given the factual

record developed after a hearing that included expert

testimony—a unique posture in capital cases.

32

A. The questions presented are important.

Early in this Country’s history, death by hanging

was the most common form of execution. But as this

Court has described elsewhere, states evolved their

methods over time, often trying to make them more

humane. Bucklew, 587 U.S. at 133; Baze, 553 U.S. at 41–

42. States experimented with electrocution, firing

squads, lethal gas, and lethal injection.

Lethal injection with a drug cocktail is the most used

method among the states that use execution. But in the

past few decades, states have had increasing difficulty

obtaining the drugs necessary to carry out executions.

This Court described those challenges in Glossip v.

Gross, a decade ago, and the trend has not reversed itself

since then. 576 U.S. 863, 870–71 (2015). In cases where

lethal injection is unavailable, many states turn to

secondary methods or replace their protocols with new

methods altogether.

The latest trend is nitrogen hypoxia, the merits of

which this Court has not yet addressed. Bucklew, 587

U.S. at 141–42 (rejecting nitrogen hypoxia as a readily

available alternative because of the many unresolved

questions it raised as an execution method); Smith v.

Hamm, 144 S. Ct. 414, 415–16 (2024) (Sotomayor, J.,

dissenting from the denial of application for stay and

denial of certiorari) (describing nitrogen hypoxia as

“untested” and “entirely novel”).

Novel execution methods like nitrogen hypoxia

present unprecedented constitutional questions that

only this Court can authoritatively resolve. In addition

to assessing whether the method of execution is cruel

33

and unusual punishment under the Court’s articulated

standards, the Court may wish to consider whether “the

extremely demanding standard this Court established in

Glossip v. Gross . . . properly applies” to methods with so

short a track record and so many unknowns—such as the

new nitrogen gassing method. Smith, 144 S. Ct. at 416

(Kagan, J., dissenting from the denial of application for

stay and denial of certiorari) (citing Glossip, 576 at 877).

Among the unknowns are “how nitrogen gas should be

administered (using a gas chamber, a tent, a hood, a

mask, or some other delivery device); in what

concentration (pure nitrogen or some mixture of gases);

how quickly and for how long it should be introduced; or

how the State might ensure the safety of the execution

team, including protecting them against the risk of gas

leaks.” Bucklew, 587 U.S. at 141–42.

All of these factors and more are yet unexplored and

will undoubtedly inform whether the method superadds

“terror, pain, or disgrace.” Id. at 119. Full explanation of

that standard and how to evaluate it would aid lower

courts as they assess nitrogen hypoxia in the four states

that permit its use so far, and any other jurisdictions

that may add it in the future.

B. This case is a good vehicle.

Moreover, unlike many death penalty cases that

reach the Court with limited factual development, this

case includes detailed district court findings about the

psychological effects of nitrogen hypoxia execution,

making it an excellent vehicle for resolving the questions

presented.

34

This Court has previously declined to consider cases

challenging Alabama’s use of nitrogen hypoxia

execution. Smith, 144 S. Ct. 414 (2024); Grayson v.

Hamm, 145 S. Ct. 586 (2024). But in both Smith and

Grayson, the inmate had elected nitrogen hypoxia over

other methods of execution, under Alabama’s statutory

scheme. And the lower courts there were considering

largely theoretical arguments, without evidence

regarding real-world application of the method (e.g.,

violent writhing of the entire body causing the gurney to

move, prolonged gasping and convulsing for several

minutes, and visible signs of conscious distress, see Pet.

App. 29a).

Here, in stark contrast, this case now reaches this

Court under Louisiana’s statute, which provides the

inmate no choice of method of execution, and on a more

robust evidentiary record. The record includes expert

testimony, including Dr. Bickler’s extensive 30-year

experience studying the effects of nitrogen gassing on

humans. It includes evidence from four nitrogen hypoxia

executions conducted in Alabama. It includes the district

court’s detailed factual findings about the use of nitrogen

hypoxia under both the Eighth Amendment and

RLUIPA. With the benefit of this proper factual

development, this Court may fully consider the

questions presented and offer guidance on what will

almost certainly be an increasing number of execution

attempts using nitrogen hypoxia.

* * * *

In short, this case presents the Court an opportunity

to set the standard across jurisdictions with the benefit

35

of detailed factual findings from the district court,

eyewitness accounts of the Alabama nitrogen hypoxia

executions, and expert scientific testimony. Without

guidance from this Court, lower courts will continue to

reach inconsistent conclusions about the effects of

nitrogen hypoxia and whether the psychological

suffering it undisputedly causes must be considered in

the Eighth Amendment analysis.

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

Cecelia Trenticosta

LOYOLA CENTER FOR

SOCIAL JUSTICE

7214 St. Charles Avenue

New Orleans, LA 70118

(504) 861-5735

ctkappel@defendla.org

Andrianna D. Kastanek

Counsel of Record

Alexis E. Bates

Andrew L. Osborne

JENNER & BLOCK LLP

353 North Clark Street

Chicago, IL 60654

(312) 222-9350

akastanek@jenner.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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