Petition for Writ of Certiorari — Anthony Boyd, Petitioner v. John Q. Hamm, Commissioner, Alabama Department of Corrections, et al.
Supreme Court briefOct 21, 2025
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APPENDICES
i
APPENDICES
APPENDIX A: Order of the Court of Appeals for the
Eleventh Circuit (October 20, 2025)............................ 1a
APPENDIX B: Order of the District Court for the
Middle District of Alabama (October 9, 2025) .......... 14a
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Appendix A
NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 25-13545
____________________
ANTHONY BOYD,
Plaintiff-Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF
CORRECTIONS,
HOLMAN CF WARDEN,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:25-cv-00529-ECM
____________________
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Before JORDAN, LAGOA, and ABUDU, Circuit Judges.
PER CURIAM:
Anthony Todd Boyd, an Alabama prisoner, is scheduled to
be executed on Thursday, October 23, 2025. He filed a method-ofexecution lawsuit under 42 U.S.C. § 1983, challenging Alabama’s
nitrogen hypoxia protocol under the Eighth Amendment. He also
sought a preliminary injunction prohibiting his execution by nitrogen hypoxia. Following an evidentiary hearing, the district court
denied the motion for a preliminary injunction.
Mr. Boyd now seeks a stay of execution. For the reasons
which follow, we deny the motion for a stay. 1
I
“We may grant a stay of execution only if the prisoner ‘establishes that (1) he has a substantial likelihood of success on the
merits, (2) he will suffer irreparable injury unless the injunction issues, (3) the injunction would not substantially harm the other litigant, and (4) if issued, the injunction would not be adverse to the
public interest.’ To obtain a stay, the prisoner ‘must satisfy all of
the requirements for a stay, including a showing of a significant possibility of success on the merits.’” Barwick v. Governor, 66 F. 4th 896,
900 (11th Cir. 2023) (citations omitted).
1 Mr. Boyd was convicted and sentenced to death for his participation (along
with others) in the kidnapping and murder of Gregory Huguley. The underlying facts are set out in Boyd v. State, 715 So.2d 825, 832 (Ala. Crim. App. 1997),
and Boyd v. Warden, 856 F.3d 853, 859 (11th Cir. 2017).
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The district court’s denial of a preliminary injunction is reviewed for abuse of discretion. See Robinson v. Attorney Gen., 957
F.3d 1171, 1177 (11th Cir. 2020). The court’s factual findings are
subject to clear error review. That means that a finding “that is
‘plausible’ in light of the full record—even if another is equally or
more so—must govern.” Cooper v. Harris, 581 U.S. 285, 293 (2017)
(citation omitted).
II
Nitrogen hypoxia, as set out in Alabama’s protocol, “causes
death by introducing ‘pure nitrogen gas . . . to the condemned inmate through an industrial-use respirator mask until the inmate is
declared dead. The protocol also calls for the use of EKG and pulse
oximeter devices to monitor the . . . inmate’s condition until declared dead’ but ‘does not call for the use of a sedative in advance
of the initiation of nitrogen gas.’” Grayson v. Commissioner, 121 F.
4th 894, 896–97 (11th Cir. 2024).
Mr. Boyd alleged in his complaint that certain aspects of Alabama’s nitrogen hypoxia protocol violate the Eighth Amendment.
He claimed, for example, that the protocol creates an unnecessary
risk of superadded pain through conscious suffocation, which creates severe psychological and physiological distress. As an alternative to nitrogen hypoxia, Mr. Boyd proposed two other methods of
execution: (1) death by firing squad, or (2) medical aid in dying
(“MAID”). See Appellant’s Brief at 13.
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A
The Supreme Court has explained that
[t]he Eighth Amendment “does not demand the
avoidance of all risk of pain in carrying out executions.” To the contrary, the Constitution affords a
‘measure of deference to a State’s choice of execution
procedures’ and does not authorize courts to serve as
“boards of inquiry charged with determining ‘best
practices’ for executions.” The Eighth Amendment
does not come into play unless the risk of pain associated with the State’s method is “substantial when
compared to a known and available alternative.”
Bucklew v. Precythe, 587 U.S. 119, 134 (2019) (citations omitted).
“[I]dentifying an available alternative is ‘a requirement of all Eighth
Amendment method-of-execution claims’ alleging cruel pain.” Id.
at 136 (citation omitted).
We have similarly said that “[p]risoners cannot succeed on a
method-of-execution claim unless they can establish that the
method challenged presents a risk that is sure or very likely to cause
serious illness and needless suffering, and gives rise to sufficiently imminent dangers.” Price v. Comm’r, Dep’t of Corr., 920 F.3d
1317, 1325–26 (11th Cir. 2019) (internal quotation marks and citations omitted). “[They] must also identify an alternative that is feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain. Where a prisoner claims a safer alternative to the State’s . . . protocol, he cannot make a successful
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challenge by showing a slightly or marginally safer alternative.” Id.
at 1326.
The first question for us is whether the district court “abused
its discretion in concluding that [Mr. Boyd] has [not] shown a ‘substantial likelihood of success’ on the merits of [his Eighth Amendment] claim.” LSSi Data Corp. v. Comcast Phone LLC, 696 F.3d 1114,
1120 (11th Cir. 2012). See, e.g., BellSouth Telecommunications, Inc. v.
MCIMetro Access Transmission Servs., LLC, 425 F.3d 964, 970 (11th
Cir. 2005) (“The district court did not abuse its discretion in determining that BellSouth had established a substantial likelihood of
success.”); Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (reviewing district court’s “substantial likelihood of success” determination for abuse of discretion). In answering that question, we do not
decide the ultimate merits of Mr. Boyd’s claim. See, e.g., Doran v.
Salem Inn, Inc., 422 U.S. 922, 932 (1975) (“In these circumstances,
and in the light of existing case law, we cannot conclude that the
district court erred by granting preliminary injunctive relief. This
is the extent of our appellate inquiry, and we ‘intimate no view as
to the ultimate merit of [respondent’s] contentions.’”) (citation
omitted); Di Giorgio v. Causey, 488 F.2d 527, 528–29 (5th Cir. 1973)
(“[O]n appeal from a preliminary injunction this Court does not
concern itself with the merits of the controversy . . . No attention
is paid to the merits of the controversy beyond that necessary to
determine the presence or absence of an abuse of discretion.”)
Mr. Boyd asserted that Alabama’s nitrogen hypoxia protocol
forces inmates to suffer from “conscious suffocation.” According
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to Mr. Boyd, under the protocol it can take anywhere from two to
seven minutes before an inmate is rendered unconscious. See Anthony Boyd v. Comm’r, Ala. Dep’t of Corr., No. 2:25-CV-529-ECM,
2025 WL 2884410, at *14 (M.D. Ala. Oct. 9, 2025). During that
time, he says, the inmate is consciously aware of his slow suffocation, which causes “extreme discomfort and near terror.” Id. at *7.
To support these assertions at the evidentiary hearing on his
motion for a preliminary injunction, Mr. Boyd provided details
from five nitrogen hypoxia executions in Alabama where inmates
exhibited signs of distress and struggle. See id. at *10–12. Mr. Boyd
also presented testimony from his expert, Dr. Philip Bickler, who
is an anesthesiologist and Director of the Hypoxia Research Laboratory at University of California, San Francisco. Dr. Bickler testified that hypoxia causes “air hunger” that is a “profoundly distressing sensation.” Appellant’s Brief at 15; Boyd, 2025 WL 2884410, at
*7. And that unconsciousness does not set in for several minutes.
See Boyd, 2025 WL 2884410, at *7.
Mr. Boyd argued that a firing squad (under Utah’s protocol)
would lead to nearly instantaneous loss of consciousness and
would therefore be far less painful. See id. at *19. In the alternative,
he maintained that Alabama could feasibly and readily use MAID,
which would similarly significantly reduce the risk of pain. See Appellant’s Brief at 19; Boyd, 2025 WL 2884410, at *1.
B
As noted, the district court denied the motion for a preliminary injunction. In part, the court concluded that Mr. Boyd did not
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establish a “substantial likelihood of success on his Eighth Amendment method of execution claim because he has not identified an
alternative method of execution that would both significantly reduce a substantial risk of severe pain and that is feasible and readily
implemented.” Boyd, 2025 WL 2884410, at *14. In arriving at its
decision, the court examined and credited the testimony of Mr.
Boyd’s expert, Dr. Bickler, that a person undergoing nitrogen hypoxia when breathing normally may take up to two minutes before
falling unconscious, and that the experience is both psychologically
and physiologically distressing. See id. at *8. Dr. Bickler described
the experience as “emotional terror” that includes extreme shortness of breath akin to an asthma attack, increased heart rate, and
pounding blood in the head. The court, however, determined that
this level of discomfort did not constitute a constitutional violation
because the Eighth Amendment “does not demand the avoidance
of all risk of pain in carrying out executions.” Id. at *18. (quoting
Bucklew, 587 U.S. at 134).
Dr. Joseph Antognini, Alabama’s expert on anesthesia,
opined that the protocol renders inmates unconscious within 35 to
40 seconds, or sooner, if the inmate inhales 90 to 100 percent nitrogen gas. See id. at *7. Dr. Antognini also explained that some of
the inmate movements that Mr. Boyd pointed to from prior executions as signs of distress were “involuntary, unconscious responses
to the erratic firing of neurons resulting from hypoxia.” Id. at *13.
Indeed, both sides agreed that an unconscious person may exhibit
such movements as part of the dying process and that they may not
necessarily indicate pain. See id.
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The “key question” that the district court focused on was
“how long a person will experience emotional terror and psychological distress when he is executed under the Protocol.” Id. at *17.
In answering that question, the court assumed without deciding
that Dr. Bickler’s baseline of two minutes was the one to be considered. See id. at *18.
Although the district court found that Alabama’s nitrogen
hypoxia protocol would cause physiological and psychological distress, it determined that the protocol would not cause the physical
pain that one of Mr. Boyd’s proposed alternatives—a firing squad—
would. See id. at *16. The distinction between the two experiences
was explained by the court as the difference between being cut
with a knife and the feeling one gets when being threatened with a
knife. See id. at *7, 15. In the first, one is physically hurt by the
wound. In the second, one is psychologically harmed and feels the
discomfort that accompanies fear and panic. See id.
It is undisputed that the Protocol does not pose a risk
of physical pain akin to being cut with a knife. (Doc.
83 at 200:13–23). Instead, Boyd claims that the Protocol, by depriving inmates of oxygen while they are
conscious, causes “emotional terror,” physiological
distress, and physical discomfort because inmates are
unable to get sufficient oxygen into their lungs when
their bodies are desperate to do so, and because they
must participate in their own deaths by breathing in
nitrogen.
Id. at *15.
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Dr. James Williams, Mr. Boyd’s expert in ballistics, emergency medicine, and firearms, described an execution by firing
squad at the evidentiary hearing. The inmate is first fitted with a
target over his heart and a hood is placed over his head. Five riflemen then take aim and fire at the inmate’s heart. When the bullets
hit the inmate, they tear the heart muscle to pieces and blow apart
the tissue, which causes a rapid and total disruption of blood flow
to the brain, and when that blood supply is stopped, loss of consciousness follows. See id. at *19. Before falling unconscious, the
inmate feels the physical pain of the bullets’ impact. See id.
The district court credited Dr. Williams’ opinion in determining that
Utah’s firing squad protocol would provide a quick
death with minimal pain and suffering. (Doc. 82-19 at
7, 12). But [Dr. Williams’] report [also] supports the
inference that the inmate would experience physical
pain during the three to five seconds before he became unconscious. (See id. at 7 (explaining that the inmate would become unconscious in three to five seconds and would not feel pain and suffering “thereafter”)).
Id.
The district court noted that feelings of extreme anxiety and
psychological and emotional pain are often an inevitable and expected part of any execution because the ultimate result for the inmate is death. See id. at *20. The court determined that nitrogen
hypoxia induces fear and stress, but the firing squad subjects the
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inmate to intense, albeit brief, physical pain. See id. at *21. The
firing squad would very likely carry both intense physical pain as
well as the psychological and emotional harm to the inmate, while
nitrogen hypoxia carries psychological and emotional discomfort
without the intense physical pain of bullets breaching flesh. See id.
at *21. As a result, the court concluded that Mr. Boyd failed to establish that a firing squad would significantly reduce a substantial
risk of severe pain resulting from Alabama’s nitrogen hypoxia protocol.
The district court also determined that MAID was not “a feasible, readily implemented alternative” because of administrability
issues. The court found that MAID would require additional medical staff and personnel to assist who would not or could not be
available to assist in an execution. See id. at* 23. Finally, the court
noted that there was a valid penological reason not to opt for this
method because it would require extended monitoring of the inmate for hours after administration to confirm the inmate’s passing. See id.
C
In our view, Mr. Boyd has not made a substantial showing
that he is likely to succeed on his Eighth Amendment challenge to
Alabama’s nitrogen hypoxia protocol. The district court correctly
applied the governing law, and we do not think it committed clear
error in making its factual findings or otherwise abused its discretion.
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In reaching this conclusion we need not and do not address
the district court’s factual determinations about whether nitrogen
hypoxia causes only discomfort and mental distress or actual physical pain (and if so to what precise degree). Assuming that execution by nitrogen hypoxia contains a physical harm component that
induces distress, the court did not err in ruling that Mr. Boyd’s proposed alternative of a firing squad would not significantly reduce a
substantial risk of severe pain. Mr. Boyd’s own expert, Dr. Williams, testified that when the four bullets strike the heart, they tear
the heart muscles to pieces and blow apart the tissue. See Boyd,
2025 WL 2884410, at *19. Moreover, the inmate would not lose
consciousness for three to six seconds, during which time he or she
would “feel pain and suffering.” Id. On this record, we cannot say
that the district court abused its discretion in concluding that execution by firing squad would not significantly reduce a substantial
risk of severe pain. Cf. Hoffman v. Westcott, 131 F.4th 332, 336 (5th
Cir.) (“Moreover, experts for both parties agreed that death by firing squad can cause pain—and would therefore necessarily be
more painful than execution by nitrogen hypoxia.”), cert. dismissed,
145 S. Ct. 1951 (2025).
The district court also did not err or abuse its discretion in
rejecting the MAID alternative proposed by Mr. Boyd. First, the
cocktail of drugs needed for MAID can be difficult to obtain and
finding the necessary personnel to administer them would be problematic. See Boyd, 2025 WL 2884410, at *23. Those findings are not
clearly erroneous. Second, Alabama provided a legitimate penological reason for not opting for MAID in lieu of nitrogen hypoxia
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because it is untested—no other state has authorized this method
of execution—and would require additional extended monitoring
of the inmate following its application. See id. Given that “[a] state
may refuse to adopt a prisoner’s proposed alternative method of
execution for a legitimate penological reason,” Nance v. Commissioner, 59 F. 4th 1159, 1155–56 (11th Cir. 2023), we discern no error
here either.
III
Mr. Boyd’s motion for a stay of execution is therefore denied. 2
2 Having failed to prevail on the first preliminary injunction prong, we decline
to reach any of the other issues. See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d
1223, 1226 (11th Cir. 2005).
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UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
David J. Smith
Clerk of Court
For rules and forms visit
www.ca11.uscourts.gov
October 20, 2025
Matthew C. Moschella
Sherin and Lodgen LLP
1 LINCOLN ST FL 14
BOSTON, MA 02111
Lauren Ashley Simpson
Office of The Attorney General - Alabama
501 WASHINGTON AVE
PO BOX 300152
MONTGOMERY, AL 36130
Appeal Number: 25-13545-P
Case Style: Anthony Boyd v. Commissioner, Alabama Department of Corrections, et al
District Court Docket No: 2:25-cv-00529-ECM
The enclosed order has been ENTERED.
Electronic Filing
All counsel must file documents electronically using the Electronic Case Files ("ECF") system,
unless exempted for good cause. Although not required, non-incarcerated pro se parties are
permitted to use the ECF system by registering for an account at www.pacer.gov. Information
and training materials related to electronic filing are available on the Court's website.
Clerk's Office Phone Numbers
General Information: 404-335-6100
Case Administration: 404-335-6135
CM/ECF Help Desk: 404-335-6125
Attorney Admissions:
404-335-6122
Capital Cases:
404-335-6200
Cases Set for Oral Argument: 404-335-6141
MOT-2 Notice of Court Action
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Appendix B
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ANTHONY BOYD,
)
)
Plaintiff,
)
V.
)
CASE NO. 2:25-cv-529-ECM
)
[WO]
)
JOHN Q. HAMM, Commissioner,
Alabama Department of Corrections, et al.,
)
)
)
Defendants.
)
MEMORANDUM
OPINION and ORDER
I. INTRODUCTION
The Alabama Department of Corrections (“ADOC’’) intends to execute Anthony
Boyd (“Boyd”) by nitrogen hypoxia between 12:00 a.m. on October 23, 2025, and 6:00
a.m. on October 24, 2025, for the 1993 kidnapping and murder of Gregory Huguley.
Boyd
previously challenged his capital murder conviction and sentence without success.
He is
now before the Court seeking to enjoin the ADOC
from carrying out his death sentence
using its nitrogen hypoxia protocol (the “Protocol’”). (Doc. 1). Boyd claims that, compared
to Utah’s firing squad protocol or medical-aid-in-dying (“MAID”), the Protocol poses a
substantial risk of severe pain in violation of the Eighth Amendment to the United States
Constitution.
Before the Court is Boyd’s motion for preliminary injunction. (Doc.
11).
The
Defendants—John Q. Hamm (“Commissioner Hamm”), Commissioner of the ADOC, and
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Terry Raybon (“Warden Raybon”), Warden of Holman Correctional Facility (“Holman’’)!
(collectively, the “State”)—oppose the motion.” The Court held an evidentiary hearing on
September 4 and 5, 2025.
Over those two days, the Court heard nearly fifteen hours of
witness
expert
testimony
from
executions under the Protocol.
and
lay witnesses,
including
eyewitnesses
to earlier
The Court also received and reviewed over one thousand
pages of evidence. Additionally, the parties filed post-hearing briefs (see docs. 85, 87; see
also doc. 96 (Boyd’s sealed, unredacted brief)) and responsive briefs (see docs. 97, 99; see
also doc.
review.
103 (Boyd’s sealed, unredacted response brief)).
After careful review,
Boyd’s motion is ripe for
and for the following reasons, the Court concludes that
Boyd’s motion for preliminary injunction is due to be denied.
Il. JURISDICTION AND VENUE
The Court has original subject matter jurisdiction over this case pursuant to 28
U.S.C. § 1331.
Personal jurisdiction and venue are uncontested, and the Court concludes
that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.
' Executions occur at Holman. See ALA. CODE § 15-18-82(b) (“Executions shall take place at the William
C. Holman unit of the prison system at Atmore... .”).
? Originally, Boyd’s complaint also named as Defendants Alabama Attorney General Steve Marshall
(“Marshall”) and the ADOC. The action against Marshall and the ADOC has since been dismissed without
prejudice. (See doc. 37).
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HISTORY AND BACKGROUND?
First, to provide relevant context, the Court briefly outlines the history of capital
punishment
methods
in Alabama,
of execution.
including the evolution of the State’s statutorily authorized
The Court next summarizes
Boyd’s
capital litigation history,
including his direct appeal and his pursuits of postconviction relief in both state and federal
courts. The Court then recaps Boyd’s earlier litigation challenging the constitutionality of
the ADOC’s
action.
lethal injection protocol, as well as the relevant procedural history of this
The Court will also summarize
the relevant witness testimony and evidence
presented in anticipation of and during the evidentiary hearing on Boyd’s motion for
preliminary injunction.
A.
History of Capital Punishment in Alabama
In modern history, Alabama has authorized four methods of execution: (1) hanging;
(2) electrocution; (3) lethal injection; and (4) nitrogen hypoxia.
Hanging served as the
State’s only authorized method of execution until 1927, when the legislature codified
electrocution as the sole method. See Boyd v. Warden, Holman Corr. Facility, 856 F.3d
853, 869-70 (11th Cir. 2017) (citing Bachelor v. State, 113 So. 67, 72 (Ala. 1927)).
3 “When ruling on a preliminary injunction, ‘all of the well-pleaded allegations [in a movant’s]
complaint .. . are taken as true.’” Alabama v. U.S. Dep’t of Com., 546 F. Supp. 3d 1057, 1063 (M.D. Ala.
2021) (first alteration in original) (quoting Elrod v. Burns, 427 U.S. 347, 350 n.1 (1976)). And “[t]he
[C]ourt may also consider supplemental evidence, even hearsay evidence, submitted by the parties.” Id.
(citing Levi Strauss & Co. v. Sunrise Int’l Trading, Inc., 51 F.3d 982, 985 (11th Cir. 1995)). In addition to
the factual allegations in Boyd’s complaint, the Court also considered the evidence presented at the
evidentiary hearing, in Boyd’s motion for preliminary injunction (doc. 11), and in the State’s response (doc.
29). With that said, the Court recites only those facts which it finds relevant in ruling on Boyd’s motion.
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Seventy-five years later, on July 1, 2002, Alabama adopted lethal injection as its default
method of execution. Grayson v. Warden, Comm’r, Ala. Doc, 869 F.3d 1204, 1210 & n.1
(11th Cir. 2017) (citing ALA. CODE § 15-18-82.1); Grayson v. Dunn, 221 F. Supp. 3d 1329,
1333 n.6 (M.D. Ala. 2016) (“Before the adoption of lethal injection, electrocution was
Alabama’s sole method of execution.”).
Although the State designated lethal injection as
its default method, an inmate could still elect that “his or her death sentence be executed
by electrocution.” Grayson, 869 F.3d at 1210 n.1 (quoting ALA. CODE § 15-18-82.1(a)).
In 2018, the Alabama legislature again amended Alabama Code § 15-18-82.1—this
time to add nitrogen hypoxia as an alternative method of execution, effective June 1, 2018.
See Smith vy. Dunn, 568 F. Supp. 3d 1244, 1251 (M.D. Ala. 2021); ALA. CODE § 15-1882.1(a).
Lethal injection remains Alabama’s default method of execution. ALA. CODE
§ 15-18-82.1(a).
Condemned inmates, within a fixed period, may opt out of execution by
lethal injection and elect execution by nitrogen hypoxia instead. /d. § 15-18-82.1(b).
B.
Boyd’s Capital Litigation History
On
July
31,
1993,
Boyd,
Shawn
Ingram,
Marcel
Ackles,
and
Quintay
Cox
kidnapped and later murdered Gregory “New York” Huguley because he owed the group
$200 for cocaine he had received several days earlier. Boyd v. State, 715 So. 2d 825, 832
(Ala. Crim. App. 1997).
The four men forced Huguley into a van at gunpoint and drove
him to a North Talladega County baseball field. Jd.
On the way, the participants stopped
at a gas station and purchased some gasoline in a plastic container. Jd.
while pleaded for his life and promised to repay the men. /d.
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baseball field, Ingram forced Huguley to lie down on a bench. Jd. Ackles bound Huguley’s
hands and mouth, and Boyd secured Huguley’s
feet with duct tape. /d. With Huguley taped
to the bench, Ingram doused him in gasoline, poured a two-foot trail of gasoline leading
away from the bench, and lit the gasoline, causing Huguley to catch fire. Jd. Boyd, Ingram,
Ackles, and Cox watched Huguley burn to death for ten to fifteen minutes until the flames
subsided. Id.
On June 28, 1994, Boyd was indicted for capital murder for intentionally causing
Huguley’s death by burning him during a kidnapping in the first degree. Jd. at 837, 851
(citing ALA. CODE
§ 13A-5-40(a)(1)).
On March
16, 1995, a Talladega County jury
convicted Boyd of capital murder and recommended a death sentence by a ten to two vote.
Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 1326 (11th Cir. 2012).
After a
sentencing hearing, the trial court accepted the jury’s recommendation and sentenced Boyd
to death by electrocution. /d.
1. Direct Appeal
Boyd appealed his conviction and death sentence to the Alabama Court of Criminal
Appeals (“ACCA”).
On January
17, 1997, the ACCA
unanimously affirmed Boyd’s
conviction and death sentence, holding that Boyd “received a fair trial.” Boyd, 715 So. 2d
at 852. Boyd appealed once more to the Alabama Supreme Court, bringing the same claims
he had raised to the ACCA on direct appeal. Boyd, 697 F.3d at 1326; see also Ex parte
Boyd, 715 So. 2d 852, 856 (Ala. 1998).
On March 13, 1998, the Alabama Supreme Court
affirmed Boyd’s conviction and death sentence. Ex parte Boyd, 715 So. 2d at 856.
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later, on November
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States Supreme
Court denied Boyd’s
petition for writ of certiorari. Boyd v. Alabama, 525 U.S. 968 (1998) (Mem).
2. State Postconviction Proceedings
On October 20, 1999, Boyd moved for relief from his conviction and death sentence
under Rule 32 of the Alabama Rules of Criminal Procedure in Talladega County Circuit
Court (“Rule 32 Court”). Boyd v. State, 913 So. 2d 1113, 1121 (Ala. Crim. App. 2003).
The State moved to dismiss Boyd’s Rule 32 petition. Jd. at 1121-22.
filed, without leave, an amended Rule 32 petition. /d. at 1121.
In May 2002, Boyd
After a June 14, 2002
hearing on the State’s motion to dismiss, the Rule 32 Court entered an order dismissing
Boyd’s Rule 32 petition two months later, on August 28, 2002.4 Boyd, 913 So. 2d at 1121-
22.
Boyd appealed the Rule 32 Court’s dismissal on October 8, 2002. /d. at 1122.
September 26, 2003, the ACCA
On
affirmed the Rule 32 Court’s judgment. /d. at 1148.
Thereafter, on May 27, 2005, the Alabama Supreme Court denied Boyd’s petition for writ
of certiorari. See Boyd, 697 F.3d at 1329.
3. Federal Habeas Proceedings
On
June
3, 2005,
after he
exhausted
his
state postconviction
remedies,
Boyd
petitioned for federal habeas relief under 28 U.S.C. § 2254 in the United States District
Court for the Northern District of Alabama. /d. at 1330.
The district court denied Boyd’s
habeas
application
petition
in its entirety
but
granted
Boyd’s
for
a certificate
of
4 The Rule 32 Court’s “order of dismissal did not refer to any matters contained in Boyd’s amended [Rule
32] petition.” Boyd, 913 So. 2d at 1122.
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whether the district court improperly concluded that his
amended Rule 32 petition was procedurally barred. /d. On October 10, 2012, the Eleventh
Circuit affirmed the district court’s denial of habeas relief.> Boyd, 697 F.3d at 1330, 1342.
On June 24, 2013, the United
States Supreme
Court denied certiorari review. Boyd v.
Thomas, 570 U.S. 920 (2013) (Mem).
4. Lethal Injection Litigation and Election of Nitrogen Hypoxia
When Boyd was sentenced to death in 1995, Alabama’s default method of execution
was electrocution. Boyd, 856 F.3d at 860. In July 2002, the Alabama legislature modified
the state’s statutory methods of execution to make lethal injection the default method,
“unless the person sentenced to death affirmatively elects to be executed by electrocution.”
Id. (quoting ALA. CODE § 15—18—82.1(a) (2002)).
made such an election.
The record does not indicate that Boyd
In the years following lethal injection’s introduction, the ADOC
performed such executions using a three-drug protocol. /d.
Each drug in the ADOC’s
protocol
should
serves
a specific
function:
(1)
“the
first drug
render
the
inmate
unconscious”; (2) “the second drug is a paralytic agent”; and (3) “the third drug ‘interferes
with the electrical signals that stimulate the contractions of the heart, inducing cardiac
arrest.’” /d. at 860-61 (quoting in part Baze v. Rees, 553 U.S. 35 (2008) (plurality opinion)).
On September 11, 2014, the ADOC
began using midazolam hydrochloride as the lethal
> The Eleventh Circuit granted Boyd’s motion to expand the certificate of appealability “to consider one
additional issue: whether his Rule 32 claims were pled with sufficient specificity to meet the requirements
of Alabama’s Rule 32.6(b).” Boyd, 697 F.3d at 1330.
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injection protocol’s first drug. /d. at 861.° That same day, then-Alabama Attorney General
Luther Strange moved the Alabama Supreme Court to authorize Boyd’s execution by lethal
injection. (Doc. 33 at 1 in Boyd v. Myers et al., Case No. 2:14-cv-1017-WKW (M.D. Ala.)
[hereinafter Boyd’s Lethal Injection Litigation]; see also doc. 33-1 at 2 in Boyd’s Lethal
Injection Litigation).
On October 2, 2014, Boyd filed suit in this Court pursuant to 42 U.S.C. § 1983,
alleging that the ADOC’s
lethal injection protocol was unconstitutional. (See doc. | in
Boyd's Lethal Injection Litigation).
At that time, the Alabama Supreme Court had not yet
authorized Boyd’s execution. (See doc. 33 at 1 in Boyd’s Lethal Injection Litigation).
March
27, 2015, the Alabama
Supreme
On
Court granted the State’s motion to hold in
abeyance its motion to set Boyd’s execution date pending the United States Supreme
Court’s decision in Glossip v. Gross, infra, which was considering the constitutionality of
Oklahoma’s use of midazolam in its lethal injection protocol. (Doc. 39 at 12 in Boyd’s
Lethal Injection Litigation); see also Order, Ex parte Boyd, No. 1961321 (Ala. Mar. 27,
2015).
On March 19, 2015, the district court stayed Boyd’s lethal injection litigation and
ordered the parties to file “[w]ithin fourteen . . . days from the Supreme Court’s decision
in Glossip . . . appropriate motion[s] that inform[] the court of their respective positions on
the issues in this case in view of the Glossip decision.” (Doc. 34 at 3-4, paras. 1—2 in Boyd’s
Lethal Injection Litigation).
6 Midazolam hydrochloride is a “sedative in the benzodiazepine family of drugs.” Chavez v. Fla. SP
Warden, 742 F.3d 1267, 1269 (11th Cir. 2014).
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On June 29, 2015, the United States Supreme Court issued its decision in Glossip,
holding that condemned inmates challenging their method of execution must identify a
known and available alternative method that entails a lesser risk of pain. Glossip v. Gross,
576 U.S. 863, 867 (2015).
Shortly after the Supreme Court’s decision, the State filed a
renewed motion to dismiss Boyd’s amended complaint in light of Glossip. (Doc. 39 in
Boyd’s Lethal Injection Litigation).
On October 7, 2015, the district court granted the
State’s renewed motion to dismiss. (Doc. 50 in Boyd's Lethal Injection Litigation).
The
district court rejected Boyd’s proposed alternative methods of execution—firing squad and
hanging—because, among other reasons, Boyd’s allegations that “hanging and . . . firing
squad
would
entail
a
lesser
risk
of
pain
than
Alabama’s
current
method
of
execution . . . [were] nothing more than bare-bone legal conclusions unsupported by facts.”
(Id. at 11-12 in Boyd’s Lethal Injection Litigation).
Boyd appealed the district court’s
decision to the Eleventh Circuit. On May 9, 2017, the Eleventh Circuit affirmed. See Boyd,
856 F.3d at 859.
In 2015, other condemned inmates separately challenged the constitutionality of the
ADOC’s
lethal injection protocol in this Court.’ (See doc. 59 in In Re: Alabama Lethal
Injection Protocol Litigation, Case No. 2:12-cv-316-WKW
[hereinafter Consolidated Lethal Injection Litigation]).
(M.D. Ala. Nov. 5, 2015)
Several of these challenges were
7 Several inmates, including Kenneth Smith and Alan Miller, proposed nitrogen hypoxia as a feasible and
readily implemented alternative method of execution. See, e.g., Price v. Comm’r, Dep’t of Corr., 920 F.3d
1317, 1326-29 (11th Cir. 2019) (per curiam); Smith v. Hamm, 2023 WL 4353143, at *5 (M.D. Ala. July 5,
2023); Miller v. Hamm, 640 F. Supp. 3d 1220, 1231 (M.D. Ala. 2022).
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consolidated into one action before the district court. (Doc. 59 in Consolidated Lethal
Injection Litigation).
The
execution,
including
“asphyxiation
purportedly
would
render
condemned
“the
inmates proposed
via the
condemned
inhalation
inmate
four alternative methods
of pure
nitrogen
unconscious
within
of
gas,” which
seconds
and
painlessly dead within minutes.” (Doc. 348 at 32-33, paras. 161—63 in Consolidated Lethal
Injection Litigation).
The
asphyxiation
method—inhalation
of pure
nitrogen
gas—
included “the administration of an anxiolytic, such as midazolam,”® before the introduction
of nitrogen gas. (/d. at 33, para. 163 in Consolidated Lethal Injection Litigation).
As discussed above, the Alabama legislature amended Alabama Code § 15-18-82.1
to add nitrogen hypoxia as an authorized method of execution, effective June 1, 2018. ALA.
CODE
became
§ 15-18-82.1(a).
Condemned
inmates, including Boyd, whose
death sentences
final before the amendment took effect had thirty days to elect execution by
nitrogen hypoxia. /d. § 15-18-82.1(b)(2).
On June 27, 2018, Boyd elected execution by
nitrogen hypoxia before the July 2, 2018 deadline.’ (Doc. 29-17 at 2).'°
8 An anxiolytic is an anti-anxiety medication. Anxiolytic, NCI Dictionary of Cancer Terms, NAT’L CANCER
INST., https://www.cancer.gov/publications/dictionaries/cancer-terms/def/anxiolytic (last visited Oct. 9,
2025).
° Alabama law states that the “[t]ime within which any act is provided by law to be done must be computed
by excluding the first day and including the last. However, if the last day is Sunday, . . . the last day also
must be excluded, and the next succeeding secular or working day shall be counted as the last day within
which the act may be done.” ALA. CODE § 1-1-4. Excluding June 1, 2018, the day the statutory period
began to run, thirty days is through July 1, 2018. But because July 1, 2018, was a Sunday and thus cannot
be counted as the last day, the statutory period to elect nitrogen hypoxia ran through July 2, 2018.
'0 The condemned inmates in the Consolidated Lethal Injection Litigation, which included Demetrius
Frazier, Gregory Hunt, and Geoffrey West, also elected execution by nitrogen hypoxia, and in July 2018,
their case was dismissed as moot. (Doc. 429 in Consolidated Lethal Injection Litigation).
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Present Action
On June 11, 2025, Alabama Attorney General Steve Marshall moved the Alabama
Supreme Court to authorize Boyd’s execution by nitrogen hypoxia. (See doc. 33-1 at 1).
Thirty-six days later, on July 16, 2025, Boyd filed this § 1983 action. (Doc. 1).
On July
18, 2025, Boyd filed his motion for preliminary injunction in this Court. (Doc. 11).
On
July 30, 2025, the Alabama Supreme Court granted the State’s motion to authorize Boyd’s
execution. (Doc. 33-1 at 1-2).
Shortly thereafter, on August 18, 2025, Alabama Governor
Kay Ivey set Boyd’s execution for the thirty-hour time frame beginning at 12:00 a.m. on
Thursday, October 23, 2025, and ending at 6:00 a.m. on Friday, October 24, 2025. (Doc.
33-2 at 1).
C.
The ADOC’s Nitrogen Hypoxia Protocol
Although the Alabama
legislature authorized nitrogen hypoxia as a method
of
execution in 2018, the ADOC did not have a means of carrying out such executions at that
time. (See doc. 83 at 135:3—23).
The ADOC finalized the Protocol in August 2023—over
five years after the legislature amended the statute. (See id.; doc. 11-3).
The publicly
available version of the Protocol, which contains redactions, explains how the ADOC
carries out a nitrogen hypoxia execution. (See doc. 11-3 at 16-18).
nitrogen hypoxia execution, the Protocol calls for:
In preparation for a
(1) calibration of oxygen monitoring
equipment; (2) pressurization of breathing air and nitrogen gas banks; and (3) connection
of the mask to the tubes through which the nitrogen gas flows. (/d. at 30-35).
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After the execution team completes various preliminary steps, execution by nitrogen
hypoxia proceeds as follows:
(1) the condemned inmate is escorted to the execution
chamber and placed on a gurney, at which time members of the execution team secure onto
him two pulse oximeters;!! (2) an industrial-use respirator mask is placed and adjusted on
the condemned
inmate’s face; and (3) after several safety checks, the reading of the
execution warrant, and any last words from the condemned inmate, pure nitrogen gas is
introduced into the mask and administered for fifteen minutes or five minutes following a
flatline indication on the EKG, whichever is longer. (Doc. 11-3 at 16-18; doc. 84 at 53:14—
16). A physician enters the execution chamber to pronounce the inmate’s death. (Doc. 113 at 21; see also doc. 84 at 23:19-21).
To date, the ADOC
(“Smith”),
Alan
Miller
has executed six inmates under the Protocol:
(“Miller”),
Carey
Grayson
(“Grayson”),
Kenneth Smith
Demetrius
Frazier
(“Frazier”), Gregory Hunt (“Hunt”), and Geoffrey West (“West”). ”
D.
Boyd’s Nitrogen Hypoxia Challenge
Boyd filed this action on July 16, 2025—nearly two years after the Protocol was
released. (Doc.
1).
Boyd alleges that the Protocol violates the Eighth Amendment’s
'| Pulse oximetry “is a quick and non-invasive monitoring technique that measures the oxygen saturation
in the blood by shining light at specific wavelengths through tissue.” Pulse Oximetry, NAT’L LIBR. OF MED.,
https://www.ncbi.nlm.nih.gov/books/NBK470348/ (last visited Oct. 9, 2025). A pulse oximeter is a device
used in pulse oximetry that processes “[t]he absorbed light . . . to display a saturation value.” Jd.
'2 West was executed
preliminary injunction.
West’s execution.
on September 25, 2025, after the evidentiary hearing on Boyd’s motion for
Neither side has offered argument or evidence regarding what occurred during
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prohibition against cruel and unusual punishment and his Fourteenth Amendment right to
due process. (/d. at 8-11, paras. 33-47; id. at 32-34, paras. 141-52).
In his complaint,
Boyd asserts four claims pursuant to § 1983:
facial challenge
an Eighth Amendment
(Count I), a Fourteenth Amendment procedural due process claim (Count I), an Eighth
Amendment as-applied challenge (Count II), and a “claim” for injunctive relief (Count
IV). (See id. at 30-37, paras. 126—66).
In Count I, Boyd claims that the Protocol, on its face, creates a substantial risk of
severe pain violative of the Eighth Amendment because it causes condemned inmates to
consciously experience extreme pain and terror from being deprived of oxygen, which he
calls “conscious suffocation.” (/d. at 31, paras. 131-33).
Boyd requests that the Court
declare the Protocol “facially unconstitutional under the Eighth Amendment.” (/d. at 37).
In Count III, Boyd claims that the Protocol as applied to him will very likely cause him to
experience “extreme psychological distress and panic” due to his medical conditions:
asthma and vertigo. (/d. at 35, paras. 157-58).
methods:
Boyd proposes three alternative execution
(1) firing squad; (2) hanging; and (3) MAID. (/d. at 27-30, paras. 115-25).
In
Count II, Boyd claims that the State’s failure to provide Boyd with the unredacted Protocol
violates his due process rights.'? (Doc. 1 at 32-34, paras. 141-52).
Finally, in Count IV,
Boyd pursues injunctive relief “to prevent scheduling and enforcement of [his] execution
by nitrogen hypoxia.” (/d. at 35-37, paras. 161-66).
'S On August 6, 2025, Boyd’s counsel received the ADOC’s unredacted Protocol. (Doc. 29 at 62).
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On July 18, 2025, Boyd moved for a preliminary injunction to enjoin the State “from
executing him using the Protocol during the pendency of this litigation.” (Doc. 11 at 23).
The issues relevant to resolving Boyd’s motion have narrowed considerably compared to
those raised in his complaint.
During
a September
3, 2025
status conference, Boyd’s
counsel stated on the record that Boyd was not seeking a preliminary injunction based on
his as-applied Eighth Amendment
claim (Count III), and they also acknowledged that
Boyd’s “claim” for injunctive relief (Count IV) was “subsumed” by the other counts and
thus was duplicative.
Boyd’s counsel further confirmed that Boyd sought preliminary
injunctive relief based on his Eighth Amendment facial challenge to the Protocol (Count I)
and his Fourteenth Amendment due process claim (Count II).
In his post-hearing brief,
however, Boyd informed the Court that he is no longer relying on the due process claim
(Count II) for purposes of his motion for preliminary injunction. (Doc. 99 at 2 n.1).
Additionally, Boyd’s counsel represented during the status conference that Boyd is not
relying on his proposed alternative method of hanging for purposes of the motion for a
preliminary injunction, and is instead relying only on Utah’s firing squad protocol!* and
MAID.
Consequently, this Opinion focuses on Boyd’s Eighth Amendment facial challenge
(Count I) and his proposed alternatives of the firing squad and MAID.
'4 As discussed further below, Utah authorizes the firing squad as a method of execution for inmates who
elected the firing squad before May 3, 2004, and if lethal injection is declared unconstitutional or the state
is unable to procure the lethal injection drugs. See UTAH CODE § 77-18-113.
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Summary of Evidence Presented at Preliminary Injunction Hearing
On September 4 and 5, 2025, the Court held an evidentiary hearing on Boyd’s
motion for preliminary injunction.
The Court heard extensive testimony from eighteen
witnesses, including five experts.
Boyd offered four experts:
Dr. Brian McAlary (“Dr.
McAlary’’), an expert in “medicine” and anesthesia (doc. 84 at 183:3-4); Dr. Phillip Bickler
(“Dr. Bickler”’), an expert in hypoxia in humans and anesthesia; Dr. Carly Zapata (“Dr.
Zapata’), an expert in “medicine” and MAID
(id. at 183:4—5); and Dr. James Williams
(“Dr. Williams”), an expert in ballistics, emergency medicine, and firearms who testified
about the firing squad.
Dr. McAlary also witnessed Grayson’s execution and testified
regarding his observations and the conclusions he drew from those observations. The State
proffered Dr. Joseph Antognini (“Dr. Antognin1’”) as an expert in anesthesia.
Before turning to the lay witnesses, the Court summarizes Dr. Bickler’s and Dr.
Antognini’s opinions, which the Court finds most relevant in its evaluation of the Protocol.
The Court notes at the outset that the experts offer differing opinions about how long it will
take for the Protocol to render an inmate unconscious.
Dr. Antognini opines that the
Protocol will render condemned inmates unconscious “within [thirty-five to forty seconds]
(and perhaps sooner) once the inmate inhales 90[%]—100% nitrogen gas.” (Doc. 29-8 at 27
(parenthetical in original)).
According to Dr. Bickler, an inmate breathing normally will
become unconscious within two minutes under the Protocol. (Doc. 83 at
213:15—14:7). Dr.
Bickler further opined that if it takes longer than two minutes to render the inmate
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unconscious, it is because the inmate was either holding his breath or breathing shallowly.
(Ud. at 214:8—15).
1. Dr. Bickler
Dr. Bickler testified to the effects of hypoxia on humans, emphasizing that the lack
of oxygen causes strong involuntary physiological reactions, including sending impulses
to the brain that command a person to breathe more, causing shortness of breath and a
“primal” fight or flight response “that is deeply threatening on an emotional level.” (/d. at
168:14—20; 170:4—14). He further testified as follows: The physiological responses to lack
of oxygen create a feeling of “air hunger” similar to an asthma attack or being stuck under
water and needing to surface for air. (/d. at 172:2-17).'°
Pain, generally speaking, has
physical and emotional dimensions that are “interlocked.” (Doc. 83 at 175:11—19; see also
id. at 200:6—10 (noting that pain is “a combination of” the physical and emotional)).
The
pain caused by nitrogen hypoxia includes both the “physical”—“the drive to breathe, the
increase in heart rate, the pounding of blood that you feel in your head”—as well as the
“emotional terror and panic that’s elicited by this primal reaction to having your oxygen
supply cut off.” Ud. at 170:15—19;
175:20—23).
The “physical pain” associated with
hypoxia is not like being “cut with a knife,” but rather like being threatened with one. (See
id. at 200:11-23;
see also doc.
82-68
at 77:17—20
(Dr. Bickler’s
August
27, 2025
'S Dr. Bickler also testified that this air hunger is caused both by carbon dioxide buildup and a lack of
oxygen, but that air hunger can also be caused by a lack of oxygen alone. (Doc. 83 at 172:18—25; see also
id. at 204:9-16).
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A steep rate of change in oxygen levels causes a “much greater”
“degree of discomfort” compared to a gradual change. (Doc. 83 at 179:1—9).
Dr. Bickler’s opinions are based on his experience as director of the Hypoxia
Research Laboratory at the University of California at San Francisco where he has studied
the “effects of hypoxia on humans” for thirty-five years, which involved between eight
thousand and ten thousand subjects; as a former clinical anesthesiologist; and as a former
participant in hypoxia studies. (/d. at 160:18—25,
168:4-10;
177:6-9).
161:10—11, 24-25;
162:1; 166:24—67:4;
To study nitrogen hypoxia, Dr. Bickler’s lab reduces breathing
oxygen by diluting air with nitrogen. (/d. at 164:1-9).
His studies gradually, over the
course of ten to fifteen minutes, take subjects to near 70% oxygen saturation levels but no
lower because at lower saturation levels, “the symptoms of oxygen deprivation begin to be
very profound and are problematic.” (/d. at 164:10—17; 178:7-11).
level of 70%
An oxygen saturation
is one which “a very well coached, very well educated, and very well
monitored subject can tolerate.” (/d. at 164:16—25).
In one study, in which Dr. Bickler
reduced his own oxygen level to 48%, he recalled feeling “extreme discomfort and near
terror.” (/d. at 173:3—21).
While Dr. Bickler does not remember losing consciousness, his
colleagues recounted to him that his hand was twitching, and he recalls his vision changing.
(Id. at 174:3—8). Nevertheless, Dr. Bickler recognized that there is significant variation in
how people respond to hypoxia, stating that even shortness of breath is not universal. (/d.
at 174:18—22; see also id. at 207:24—08:7).
Further, Dr. Bickler testified that consciousness
fades for most people around 50% oxygen saturation, and that some people can lose
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consciousness before they feel any distress. (/d. at 208:8-10; 211:22—24; see also id. at
216:19-24).
Dr. Bickler also offered the following opinions:
Consciousness is indicated by
coordinated, smooth, and purposeful movements of the body. (/d. at 184:13—16).
With
normal breathing, an inmate executed under the Protocol would remain conscious for
approximately two minutes after the nitrogen begins flowing, but an inmate could lose
consciousness before or after two minutes, depending on breathing volume. (/d. at 213:24—
14:2;
see
also
id.
at
215:17-16:2).
Agonal
unconsciousness. (Doc. 83 at 227:24—28:2).
breathing’®
likely
occurs
during
Dr. Bickler ultimately concluded to a degree
of medical and scientific certainty that the Protocol causes “‘an added terror effect that’s
being produced by the oxygen deprivation that is[] . . . very different than other execution
methods.” (/d. at 188:25-89:7).
2. Dr. Antognini
Dr. Antognini opines that the Protocol causes unconsciousness within thirty-five to
forty seconds and a physically painless death thereafter. (Doc. 29-8 at 27, para. 49; doc. 84
at 112:18-24).
Dr. Antognini’s opinions are based on the following:
(1) his experience as
an anesthesiologist; (2) reviews of a study involving three military pilots; (3) case studies
of inert-gas suicides; and (4) Occupational Safety and Health Administration (“OSHA”)
'6 Agonal breathing is defined as “[a]n abnormal breathing pattern originating from lower brainstem
neurons and characterized by labored breaths, gasping, and, often, [muscle jerks] and grunting.” Agonal
Respiration, NAT’L LIBR. OF MED., https://www.ncbi.nlm.nih.gov/medgen/746160 (last visited Oct. 9,
2025).
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work-incident reports of hypoxia deaths. (See doc. 84 at 111:15—20; 115:5—33:21; 135:14—
36:21; 142:15—43:23; doc. 29-8 at 7-10, 13-14, paras. 11-15, 21 (discussing articles)). He
relied strongly on three articles:
Ernsting (1963),'’ Ogden (2010),'* and Ogden et al.
(2010).!° (See doc. 29-8 at 13-14, para. 21; doc. 82-74 (Ernsting); doc. 82-78 (Ogden);
doc. 82-79 (Ogden et al.)).
In Ernsting (1963), three military pilots were instructed to empty their lungs of air,
after which nitrogen began fully flowing; thereafter, the participants were instructed to
breathe as deeply as possible. (Doc. 84 at 158:23-60:9; doc. 82-74 at 1-2). Ogden (2010)
recounts two suicides that utilized bags prefilled with helium. (Doc. 84 at 126:15—27:13;
doc. 82-78 at 2-5). After the individuals placed the bags over their heads, Ogden observed
that unconsciousness occurred at twelve seconds, and agonal breathing began at three
minutes. (Doc. 84 at 128:4—9; 132:11—14; doc. 82-78 at 4-5). In Ogden et al. (2010), four
suicides using a mask (rather than a bag) and helium gas were documented. (Doc. 84 at
130:17-31:3; doc. 82-79 at 1). Time until loss of consciousness ranged from thirty-six to
fifty-five seconds, and Dr. Antognini interpreted the intermittent movement the authors
'7 J. Ernsting, The Effect of Brief Profound Hypoxia Upon the Arterial and Venous Oxygen Tensions in
Man, 169 J. PHYSIOL. 292 (1963).
'8 Russel D. Ogden, Observation of Two Suicides by Helium Inhalation in a Prefilled Environment, 31 AM.
J. FORENSIC MED. PATHOL. 156 (2010).
') Russel D. Ogden et al., Assisted Suicide by Oxygen Deprivation with Helium at a Swiss Right-to-Die
Organisation, 36 J. MED. ETHICS 174 (2010).
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described as “very similar” to that which occurs in nitrogen hypoxia executions. (Doc. 84
at 131:14—33:7; doc. 82-79 at 4).
3. Lay Witnesses
The thirteen lay witnesses fall into two general categories:
(1) witnesses to prior
nitrogen hypoxia executions, and (2) ADOC personnel, most of whom were present for or
involved with prior nitrogen hypoxia executions.
The first category includes Deanna
Smith, Smith’s widow, and several former attorneys for condemned inmates:
Robert
Grass, Smith’s attorney; Mara Klebaner (“Klebaner”), Miller’s attorney; and Matt Schulz
(“Schulz”), Frazier’s attorney.
It also includes statutory media witnesses Ralph Chapoco,
reporter for the Alabama Reflector; and Marty Roney (“Roney”) and Sara Clifton, reporters
for the Montgomery Advertiser.
The second category of witnesses, ADOC
Cynthia
Stewart-Riley
(“Director
personnel, includes Regional Director
Stewart-Riley”);
Commissioner
Hamm;
Warden
Raybon; Warden Brandon McKenzie (“Warden McKenzie’); Captain Fitzgerald Clemons;
and Jason Grindle.
The Court also admitted over seventy exhibits, comprising more than
1,600 pages of evidence.”°
0 Tn addition to the live witnesses’ testimonies, the Court also received four affidavits from media reporters
concerning articles written following various nitrogen hypoxia executions: Lauren Layton, journalist at
WHNT-TV, Huntsville, Alabama (doc. 72); Kim Chandler, reporter for the Associated Press (doc. 74);
Kent Faulk, AL.com reporter (doc. 78); and Ivana Hrynkiw, another AL.com reporter (doc. 79). Boyd also
submitted a fifth affidavit from Shannon Maze, who serves as News
Director at Gray Local Media, Inc.
(Doc. 73 at 1). Maze did not witness any prior nitrogen hypoxia executions.
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Much of the testimony during the two-day evidentiary hearing concerned witness
observations
during
previous
nitrogen
witnesses unaffiliated with the ADOC
hypoxia
executions
in Alabama.
Generally,
testified consistently regarding their observations.
The testimony centered on four main topics. First, the witnesses described being escorted
to a viewing room adjacent to the execution chamber. (See, e.g., doc. 83 at 25:24—26:4).
The viewing room contained rows of chairs, a digital clock, and a curtain that obstructed
the view into the execution chamber. (See, e.g., id. at 12:2—10; 68:13—14).
The witnesses
testified about where they sat in the viewing room and the process before the ADOC carried
out the execution. (See, e.g., id. at 22:22—23:1).
Second, witnesses recounted that once the curtains were drawn back, they observed
condemned inmates already strapped to the gurney, with the industrial respirator mask
secured to their face. (See, e.g., id. at 26:17—21).
Additional testimony recounted readings
of the death warrant and any last words from the condemned inmates. (See, e.g., id. at
11).
Third, the witnesses described the inmates making various movements
Protocol was initiated, including:
51:3-
after the
(1) shaking and jerking (id. at 28:7—8); (2) convulsing
(id. at 23:17); (3) gasping for air (id. at 36:24—37:5); (4) eyes bulging (id. at 52:7—8); and
(5) struggling to breathe (id. at 62:7—9).
Fourth, some witnesses kept timelines of the
executions and made observations based on the times displayed by the viewing room’s
digital
clock.
(See,
e.g.,
id.
at 38:8-13).
On
cross-examination,
acknowledged that they could not concretely determine:
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(1) when nitrogen began to flow
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into the inmate’s mask; (2) when the inmate became unconscious; and (3) whether the
observed movements evidenced consciousness. (See, e.g., id. at 64:9-22).
ADOC personnel generally testified to the events leading up to and during earlier
nitrogen hypoxia executions.
The ADOC keeps records called “duty post logs” that capture
the events at the “start [of] the execution week” extending through the execution. (/d. at
136:20-37:8; 150:5—11).
The duty post logs typically contain two redacted time entries
stating that “[REDACTED]
is given.” (/d. at 152:18—25; see also, e.g., doc. 82-8 at 7
(Grayson’s Duty Post Log)). The redacted time entries correspond with two “codes.” (Doc.
83 at 153:1-10).
The first code (“Code One’’) “alert[s] the staff that . . . [t]he warden has
start[ed] his procedures for the execution.”?! (Doc. 83 at 153:6-8).
Specifically, Code One
means Warden Raybon has initiated the nitrogen system and turned the breathing air off
and the nitrogen on. (/d. at 153:6—-10). Although the nitrogen is turned on “within seconds”
after Warden Raybon gives Code One, nitrogen does not “immediately” begin to flow. (/d.
at 153:15-20).
The second code (“Code Two”) means that the “inmate appears to be
deceased.” (/d. at 153:11—13).
Code Two signals that the nitrogen hypoxia “process is
finished with the system.” (/d. at 153:25—154:1).
Warden Raybon testified that Code Two
corresponds with the Protocol’s timing requirement that the nitrogen flow for “[fifteen]
minutes or five minutes past flat line.” (Doc. 84 at 43:12—20).
"1 The ADOC’s execution team receives verbal notification through headsets that a code has been issued.
(Doc. 84 at 54:1—15).
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Because much of the evidence centers on the witnesses’ observations of previous
nitrogen hypoxia executions and expert testimony interpreting those movements, the Court
recounts the relevant testimony and evidence concerning five previous nitrogen hypoxia
executions:
Smith’s, Miller’s, Grayson’s, Frazier’s, and Hunt’s.
witness testimony and the ADOC’s
The Court relies on the
duty post logs to craft approximate timelines for
relevant events.”
a. Kenneth Smith
On January 25, 2024, the State executed Smith using the Protocol—becoming the
first state to execute an inmate by nitrogen hypoxia. (Doc. 11 at 5; doc. 82-37 at 1). The
State contends that Smith died within eighteen minutes after nitrogen began to flow. (Doc.
85 at 3; doc. 82-5 at 10).
Smith’s Duty Post Log shows that Code One was given at 7:57
p.m. and Code Two followed eighteen minutes later at 8:15 p.m.7? (Doc. 82-5 at 10).
Witnesses offered various accounts of what occurred during those eighteen minutes.
Witnesses recounted that Smith “ma[de] violent movements” after Warden Raybon
exited the execution chamber. (Doc. 83 at 14:1—6).
Smith’s feet and head left the gurney,
his arms appeared to strain against his restraints, and he appeared to “gasp[] for. . . air.
99
>? Roney testified that the clock in the execution viewing room is digital and set to military time. (Doc. 83
at 38:8-10). He explained that the clock does not account for seconds, so he counted “‘one Mississippi, two
Mississippi, to try and keep time with the seconds.” (/d. at 38:10-13; see also id. at 68:13-15). Schulz
testified that “time in a place like this and during something like this can move very differently . . . whether
something happened at 6:08 [p.m.] or 6:08 [p.m.] and 56 seconds, I wouldn’t be able to tell you.” (Doc. 83
at 70:12-17). The Court notes the potential imprecision associated with various witness timelines and
views them as an approximation of what occurred rather than an exact recounting.
3 The cited times are given in Central Time.
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(/d. at 14:2-14).
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One witness reported that “Smith convulsed for two minutes with seven
minutes of heavy breathing as he took large breaths.” (Doc. 83-38 at 2; see also doc. 83 at
23:13-—20).
Others estimated that Smith convulsed for a total of four minutes from 7:57
p.m. until 8:01 p.m. (Doc. 82-37 at 2). Smith, while strapped to the gurney, held up the “I
love you” sign (in American Sign Language) with his left hand. (Doc. 83 at 27:24—28:1,
34:18—22; doc. 82-37 at 2). Smith continued to “hold[] on to the ‘I love you’ sign” during
his execution. (Doc. 83 at 28:14—15, 29:15—18).
Director Stewart-Riley observed that Smith appeared to hold his breath during his
execution.
(/d.
at
152:6-14).
In a press
conference
following
Smith’s
execution,
Commissioner Hamm stated that “Smith held his breath for as long as he could[.]” (Doc.
82-37 at 3). Dr. Bickler, one of Boyd’s experts, similarly opined that Smith either held his
breath or breathed shallowly. (Doc. 83 at 215:17—16:2).
Dr. Antognini also noted that
Smith’s autopsy indicated that his blood contained a synthetic cannabinoid, which Dr.
Antognini says could explain some of Smith’s movements.”4 (Doc. 82-63 at 17—18, para.
31).
Warden
McKenzie recalled that once Smith took a “deep breath, [his]... pulse
oximeter drop[ped] from 97 [or] 98 percent to the lower forties in a matter of seconds.”
*4 Dr. Antognini also cites to Dr. Philip Nitschke, Smith’s medical expert, who wrote after Smith’s
execution that “[t]he convulsions that [Smith] experienced were almost certainly accentuated by his obvious
(and understandable) non-cooperation with the execution process.” (Doc. 82-63 at 17, para. 30
(parenthetical in original)). He further wrote that “[b]reath-holding would have increased the level of
carbon dioxide in [Smith’s] body, acidifying his blood and increasing discomfort and distress.” (/d.). “By
the time of the convulsions,” however, “[Smith] would not have been aware of what was happening to
him.” (/d.).
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(Doc. 84 at 73:16—-19).
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At 8:25 p.m., the ADOC pronounced Smith dead. (Doc. 82-5 at
10).
b. Alan Miller
Eight months after Smith’s execution, on September 26, 2024, the State used the
Protocol for a second time to execute Alan Miller. (Doc. 82-7 at 3). The State asserts that
Miller died within sixteen minutes after nitrogen began to flow. (Doc. 85 at 3).
Miller’s
Duty Post Log shows that Code One was given at 6:16 p.m. and Code Two followed sixteen
minutes later at 6:32 p.m. (Doc. 82-7 at 3). Witnesses provided various accounts of what
occurred during those sixteen minutes.
During the execution, Miller’s “whole body started to shake very intensely,” and
Miller’s attorney described him as “so obviously awake, conscious.””° (Doc. 83 at 52:5—
13). One witness approximated that Miller convulsed and took “gasping breaths of air” for
five minutes. (/d. at 52:19-53:1). Roney noted that “Miller gasped, shook[,] and struggled
against his restraints for two minutes after the [nitrogen] gas apparently began to flow.”
(Id. at 36:24—37:1; doc. 82-36 at 1). Roney’s timeline estimated that the nitrogen gas began
to flow at approximately 6:18 p.m. and that one minute later, at 6:19 p.m., Miller “appeared
to lose consciousness but his movements continued sporadically.” (Doc. 82-36 at 3; doc.
83 at 45:20-25).
Roney acknowledged on cross-examination, however, that he did not
know when nitrogen began to flow or when the inmate lost consciousness. (Doc. 83 at
°5 Klebaner believed Miller’s movements were conscious based on her familiarity with Miller’s mannerisms
and facial expressions. (Doc. 83 at 59:48).
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42:22—43:2).
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Commissioner Hamm said he was not concerned about Miller’s movements
because movements were “to be expected under nitrogen hypoxia.” (Doc. 84 at 14:24;
16:25—17:4).
Miller was pronounced dead at 6:38 p.m. (Doc. 82-7 at 3).
c. Carey Grayson
On November 21, 2024, the State executed Grayson using the Protocol. (Doc. 82-8
at 7). The State asserts that, like Miller, Grayson died within sixteen minutes after nitrogen
began to flow. (Doc. 85 at 3). Grayson’s Duty Post Log notes that Code One was given at
6:11 p.m. and Code Two followed sixteen minutes later at 6:27 p.m. (Doc. 82-8 at 7).
Several witnesses, including Dr. McAlary, provided accounts of what occurred during the
sixteen minutes between Code One and Code Two. (See doc. 83 at 103:10—22, 105:13—14).
One media witness described Grayson as “combative” before Code One was issued.
(Doc. 82-35 at 2).
Commissioner Hamm
noted that Grayson used an expletive before
Warden Raybon left the room and extended his middle finger on both hands. (Doc. 84 at
18:1-11).
After Code One, a media witness described Grayson’s conduct from 6:12 p.m.
to 6:13 p.m. as follows:
“Grayson’s hands were tightly clenched.
gasps, shaking his head vigorously.
He took several deep
He pulled his arms against the restraints .... He took
several deep gasps, raising his head off the gurney.” (Doc. 82-35 at 3).
Dr. McAlary and Schulz witnessed Grayson’s execution. (See doc. 83 at 106:7—10).
Dr. McAlary
sat approximately twelve to fourteen feet away from the gurney. (/d. at
108:21—22).
Schulz took notes during Grayson’s execution on Dr. McAlary’s behalf to
prevent Dr. McAlary from “be[ing] distracted by looking at the clock [and] taking notes.”
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Schulz’s notes provide the following timeline of Grayson’s execution:
(1) at 6:12 p.m.,“[Grayson] appeared to breath[e] heavily as it seemed the air flow had
changed . . . [f]or about two minutes, he made hand gestures, clenched his hands, and
struggled, while clearly still breathing”; (2) at 6:14 p.m., “[Grayson’s] legs/feet lifted fairly
high up off the table”; (3) from 6:15 p.m. to 6:22 p.m., Grayson continued to breathe, which
Schulz described at various points as “light” or “shallow.” (Doc. 82-41 at 1-2).7° At 6:33
p.m., the ADOC pronounced Grayson dead. (Doc. 82-8 at 7).
Dr. McAlary testified that Grayson’s legs “both raised up, almost by levitation” in
a “measured and consistent” manner. (Doc. 83 at 115:8-12).
He estimated that Grayson’s
legs paused in the air for approximately ten seconds and descended “[a]t the same rate of
speed.” (Ud.
at 115:11-16).
According to Dr. McAlary, this “coordinated activity” was a
conscious movement.”’ (Doc. 83 at 115:4-16:3).
Based on his observations and medical
expertise, Dr. McAlary concluded that Grayson was conscious for “at least four minutes.”
(Id. at 117:10-23).
Dr. Antognini disagrees with Dr. McAlary’s assessment, opining that synchronous
leg movement like Grayson’s could be explained by low levels of oxygen, because “when
the oxygen levels get so low, the neurons in [the] central nervous system begin to fire
26 Dr. McAlary opined that Schulz’s notes had “a little bit of a problem with a lack of quantification.” (Doc.
83 at 107:15—108:6). For example, Dr. McAlary would have used “degrees of elevation” to describe
Grayson’s leg lift. Ud. at 107:24—108:5).
°7 On cross-examination, Dr. McAlary acknowledged it was “[p]ossible but improbable” that Grayson was
unconscious during his leg lift. (See doc. 83 at 127:14-17).
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erratically, and they do not coordinate with each other.” (Doc. 84 at 134:18—135:1).
Thus,
according to Dr. Antognini, unexpected movements like a synchronous leg lift can occur
when neurons “discharge.” (/d. at 134:23—135:13).
d. Demetrius Frazier
On February 6, 2025, Frazier became the fourth inmate executed under the Protocol.
(Doc. 82-11 at 2). The State, relying on Frazier’s Duty Post Log, claims that he died within
eighteen minutes after nitrogen began flowing. (Doc. 85 at 3).
Frazier’s Duty Post Log
shows that Code One was given at 6:10 p.m. and Code Two followed nineteen minutes
later at 6:29 p.m.”8 (Doc. 82-11 at 2).
The Court heard testimony from witnesses about
what occurred during those nineteen minutes.
Schulz testified that at 6:10 p.m., Frazier “appeared to be trying to settle [and] calm
himself.” (Doc. 83 at 78:18—25).
One media witness noted at 6:11 p.m. that Frazier’s
“breathing appeared to get heavier.
He seemed to quiver and twitch.” (/d. at 62:3-6).
At
6:12 p.m., Frazier “appeared distressed” while taking deep gasping breaths. (/d. at 79:9—
11).
One minute later, at 6:13 p.m., witnesses observed “Frazier’s legs . . . raise a few
inches off the gurney.” (/d. at 62:10—14).
Schulz, who
attended both Grayson’s and
Frazier’s executions, noted that their leg lifts were similar in nature, but Frazier’s legs were
°8 The State asserts that Frazier died within eighteen minutes after nitrogen began flowing. (Doc. 85 at 3).
The Court relies on the figures included in Frazier’s Duty Post Log, which establishes a period of nineteen
minutes. (Doc. 82-11 at 2).
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not lifted as high or for as long as Grayson’s.”? (See doc. 83 at 79:16-22).
Warden
McKenzie recalled Frazier “roll[ing] his hands around . . . in a circular motion.” (Doc. 84
at 61:9-11).
Warden McKenzie also testified that Frazier’s pulse oximeter “bottomed out
fairly quickly . . . within a couple of minutes.” (/d. at 61:12—21).
The ADOC pronounced
Frazier deceased at 6:36 p.m. (Doc. 82-11 at 3).
e. Gregory Hunt
On June 10, 2025, the State executed Hunt using the Protocol, making him the fifth
person executed in Alabama by nitrogen hypoxia. (Doc. 82-12 at 5). The State argues that
Hunt died within twenty-three minutes after nitrogen began to flow. (Doc. 85 at 3).
A
review of Hunt’s Duty Post Log reveals that Code One was issued at 5:56 p.m. (Doc. 8212 at 5). The execution team received Code Two twenty-three minutes later at 6:19 p.m.
(d.).
One media witness noted that at 5:57 p.m., one minute after Code One was issued,
“Hunt briefly shook, gasped[,] and raised his head off the gurney.” (Doc. 74-3 at 2).
At
5:59 p.m., Hunt raised his feet from the gurney. (/d.). After Hunt lifted his legs, “his breath
became more shallow.” (Doc. 79-4 at 3).
Warden McKenzie recalled participating in
Hunt’s execution and noted that Hunt’s oxygen levels “began to drop rather fast.
It was
more seconds to a minute with... Hunt.” (Doc. 84 at 61:22—62:1). The ADOC pronounced
Hunt deceased at 6:26 p.m. (Doc. 82-12 at 5).
° During the preliminary injunction hearing, the parties referred to Grayson’s and Frazier’s synchronous
leg lifts as “[P]ilates type move[s].” (See, e.g., doc. 83 at 91:16—-19).
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4. The Meaning of Inmates’ Movements and Breathing
While the parties bitterly contest what happened
hypoxia executions, they do agree on a few matters.
during the previous nitrogen
For example, both sides agree that
“agonal breathing’”—a phenomenon associated with the dying process and characterized
by
gasping,
muscle
jerks,
and
grunting—is
expected,
occurs
when
the
person
is
unconscious, and is not itself evidence of pain. (Doc. 83 at 184:8—10, 227:16—20; doc. 84
at 128:14—19; see also doc. 83 at 227:24—28:2 (Dr. Bickler testifying that agonal breathing
is expected and “more likely than not” occurs when the person is unconscious)).
Similarly,
both sides agree that an unconscious person may exhibit involuntary movements as part of
the dying process, and that such involuntary movements do not necessarily evince pain. A
core dispute is what inferences the Court should draw based on what witnesses observed
during the ADOC’s previous nitrogen hypoxia executions.
The State urges that it is not appropriate to infer from the movements and gasps that
inmates
were
in pain
or necessarily
even
conscious.
(Doc.
97 at 3-5).
The
State
characterizes Boyd’s lay witnesses as offering accounts “that [are] not fully informed by
an understanding of the dying process . . . [and] the hallmarks of death by hypoxia,”
including agonal breathing. (/d. at 3).
The State highlights Dr. Antognini’s opinion that
inmates’ convulsive movements and leg lifts were involuntary, unconscious responses to
the erratic firing of neurons resulting from hypoxia. (See doc. 84 at 134:20—35:13; 138:14).
The State also points out that lay witnesses were unable to see and document the
statistical readings on the inmates’ EKGs or pulse oximeters. (See, e.g., doc. 83 at 64:2—8).
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By
contrast,
Boyd
contends
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testimony
confirms
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that “each
inmate
consciously suffocated for an extended duration prior to losing consciousness.” (Doc. 87
at 2). He submits that “[t]he exhibition of involuntary movements, muscle twitching, and
myoclonic activity do not demonstrate that consciousness has been lost.”’?° (Doc. 99 at 8).
At bottom, Boyd argues that “suffering is inherent in the Protocoll;] it is a feature, not a
bug.” (/d. at 10).
IV. LEGAL STANDARD
To obtain a preliminary injunction, Boyd
must demonstrate:
(1) a substantial
likelihood of success on the merits; (2) a likelihood of suffering irreparable injury without
the injunction; (3) the threatened injury to him outweighs the harm the injunction would
cause the other litigants; and (4) the injunction would not be adverse to the public interest.
See Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (per curiam).
Where, as here,
“the [State] is the party opposing the preliminary injunction, its interest and harm merge
with the public interest,” and thus the third and fourth elements are the same. Swain v.
Junior, 958 F.3d 1081,
1091 (11th Cir. 2020) (citing Nken v. Holder, 556 U.S. 418, 435
(2009)).
3° Dr, Zapata defined “myoclonus” or myoclonic activity as “twitching” or “brief jerking movements” that
can occur from “the natural toxic byproducts that our bodies produce [that] build up and affect the central
nervous
system.”
(Doc.
83
at 251:4-15);
see also Myoclonus,
NAT’L
LIBR.
OF MED.,
https://www.ncbi.nlm.nih.gov/medgen/10234 (defining myoclonus as “[vlery brief, involuntary random
muscular contractions occurring at rest, in response to sensory stimuli, or accompanying voluntary
movements.”) (last visited Oct. 9, 2025).
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“A preliminary injunction is an extraordinary remedy never awarded as of right.”
Winter v. Nat. Res. Def: Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553
U.S. 674, 689-90 (2008)).
Such relief is “‘not to be granted unless the movant clearly
established the “burden of persuasion’”’
999
for each prong of the analysis.” Am.
Health Ins.
Plans v. Hudgens, 742 F.3d 1319, 1329 (11th Cir. 2014) (quoting Siegel, 234 F.3d at 1176).
As the movant, Boyd must satisfy his burden on all four elements “by a clear showing.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis omitted) (citation
omitted).
Failure to meet any of the elements “‘is fatal” to the request for injunctive relief.
Grayson v. Comm’r, Ala. Dept of Corr,
121 F.4th 894, 896 (11th Cir. 2024) (citation
omitted), cert. denied sub nom. Grayson v. Hamm, 2024 WL 4846625 (U.S. Nov. 21, 2024).
Vv. DISCUSSION
The Court concludes that Boyd has not established entitlement to a preliminary
injunction because he has not shown a substantial likelihood of success on the merits—
“the most important preliminary-injunction criterion.” See Speech First, Inc. v. Cartwright,
32 F.4th 1110, 1127—28 (11th Cir. 2022); see also Schiavo ex rel. Schindler v. Schiavo, 403
F.3d
1223,
injunctive
1226
(11th Cir. 2005)
relief may
not be
(per curiam)
granted
unless
(“Controlling precedent
the plaintiff establishes
the
is clear that
substantial
likelihood of success criterion.”). Additionally, the balance of the equities does not favor
injunctive relief because Boyd inexcusably delayed filing this action.
For these reasons,
Boyd has not shown he is entitled to the extraordinary remedy of a preliminary injunction.
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A.
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Substantial Likelihood of Success on the Merits
Boyd has not shown a substantial likelihood of success on his Eighth Amendment
method of execution claim because he has not identified an alternative method of execution
that would both significantly reduce a substantial risk of severe pain and that is feasible
and readily implemented.
Consequently, his motion for preliminary injunction is due to be
denied for this reason alone.
It is well-settled that the Constitution permits
the
State to administer
capital
punishment. See, e.g., Bucklew v. Precythe, 587 U.S. 119, 129 (2019); Glossip, 576 U.S. at
869; Baze, 553 U.S. at 47.
plenary.
But the State’s power to administer capital punishment is not
Rather, its authority is limited by the Eighth Amendment’s prohibition on “cruel
and unusual” punishment. U.S. CONST. amend. VIII.
Boyd does not challenge the State’s
right to effectuate his execution; instead, he contends that the State’s chosen method of
execution violates the Eighth Amendment. (See doc. 1 at 8-11). The State seeks to execute
Boyd using the ADOC’s nitrogen hypoxia protocol—the same protocol used to execute
Smith, Miller, Grayson,
Frazier, and Hunt. See supra Part II].E.
Boyd
argues that the
Protocol poses a substantial risk of severe pain and terror by depriving an inmate of oxygen
while he is still conscious, which Boyd says will last for at least two minutes and as long
as seven minutes. (Doc. 11 at 5).
The Eighth Amendment does not guarantee Boyd a painless death. See Bucklew,
587 U.S. at 132.
Instead, the relevant Eighth Amendment inquiry is whether the State’s
chosen method of execution “‘superadds’ pain well beyond what’s needed to effectuate a
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death sentence.” Jd. at 136-37.
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Boyd’s method of execution claim “faces an exceedingly
high bar.” See Barr v. Lee, 591 U.S. 979, 980 (2020) (per curiam); see also Price, 920 F.3d
at 1326 (explaining that “[d]eath-row inmates face a heavy burden” when bringing an
Eighth Amendment
method
of execution challenge).
Boyd
cannot prevail unless he
establishes that the Protocol “presents a risk that is sure or very likely to cause serious
illness and needless suffering” and “gives rise to sufficiently imminent dangers.” Grayson,
121 F4th at 897 (emphases in original) (quoting Price, 920 F.3d at 1325).
The Protocol
must pose a ““‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’
that prevents prison officials from pleading that they were ‘subjectively blameless for
purposes of the Eighth Amendment.’” Glossip, 576 U.S. at 877 (quoting Baze, 553 U.S. at
50).
To date, the United States Supreme Court “has yet to hold that a State’s method of
execution qualifies as cruel and unusual.” Bucklew, 587 U.S. at 133.
To determine whether the State’s “method of execution cruelly superadds pain to
the death sentence” and thus violates the Eighth Amendment,
Boyd must also show a
“feasible and readily implemented alternative method of execution that would significantly
reduce a substantial risk of severe pain.” See id. at 134; see also Boyd, 856 F.3d at 858
(explaining that a plaintiff asserting an Eighth Amendment method of execution challenge
“must plausibly plead, and ultimately prove, that there is an alternative method of execution
that is feasible, readily implemented, and in fact significantly reduces the substantial risk
of pain posed by the state’s planned method of execution’).
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of execution]
without a
is pursuing a facial challenge to the Protocol.
A facial
legitimate penological reason.” See Bucklew, 587 U.S. at 134.
Recall also that Boyd
challenge
is a “claim
that the
law
or policy
at issue
is unconstitutional
in all its
applications.” See id. at 138. To be sure, the same substantive rule of law applies to Boyd’s
facial challenge as it would to an as-applied challenge. See id. at 138-39.
Rather than
requiring differing substantive rules, “classifying a lawsuit as facial or as-applied affects
the extent to which the invalidity of the challenged law must be demonstrated and the
corresponding ‘breadth of the remedy.’” /d. at 138.
In any event, the Supreme Court has
“made facial challenges hard to win,” Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024),
and has directed courts to “consider the circumstances” in which the challenged law or
policy is “likely to be constitutional,” rather than “hypothetical scenarios” in which the law
or policy “might raise constitutional concerns,” United States v. Rahimi, 602 U.S. 680, 701
(2024).?!
It is undisputed that the Protocol does not pose a risk of physical pain akin to being
cut with a knife. (Doc. 83 at 200:13—23).
Instead, Boyd claims that the Protocol, by
depriving
are
inmates
of oxygen
while
they
conscious,
causes
“emotional
terror,”
physiological distress, and physical discomfort because inmates are unable to get sufficient
3! Neither side devotes much (if any) time to the facial aspect of Boyd’s Eighth Amendment claim. But the
parties “cannot waive [or forfeit] the application of the correct law or stipulate to an incorrect legal test.”
United States v. Holland, 117 F.4th 1352, 1360 (11th Cir. 2024) (alteration in original) (quoting United
States v. Dawson, 64 F.4th 1227, 1239 (11th Cir. 2023)).
applicable to a facial challenge.
35
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For this reason, the Court addresses the standard
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oxygen into their lungs when their bodies are desperate to do so, and because they must
participate in their own deaths by breathing in nitrogen.
Even without a showing of
physical pain, Boyd may prevail if the Protocol “induces psychological terror or pain that
is severe enough to support an Eighth Amendment claim.” Grayson, 121 F.4th at 900 n.3.
But “[p]sychological pain or mental suffering is a likely result of being sentenced to death
and anticipating the execution.” Jn re Ohio Execution Protocol Litig., 881 F.3d 447, 450
(6th Cir. 2018) (citation omitted);*? (see also doc. 83 at 200:24—01:22 (Dr. Bickler agreeing
that an inmate would be expected to experience a “baseline” level of anxiety and emotional
pain leading up to his execution)).
The Protocol does not implicate the Eighth Amendment
unless it very likely causes “needless suffering,’ Grayson,
121 F.4th at 897 (emphasis
added) (quoting Price, 920 F.3d at 1325), or “cruelly superadds pain to the death sentence,”
Bucklew,
587
constitutionally
U.S.
at
134
permissible
(emphasis
and
added).
impermissible
Because
degrees
“[d]istinguishing
of pain...is
between
a necessarily
comparative exercise,” id. at 136 (emphasis in original), the relevant question for the Court
concerning the risk of pain is whether Boyd’s proffered alternative methods of execution—
Utah’s firing squad protocol or MAID—would
significantly reduce a substantial risk of
severe pain posed by the ADOC’s nitrogen hypoxia protocol. And even if Boyd can make
this showing, he must also show that one of his proposed alternatives is feasible and readily
>? Here, and elsewhere in this Opinion, the Court cites nonbinding authority. While the Court acknowledges
these cases are nonprecedential, the Court finds them persuasive.
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implemented, and that the State has failed to adopt it without a legitimate penological
reason. See id. at 134.
Boyd cannot establish a substantial likelihood of success on the merits of his Eighth
Amendment claim because he has not marshalled sufficient evidence that either Utah’s
firing squad protocol or MAID would significantly reduce a substantial risk of severe pain
caused by the ADOC’s nitrogen hypoxia protocol.
Thus, he cannot show a substantial
likelihood of success for this reason alone. Additionally, with respect to MAID, he fails to
demonstrate that this proposed alternative is feasible, readily implemented, or that the State
refuses to adopt it without a legitimate penological reason. The Court addresses each issue
in turn below.
1. Risk of Pain Posed by the Protocol
Before turning to Boyd’s proposed alternatives, the Court first addresses the asserted
risk of pain posed by the Protocol.
As discussed above, Boyd claims that the Protocol,
which necessarily involves the conscious deprivation of oxygen, causes “emotional terror”
and physiological distress.
elaborates as follows:
Relying on Dr. Bickler’s and Dr. McAlary’s opinions, Boyd
When a person tries to breathe but is not getting enough oxygen—
an ingredient necessary to human life—the body has a “very strong, inborn response”
involving
testimony)).
many
parts
of the
body.
(Doc.
83
at
169:14-19
(Dr.
Bickler’s
hearing
The person experiences “air hunger’”’** and feels extremely short of breath,
3 There is some disagreement between Dr. Bickler and Dr. Antognini about the cause of “air hunger.”
According to Dr. Antognini, air hunger is caused by a person’s inability to expel carbon dioxide (“CO2”),
not from the inability to get sufficient oxygen to the lungs. (See doc. 84 at 124:25—25:16). Dr. Antognini
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akin to an asthma attack. (Doc. 83 at 171:20—72:9).
Oxygen
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deprivation also causes
increased heart rate and pounding of blood in the head, (id. at 170:15—17), and the person
experiences physical distress in the form of his lungs aching, (id. at 176:5—6).
According
to Dr. Bickler, feelings of suffocation can occur with oxygen deprivation. (/d. at 204:1516).
Dr. Bickler further opines that the emotional
“interlocked.” (Ud. at 175:18-19).
and physical aspects of pain are
Dr. Bickler and Dr. McAlary opine that conscious
deprivation of oxygen causes “emotional terror,” panic, and physiological distress because
the person is unable to get sufficient oxygen into his lungs when his body is desperate to
do so. (E.g., id. at 170:17—19).
And according to Dr. McAlary, the conscious deprivation
of oxygen under the Protocol is psychologically painful beyond what is inherent in an
execution because the inmate must “participate in [his] execution” by inhaling nitrogen.
(Doc.
11-4 at 22, para.
12).
Dr. Antognini
acknowledges
that a person consciously
experiencing the “primal urge to breathe” while knowing that breathing will cause death
amounts to severe emotional suffering. (Doc. 84 at 171:11—19).
Additionally, Dr. Bickler
opines that if a person knows to expect discomfort and can reduce his anxiety, he can more
thus opines that the deprivation of oxygen by inert gas—like what occurs under the Protocol—reduces the
sensation of breathlessness or air hunger because the person can still exhale and take normal breaths. (/d.
at 144:15-21).
Dr. Bickler disagrees. He contends that both CO2 buildup and the lack of oxygen contribute to air hunger
and the breathless feeling. (Doc. 83 at 172:18—25, 188:3—9). He opines that even if the person can eliminate
CO2, the person can still experience air hunger from the lack of oxygen. (Ud. at 172:23-25). Dr. Bickler
did acknowledge, however, that people are affected by each phenomenon differently. (/d. at 188:8-13
(“[B]uildup of carbon dioxide and deprivation of oxygen both drive air hunger. But they are separate and
vary in their strength in different individuals.”)).
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easily handle the discomfort of being deprived of oxygen. (Doc. 83 at 209:20—10:7).
Dr.
Bickler also acknowledges that the panic and “terror response” from conscious oxygen
deprivation is “activated in an execution environment” versus a situation in which a person
willingly wants to end his or her life by asphyxiation. (/d. at 186:6—20).
A key
question
is how
long
a person
will
experience
psychological distress when he is executed under the Protocol.
emotional
terror
and
Resolving this question
depends on how long it will take for the inmate to become unconscious, as no party
contends that an unconscious person can feel pain or distress.
Boyd argues that the
evidence from five of the ADOC’s prior nitrogen hypoxia executions—Smith’s, Miller’s,
Grayson’s, Frazier’s, and Hunt’s—establishes that “each inmate consciously suffocated for
an extended duration prior to losing consciousness.” (Doc. 87 at 2).
In particular, Boyd
highlights the inmates physically struggling against their restraints and exhibiting bodily
movements such as leg lifts. According to Boyd, the leg lifts and other movements were
not involuntary movements but instead evidence that the inmates were still conscious and
experiencing emotional terror and physiological distress.
For example,
Dr. McAlary
opines that Grayson was conscious for at least four minutes after the nitrogen began to
flow.
(Doc.
83
at 103:16-18).
Dr. McAlary
reaches
this conclusion
based
on his
observation of Grayson raising his legs, which Dr. McAlary concludes was a conscious
movement
because it appeared coordinated and purposeful.
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Dr. Antognini disagrees,
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opining that Grayson’s leg lift is not evidence that he was conscious at that time.*4 (Doc.
84 at 130:2—10, 134:18—35:13).
As discussed above, the parties’ experts testified as to the time to unconsciousness
under the Protocol, although their opinions differ. According to Dr. Antognini, the Protocol
will result in unconsciousness in thirty to forty seconds.
Dr. Antognini largely bases his
opinion on several scientific studies and articles, including the Ernsting and Ogden articles
discussed above.
According to Dr. Bickler, a person breathing normally will become
unconscious within two minutes; if it takes longer than two minutes, it is because the person
is either holding his breath or breathing shallowly. (Doc. 83 at 213:15—14:15 (Dr. Bickler’s
hearing testimony)).*>
Dr. Bickler bases his opinion on his thirty-five years of experience
studying the effects of hypoxia on humans, which involved eight to ten thousand subjects
34 Besides Grayson, Boyd does not clearly argue or identify record evidence indicating how long it took for
each inmate previously executed under the Protocol to become unconscious. Although Boyd argues that
inmates took “between two to seven minutes” to become unconscious, (doc. 11 at 5), he does not identify
sufficient evidence to support the seven-minute figure or to which inmate(s) it applies. To the extent he
relies on lay witnesses’ observations of the executions, those witnesses acknowledged that they do not know
when an inmate becomes unconscious. And although Dr. Bickler opines that conscious movements and
evident distress occurred “many minutes” into the executions, (doc. 82-14 at 1; doc. 83 at 213:19-21),
“many minutes” is insufficiently precise to constitute reliable evidence of how long an inmate remained
conscious.
Dr. Bickler also stated that in prior executions, death was not instantaneous but instead “lasted
for several minutes.” (Doc. 82-13 at 8). But the relevant question is not “how long it will take for [an
inmate] to die, but how long he will be capable of feeling pain.” Bucklew, 587 U.S. at 147. Consequently,
the Court finds these statements unhelpful in assessing Boyd’s likelihood of success on his Eighth
Amendment claim. In any event, even if Boyd had clearly shown that an inmate was conscious for seven
minutes after the nitrogen began to flow, it would not change the Court’s conclusion that Boyd has not
established a substantial likelihood of success on the merits of his Eighth Amendment facial challenge to
the Protocol.
35 Dr. Bickler also opined that longer time to unconsciousness could be caused by a mask leak; he clarified,
however, he did not have an opinion on that issue with respect to the Protocol. (Doc. 83 at 214:13-18).
Boyd does not claim that the mask used in the Protocol is likely to leak, nor does he argue that potential
mask leak is relevant to his claim (at least for purposes of the motion for preliminary injunction).
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Dr. Bickler further opines that Dr. Antognini’s
cited articles are not a reliable basis for his thirty-to-forty-second benchmark. (See doc. 8214 at 2-3). For example, Dr. Bickler contends that the Ernsting article is inapposite because
it involved a very small sample size (three subjects) and the subjects were told to empty
their lungs of air and then breathe as deeply as possible, and there is no evidence that these
steps occur in an execution under the Protocol. (Doc. 83 at 181:6—16).
Dr. Bickler and Dr.
Antognini agree, though, that it will take more time for the inmate to lose consciousness if
he breathes shallowly or holds his breath, and less time if the inmate breathes deeply or
even normally. (/d. at 182:1—7; 213:15—14:15 (Dr. Bickler’s hearing testimony)); doc. 84
at 171:23—25 (Dr. Antognini opining that “[i]f the inmate were to breathe rapidly and take
deep breaths, then that would quicken the onset of unconsciousness”).
Additionally, as
indicated above, Dr. McAlary opines that Grayson was conscious for at least four minutes
based on the type and quality of Grayson’s movements, which Dr. McAlary says indicates
conscious movement as opposed to unconscious movement.
Ultimately, the Court need not resolve the experts’ dispute regarding the time to
unconsciousness (to the extent there is a dispute, see infra at 42), and the Court will assume
without deciding that Dr. Bickler’s opinion is correct—that
an inmate
subject to an
execution under the Protocol who breathes more normally will become unconscious within
approximately two minutes after nitrogen begins to flow.
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Additionally, the Court will
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assume without deciding that Dr. McAlary’s opinion that Grayson was conscious for four
minutes after the nitrogen gas was introduced is correct.*°
Two minutes of consciously breathing in nitrogen is less constitutionally suspect
than a longer period.
But because Boyd is pursuing a facial challenge, whether Grayson
was conscious (and thus consciously breathing in nitrogen) for four minutes, or whether
another inmate may hypothetically be conscious
for longer than two minutes,
is not
dispositive. Cf Rahimi, 602 U.S. at 701 (observing that courts evaluating a facial challenge
should “consider the circumstances” in which the challenged law or policy “was most
likely to be constitutional”).
For this reason, the Court finds Dr. Bickler’s approximate
two-minute benchmark most relevant to evaluating Boyd’s likelihood of success on the
merits of his Eighth Amendment facial challenge.
Although
the approximate
two-minute
benchmark
is most relevant, the Court
acknowledges that some inmates may remain conscious—and thus be able to experience
emotional pain and distress—for different amounts of time, and potentially longer than two
minutes.
Indeed, Dr. Antognini, Dr. Bickler, and Dr. McAlary may all be correct in their
respective opinions on time to unconsciousness:
it may take thirty to forty seconds for
some inmates, and it may take approximately two to four minutes for others. In any event,
the record evidence here supports a finding that the differing times to unconsciousness are
largely outside of the ADOC’s
control and instead depend on the inmate’s behavior—
© In any event, the time to unconsciousness is longer than the mere “seconds” the State previously
anticipated. (See doc. 66 at 12 in Smith v. Hamm et al., Case No. 2:23-cv-656-RAH (M.D. Ala. Dec. 29,
2023)).
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Again, the experts agree that an inmate who breathes
more normally or deeply will be rendered unconscious sooner, and the Court credits Dr.
Bickler’s opinion that if a person knows to expect discomfort and can reduce his anxiety,
he can more easily handle the discomfort of being deprived of oxygen.
Indeed, according
to witness testimony, Frazier “appeared to be trying to settle [and] calm himself” in the
execution chamber, (doc. 83 at 78:18—25), and his pulse oximeter “bottomed out fairly
quickly .. . within a couple of minutes,” (doc. 84 at 61:12—21).
The experts also agree that
an inmate who breathes shallowly or holds his breath will remain conscious longer.
For
example, the record evidence tends to show that Smith may have held his breath—a finding
with which Dr. Bickler agrees—but once Smith took a deep breath, his “pulse oximeter
drop[ped] from 97 [or] 98 percent to the lower forties in a matter of seconds.” (/d. at 73:16—
19).
Nevertheless, even an inmate who wants to breathe more normally may struggle to
do so in the moment because he knows it will lead to death.
For this reason, the Court is
not persuaded that a longer time to unconsciousness is always attributable to the inmate
being combative or intentionally resisting.
Rather, it may be an involuntary response to
the knowledge that he is about to die. But Boyd fails to identify sufficient evidence that
this aspect of an execution under the Protocol is attributable to some defect in the Protocol
and not, instead, merely an “accident” or “an inescapable consequence of death”—which
does not violate the Eighth Amendment. See Baze, 553 U.S. at 50. And even if an inmate
is unable to breathe more normally, the resulting additional time to unconsciousness, on
this record, does not approach that which would be required to show that the Protocol is
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facially unconstitutional.7’ Again, the Eighth Amendment “does not demand the avoidance
of all risk of pain in carrying out executions.” Bucklew, 587 U.S. at 134 (emphasis added)
(quoting Baze, 553 U.S. at 47).
Dr. Bickler also contends that an inmate executed under the Protocol experiences
“much greater” discomfort than the subjects in his lab because the inmate experiences a far
more rapid decrease in oxygen saturation. But in a judicial execution, unlike Dr. Bickler’s
hypoxia lab, the goal is to cause death, which requires reducing oxygen levels to 0%.
For
this reason, the Court disagrees with Dr. Bickler’s suggestion that the Protocol superadds
pain by rapidly exposing the condemned inmate to high levels of nitrogen gas. See id. at
136-37 (explaining that a method of execution implicates the Eighth Amendment
if it
““superadds’ pain well beyond what’ needed to effectuate a death sentence” (emphasis
added)).
The record evidence establishes that the higher the level of nitrogen, and the
deeper the inmate breathes, the sooner the inmate will become unconscious and thus be
unable to feel pain or distress.
Thus, while the degree of discomfort may be greater
compared to the discomfort experienced by Dr. Bickler’s lab subjects, the discomfort is
limited in duration to approximately two minutes if the inmate breathes more normally, and
certainly less than the ten to fifteen minutes during which Dr. Bickler’s lab subjects
experienced hypoxic conditions. And again, the “terror response” from being deprived of
oxygen is “activated in an execution environment” because the inmate does not want to
37 Additionally, Dr. Bickler opined that consciousness “starts to fluctuate” when the oxygen saturation level
drops below 50%. (Doc. 83 at 178:16—-17). Thus, even if it takes slightly longer for some inmates to become
unconscious, they may not be fully conscious for that entire additional period.
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die, (doc. 83 at 186:6—20), which is true for virtually all executions and does not implicate
the Eighth Amendment, see Baze, 553 U.S. at 50.
Having established this baseline, the Court now turns to the “comparative exercise”
of whether either of Boyd’s proposed alternative methods of execution would significantly
reduce the substantial risk of severe pain; and whether either alternative is feasible, readily
available, and one which the State refuses to adopt without a penological justification.
2. Firing Squad
The
Court addresses
whether Utah’s firing squad protocol would
reduce a substantial risk of severe pain caused by the Protocol.
significantly
Utah authorizes the firing
squad as a method of execution for inmates who elected the firing squad before May 3,
2004, and if lethal injection is declared unconstitutional or the state is unable to procure
the lethal injection drugs. See UTAH CODE § 77-18-113.
Utah has authorized the firing
squad as a method of execution in some form since 1852. See id.; Wilkerson v. Utah, 99
U.S. 130, 132 (1878).
Utah’s most recent firing squad execution occurred in 2010. See
Boyd, 856 F.3d at 881 n.4 (Wilson, J., concurring) (taking judicial notice of the fact that
Utah carried out a firing squad execution in 2010); Kirk Johnson,
Executed
by
Firing
Squad
in
Utah,
N.Y.
TIMES
Double Murderer
(June
18,
2010),
www.nytimes.com/2010/06/19/us/19death.html (last visited Oct. 9, 2025).
Utah’s redacted firing squad execution protocol was admitted as an exhibit during
the preliminary injunction hearing. (See generally doc. 82-55; id. at 47, 54-56, 62-63, 76—
77, 89-92).
Under that protocol, before any shots are fired, the inmate is moved into the
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execution chamber and then restrained to a chair. (/d. at 76-77). A target is placed over the
inmate’s heart, and a hood is placed over the inmate’s head.** (Doc. 82-55 at 90).
Dr.
Williams,
Boyd’s
expert
in ballistics,
emergency
medicine,
and
firearms,
explained what occurs in the human body during a firing squad execution under Utah’s
protocol. (Doc. 83 at 262:22—64:3 (Dr. Williams’ hearing testimony); see also doc. 82-19
at 4-9
(Dr.
Williams’
report)).
Under
Utah’s
firing
squad
protocol,
five riflemen
simultaneously discharge their weapons, aiming at the inmate’s heart. (Doc. 82-55 at 54—
55, 90-91).
One of the rifles is loaded with blanks or rubber bullets,*’ so four (rather than
five) live bullets are intended to reach the target. (Doc. 82-55 at 89-90).*°
When the four
bullets*! strike the heart, they tear the heart muscle to pieces and blow apart the tissue.
(Doc. 83 at 279:21—80:25).
This impact causes a rapid and total disruption of blood flow
to the brain, and when that blood supply is stopped, loss of consciousness occurs in three
to five (possibly six) seconds. (See doc. 82-19 at 5—7; doc. 83 at 263:16—64:3).
Dr.
38 Utah’s firing squad protocol does not require that the “aiming point or target” be a particular size. (See
doc. 82-55 at 90 (“The Warden shall direct that an aiming point or target be placed over the condemned
inmate’s heart.”)). By contrast, the United States Army’s firing squad protocol (“U.S. Army protocol’)
specifically calls for a “white or black” “[four]-inch round target” to be affixed to the condemned. (Doc.
82-56 at 5, para. i). On this record, the size of the target is not dispositive.
°° Dr. Williams opined that a rubber bullet is unnecessary and meant only to create “plausible deniability”
for the riflemen. (Doc. 83 at 270:24—-71:5). He further opined that the practice of having a rubber bullet
was futile because it would be apparent to each rifleman, after firing, whether his rifle contained the rubber
bullet. Ud. at 271:1—5).
“© Four rifles are loaded with two live rounds each. (Doc. 82-55 at 89). The riflemen fire one bullet each in
the first “volley” of shots. (See id. at 91-92). The rifles are each loaded with two bullets in case the
condemned inmate does not die after the first volley. (See id.).
“| Utah’s protocol calls for rounds of ammunition fit for “.30 caliber rifles.” (Doc. 82-55 at 62; see also doc.
83 at 279:24—80:9 (Dr. Williams noting that Utah’s protocol uses “.30 caliber bullets’’)).
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opines that Utah’s firing squad protocol would provide a quick death with
minimal pain and suffering. (Doc. 82-19 at 7, 12).
But his report supports the inference
that the inmate would experience physical pain during the three to five seconds before he
became unconscious. (See id. at 7 (explaining that the inmate would become unconscious
in three to five seconds and would not feel pain and suffering “thereafter’’)).
As discussed above, Boyd claims that the Protocol creates a substantial risk of
severe emotional
suffering and physiological distress because
it deprives
inmates
of
oxygen while they are conscious—for two minutes if the inmate breathes normally, but
longer if they breathe shallowly or hold their breath.
During this time, the inmate will,
according to Boyd, experience breathlessness akin to drowning or suffocation as well as
“emotional terror” from being unable to breathe.
Additionally, he says the inmate will
experience
driving
his body’s
“strong,
inborn
response”
him
to breathe
and
obtain
necessary oxygen, which includes physical discomfort from his lungs aching and blood
pounding.
During this time, the inmate knows that breathing—something his body is
desperate to do—will cause his death.
“The Eighth Amendment does not come into play unless the risk of pain associated
with the State’s method [of execution] is ‘substantial when compared to a known and
available alternative.’” Bucklew, 587 U.S. at 134 (quoting Glossip, 576 U.S. at 878). Thus,
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Boyd must show that Utah’s firing squad protocol”? would “in fact significantly reduce[] a
substantial risk of severe pain.” See Bucklew, 587 U.S. at 127 (quoting Glossip, 576 U.S.
at 877).
“A minor reduction in risk is insufficient; the difference must be clear and
considerable.” /d. at 143.
Thus, in assessing Boyd’s proposed alternative, the Court must
compare the risk of pain caused by the ADOC’s nitrogen hypoxia protocol with the risk of
pain
caused
by
Utah’s
firing
squad
protocol—whether
the
pain
be
emotional,
psychological, physical, or some combination.
Before
proceeding,
the Court
reiterates that the Eighth Amendment
guarantee a painless death. See id. at 132.
does
not
For over a century, Alabama has executed
condemned inmates using four methods: (1) hanging; (2) electrocution; (3) lethal injection;
and (4) nitrogen hypoxia. See supra Part II].A.
History and common experience confirm
that psychological and emotional pain are inherent in any execution—a point with which
Dr. McAlary,
Dr. Bickler, and Dr. Antognini all agree.
Amendment
was
adopted,
the Founders
understood
To be sure, when the Eighth
“cruel”
to include
punishments
“[d]isposed to give pain to others, in body or mind.” Bucklew, 587 U.S. at 130 (alteration
in original) (emphasis added) (quoting
1 NOAH WEBSTER, AN AMERICAN DICTIONARY OF
THE ENGLISH LANGUAGE (1828)). However, “[t]he cruelty against which the Constitution
protects a convicted man is cruelty inherent in the method of punishment, not the necessary
” In Wilkerson, the United States Supreme Court permitted an execution by firing squad. 99 U.S. at 130,
137. Additionally, the Supreme Court has made clear that subsequent implementation of new execution
methods, such as lethal injection or nitrogen hypoxia, does not automatically render “traditionally accepted”
methods like the firing squad unconstitutional. See Bucklew, 587 U.S. at 134.
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suffering involved in any method employed to extinguish life humanely.” Louisiana ex rel.
Francis v. Resweber, 329 U.S. 459, 464 (1947).
Thus, a state’s administration of capital
punishment, which remains constitutional subject to the Eighth Amendment’s protections,
presumes the prospect of some pain, including psychological pain.
Every person condemned to die likely experiences feelings of angst, anxiety, stress,
or panic.
For hundreds
of years,
condemned
inmates—regardless
of the execution
method—have been placed in the unenviable position of confronting their final moments.
On death row, a condemned inmate arguably endures psychological pain from the date his
sentence is imposed until the moment of his execution. See In re Ohio Execution Protocol
Litig., 881 F.3d at 450 (“Psychological pain or mental suffering is a likely result of being
sentenced to death and anticipating the execution.” (citation omitted)).
Every method of
execution also inevitably includes several steps signaling that death is imminent.
The
condemned inmate eats a last meal, says goodbye to loved ones, is escorted to the execution
chamber, and utters his final words.
It is no accident that the Protocol refers to these actions
as “last”
doc.
and
“final.”
(See,
e.g.,
11-3
at
13,
17).
The
condemned
inmate’s
psychological and emotional pain likely increase as each step is complete—an unfortunate
“but inescapable consequence of death.” Baze, 553 U.S. at 50.
Psychological and emotional pain are thus unavoidable consequences of capital
punishment under any method of execution, past or present. (See doc. 83 at 200:24—01:4
(Dr. Bickler explaining that in the lead up to an execution, a condemned inmate will likely
have extreme anxiety)). Walking to the gallows, feeling the electric chair’s straps tighten,
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having a target affixed to one’s chest, or being secured to a gurney each evokes strong
feelings that death is imminent and results in corresponding psychological and emotional
pain.
But again, the Eighth Amendment does not guarantee Boyd a painless death. See
Bucklew, 587 U.S. at 132.
eliminate
any
The Constitution does not require the State of Alabama to
and all pain—psychological
or otherwise—when
administering
capital
punishment. See id.
With this background, and after carefully reviewing the evidence and applicable
law, Boyd fails to establish that Utah’s firing squad protocol would significantly reduce a
substantial risk of severe pain resulting from Alabama’s nitrogen hypoxia protocol.
The
Court does not doubt that a person consciously deprived of oxygen even for two minutes
under the Protocol experiences discomfort, panic, and emotional distress.
acknowledges
that this “terror response”
But Dr. Bickler
is “activated in an execution environment”
because the inmate does not want to die, versus a situation in which a person willingly
wants to end his or her life by asphyxiation. (Doc. 83 at 186:6—20).
Similarly, Dr. Bickler
acknowledges that an inmate would be expected to experience a “baseline” level of anxiety
and emotional pain leading up to his execution, including the mere sight of the execution
chamber and being strapped to the gurney. (See id. at 200:24—01:22).
And Utah’s firing
squad protocol also carries with it a risk of psychological and emotional pain, most acutely
from the time the inmate is escorted into the execution chamber and restrained in a chair,
and continuing when the target is affixed over his heart and the hood is placed over his
head.
All the while, the inmate knows that four bullets will soon strike his heart, killing
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Much of the psychological and emotional pain caused by either nitrogen hypoxia or
the firing squad is pain which the inmate would inevitably experience because he knows
he will soon die—an experience which attends every execution and cannot be avoided.
Additionally, the firing squad carries with it a risk of three to five (possibly six)
seconds of physical pain and suffering, and that type of physical pain is absent in an
execution
under
the
Protocol—which
for
some
people
may
decrease
the
risk
of
psychological pain. Although Boyd complains that the Protocol superadds psychological
pain by requiring inmates to participate in their own executions by consciously breathing
in nitrogen, the Court finds that, on this record and when compared to Utah’s firing squad
protocol, this circumstance does not amount to superadded pain beyond what is necessary
to carry out the execution. At most, Boyd has shown that the firing squad may reduce the
risk of psychological and emotional pain and physical discomfort caused by the nitrogen
hypoxia protocol. But that is not the standard. In this preliminary injunction posture, Boyd
must show that the firing squad is substantially likely to significantly reduce a substantial
risk of severe pain caused by Alabama’s protocol.“
For the reasons discussed above, the
‘3 Even if the comparison of the relative risks of pain was limited to the time to unconsciousness after the
nitrogen gas began to flow and after the shots were fired, it would not change the Court’s conclusion.
“4 The State points to South Carolina’s April 2025 execution of Mikal Mahdi as evidence that the firing
squad “has the potential to cause great pain.” (Doc. 85 at 7). But Boyd has proposed Utah’s firing squad
protocol, not South Carolina’s. And Dr. Williams explained that South Carolina’s protocol differs from
Utah’s in that, for example,
South Carolina’s protocol calls for a different caliber bullet.
Thus, Mahdi’s
execution has “little probative value for present purposes.” Cf Glossip, 576 U.S. at 892-93 (rejecting the
petitioners’ argument that alleged problems with an Arizona lethal injection execution demonstrated that
Oklahoma’s lethal injection protocol was “sure or very likely to cause serious pain”); Baze, 553 U.S. at 50
(‘“[A]n isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such
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Court concludes that the risk of emotional terror, distress, and physical discomfort caused
by the Protocol does not rise to the level of superadded pain “well beyond what’s needed
to effectuate a death sentence” when compared to the risk of pain caused by Utah’s firing
squad protocol.
See Bucklew,
587
U.S.
at 134,
136-37.
On
this record,
the Court
concludes that, to the extent he proposes Utah’s firing squad protocol as an alternative
method
of execution, Boyd has failed to clear the high bar necessary to establish a
substantial likelihood of success on his facial Eighth Amendment challenge to the Protocol.
The State contends that because the ADOC is not presently equipped to carry out a
firing squad execution, the firing squad is not readily implemented.
The Court disagrees.
First, Alabama law provides that if all statutorily authorized methods of execution are
declared unconstitutional, condemned inmates “shall be executed by any constitutional
method of execution based on the sole discretion of the Commissioner of [the ADOC].”
ALA. CODE § 15-18-82.1(c) (emphasis added).
And Boyd is not required to show that a
firing squad execution can be carried out immediately; he need only show that it can be
carried out “reasonably
quickly.”
See Bucklew,
587
U.S.
at 141
(citation omitted).
Precedent is clear that an inmate “is not limited to choosing among those [methods]
presently authorized by a particular State’s law” and may
instead “point to a well-
established protocol in another State as a potentially viable option.” Jd. at 139-40; accord
an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a ‘substantial
risk of serious harm.’” (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994))).
“S The Court does not suggest that Utah’s firing squad protocol is constitutionally suspect.
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Nance v. Ward, 597 U.S. 159, 164 (2022).
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Obviously if the ADOC
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does not currently
authorize the firing squad as an execution method, work must be undertaken to do so: for
example, the state legislature would have to amend the relevant statute to include firing
squad as an authorized execution method, and the ADOC
would have to, at a minimum,
develop a firing squad protocol. The ADOC may also have to train riflemen and/or acquire
the necessary equipment to carry out a firing squad execution.
the firing squad is not feasible or readily implemented.
But it does not follow that
If a condemned inmate may point
to another state’s protocol as a “viable option” even if it is not currently authorized in his
jurisdiction—and the Supreme Court says he can—it necessarily follows that there would
be some incidental delay involved in implementing the “new” method in the inmate’s
jurisdiction.
Thus, it cannot be the case that the firing squad is not readily implemented
merely because the State is not presently or immediately prepared to carry out a firing
squad execution.
To conclude otherwise would render the Supreme Court’s guidance a
dead letter. Here, however, whether Utah’s firing squad protocol is readily implemented is
not dispositive because Boyd fails to show that it would significantly reduce a substantial
risk of severe pain caused by the ADOC’s nitrogen hypoxia protocol.
3. MAID
The Court now turns to whether Boyd has shown that MAID is a feasible, readily
implemented alternative execution method that would significantly reduce the risk of pain
posed by the Protocol.
MAID broadly refers to the administration of a combination of
drugs to assist terminally ill patients in “voluntarily . . . end[ing] their lives.” (See doc. 8253
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15 at 2, 4; doc. 83 at 237:1—7, 246:9-17).
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Though a variety of drug formulations can be
used, “the most common combination of medications” is digoxin, diazepam, morphine,
amitriptyline,
DDMAPh
and phenobarbital,
or “DDMAPh.”
(Doc.
83 at 239:16—-22).
formulation that Boyd identifies in his complaint. (Doc.
It is this
1 at 29, para. 122).
High doses of digoxin and amitriptyline cause cardiac arrest while the remaining drugs
“keep the patient deeply sedated.”*° (Doc. 82-15 at 2). Dr. Zapata testified that the median
time to death is forty-eight minutes, and that the average is about ninety-six minutes. (Doc.
83 at 243:18-20).
As explained further below, Boyd fails to establish that MAID is feasible and readily
implemented, that it would significantly reduce a substantial risk of severe pain, or that the
ADOC
has
failed
to
adopt
it without
a legitimate
penological
reason.
MAID’s
shortcomings include that it: (1) requires either the condemned inmate to cooperate or that
the
drugs
be
administered
by
a medical
professional;
(2)
presupposes
access
to
pharmaceuticals and an ability to compound them; (3) has never been used as a method of
execution; and (4) can take a significant time (up to twenty-four hours) to run its course.
The most glaring problem with MAID
proposed administration.
as a method
of execution concerns its
Dr. Zapata testified that oral administration—the most common
method—trequires the drugs to be mixed with water and “ingested within [one to two]
minutes to avoid partial ingestion due to rapid sedation.” (Doc. 82-15 at 2; see also doc. 83
“© Dr. Zapata testified that the DDMAPh
formulation calls for “a thousand times the typical therapeutic
dose” of diazepam, which is used “as an antianxiety medication[,| or a sedative and antiseizure medicine.”
(Doc. 83 at 241:5-8) (emphasis added).
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She further opined that if the person falls asleep before he
finishes the mixture, he may be “in worse shape” than before he ingested it. (Doc. 83 at
242:12—15).
This
one-to-two-minute
time
limitation
requires
the
participant’s
cooperation—which MAID presupposes. (Doc. 83 at 254:12—21; see also doc. 87 at 26
(conceding
that
medications”)).
MAID
requires
the
condemned
inmate
to
“self-administer
th[e]
The Court also notes that Boyd decries the aspect of the Protocol which
requires an inmate to participate in his own death by breathing in nitrogen, which he claims
causes psychological pain. But the same could be said about a MAID execution. Drinking
a substance known to cause death would seem to cause substantially the same “severe
emotional suffering” as breathing a substance known to cause death (see doc. 84 at 170:925); it is the fact, rather than the method, of ingestion that induces apprehension.*’
Thus,
it strikes the Court as inconsistent for Boyd to endorse MAID, which requires a greater
level of inmate cooperation.
In any event, the State understandably argues that the ADOC
cannot reasonably rely on an inmate’s cooperation in (very quickly) drinking the MAID
mixture.
(Doc.
administered
85
at 47).
through
Though
a feeding
Boyd
notes
or rectal tube
that the MAID
(doc.
87
at 26),4°
drugs
can
also be
these
methods
of
“” Tf anything, oral administration of the MAID drugs would risk unnecessary physical and emotional pain
and would pose unique Eighth Amendment concerns. Because the MAID drugs must be ingested so
rapidly, Dr. Zapata testified that if she is concerned about a patient’s ability to ingest the mixture, she makes
them “practice” by drinking placebo mixtures to ensure that they can drink the entire MAID mixture within
the very abbreviated time allotted. (Doc. 83 at 242:12—18). A hypothetical MAID protocol could therefore
require a condemned inmate to similarly either “practice” his impending execution or else risk the
consequences of partial ingestion—either of which poses constitutional concerns.
48 Boyd also argues that MAID can be administered intravenously (doc. 87 at 26), but Dr. Zapata testified
that no jurisdiction within the United States employs such a method and that amitriptyline—the “A” in
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administration would require the participation of someone with medical training, which the
State is unlikely to be able to find. (See doc. 84 at 103:3—12); see also Baze, 553 U.S. at 64
(Alito, J., concurring)
(“[T]he ethics rules of medical
participation in executions.”).
show
that MAID
professionals ... prohibit their
These considerations strongly undermine Boyd’s efforts to
is a “feasible”
alternative, or that it would
significantly reduce
a
substantial risk of severe pain caused by Alabama’s nitrogen hypoxia protocol.
The accessibility of drugs for use in MAID also poses a significant problem for its
use as a method of execution.
medical
practice”
and
Dr. Zapata’s expert report identifies drugs “used in routine
“regularly
obtained
from
commercial
pharmacies
across
the
country.” (Doc. 82-15 at 2). But as the State observes, it may nevertheless have difficulty
obtaining these drugs for a judicial execution. (See doc. 29 at 43); Glossip, 576 U.S. at
869-71 (noting the difficulties encountered by states in obtaining drugs to be used in lethal
injection due to lobbying
on the part of anti-death-penalty
advocates
to “pressure[]
pharmaceutical companies to refuse to supply the drugs used to carry out death sentences’).
Dr. Zapata also reported that MAID drugs, once obtained in a powder form, must then be
“compounded into a mixture by a... pharmacy.” (Doc. 82-15 at 2). But this requirement
begs the question:
Who will compound the mixture?
Neither the ADOC’s staff medical
DDMAPh—cannot be “reliably obtain[ed]” “in an [intravenous or] IV formulation,” (doc. 83 at 244:4—
45:10). In any event, it would appear that an IV administration of MAID medications would involve the
same concerns Boyd previously expressed with regard to lethal injection, see Boyd v. Myers, 2015 WL
5852948, at *1 (M.D. Ala. Oct. 7, 2015) (noting Boyd’s claim that Alabama’s lethal injection protocol was
unconstitutional under the Eighth Amendment “based on a substantial risk of ‘maladministration’ of Boyd’s
execution resulting from the inadequate training and qualifications of the execution squad”).
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team nor its medical contractor, YesCare, will do it, as they are barred from participating
in executions. (Doc. 84 at 103:7-11).
Nor will Dr. Zapata. (Doc. 83 at 257:11—20).
Nor
will Dr. Antognini, who testified that ethical constraints would similarly preclude him from
participating in a judicial execution. (Doc. 84 at 146:10—20).
Boyd does not identify any
personnel who can properly compound the drugs the MAID protocol requires, assuming
that the State will be able to acquire them in the first place.
For these reasons, Boyd’s
proposal is more “theoretically feasible” than “readily implemented.” See Bucklew, 587
U.S. at 141 (citation omitted).
Given these shortcomings, the Court finds that Boyd has
not satisfied his burden to show that MAID
can be implemented “relatively easily and
reasonably quickly.” See id. (citation omitted).
In addition to the infirmities discussed above, MAID
is not a method of execution
authorized in any other jurisdiction. (See doc. 83 at 254:7—11).
Based on its efficacy in
cases of voluntary euthanasia—a setting wholly distinct from judicial executions—Boyd
asks the Court to mandate that Alabama be the first. But the Eighth Amendment does not
require states to experiment with new execution methods. Bucklew, 587 U.S. at 142 (“The
Eighth
Amendment...does
not
compel
a
State
to
adopt
untested’ ... methods of execution.” (quoting Baze, 553 U.S. at 41)).
‘untried
and
To the contrary,
“choosing not to be the first to experiment with a new method of execution is a legitimate
reason to reject it.” Id.
This legitimate penological reason is an additional, independent
reason why Boyd fails to show that MAID is a suitable alternative method of execution.
See Frazier, 2025 WL 361172, at *13—14 (“The State has a legitimate penological reason
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to decline to adopt Frazier’s novel method involving aspects of both lethal injection and
nitrogen hypoxia protocols and which has an insufficient (indeed, nonexistent) track record
of successful use.” (parenthetical in original)).
Further, Dr. Zapata testified that death by MAID can take upwards of two hours.
(See doc. 83 at 255:24—56:8 (Dr. Zapata noting that 93% of MAID deaths “occur in fewer
than five hours’’)).
This fact did not trouble her because “even if [death by MAID] took
[twenty-four] hours, that person w[ould] still [be] deeply sedated and unaware.” (/d. at
256:9-22).
While this situation may be reasonable in the clinical setting in which MAID
deaths ordinarily occur, the State has a legitimate penological reason to decline to adopt a
method which would require the ADOC
to monitor condemned inmates for hours after
administration of the MAID drugs as part of a judicial execution.
This additional, valid
penological reason erects yet another hurdle in Boyd’s path to success on his Eighth
Amendment claim. See Bucklew, 587 U.S. at 134.
In sum, Boyd has not shown a substantial likelihood of success on the merits
because he fails to show that either of his proposed alternative execution methods “would
significantly reduce a substantial risk of severe pain” posed by the Protocol. See id. at 134.
Additionally, he fails to show that MAID is feasible, readily implemented, or that the State
“has
refused
to
adopt?
MAID
“without
a legitimate
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Consequently, he has not established entitlement to a preliminary injunction for this reason
alone.*”
B.
The Equities
Boyd is also not entitled to a preliminary injunction because the equities are not in
his favor.
A preliminary injunction is an “extraordinary and drastic remedy,” Siegel, 234
F.3d at 1176 (quoting McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.
1998)), that “is not available as a matter of right, and equity must be sensitive to the State’s
strong interest in enforcing its criminal judgments without undue interference from the
federal courts,” Hill v. McDonough, 547 U.S. 573, 584 (2006).
This Court must “apply ‘a
strong equitable presumption against the grant of a stay where a claim could have been
brought at such a time as to allow consideration of the merits without requiring entry of a
stay.’” Id. (citation omitted); accord Woods v. Comm ’r, Ala. Dep’t of Corr., 951 F.3d 1288,
1293 (11th Cir. 2020) (citation omitted); Jones v. Allen, 485 F.3d 635, 638 (11th Cir. 2007)
(citation omitted).°°
“Last-minute stays should be the extreme exception, not the norm,
” Before the preliminary injunction hearing, Boyd moved to exclude all evidence or testimony from the
State which supplemented, contradicted, or differed from the testimony given by the ADOC’s Rule 30(b)(6)
designee, Director Stewart-Riley. (Doc. 47).
According to Boyd, Director Stewart-Riley was not
adequately prepared to testify as the Rule 30(b)(6) designee and was improperly instructed not to answer
certain questions. (/d.). The Court denied the motion to the extent Boyd sought to exclude evidence or
testimony. (Doc. 80). Even if the Court had excluded the State’s evidence or testimony as Boyd requested,
it would not change the outcome here.
°° Although Boyd moves for a preliminary injunction rather than a stay of execution (doc. 11), the relief he
seeks—an injunction preventing the State “from setting his execution date and from executing him using
the Protocol during the pendency of this litigation,” (id. at 23)—is effectively a request for a stay of
execution. In any event, the Court’s analysis applies equally to the extent he requests a preliminary
injunction, a stay of execution, or both. See Mills v. Hamm, 102 F.4th 1245, 1250 (11th Cir. 2024); Long v.
Sec’y, Dep’t of Corr., 924 F.3d 1171, 1176 (11th Cir. 2019).
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and ‘the last-minute nature of an application’ that ‘could have been brought’ earlier, or ‘an
applicant’s attempt at manipulation,’ ‘may be grounds for denial of a stay.’” Bucklew, 587
U.S. at 150 (quoting Hill, 547 U.S. at 584). District courts “‘can and should’ protect settled
state judgments from ‘undue interference’ by invoking their ‘equitable powers’ to dismiss
or curtail suits that are pursued in a ‘dilatory’ fashion or based on ‘speculative’ theories.”
Id. at 151 (quoting Hill, 547 U.S. at 584-85).
The equities are not in Boyd’s favor because the record evinces unreasonable delay
in seeking relief.
Boyd claims that the State’s Protocol is facially unconstitutional. (See,
e.g., doc. | at 37 (requesting a declaration that the “Protocol [is] facially unconstitutional’);
see also doc.
11 at 14 (“[T]he Protocol all but guarantees the inmate will experience
unconstitutional pain and suffering during an execution.”)).
He argues that he will be
irreparably harmed
“he will be tortu[r]ously
absent a preliminary
injunction because
executed in violation of the Eighth Amendment.” (Doc. 11 at 21).
But the State released
its nitrogen hypoxia protocol in August 2023, nearly two years before Boyd brought this
lawsuit.
Boyd argues that this delay is excusable because he needed data from actual
nitrogen hypoxia executions to present his case. (Doc. 33 at 3).
But he does not explain
what prevented him from filing a lawsuit soon after the Protocol was released and then
amending
his complaint to add factual allegations
of what occurred during nitrogen
hypoxia executions as they were carried out. See FED. R. Civ. P. 15(a)(2) (“The court
should freely give leave [to amend] when justice so requires.”’).
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But even assuming this explanation supplies a reasonable basis for Boyd to have
waited some additional time, Boyd still unreasonably delayed seeking relief from the
Court.
Boyd did not act until approximately eighteen months after Smith’s execution, ten
months after Miller’s, eight months after Grayson’s, and five months after Frazier’s. Boyd
acknowledges that Smith’s January 2024 execution provided information about how the
Protocol operates in practice, (see doc. 11 at 5—6), as did Miller’s, Grayson’s, and Frazier’s
respective executions, (see id. at 6-9).
Boyd nevertheless sat idle until July 16, 2025—
more than five months after Frazier’s execution and over a month after the State moved to
set Boyd’s execution date.
The Court concludes that Boyd’s delay in bringing this action
and seeking a preliminary injunction was “unreasonable, unnecessary, and inexcusable.”
Brooks v. Warden, 810 F.3d 812, 824 (11th Cir. 2016) (citation omitted); see also Frazier,
2025 WL 361172, at *16 (“[Frazier] argued that he was waiting for other nitrogen hypoxia
executions to occur to see how the Protocol operates in practice. Assuming this explanation
is reasonable, it does not justify Frazier’s waiting to act until nearly ten months after
Smith’s execution and two months after Miller’s execution... .”).
Boyd attempts to shift the blame for his own untimeliness to the State, arguing that
it would have “likely” argued that his claims were not ripe had he brought them earlier.
(Doc. 33 at 3-4).
This speculation fails to excuse his delay. Cf Brooks, 810 F.3d at 825
(“Brooks’s speculation that the state would not seek to execute him while others were
challenging its protocol does not excuse his lengthy delay in asserting his own rights.”). It
is also incorrect as a matter of law. See Allen, 485 F.3d at 640 (“It was during that period—
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in which the execution was not so much an imminent or impending danger as it was an
event reasonably likely to occur in the future—that [the plaintiff] needed to file [his
method-of-execution] challenge.” (citation omitted)).°!
In balancing the equities, the Court must also consider the interests of the victims
of Boyd’s crime—the State, Gregory Huguley, and Huguley’s friends and family—‘‘in the
timely
enforcement
of [Boyd’s]
sentence.”
Hill,
547
U.S.
at 584;
see
Calderon
v.
Thompson, 523 U.S. 538, 556 (1998) (“Only with an assurance of real finality can the State
execute its moral judgment in a case. Only with real finality can the victims of crime move
forward knowing the moral judgment will be carried out.”).
Boyd was convicted and
sentenced to death for his participation in Huguley’s gruesome murder over thirty years
ago.
Balancing his delay against his victims’ interest in the timely enforcement of his
sentence, Boyd fails to show that equity favors entry of a preliminary injunction, and these
considerations also counsel against granting Boyd’s motion. See Siegel, 234 F.3d at 1176
(explaining that a preliminary injunction is appropriate only where “the movant clearly
establishe[s] the ‘burden of persuasion’
as to each of the four prerequisites” (citation
omitted)).
>! Boyd also argues that the State is responsible for the “compressed schedule” because it failed to seek “a
declaratory judgment that the protocol was constitutional.” (Doc. 33 at 4). Boyd fails to cite authority for
the proposition that it is the State’s burden to seek a declaratory judgment whenever it seeks to carry out
lawfully imposed death sentences—especially here where federal courts have repeatedly found that the
Protocol is not substantially likely to violate the Eighth Amendment. See, e.g., Grayson, 121 F.4th 894;
Frazier, 2025 WL 361172, at *14; Smith v. Comm’r, Ala. Dep’t of Corr., 2024 WL 266027 (11th Cir. Jan.
24, 2024); see also Baze, 553 U.S. at 48 (“This Court has never invalidated a State’s chosen procedure for
carrying out a sentence of death as the infliction of cruel and unusual punishment.”).
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“Every
death
case
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deserves ...careful
scrutiny.” Jones
v.
Comm’r, Ga. Dep’t of Corr., 812 F.3d 923, 926 (11th Cir. 2016) (Marcus, J., concurring
in the denial of initial hearing en banc).
For this reason, the Court has twice “implored
members of the bar to cease the all too common ‘practice of filing lawsuits and requests
for stay of execution at the last minute where the facts were known well in advance.’”
Frazier, 2025 WL 361172, at *17 (quoting Mills v. Hamm, 734 F. Supp. 3d 1226, 1248
(M.D. Ala. 2024)).
The Court repeats this admonition.
litigation, death-sentenced inmates
Given the stakes involved in such
are best served by filing their claims as early as
possible, giving the parties as much time as possible to litigate their claims without having
to seek emergency injunctive relief. Cf Mills, 734 F. Supp. 3d at 1248 (“The unique
circumstances of execution litigation and the attendant deadlines are precisely why such
litigation should be filed at the earliest possible opportunity: to ensure that courts at all
levels have as much time as possible to review the case and make a reasoned decision.”’);
Frazier, 2025 WL 361172, at *17 (“The Court once again implores attorneys representing
death-sentenced inmates to stop this practice because it is ineffective and unworkable.”).
True, Boyd filed this action and sought a preliminary injunction sooner than the plaintiffs
in Frazier and Mills.
That Boyd’s litigation conduct is not “as bad” does not undermine
the Court’s conclusion that he inexcusably delayed bringing this lawsuit.
And although
certain circumstances may justify a condemned inmate’s delay in challenging a state’s
contemplated method of execution, see, e.g., Ramirez v. Collier, 595 U.S. 411, 434-35
(2022), Boyd’s case does not present such circumstances.
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Boyd challenges an execution protocol that had been public for nearly two years
and implemented
five times before he finally sought relief.
Because
Boyd
has not
adequately explained his delay, the equities do not weigh in his favor. For these additional
reasons, the Court finds that Boyd’s request for a preliminary injunction is due to be denied.
VI. CONCLUSION
Because he has not shown a substantial likelihood of success on the merits, and
because the equities weigh against him, Boyd has not established entitlement to the
extraordinary remedy of a preliminary injunction.
Accordingly, it is
ORDERED that Boyd’s motion for preliminary injunction (doc. 11) is DENIED.
DONE this 9th day of October, 2025.
/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE
64
77a
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