Petition for Writ of Certiorari — Jeffery Lee, Petitioner v. Greg Lovelace, Commissioner, Alabama Department of Corrections, et al.

Supreme Court briefSep 11, 2026

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*** CAPITAL CASE ***

No. __________

In The

Supreme Court of the United States

JEFFERY LEE,

PETITIONER,

GREG LOVELACE, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,

AND TERRY RAYBON, WARDEN, HOLMAN CORRECTIONAL FACILITY,

RESPONDENTS.

EXECUTION SCHEDULED FOR SEPTEMBER 17, 2026

AT 12 A.M. CDT TO SEPTEMBER 18, 2026 AT 6 A.M. CDT

PETITION FOR A WRIT OF CERTIORARI

PETITIONER’S APPENDIX --- VOLUME I (APP’X A-H)

PAIGE H. SHARPE

ANNA K. THOMPSON

Counsel of Record

KEVIN A. CLINE

ARNOLD & PORTER KAYE SCHOLER LLP JOCELYN A. WIESNER

601 Massachusetts Avenue, NW

anna.thompson@arnoldporter.com

Washington, DC 20001

kevin.cline@arnoldporter.com

T: (202) 942-5000

jocelyn.wiesner@arnoldporter.com

F: (202) 942-5999

paige.sharpe@arnoldporter.com

Counsel for Petitioner

September 11, 2026

TABLE OF CONTENTS

APPENDIX DOCUMENT

Appendix A

Order of the United States Court of Appeals for the

Eleventh Circuit (Denying Stay of Execution)

PAGE

Lee v. Commissioner, Alabama Department of Corrections,

No. 26-12710, Doc. 27-2 (11th Cir. Sept. 9, 2026)

Appendix B

Order of the United States District Court for the Middle

District of Alabama (Denying Motion to Amend Judgment)

15a

Lee v. Lovelace, No. 2:25-cv-680-ECM, DE 209 (M.D. Ala.

July 22, 2026)

Appendix C

Memorandum Opinion and Order of the United States

District Court for the Middle District of Alabama (On

Remand)

31a

Lee v. Lovelace, No. 2:25-cv-680-ECM, DE 187 (M.D. Ala.

June 9, 2026)

Appendix D

Opinion of the United States Court of Appeals for the

Eleventh Circuit (Reversing and Remanding)

57a

Lee v. Commissioner, Alabama Department of Corrections,

No. 26-11864, Doc. 41-1 (11th Cir. June 8, 2026)

Appendix E

Memorandum Opinion and Order of the United States

District Court for the Middle District of Alabama (Initial

Judgment)

78a

Lee v. Lovelace, No. 2:25-cv-680-ECM, DE 176 (M.D. Ala.

May 28, 2026)

Appendix F

Order of the United States District Court for the Middle

District of Alabama (Denying Stay of Injunction)

136a

Lee v. Lovelace, No. 2:25-cv-680-ECM, DE 194 (M.D. Ala.

June 10, 2026)

Appendix G

Order of the United States Court of Appeals for the

Eleventh Circuit (Denying Stay/Vacatur of Injunction)

139a

APPENDIX DOCUMENT

PAGE

Lee v. Commissioner, Alabama Department of Corrections,

No. 26-12027, Doc. 17-1 (11th Cir. June 10, 2026)

Appendix H

Order of the Supreme Court of the United States (Denying

Application for Stay or Vacatur)

168a

Lovelace v. Lee, No. 25A1381 (U.S. June 11, 2026)

Appendix I

Mr. Lee's Written Election of Nitrogen Hypoxia

169a

Lee v. Dunn, No. 1:16-cv-00473-WS-B, Doc. 37-1 (S.D. Ala.

July 19, 2018)

Appendix J

Joint Motion to Dismiss

171a

Lee v. Dunn, No. 1:16-cv-00473-WS-B, Doc. 37 (S.D. Ala.

July 19, 2018)

Appendix K

Order Dismissing Action as Moot

174a

Lee v. Dunn, No. 1:16-cv-00473-WS-B, Doc. 38 (S.D. Ala.

July 20, 2018)

Appendix L

Reply of Petitioner Gobble to State's Answer and Motion to

Dismiss Second Amended Rule 32 Petition

175a

State of Alabama v. Gobble, No. 38-CC-2005-299.60, Doc.

166 (Houston Cnty. Cir. Ct. Aug. 21, 2026)

Appendix M

State's Reply to Gobble's Response

253a

State of Alabama v. Gobble, No. 38-CC-2005-299.60, Doc.

168 (Houston Cnty. Cir. Ct. Aug. 28, 2026)

Appendix N

State of Alabama's Motion to Withdraw Motion to Set an

Execution Date

287a

Ex parte Jarrod Taylor, No. 1991307 (Ala. Aug. 2, 2019)

Appendix O

Excerpt of Evidentiary Hearing Transcript (pp. 1–2, 147–

148)

Miller v. Hamm, No. 2:22-cv-506-RAH, Doc. 58 (M.D. Ala.

Sept. 15, 2022)

289a

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 26-12710

____________________

JEFFERY LEE,

Plaintiﬀ-Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF

CORRECTIONS,

WARDEN, HOLMAN CORRECTIONAL FACILITY,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:25-cv-00680-ECM

____________________

Before JORDAN, LUCK, and KIDD, Circuit Judges.

BY THE COURT:

Jeffery Lee is scheduled to be executed on September 17,

2026. He brought a successful method-of-execution lawsuit under

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42 U.S.C. § 1983, permanently enjoining his execution by nitrogen

hypoxia under Alabama’s current protocol. Alabama now plans to

execute him by lethal injection.

Mr. Lee seeks a stay of his execution. For the reasons which

follow, we deny the motion for a stay.

In December of 1998, Mr. Lee shot and killed Jimmy Ellis

and Elaine Thompson and attempted to kill Helen King during an

attempted armed robbery of a pawn shop in Orville, Alabama. See

Lee v. State, 44 So. 3d 1145, 1148–49 (Ala. Crim. App. 2009). A jury

convicted Mr. Lee of capital murder and attempted murder. See id.

at 1148. By a vote of 7 to 5, the jury recommended that Mr. Lee be

sentenced to life in prison without the possibility of parole. See id.

The trial court overrode the jury’s recommendation and

sentenced Mr. Lee to death for the capital offenses. See id. Mr. Lee’s

convictions and sentence of death were affirmed on direct appeal

and withstood collateral challenges. See Lee v. State, 898 So. 2d 790

(Ala. Crim. App. 2001); Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d

1172 (11th Cir. 2013).

Before 2018, Alabama law authorized execution by lethal injection or electrocution. See Ala. Code § 15-18-82.1(a) (2017). On

March 22, 2018, Alabama Governor Kay Ivey signed into law Senate Bill 272, which amended § 15-18-82.1 to include nitrogen hypoxia as an approved method of execution. Alabama took five

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years to develop a protocol for executions by nitrogen hypoxia—

releasing the protocol in August of 2023 and executing the first prisoner by that method in January of 2024.

In September of 2016, before nitrogen hypoxia became an

approved method of execution, Mr. Lee had brought an Eighth

Amendment challenge under 42 U.S.C. § 1983 to Alabama’s lethal

injection protocol. See Lee v. Dunn, No. 16-473, 2017 WL 1483530

(S.D. Ala. Apr. 24, 2017) (Lee I), vacated in part, 731 F. App’x 885

(11th Cir. 2018). But in June of 2018, Mr. Lee elected to be executed

by nitrogen hypoxia while reserving his right to challenge the constitutionality of the forthcoming protocol.

Accordingly, Mr. Lee and Alabama jointly moved to dismiss

his lethal injection lawsuit without prejudice. The parties represented to the district court that “[b]ecause of [Mr. Lee’s] election,

all claims in [Mr. Lee’s] complaint [were] moot because [they] relate[d] to [Alabama’s] current lethal-injection protocol.” Lee I, No.

16-473, D.E. 37 at 2. Their motion explained that because Mr. Lee

had “elected to be executed by nitrogen hypoxia, rather than lethal

injection, pursuant to [§] 15-18-82.1, [Mr. Lee’s] claims and causes

of action [were] moot because if he is to be executed, [Alabama]

will carry out that execution by nitrogen hypoxia.” Id. at 2–3. The

district court agreed that the case was moot and granted the joint

motion to dismiss pursuant to Federal Rule of Civil Procedure

41(a)(1)(A)(ii). The dismissal was without prejudice.

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In August of 2025, Mr. Lee filed this § 1983 action, challenging the nitrogen hypoxia protocol as violative of the Eighth

Amendment. The district court held a three-day bench trial, at

which it heard the testimony of eleven witnesses and admitted

hundreds of exhibits. The court assessed the Eighth Amendment

claim under the test set out in Glossip v. Gross, 576 U.S. 863, 877–81

(2015), which required Mr. Lee to show (1) that the challenged

method of execution presents a substantial risk of severe harm—

severe pain over and above death itself, and (2) that there is an alternative method that is feasible, readily implemented, and significantly reduces the risk of harm involved, which Alabama has refused to adopt. See Lee v. Lovelace, No. 2:25-CV-680-ECM, 2026 WL

1493098, at *12 (M.D. Ala. May 28, 2026) (Lee II).

The district court made extensive factual findings but ultimately concluded that Mr. Lee had not proven that the “nitrogen

hypoxia execution protocol causes severe pain or suffering well beyond what’s needed to effectuate a death sentence.” Id. at *22 (internal quotation marks and citation omitted). The court declined

to reach the second Glossip prong and did not decide whether Mr.

Lee’s proposed alternative—execution by firing squad—was feasible, readily implemented, or less painful. See id.

We reversed and held, based on the district court’s factual

findings, that Alabama’s nitrogen hypoxia protocol presented a

substantial risk of serious pain and suffering. See Lee v. Comm’r, Ala.

Dep’t of Corr., No. 26-11864, 2026 WL 1651147, at *8 (11th Cir. June

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8, 2026) (Lee III). We concluded that Mr. Lee had satisfied the first

prong of his Eighth Amendment challenge, and remanded to the

district court to address the second prong of Glossip based on the

evidence presented at trial. See id. at *6–*8.

On remand, the district court concluded that Mr. Lee had

shown that execution by “firing squad is feasible, readily implemented, and significantly reduces the substantial risk of serious

harm posed by the [p]rotocol, and that [Alabama] failed to proffer

a legitimate penological reason not to adopt it.” Lee v. Lovelace, No.

2:25-CV-680-ECM, 2026 WL 1664095, at *1 (M.D. Ala. June 9, 2026)

(Lee IV). Based on its conclusion that Mr. Lee satisfied the two

prongs of his Eighth Amendment challenge, the court entered a

permanent injunction prohibiting Alabama from executing him using the nitrogen hypoxia protocol. See id. at *11.

Originally, Alabama had planned to execute Mr. Lee by nitrogen hypoxia during a 30-hour time frame, beginning at midnight

on Thursday, June 11, 2026, and ending at 6:00 a.m. on Friday, June

12, 2026. It sought a stay of the district court’s permanent injunction to proceed with this execution date.

We denied Alabama’s stay motion. See Lee v. Comm’r, Ala.

Dep’t of Corr., No. 26-12027, 2026 WL 1741802, at *8 (11th Cir. June

10, 2026) (Lee V). So did the Supreme Court. See Lovelace v. Lee, No.

25A1381, ___ S. Ct. ___, 2026 WL 1694504, at *1 (U.S. June 11,

2026) (mem.). The parties then jointly filed a motion for voluntary

dismissal of Alabama’s appeal, which we granted.

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On June 12, 2026, Alabama filed an expedited renewed motion in the Alabama Supreme Court to authorize Mr. Lee’s execution by lethal injection following the entry of the permanent injunction. The Alabama Supreme Court granted Alabama’s motion,

and the Governor then set a 30-hour window for Mr. Lee’s execution to occur, beginning at midnight on September 17, 2026, and

expiring at 6 a.m. on September 18, 2026.

Mr. Lee moved the district court to amend the scope of the

permanent injunction related to nitrogen hypoxia pursuant to Federal Rules of Civil Procedure 52(b) and 59(e). Mr. Lee asked the

court to amend its earlier order to declare that Alabama was judicially or equitably estopped from executing him by lethal injection.

He also asked the court to modify its order to remove any language

suggesting that Alabama could, consistent with Alabama law, execute him by lethal injection or electrocution.

The district court denied Mr. Lee’s motion. It assumed without deciding that Mr. Lee had successfully shown that the factors

in New Hampshire v. Maine, 532 U.S. 742, 750 (2001), weighed in favor of applying judicial estoppel and that he had satisfied the equitable estoppel elements. The court then exercised its discretion to

decline to estop Alabama from executing Mr. Lee by lethal injection based on the totality of the circumstances.

Mr. Lee appealed and filed an emergency motion to stay his

execution by lethal injection. We address only the stay motion in

this order.

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“We review the denial of a Rule 59 motion for abuse of discretion.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (citing

Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006)). We also review

a Rule 52 motion to amend the district court’s findings of fact and

conclusions of law for abuse of discretion. See Trigo v. Fed. Deposit

Ins. Corp., 847 F.2d 1499, 1504 (11th Cir. 1988). A court abuses its

discretion when, for example, it commits a “clear error of judgment[.]” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004)

(en banc) (citation omitted).

“Because judicial estoppel is an equitable doctrine, we review the district court’s decision to apply the doctrine for abuse of

discretion.” Slater v. U.S. Steel Corp., 871 F.3d 1174, 1180 n.4 (11th

Cir. 2017) (en banc) (first citing New Hampshire, 532 U.S. at 750, and

then citing Talavera v. Sch. Bd. of Palm Beach Cnty., 129 F.3d 1214,

1216 (11th Cir. 1997)). Though we have cases stating that the application of equitable estoppel is subject to de novo review, see Doe v.

Garrett, 903 F.2d 1455, 1458 (11th Cir. 1990), the parties agree that

the abuse of discretion standard governs our review of the district

court’s order denying Mr. Lee’s motion to amend the scope of the

permanent injunction.

III

In deciding whether to grant a stay, we consider the following four factors:

(1) whether the stay applicant has made a strong

showing that he is likely to succeed on the merits;

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(2) whether the applicant will be irreparably injured

absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill,

481 U.S. 770, 776 (1987)).

Mr. Lee argues that a stay is warranted because the district

court abused its discretion in declining to apply the doctrines of judicial and equitable estoppel to amend its permanent injunction.

He relies on the following language of the joint motion to dismiss

in his lethal injection lawsuit: “Plaintiff’s claims and causes of action

are now moot because if he is to be executed, Defendants will carry

out that execution by nitrogen hypoxia.” Lee I, No. 16-473, D.E. 37

¶ 6. 1

Mr. Lee has not shown a substantial likelihood that the district court abused its discretion in deciding not to amend its permanent injunction. A permanent injunction entered after a bench trial

must be supported by factual findings. See Fed. R. Civ. P. 52(a),

65(d). Cf. Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 394

n.4 (1997) (“Any injunction must be justified by the elements that

support it.”) (emphasis in original). As a general matter, a “remedy

1 As things stand, Mr. Lee has not attempted to show that Alabama’s lethal

injection protocol violates the Eighth Amendment.

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must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U.S.

343, 357 (1996).

In his amended complaint in this case, Mr. Lee brought one

§ 1983 claim to “challenge[ ] the method and means by which [Alabama] intend to execute him—by nitrogen hypoxia—and [sought]

declaratory and injunctive relief to prevent [Alabama] from violating the federal prohibition on cruel and unusual punishment.” Lee

II, No. 2:25-CV-680, D.E. 40 ¶ 4. He sought an injunction that

would prevent the defendants from executing him “using any

method other than one of the alternatives provided by his attorneys.” Id. at 23. He did not seek any other relief specifically related

to lethal injection.

In his trial brief, Mr. Lee did not indicate that he would present any evidence related to execution by lethal injection. Indeed,

his witnesses’ testimony referenced the availability of lethal injection as an execution method in Alabama only in passing. In his proposed findings of fact and conclusions of law, Mr. Lee did not ask

the district court to make any findings related to execution by lethal

injection. Nor did he propose injunctive relief related to lethal injection.

Nevertheless, after we remanded in Lee III for findings on the

second Glossip prong, Mr. Lee asked the district court to prevent

Alabama from executing him through any method other than

those proposed by his attorneys. As the court explained, Mr. Lee

wanted “to permanently enjoin [Alabama] from executing him by

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nitrogen hypoxia or any other method other than firing squad.” Lee

IV, 2026 WL 1664095, at *9 (internal quotation marks omitted, emphasis omitted, and alterations adopted). It continued:

Alabama law authorizes two other methods of execution: lethal injection and electrocution. Here, [Mr.]

Lee challenged only the ADOC’s nitrogen hypoxia

protocol—not lethal injection or electrocution. After

carefully considering traditional equitable principles,

and given the [c]ourt’s legal conclusions, the [c]ourt

concludes that a permanent injunction should issue

prohibiting [Alabama] from executing [Mr.] Lee using

the [p]rotocol.

Id. (internal citations omitted).

In his motion to amend, Mr. Lee sought to relitigate that

matter. But he has not shown that Rules 52 and 59 allow, much less

demand, such relitigation. See Arthur, 500 F.3d at 1343 (“A Rule

59(e) motion cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the

entry of judgment.”) (alterations adopted, internal quotation marks

and citation omitted).

Even if we accept the premise that a party can seek equitable

post-judgment relief untethered to the facts proven at trial, Mr. Lee

has not shown a substantial likelihood that the district court abused

its discretion in applying the estoppel doctrines.

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Mr. Lee first argues the district court erred by considering

that the essential facts had changed since the joint motion to dismiss in 2018 because, in his view, his successful challenge to nitrogen hypoxia is not the type of changed circumstance which makes

judicial or equitable estoppel inapplicable. He further asserts that

the court abused its discretion in declining to apply equitable estoppel by focusing on whether Alabama anticipated its later change in

position, rather than on the material facts that it knew at the time.

In New Hampshire, the Supreme Court suggested that judicial estoppel may not apply where the party’s changed position was

“the result of a change in facts essential to the prior judgment.” 532

U.S. at 756. Mr. Lee cites only non-binding authority to support his

argument that a later successful litigation position cannot constitute a change in essential facts. See Br. for Appellant at 18–19 (first

citing Henry v. Nationwide Ins. Co., No. 06-0612-CG-M, 2007 WL

9717743, at *5 (S.D. Ala. Nov. 5, 2007), and then citing Spencer v.

Annett Holdings, Inc., 757 F.3d 790, 797–98 (8th Cir. 2014), and arguing that both cases rejected changed circumstances argument

where the later litigation position rested on facts known earlier).

The estoppel analysis in Henry lacks persuasive value because it relies on the precedent that we overruled in Slater, 871 F.3d

at 1189. See Henry, 2007 WL 9717743, at *5. As for Spencer, it held

that a district court, applying Iowa law, did not abuse its discretion

in failing to “give enough weight to changed circumstances during

the course of the litigation[.]”757 F.3d at 797. Spencer did not pronounce an absolute rule under federal estoppel law, and, even if it

11a

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did, the district court here would not be bound by it. See id. The

court therefore did not unreasonably or incorrectly apply the law

by concluding that the events of the intervening six years—including Alabama’s development of the nitrogen hypoxia protocol and

Mr. Lee’s successful constitutional challenge to that protocol—

constituted a change in circumstances.

The district court also did not make clearly erroneous factual determinations. First, after execution by nitrogen hypoxia became statutorily authorized in Alabama, inmates sentenced to

death were given one opportunity to elect to be executed by that

method. It was not unreasonable for the court to conclude that,

when Alabama signed onto the joint dismissal in Mr. Lee’s earlier

lawsuit, it did so with the understanding that it would be able to

develop a constitutional protocol and lawfully carry out Mr. Lee’s

death sentence. Second, the court did not have to give dispositive

weight to Mr. Lee’s reservation of his right to challenge the nitrogen hypoxia protocol. Instead, the court considered that Alabama

understood that Mr. Lee chose execution by nitrogen hypoxia, as

signified by his election, and that many of the other facts, such as

the specifics of the protocol, were unknown to it at the time.

Finally, Mr. Lee argues that the district court erred in failing

to give meaningful weight to its finding in Lee IV that the firing

squad is a feasible and readily implemented alternative. But even

Mr. Lee agrees that Glossip, 576 U.S. at 877, and its progeny do not

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automatically entitle a prevailing plaintiff to execution by his proposed alternative method. The court considered its finding regarding the implementation of the firing squad and nevertheless concluded that Alabama is not currently prepared to use that method.

That determination was likely not an abuse of discretion.

“The abuse of discretion standard allows a range of choices

for the district court, so long as any choice made by the court does

not constitute a clear error of judgment.” Collegiate Licensing Co. v.

Am. Cas. Co. of Reading, 713 F.3d 71, 77 (11th Cir. 2013) (citing Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005)). In this

case, Mr. Lee asks us to apply estoppel differently than the district

court did. But Mr. Lee sought relief through an avenue where the

court has considerable discretion, and absent an unreasonable conclusion, “we will not reverse . . . even if we might have reached a

different decision.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223,

1226 (11th Cir. 2005) (citations omitted). See also Slater, 871 F.3d at

1176 (explaining that “a district court may [not must] apply judicial

estoppel . . . if it finds that the plaintiff intended to make a mockery

of the judicial system”) (emphasis added); Lengen v. Dep’t of Transp.,

903 F.2d 1464, 1468 (11th Cir. 1990) (stating that “[t]he decision regarding whether to grant equitable relief and what equitable relief

to grant lies in the discretion of the trial court”) (citation omitted).

We therefore conclude that Mr. Lee has not shown a substantial likelihood of success on the merits. 2

2 Because we do not think that it is likely that the district court abused its dis-

cretion based on Mr. Lee’s arguments on appeal, we express no opinion on

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Although his execution is irreparable, cf. Moody v. Warden,

Holman CF, 887 F.3d 1281, 1286 (11th Cir. 2018), Mr. Lee does not

presently challenge the lethal injection protocol as unconstitutional. See Humphreys v. Comm’r, Ga. Dep’t of Corr., 161 F.4th 1300,

1312 (11th Cir. 2025) (“The irreversible nature of the death penalty

cannot, on its own, justify a stay.”). And “[b]oth the [s]tate and the

victims of crime have an important interest in the timely enforcement of a sentence.” Hill v. McDonough, 547 U.S. 573, 584 (2006)

(citing Calderon v. Thompson, 523 U.S. 538, 556 (1998)).

On this record, the harm to Mr. Lee does not overcome his

failure to demonstrate likelihood of success on the merits. And the

other stay factors do not weigh heavily in his favor.

Mr. Lee’s motion for a stay of execution is denied.

STAY DENIED.

the other issues raised by Alabama. For example, we do not address whether

“the doctrine of equitable estoppel can be applied against the government”

under these circumstances. See Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d 1350,

1353–54 (11th Cir. 2005) (citation omitted).

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JEFFERY LEE,

)

Plaintiff,

)

GREG LOVELACE, Commissioner,

)

Alabama Department of Corrections, et al., )

)

Defendants.

)

CASE NO. 2:25-cv-680-ECM

[WO]

MEMORANDUM OPINION and ORDER

I. INTRODUCTION

On June 9, 2026, following remand from the United States Court of Appeals for the

Eleventh Circuit, this Court declared that the Alabama Department of Corrections’

(“ADOC”) nitrogen hypoxia execution protocol (“Protocol”) facially violates the Eighth

Amendment and permanently enjoined the State 1 from executing Plaintiff Jeffery Lee

(“Lee”) using the Protocol. Lee v. Lovelace, 2026 WL 1664095 (M.D. Ala. June 9, 2026);

(docs. 187, 188). Now pending before the Court is Lee’s motion to amend pursuant to

Rules 52(b) and 59(e) of the Federal Rules of Civil Procedure, in which Lee requests that

the Court amend the scope of the injunctive relief in its Opinion and Final Judgment. (Doc.

Because the Defendants are state officials sued in their official capacities, this Opinion refers to them as

“the State.”

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204). The motion is fully briefed and ripe for review. After careful consideration, and for

the following reasons, the Court concludes that Lee’s motion is due to be denied.

II. LEGAL STANDARDS

Under Rule 59(e), a party may seek to alter or amend a judgment only on the basis

of “newly-discovered evidence or manifest errors of law or fact.” Jacobs v. Tempur-Pedic

Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (quoting Arthur v. King, 500 F.3d 1335,

1343 (11th Cir. 2007) (per curiam)). “The decision to alter or amend a judgment is

committed to the sound discretion of the district court.” Drago v. Jenne, 453 F.3d 1301,

1305 (11th Cir. 2006) (citing Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir.

1998)). “A party moving the court to alter or amend its judgment pursuant to Rule 59(e)

faces an extremely heavy burden.” Scharff v. Wyeth, 2012 WL 3149248, at *1 (M.D. Ala.

2012). 2

Rule 52(b) further provides that “the court may amend its findings—or make

additional findings—and may amend the judgment accordingly.” Rule 52(b) has a “limited

scope,” Johnson v. New Destiny Christian Ctr. Church, Inc., 771 F. App’x 991, 995 n.5

(11th Cir. 2019) (per curiam), which is “to correct manifest errors of law or fact or, in some

limited situations, to present newly discovered evidence,” Fontenot v. Mesa Petrol. Co.,

791 F.2d 1207, 1219 (5th Cir. 1986); see also Johnson, 771 F. App’x at 995 n.5 (citing this

language from Fontenot with approval).

Here, and elsewhere in this Opinion, the Court cites nonbinding authority. While the Court acknowledges

that these cases are nonprecedential, the Court finds them persuasive.

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III. BACKGROUND

The Court summarized the relevant procedural history and background in detail in

its May 28, 2026 Memorandum Opinion and Order, (doc. 176), and does not repeat it here.

The Court sets forth below the background relevant to resolving Lee’s motion to amend.

In 2016, Lee filed suit in the United States District Court for the Southern District

of Alabama challenging the ADOC’s lethal injection protocol, arguing that it violated the

Eighth Amendment. Lee v. Dunn, 2017 WL 1483530, at *1 (S.D. Ala. Apr. 24, 2017),

vacated in part by Lee v. Comm’r, Ala. Dep’t of Corr., 731 F. App’x 885 (11th Cir. 2018)

(per curiam). In 2018, Lee elected to be executed by nitrogen hypoxia, (doc. 204-3),

pursuant to the Alabama Legislature’s adoption of nitrogen hypoxia as an execution

method and the procedure by which an inmate may elect execution by nitrogen hypoxia,

see ALA. CODE § 15-18-82.1. 3 Thereafter, the parties moved to dismiss Lee’s lethal

injection challenge as moot. (Doc. 204-4). The court granted the motion and dismissed the

action without prejudice. (Doc. 204-2). The court’s order recounts the parties’ joint

representation that Lee’s “‘claims and causes of action are now moot because if he is to be

executed, [the State] will carry out that execution by nitrogen hypoxia,’ not the three-drug

lethal injection protocol at issue in this litigation.” (Id.). Further, the court agreed that the

action was moot. (Id.). As explained further below, the circumstances surrounding the

Lethal injection remains the default method of execution. See ALA. CODE § 15-18-82.1 (“A death sentence

shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed

by electrocution or nitrogen hypoxia.”).

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dismissal of Lee’s lethal injection lawsuit are a substantial basis for Lee’s motion to amend

the judgment.

On August 22, 2025, Lee filed a method of execution challenge to the ADOC’s

nitrogen hypoxia protocol, naming as Defendants John Q. Hamm (“Hamm”), thenCommissioner of the ADOC, 4 and Terry Raybon, the Warden of Holman, in their official

capacities. (Doc. 1). At trial, Lee’s sole claim was that the Protocol facially violates the

Eighth Amendment, (doc. 40 (operative complaint)), and his proposed alternative method

of execution was the firing squad, (id. at 20–22; see also doc. 98). Lee sought a declaration

that the Protocol is unconstitutional and an injunction prohibiting the ADOC from

executing him by nitrogen hypoxia or “any method other than one of the alternatives

provided by his attorneys.” (Doc. 40 at 23). As stated above, the Court declared that the

Protocol facially violates the Eighth Amendment, but it did not grant the permanent

injunctive relief sought by Lee. Instead, “[a]fter carefully considering traditional equitable

principles,” the Court permanently enjoined the State from executing him using the

Protocol. Lee, 2026 WL 1664095, at *9. But because Lee had not established that

Alabama’s other statutorily authorized execution methods—lethal injection and

electrocution—violate the Eighth Amendment, the Court concluded that he was not entitled

to an injunction prohibiting the State from executing him using one of those methods. Id.

While this case was pending, Hamm retired from his position as Commissioner of the ADOC. (See doc.

144 at 1). On May 1, 2026, Greg Lovelace became the Commissioner of the ADOC and was substituted

as a named Defendant pursuant to Federal Rule of Civil Procedure 25(d). (Id.).

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IV. DISCUSSION

Lee argues that the Court should amend the scope of its injunctive relief to provide

that the State is judicially and/or equitably estopped from executing him by lethal injection;

and to remove any language from the Court’s Opinion indicating that he may be executed

by lethal injection or electrocution because, according to him, Alabama law forecloses

those options for him. Lee submits that this relief is warranted pursuant to Rule 59(e) to

prevent a manifest injustice. 5

Lee first contends that the State should be estopped from executing him by lethal

injection because the Southern District of Alabama dismissed his lethal injection lawsuit

after the parties jointly represented that the State would execute him by nitrogen hypoxia

and not by lethal injection. He further claims that when he dismissed his lethal injection

lawsuit, he reasonably relied on the State’s representation that it would execute him by

nitrogen hypoxia, and that he will face an unfair detriment if the State is not estopped from

executing him by lethal injection. Lee next argues that Alabama Code § 15-18-82.1 does

Several district courts in the Eleventh Circuit have stated that Rule 59(e) relief is available to prevent or

correct a “manifest injustice.” See, e.g., Griffith v. Toscano, 2026 WL 1309051, at *2 (S.D. Fla. May 14,

2026); McCall v. Mitchem, 2012 WL 2946268, at *1 (S.D. Ala. July 19, 2012); Jacobs v. Elec. Data Sys.

Corp., 240 F.R.D. 595, 599 (M.D. Ala. 2007). However, the Court was unable to locate any published

decisions in which the Eleventh Circuit has recognized that preventing a manifest injustice is a basis for

Rule 59(e) relief. Instead, the Eleventh Circuit has stated that Rule 59(e) authorizes a court to alter or

amend a judgment only on the basis of “newly-discovered evidence or manifest errors of law or

fact.” Jacobs, 626 F.3d at 1344 (stating that the “only grounds for granting [a Rule 59] motion are newlydiscovered evidence or manifest errors of law or fact” (alteration in original) (quoting Arthur, 500 F.3d at

1343)). Nonetheless, even if the Court assumes that Rule 59(e) relief is available under Lee’s theory, and

even if Lee had argued that Rule 59(e) relief was warranted based on a manifest error of law or on other

grounds expressly recognized by the Eleventh Circuit, it would not change the Court’s conclusion that he

has not established entitlement to relief.

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not permit the State to execute him by lethal injection or electrocution because his election

for execution by nitrogen hypoxia is still in force, and that under Alabama law, the State

therefore may only execute him by nitrogen hypoxia. The State responds that estoppel

should not apply under these circumstances; and that Lee’s arguments concerning

Alabama’s execution statutes fail because this Court lacks the authority to instruct state

officials to comply with state law, and in any event, that Alabama law permits the ADOC

to execute Lee by lethal injection or electrocution.

The Court begins with Lee’s estoppel arguments, which the Court addresses

together, before addressing his arguments about Alabama’s execution statutes.

Estoppel

Judicial estoppel is an equitable doctrine whose purpose is “‘to protect the integrity

of the judicial process’ by ‘prohibiting parties from deliberately changing positions

according to the exigencies of the moment.’” New Hampshire v. Maine, 532 U.S. 742, 749–

50 (2001) (citations omitted).

Where, as here, the party seeking to apply judicial

estoppel—Lee—was a party to the prior case, the Court evaluates the propriety of estoppel

based on the considerations the Supreme Court outlined in New Hampshire. See United

States v. Munoz, 112 F.4th 923, 934 (11th Cir. 2024) (explaining that the Eleventh Circuit

applies “the New Hampshire test” when “the party seeking to apply judicial

estoppel . . . was a party to the prior lawsuit in which [the other party] had taken an

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inconsistent position” (alterations in original) (quoting Slater v. U.S. Steel Corp., 871 F.3d

1174, 1182 (11th Cir. 2017) (en banc))). 6

In determining whether to apply judicial estoppel, courts typically consider

(1) whether the party’s later position is “clearly inconsistent” with its earlier position;

(2) “whether the party has succeeded in persuading a court to accept that party’s earlier

position, so that judicial acceptance of an inconsistent position in a later proceeding would

create ‘the perception that either the first or the second court was misled’”; and

(3) “whether the party seeking to assert an inconsistent position would derive an unfair

advantage or impose an unfair detriment on the opposing party if not estopped.” New

Hampshire, 532 U.S. at 750–51 (citations omitted). However, these factors do not amount

to “inflexible prerequisites or an exhaustive formula for determining the applicability of

judicial estoppel.” Id. at 751. Moreover, “[b]ecause the rule is intended to prevent

‘improper use of judicial machinery,’ judicial estoppel ‘is an equitable doctrine invoked

When “the party seeking to invoke judicial estoppel was not a party to the [prior] case,” the Eleventh

Circuit applies the two-part test laid out in its en banc decision in Slater: “the party ‘took an inconsistent

position under oath in a separate proceeding’ and the ‘inconsistent positions were calculated to make a

mockery of the judicial system.’” Munoz, 112 F.4th at 935 (quoting Slater, 871 F.3d at 1181). Although

the parties analyze judicial estoppel under Slater’s two-part test, the Court concludes that New Hampshire

is the appropriate analytical framework under these circumstances. See United States v. Holland, 117 F.4th

1352, 1360 (11th Cir. 2024) (explaining that parties “cannot waive [or forfeit] the application of the correct

law or stipulate to an incorrect legal test” (alteration in original) (quoting United States v. Dawson, 64 F.4th

1227, 1239 (11th Cir. 2023))).

Even if the Court analyzed judicial estoppel using Slater’s two-part test, it would not change the Court’s

conclusion. Applying Slater’s two-part test requires courts to consider “all the facts and circumstances in

determining whether the [party] acted with the intent to make a mockery of the judicial system.” Slater,

871 F.3d at 1180. And as stated below, the New Hampshire test is flexible. Thus, any difference between

the Slater and New Hampshire tests may be more apparent than real. Further, as stated below, “judicial

estoppel ‘is an equitable doctrine invoked by a court at its discretion,’” New Hampshire, 532 U.S. at 750,

and the Court in its discretion declines to apply it here.

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by a court at its discretion[.]’” Id. at 750 (emphasis added) (citations omitted); see also

Slater, 871 F.3d at 1180 (“[A] district court may apply judicial estoppel when [the

applicable] test is satisfied.” (emphasis added)). And “ordinarily the doctrine of estoppel

or that part of it which precludes inconsistent positions in judicial proceedings is not

applied to states.” Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 369 (1946). 7 The

Supreme Court has acknowledged that “broad interests of public policy may make it

important to allow a change of positions that might seem inappropriate as a matter of

merely private interests.” New Hampshire, 532 U.S. at 755 (citation omitted).

Equitable estoppel is similarly “an equitable doctrine invoked to avoid injustice in

particular cases.” Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 59

(1984). Equitable estoppel comprises the following five elements:

(1) the party to be estopped misrepresented material facts;

(2) the party to be estopped was aware of the true facts; (3) the

party to be estopped intended that the misrepresentation be

acted on or had reason to believe the party asserting the

estoppel would rely on it; (4) the party asserting the estoppel

did not know, nor should it have known, the true facts; and

(5) the party asserting the estoppel reasonably and

detrimentally relied on the misrepresentation.

Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1326 (11th Cir. 2008) (citation omitted).

In New Hampshire, the Supreme Court applied judicial estoppel to the State of New Hampshire, explaining

that the case was not one “where estoppel would compromise a governmental interest in enforcing the law,”

or where the change in position was “the result of a change in public policy” or “the result of a change in

facts essential to the prior judgment”; instead, it was “a case between two States, in which each owes the

other a full measure of respect.” 532 U.S. at 755–56 (citation omitted).

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Assuming without deciding that Lee has successfully shown that the New

Hampshire factors counsel in favor of applying judicial estoppel or that he has satisfied the

equitable estoppel elements, which the Court doubts, 8 the Court in its discretion declines

to estop the State from executing Lee by lethal injection under the circumstances of this

case. First, the change in the State’s position is a result of a change in essential facts. See

New Hampshire, 532 U.S. at 756. In 2018, when the State represented to the Southern

District of Alabama that it would execute Lee by nitrogen hypoxia and not by lethal

injection, Lee wanted to be executed by nitrogen hypoxia, as signified by his election.

These facts were essential to the Southern District of Alabama’s dismissal of Lee’s lethal

injection lawsuit as moot. When the ADOC later released its nitrogen hypoxia execution

protocol, however, Lee challenged it in this Court, and he ultimately won a declaration that

the Protocol is facially unconstitutional and a permanent injunction prohibiting his

execution using the Protocol—the ADOC’s sole protocol for carrying out nitrogen hypoxia

Regarding judicial estoppel, for example, the Court doubts whether Lee could show that the State’s

position would impose an unfair detriment on him. He argues that he faces an unfair detriment because it

would be “impracticable” for him to revive his lethal injection lawsuit in the Southern District. However,

he does not elaborate on why it would be impracticable to do so. The Court expresses no view as to whether

such a showing would be sufficient to establish an unfair detriment. But the lack of such showing

underscores the Court’s doubt that Lee could show he would suffer an unfair detriment.

And regarding equitable estoppel, the Court doubts Lee could show that the State misrepresented material

facts—that it would execute Lee by nitrogen hypoxia and not lethal injection—or that it was aware of the

true facts—that it would seek to execute Lee by lethal injection. Nothing before the Court suggests that, in

June 2018, the State misrepresented that it would execute Lee by nitrogen hypoxia and not lethal injection.

To the contrary, the record suggests that intervening events—Lee’s subsequent challenge to the Protocol,

the Court’s declaration that the Protocol is unconstitutional, and the Court’s permanent injunction

prohibiting the State from executing Lee using the Protocol—have caused the State’s later actions to deviate

from its prior intentions.

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executions. It was only after these developments that the State decided to pursue Lee’s

execution by lethal injection. Under these circumstances, the change in the State’s position

is attributable to a change in essential facts and does not amount to an “improper use of the

judicial machinery,” see New Hampshire, 532 U.S. at 750 (citation omitted), thereby

counseling against the application of estoppel.

This case’s procedural posture also informs the Court’s discretionary decision not

to apply estoppel. Lee invokes equitable doctrines as grounds for modification of the

Court’s permanent injunction, which is itself an equitable remedy. See eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006). But Lee’s interests are not the only

interests at stake here. “[E]quity must [also] 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) (stating this proposition in the context of a

request for a stay of execution); see also eBay Inc., 547 U.S. at 391 (explaining that a

plaintiff seeking a permanent injunction must show (1) irreparable injury; (2) that

“remedies available at law, such as monetary damages, are inadequate to compensate for

that injury”; (3) that an equitable remedy is warranted “considering the balance of

hardships between the plaintiff and defendant[s]”; and (4) that “the public interest would

not be disserved by a permanent injunction”); Angel Flight of Ga., Inc. v. Angel Flight Am.,

Inc., 522 F.3d 1200, 1208 (11th Cir. 2008) (same). The victims of Lee’s crimes also have

“an important interest in the timely enforcement of [his] sentence.” See Hill, 547 U.S. at

584.

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Here, Lee sought a permanent injunction prohibiting the ADOC from executing him

by nitrogen hypoxia or “any method other than one of the alternatives provided by his

attorneys,” (doc. 40 at 23), which functionally was a request that he not be executed “by

any method other than firing squad,” (see doc. 185 at 1). After balancing the hardships

between Lee and the State and considering the public interest, however, the Court

concluded that a narrow permanent injunction prohibiting the State from executing Lee

using the nitrogen hypoxia protocol was appropriate. Lee, 2026 WL 1664095, at *9. As

the Court explained, this permanent injunction was narrowly tailored to remedy the specific

harm at issue: that the Protocol violates the Eighth Amendment. Id. at *9 n.15. Moreover,

the injunction entered by the Court would not further delay the State in carrying out Lee’s

lawfully imposed death sentence.

The need to avoid further delay is particularly salient here given Lee’s litigation

history. While his lethal injection lawsuit was pending, Lee elected execution by nitrogen

hypoxia as provided by Alabama statute. Because the ADOC did not at that time have a

nitrogen hypoxia protocol, Lee’s election had the practical effect of delaying his execution

until such protocol was adopted. In this challenge to the ADOC’s nitrogen hypoxia

protocol, Lee’s proposed alternative method of execution was the firing squad, and he

requested a permanent injunction prohibiting his execution by any means other than the

firing squad. If the Court had granted his request, it would have had the practical effect of

further delaying his execution because the ADOC is not currently prepared to use the firing

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squad. 9 Now that the State has announced its intention to execute him by lethal injection,

Lee claims that the State can only execute him by nitrogen hypoxia, just not using the

existing protocol. If Lee were correct, it would also have the practical effect of delaying

his execution because the ADOC would need time to develop a new nitrogen hypoxia

protocol. Considering the totality of the circumstances, including the circumstances of the

dismissal of Lee’s lethal injection challenge, equity does not demand that the Court prohibit

the State from executing Lee by lethal injection, the State’s default execution method and

one which it is presently able to use. For these reasons, the Court in its discretion declines

to apply judicial estoppel.

To be sure, Lee successfully established that the ADOC’s nitrogen hypoxia protocol

is facially unconstitutional, and a permanent injunction prohibiting his execution using the

unconstitutional Protocol was and remains appropriate. But balancing all of the equities,

including the State’s and the victims’ interests in the enforcement of Lee’s sentence, the

broader, modified injunction Lee now seeks is not warranted. Consequently, the Court

concludes that Lee has not established entitlement to amendment of the Court’s injunction

under Rules 52(b) or 59(e) on the basis of estoppel.

The Court reiterates that, for the reasons explained in further detail in its June 9 Opinion, firing squad is

feasible and readily implemented notwithstanding this delay. See Lee, 2026 WL 1664095, at *5.

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Whether Alabama Code § 15-18-82.1 Prohibits Lee’s Execution by Lethal

Injection or Electrocution

Lee further argues that, because he timely elected execution by nitrogen hypoxia

pursuant to Alabama Code § 15-18-82.1, Alabama law prohibits the State from executing

him by lethal injection or electrocution. He thus requests that the Court remove from its

Opinion “any and all language suggesting that the State may, consistent with Alabama

Code § 15-18-82.1, execute [him] by lethal injection or electrocution.” (Doc. 204 at 23,

para. 3). The State counters that this ground for relief is barred pursuant to Pennhurst State

School & Hospital v. Halderman, 465 U.S. 89 (1984). The Court agrees with the State.

The Eleventh Amendment prohibits suits against a state, including those brought by

a state’s own citizens. Pennhurst, 465 U.S. at 97–99. The Supreme Court has explained

that “the principle of sovereign immunity” embodied in the Eleventh Amendment, which

is rooted in principles of federalism and state sovereignty, “is a constitutional limitation on

the federal judicial power established in” Article III. Id. at 98. But notwithstanding a state’s

sovereign immunity, a suit for declaratory or injunctive relief against a state official may

be permitted under Ex parte Young, 209 U.S. 123 (1908), where the court is asked to

instruct a state official to comply with federal law, because requiring compliance with

federal law is not offensive to state sovereignty or federalism. See id. at 160 (“The State

has no power to impart to [state officials] any immunity from responsibility to the supreme

authority of the United States.”). On the other hand, “it is difficult to think of a greater

intrusion on state sovereignty than when a federal court instructs state officials on how to

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conform their conduct to state law.” Pennhurst, 465 U.S. at 106 (“A federal court’s grant

of relief against state officials on the basis of state law . . . does not vindicate the supreme

authority of federal law.”). To that end, “federal courts do not have the authority to compel

state actors to comply with state law.” Doe v. Bush, 261 F.3d 1037, 1055 (11th Cir. 2001);

see also Pennhurst, 465 U.S. at 106, 121. This rule applies equally to a request for a

declaration that state officials’ conduct violates state law. See Leeds v. Bd. of Dental

Exam’rs of Ala., 382 F. Supp. 3d 1214, 1230 (N.D. Ala. 2019), vacated in part on other

grounds, 2019 WL 1696845 (N.D. Ala. Apr. 17, 2019); see also Silver v. Baggiano, 804

F.2d 1211, 1213–15 (11th Cir. 1986) (in suit against state official seeking both declaratory

and injunctive relief for violations of state law, concluding that all claims based on state

law were barred by the Eleventh Amendment), abrogated in part on other grounds,

Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002).

As stated above, Lee asks the Court to remove from its Opinion “any and all

language suggesting that the State may, consistent with Alabama Code § 15-18-82.1,

execute [him] by lethal injection or electrocution.” (Doc. 204 at 23, para. 3 (emphasis

added)). 10 The premise of Lee’s argument is that, because he elected nitrogen hypoxia,

neither lethal injection nor electrocution is an available execution method under Alabama

law. He plainly does not request relief on the basis that executing him by lethal injection

or electrocution would violate federal law. Instead, he requests relief pursuant to state law

For purposes of this analysis, the Court need not, and does not, determine whether Lee’s interpretation

of state law is correct. See Oneida Cnty. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226, 252 (1985)

(“The Eleventh Amendment bar does not vary with the merits of the claims pressed against the State.”).

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because, according to him, state law requires it. Granting Lee the relief he seeks would, in

substance, require this Court to determine that the State’s actions violate state law and to

order the State to comply with state law, which the Court lacks the authority to do. See

Doe, 261 F.3d at 1055; Silver, 804 F.2d at 1213–15. It does not matter that Lee neither

brings a formal claim for a violation of Alabama Code § 15-18-82.1 nor formally seeks an

injunction for the State to comply with state law; his “requested relief is disguised . . . to

achieve that aim.” See Ford v. Strange, 2013 WL 6804193, at *8 (M.D. Ala. Dec. 23,

2013); cf. Brown v. Ga. Dep’t of Rev., 881 F.2d 1018, 1023 (11th Cir. 1989) (“Under

Pennhurst, . . . the determinative question is not the relief ordered, but whether the relief

was ordered pursuant to state or federal law.”). The “gravamen” of his requested relief is

that the State “has improperly interpreted and failed to adhere to a state statute governing”

execution methods, see DeKalb Cnty. Sch. Dist. v. Schrenko, 109 F.3d 680, 688 (11th Cir.

1997) (per curiam), and the Eleventh Amendment plainly bars such relief. For these

reasons, Lee’s arguments concerning Alabama Code § 15-18-82.1 do not supply grounds

for amending the Court’s injunction under Rules 52(b) or 59(e). Consequently, the Court

concludes that Lee’s motion to amend is due to be denied.

V. CONCLUSION

Accordingly, for the reasons stated, it is

ORDERED that Lee’s motion to amend (doc. 204) is DENIED.

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DONE this 22nd day of July, 2026.

/s/ Emily C. Marks

EMILY C. MARKS

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JEFFERY LEE,

)

Plaintiff,

)

GREG LOVELACE, Commissioner,

)

Alabama Department of Corrections, et al., )

)

Defendants.

)

CASE NO. 2:25-cv-680-ECM

[WO]

MEMORANDUM OPINION and ORDER

I. INTRODUCTION

This case is before the Court on remand from the United States Court of Appeals

for the Eleventh Circuit to address whether Plaintiff Jeffery Lee’s (“Lee”) proposed

alternative method of execution—firing squad—is feasible, is readily implemented, and

significantly reduces the substantial risk of serious harm caused by the Alabama

Department of Corrections’ (“ADOC”) nitrogen hypoxia protocol (the “Protocol”). See

generally Lee v. Comm’r, Ala. Dep’t of Corr., 2026 WL 1651147 (11th Cir. June 8, 2026)

(per curiam).

After a three-day bench trial, the Court found that the Protocol causes one to three

minutes of severe air hunger but ultimately concluded that the Protocol did not constitute

cruel and unusual punishment in violation of the Eighth Amendment. Lee v. Lovelace, 2026

WL 1493098, at *24–25 (M.D. Ala. May 28, 2026). The Eleventh Circuit disagreed and

concluded that the Protocol causes “a substantial risk of serious harm.” Lee, 2026 WL

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1651147, at *8. The Eleventh Circuit remanded with explicit instructions to immediately

address whether Lee’s proposed alternative method significantly reduces that substantial

risk of serious harm. Id. Following the issuance of the Eleventh Circuit’s mandate, Lee

moved this Court to enter judgment in his favor or, in the alternative, to stay his execution.

(Doc. 185). The State opposes that motion. 1 (Doc. 186). On this record, and given the

Eleventh Circuit’s legal conclusion that the Protocol poses an unconstitutional risk of pain,

the Court finds that Lee has shown by a preponderance of the evidence that firing squad is

feasible, readily implemented, and significantly reduces the substantial risk of serious harm

posed by the Protocol, and that the State failed to proffer a legitimate penological reason

not to adopt it. Accordingly, the Court enters judgment in Lee’s favor and denies his motion

to stay his execution as moot.

II. 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.

III. PROCEDURAL HISTORY AND BACKGROUND

The Court summarized the relevant procedural history and background in its

May 28, 2026 Memorandum Opinion and Order, see Lee, 2026 WL 1493098, and does not

repeat it here. The Court sets forth below the relevant evidence presented at trial regarding

Because the Defendants are state officials sued in their official capacities, the Court refers to them as the

State.

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Lee’s proposed firing squad alternative, in particular Dr. James Williams’ (“Dr. Williams”)

expert testimony. 2

Firing Squad

Five states—including Utah—authorize execution by firing squad. 3 At trial, Lee

introduced Utah’s and the United States Army’s (“U.S. Army”) firing squad protocols into

evidence. 4 (See doc. 173-46 (Utah’s protocol); doc. 174-35 (U.S. Army protocol)). Lee’s

proposal largely tracks Utah’s firing squad protocol, which was used as recently as 2010. 5

(Compare doc. 40 at 20–22, paras. 70–72, with doc. 173-46 at 55, 89–92); see Boyd v.

Warden, Holman Corr. Facility, 856 F.3d 853, 881 n.4 (11th Cir. 2015) (Wilson, J.,

concurring) (taking judicial notice of the fact that Utah executed Kirk Johnson by firing

squad in 2010). Below, the Court summarizes how Lee’s proposed alternative would

proceed.

As discussed below, the Court also heard testimony from various ADOC employees, including formerCommissioner John Q. Hamm (“Hamm”), Deputy Commissioner Charles Williams (“Charles Williams”),

and Warden Terry Raybon (“Raybon”) regarding Lee’s proposed firing squad protocol and whether the

ADOC could feasibly and readily implement such a protocol.

The other four states are Idaho, Mississippi, Oklahoma, and South Carolina. See IDAHO CODE § 19-2716;

MISS. CODE § 99-19-51; OKLA. STAT. tit. 22, § 1014; S.C. CODE § 24-3-530. Lee’s proposed alternative

and Dr. Williams’ expert opinion do not rely on the Idaho, Mississippi, Oklahoma, or South Carolina

protocols.

The Court pretermits discussion of the U.S. Army protocol because Lee’s expert and proposed

supplemental findings of fact rely heavily on Utah’s protocol. (See doc. 173-40 at 16–21 (Dr. Williams’

expert report); doc. 147 at 49:9–12 (Dr. Williams’ trial testimony (“I rely heavily on the Utah state protocol

for executions.”)); doc. 167-1 at 36, para. 76) (Lee’s proposed supplemental findings of fact)).

Lee introduced a redacted copy of Utah’s firing squad protocol into evidence at trial. (See doc. 173-46).

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First, a member of the execution team would restrain the condemned inmate to a

chair placed “between stacked sandbags.” (Doc. 40 at 20, para. 71). Next, an execution

team member would place a hood over the inmate’s head and a target over his heart. (Id.).

The firing squad team leader would then direct the execution team to stand at attention

twenty-one feet from the condemned inmate. (Id. at 21, para. 72). Five trained marksmen

armed with .30-caliber rifles would take aim and fire. (Id.). If, after the first volley, the

condemned “is obviously conscious,” the warden “shall immediately instruct the firing

squad team leader to prepare the weapons and fire again.” (Doc. 40 at 21–22, para. 72; see

also doc. 173-46 (Utah’s protocol)).

Dr. James Williams

Dr. Williams is an emergency physician, and much of his practice involves treating

patients injured by gunshot wounds. (Doc. 147 at 5:21–6:8). At trial, he was accepted as

an expert in emergency and family medicine, gunshot wounds, firearms, and ballistics. (Id.

at 8:6–12). Dr. Williams testified to a reasonable degree of medical certainty that execution

by firing squad: (1) causes a quick and painless death; and (2) is feasible and readily

implemented. (Id. at 8:15–23). His opinion that firing squad causes a quick and painless

death is based on scientific literature, his clinical experience treating gunshot victims in the

emergency room, and his own experience being shot. (Id. at 27:16–28:7 (clinical

experience); id. at 30:1–17 (personal experience); id. at 36:10–11, 37:16–24 (scientific

literature); see also docs. 173-55, 173-90).

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Dr. Williams opines that an execution by firing squad directed at the cardiac

bundle 6—the area of the body that includes the heart and great vessels—will very likely

cause immediate disruption of blood flow to the brain, resulting in loss of consciousness

within three to five seconds and death shortly thereafter. (Doc. 147 at 31:18–32:10, 36:15–

37:9). Dr. Williams further opines that an inmate shot in the heart is unlikely to feel pain

in the three to five seconds before he loses consciousness. (Id. at 18:7–15, 29:1–3). He

bases this opinion on two related phenomena: (1) the delay in the brain’s processing of

novel stimuli into a subjective experience such as pain; and (2) the effects of “neural

stunning.” (Id. at 15:1–26:25). Dr. Williams testified that the 2025 firing squad execution

of Mikal Mahdi (“Mahdi”) 7 in South Carolina does not change his opinions because it was

one purportedly botched execution out of forty-six firing squad executions in the United

States since 1860. (Doc. 147 at 69:23–70:4, 71:7–18, 106:18–19). 8

For simplicity, this Opinion will refer to the cardiac bundle as the “heart” with the understanding that it

also includes the great vessels.

Pathologists have opined that the riflemen largely missed Mahdi’s heart and that Mahdi remained

conscious for approximately thirty to sixty seconds after he was shot. (See doc. 147 at 103:16–25, 104:15–

25 (Dr. Williams’ testimony); doc. 173-189 at 7).

On cross-examination, the State questioned Dr. Williams regarding Mahdi’s firing squad execution. (See

generally doc. 147 at 88:13–104:9). During his testimony, Dr. Williams revealed that he is “currently

retained by counsel for Mr. Mahdi and his estate” as a consulting expert for a potential lawsuit. (Id. at 75:4–

7, 84:9–15). Dr. Williams has not been paid for his services and does not expect to be paid unless and until

a lawsuit is filed, which had not occurred at the time of trial. (Id. at 84:7–8, 122:7–19). Although best

practices counsel in favor of disclosing potential conflicts, any prejudice to the State was ameliorated

through vigorous cross-examination and probing questions regarding Dr. Williams’ potential bias. (See,

e.g., id. at 122:7–123:23). As noted above, Lee did not offer South Carolina’s protocol as his proposed

alternative. (See, e.g., doc. 147 at 53:6–54:2 (Dr. Williams’ testimony that there are significant differences

between South Carolina’s firing squad protocol and Utah’s that renders South Carolina’s protocol inferior)).

The Court denied the State’s oral motion to strike Dr. Williams’ testimony. (See id. at 75:14–18, 78:23–

79:2). Having personally observed Dr. Williams’ testimony, the Court further finds that he was credible.

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Dr. Williams further opines that execution by firing squad is feasible and can be

readily implemented by the ADOC. (See doc. 147 at 55:22–56:3). He explains that a firing

squad execution can either be done outdoors or indoors, as in Utah, (id. at 54:5–8), and that

the weapons and materials required to conduct firing squad executions indoors—including

.30-caliber rifles, sandbags, and steel plates—are “[v]ery commonly available,” (see, e.g.,

id. at 50:21–51:1, 54:8–55:18).

IV. LEGAL STANDARDS

Bench Trial

“In an action tried on the facts without a jury . . . the court must find the facts

specially and state its conclusions of law separately.” FED. R. CIV. P. 52(a)(1). In a bench

trial, “it is the exclusive province of the judge . . . to assess the credibility of witnesses and

to assign weight to their testimony.” Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir.

1993); see also Sidman v. Travelers Cas. & Sur., 841 F.3d 1197, 1201 (11th Cir. 2016)

(explaining, in the bench trial context, that “the district court has the advantage of

observing the witnesses and evaluating their credibility firsthand,” and that “[t]he

credibility of a witness is in the province of the factfinder” (alteration in original) (first

quoting Fischer v. S/Y NERAIDA, 508 F.3d 586, 592 (11th Cir. 2007), then quoting Crystal

Ent. & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1320 (11th Cir. 2011))). Additionally,

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“[a] trial judge sitting without jury is entitled to great latitude concerning the admission or

exclusion of evidence.” Wright v. Sw. Bank, 554 F.2d 661, 663 (5th Cir. 1977). 9

Method of Execution Claims

To prevail on his method of execution claim, Lee must show by a preponderance of

the evidence that (1) the Protocol creates a substantial risk of severe pain; and (2) “there is

an alternative [method of execution] that is feasible, readily implemented, and in fact

significantly reduces a substantial risk of severe pain.” Nance v. Comm’r, Ga. Dep’t of

Corr., 169 F.4th 1312, 1318 (11th Cir. Mar. 19, 2026) (quoting Barber v. Governor of Ala.,

73 F.4th 1306, 1318 (11th Cir. 2023)). If Lee makes these showings and the State refuses

to adopt his proposed alternative “without a legitimate penological justification,” then

Lee’s Eighth Amendment claim succeeds. See Baze v. Rees, 553 U.S. 35, 52 (2008)

(plurality op.) (“If a State refuses to adopt [a feasible, readily implemented, and less

painful] alternative in the face of these documented advantages, without a legitimate

penological justification for adhering to its current method of execution, then a State’s

refusal to change its method can be viewed as ‘cruel and unusual’ under the Eighth

Amendment.”).

V. DISCUSSION

Because the Eleventh Circuit concluded that the Protocol poses a substantial risk of

severe pain, Lee, 2026 WL 1651147, at *8, the issues before the Court are whether the

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of

business on September 30, 1981.

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firing squad is feasible, readily implemented, and significantly reduces the substantial risk

of severe pain posed by the Protocol, and whether the State has refused to adopt it without

a legitimate penological reason. See Bucklew, 587 U.S. at 134; Nance, 169 F.4th at 1318.

Because each of those issues resolves in Lee’s favor on this record, the Court concludes

that the Protocol violates the Eighth Amendment. The Court addresses each issue in turn

and then addresses the specific injunctive relief Lee seeks in this case.

Feasible and Readily Implemented

“[A]n inmate must show that his proposed alternative method is not just

theoretically ‘feasible’ but also ‘readily implemented.’” Bucklew, 587 U.S. at 141 (quoting

Glossip v. Gross, 576 U.S. 863, 877 (2015)). “This means the inmate’s proposal must be

sufficiently detailed to permit a finding that the State could carry it out ‘relatively easily

and reasonably quickly.’” Id. (citation omitted).

Lee’s proposed alternative passes muster. In his amended complaint, after noting

that the firing squad is an authorized method of execution in five states (indeed, one that is

currently in use), Lee drew up a blueprint for the State to follow that largely tracks Utah’s

current firing squad protocol:

• “[T]he prisoner shall be seated in a chair set up between stacked sandbags

to prevent bullets from ricocheting. A designated person on the execution

team shall pin a target over the prisoner’s heart and a hood over the

prisoner’s head.”

• “The firing squad shall be comprised of five trained marksmen, one of

whom is the firing squad team leader. The firing squad shall set up at a

distance of [twenty-one] feet from the inmate, armed with .30-caliber

rifles. One of the rifles shall be loaded with blanks so that it is unknown

which firing squad member kills the prisoner.”

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• “The warden or his designee shall order the firing squad team leader to

begin the cadence for the firing squad to fire. The firing squad team

leader shall ready the weapons in a controlled and safe manner.”

• “If the prisoner appears to be unconscious [after the first volley], the

warden or his designee shall call for the medical examiner to enter the

execution chamber and check the prisoner’s vital signs. . . . If the

prisoner is obviously conscious, the warden or his designee shall

immediately instruct the fir[ing] squad team leader to prepare the

weapons and fire again.”

(Doc. 40 at 20–22, paras. 71–72; see doc. 173-46 at 55, 62, 89–92 (Utah’s protocol)).

These procedures are to be “repeat[ed] . . . until no vital signs are detected.” (Doc. 40 at

22, para. 72; see doc. 173-46 at 91–92).

Lee also presented the testimony of Dr. Williams. Dr. Williams testified that

multiple states use firing squad as a method of execution, and firing squad’s prevalence is

due, at least in part, to the ease with which it can be accomplished. (See doc. 147 at 49:25–

50:11 (“A military tribunal or an officer capriciously may say, this soldier needs to be

executed. The means of execution could be assembled in a . . . minute or two, and the

execution could be carried out quickly and expeditiously.”)). He also opined that the firing

squad protocol Lee proposes—involving five shooters firing four live rounds from .30caliber rifles at a target placed over the inmate’s heart—would be effective. (See id. at

50:12–51:24). And he stated that he was familiar with Alabama’s rifle qualification course

and that “anyone who could shoot that course of fire and achieve a score of [eighty] percent

or more . . . is going to be capable of performing a firing squad execution effectively.” (Id.

at 52:11–17).

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The State concedes that it can “procure guns and ammunition of a variety of

calibers.” (Doc. 148 at 29). Still, it claims that, for various reasons, “[f]iring squad is not

feasible and readily available.” (Id.). The Court is not persuaded.

The State argues that firing squad is not readily implemented because it is not

presently an authorized method of execution under Alabama law. (Id. (citing ALA. CODE

§§ 15-18-82, 15-18-82.1)). But that argument has been rejected by the Supreme Court—

twice. See Bucklew, 587 U.S. at 139–40 (“An inmate seeking to identify an alternative

method of execution is not limited to choosing among those presently authorized by a

particular State’s law.”); Nance v. Ward, 597 U.S. 159, 164 (2022) (“The prisoner may, for

example, ‘point to a well-established protocol in another State as a potentially viable

option.’” (quoting Bucklew, 587 U.S. at 140)). After all, “the Eighth Amendment is the

supreme law of the land, and the comparative assessment it requires can’t be controlled by

the State’s choice of which methods to authorize in its statutes.” Bucklew, 587 U.S. at 140.

The thrust of the State’s remaining arguments is that implementing a firing squad

protocol would take time—time to (1) develop its own firing squad protocol, (2) construct

a proper facility, and (3) source volunteers to serve on the execution team. (Doc. 148 at

30–33). This Court has previously considered and rejected these same arguments:

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

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execution. To conclude otherwise would render the Supreme

Court’s guidance a dead letter.

Boyd v. Hamm, 2025 WL 2884410, at *22 (M.D. Ala. Oct. 9, 2025). Suffice it to say that

if an inmate can propose an alternative method that is not presently authorized by the law

of the executing state, then the “‘incidental delay’ involved in changing a procedure”—

which the Supreme Court has recognized “may take some real work”—is not enough to

invalidate that method as a suitable alternative. Nance, 597 U.S. at 170. What’s more,

several ADOC employees testified that the ADOC could carry out a firing squad execution,

if the Alabama Legislature authorized it. (See, e.g., doc. 146 at 229:4–22 (Hamm’s

testimony that the ADOC could “train people to use .30-caliber rifles for firing squad if

approved by the legislature” and could procure the required materials); id. at 230:9–13

(Hamm’s testimony that the ADOC could modify space at Holman Correctional Facility 10

to carry out executions by firing squad)).

In sum, Lee has provided Alabama with a “pathway forward,” see Nance, 597 U.S.

at 169, and thus he has satisfied his burden to show that firing squad is feasible and readily

implemented. Cf. Bucklew, 587 U.S. at 141–42 (concluding that the plaintiff’s “bare-bones

proposal f[ell] well short of” the relevant standard because he “presented no evidence on

essential questions” (emphasis added)).

Executions in Alabama are carried out at Holman Correctional Facility (“Holman”).

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Significant Reduction of Substantial Risk of Severe Pain

The Eleventh Circuit determined that the Protocol poses a substantial risk of severe

pain. See Lee, 2026 WL 1651147, at *7 (“In our view, the overall suffering described by

the district court, which lasts for one to three minutes, presents a substantial risk of serious

harm over and above death itself.”). The question is whether the firing squad will

significantly reduce that risk. See Nance, 597 U.S. at 164. On this record, Lee has made

that showing. To show how the Court reached this conclusion, the Court compares the

evidence proffered by Lee with the State’s evidence to the contrary.

1. Lee’s Evidence

Lee relies primarily on the testimony of Dr. Williams, who credibly opined that

death by firing squad is quick and painless, rendering the inmate unconsciousness in three

to five seconds and before he can perceive any pain. Dr. Williams’ expertise is twofold.

He is an emergency physician who has treated “[m]any thousands” of gunshot wounds.

(Doc. 147 at 5:21–6:5). He is also a firearms expert, boasting “lifelong experience as a

shooter and hunter” and “extensive training in the use of defensive firearms in the law

enforcement and civilian context[s].” (Id. at 7:15–8:2). As indicated above, he also bases

his opinions on scientific literature and his own experience being shot.

Dr. Williams testified that execution by firing squad would rapidly induce a deep

state of unconsciousness. A .30-caliber bullet “deliver[s] something in the area of 2,000

foot-pounds of energy,” which Dr. Williams likened to “being struck by a three-quarterton truck.” (Id. at 20:3–9). The firing squad protocol that Lee proposes calls for four .3012

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caliber bullets—four three-quarter-ton trucks—to be fired at the heart simultaneously.

When the bullets strike the heart, according to Dr. Williams, the result will be an immediate

and total loss of blood flow to the brain, producing unconsciousness within three to five

seconds. (Id. at 31:18–32:10, 35:6–9, 105:11–25).

But Dr. Williams also opines that execution by firing squad is painless. In support

of his opinion that an inmate would not feel pain, Dr. Williams cites two phenomena:

(1) the delay in the brain’s processing of novel stimuli into a subjective experience such as

pain; and (2) the effects of “neural stunning.” (Id. at 15:1–26:25; doc. 173-40 at 6–9).

Regarding the processing delay, Dr. Williams testified as follows: Pain is a noxious

stimulus that is “transmitted to the brain via sensory nerves.” (Doc. 173-40 at 5). But pain

is not felt instantaneously upon exposure to a noxious stimulus. (Doc. 147 at 16:15–18:15).

Rather, the stimulus must travel from the sensory nerves to the cerebral cortex, where the

individual perceives the stimulus as pain. (Id. at 16:15–17:22). And when a stimulus is

novel, the brain’s processing delay is substantially longer, potentially “several seconds.”

(Id. at 15:4–21, 18:7–15).

Because multiple bullets striking the heart is “a novel

neurological stimulus,” the inmate’s brain will not complete the processing required to

experience pain in the three to five seconds before he loses consciousness. (Id. at 18:7–15,

29:1–3).

Regarding the effects of neural stunning, Dr. Williams testified as follows: When a

person is shot, the bullet “stretche[s], compresse[s], and otherwise disrupt[s]” all the nerves

“near to the impact of the bullet,” thereby “stunning” the nerves and preventing the

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transmission of neural impulses of pain. (Id. at 26:4–16). This disruption of neural

impulses or “stunning” lasts “several hours if not days.” (Id. at 24:11–17, 26:19–25; see

also doc. 173-60). Because of neural stunning, an inmate executed by firing squad will be

unconscious and dead long before he can process the pain from the gunshot wounds. (Doc.

147 at 26:2–25). Thus, due to the twin phenomena of delayed processing and neural

stunning, an inmate executed by firing squad would lose consciousness without perceiving

any pain. (Id. at 26:19–25; see also id. at 28:23–29:3 (Dr. Williams reiterating that a

condemned inmate would experience no conscious pain)). Dr. Williams’ testimony on

these points was as consistent as it was credible. (See id. at 18:5–15, 19:12–22, 69:11–18).

2. The State’s Evidence

Before trial, Dr. Antognini opined that an inmate executed by firing squad would

consciously suffer severe pain for eight to ten seconds due to “shattering of bone and

damage to the spinal cord.” (Doc. 173-141 at 26, para. 47). Dr. Antognini purportedly

relied in part on South Carolina’s execution of Mahdi to bolster his opinion that death by

firing squad would be extremely painful. (Id. at 26–27, para. 47; see also doc. 149 at 62:22–

64:4). At trial, Dr. Antognini conceded that nothing in his expert report supported his

contention that an inmate executed by firing squad would consciously suffer severe pain

for eight to ten seconds after bullet entry. (See doc. 149 at 102:3–9). Dr. Antognini agreed

that he did not cite any scientific articles in support of his theory, either. (Id. at 102:10–

13). Dr. Antognini could not identify the names of any studies or authors he relied on to

form his opinion that an inmate’s consciousness would persist for eight to ten seconds after

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being shot. (Id. at 102:14–17). Considering Dr. Antognini’s concessions, the Court

excluded Dr. Antognini’s opinions regarding pain caused by a firing squad execution. (Id.

at 102:18–103:14).

3. Firing Squad Significantly Reduces a Substantial Risk of Severe Pain

On this record, Dr. Williams’ testimony is credible, persuasive evidence that an

inmate executed by Lee’s proposed firing squad protocol would experience no pain. The

State offered no admissible evidence to the contrary. Of course, the Court need not accept

expert testimony solely because it goes unrebutted. See Eason v. Weaver, 484 F.2d 459,

460 (5th Cir. 1973) (“The weight to be accorded unimpeached expert opinion evidence is

solely for the judge sitting without a jury.”). But the Court is persuaded by Dr. Williams’

testimony, which is based on his extensive experience and supported by science. The

undersigned acknowledges that its finding—getting shot multiple times in the heart causes

a painless death—is not intuitive. Nevertheless, having listened to the witnesses’ testimony

and reviewed all the parties’ materials, the record in this case supports this finding.

The Protocol causes one to three minutes of severe air hunger, which the Eleventh

Circuit concluded is a substantial risk of serious harm. Lee, 2026 WL 1651147, at *8. On

this record, the firing squad produces a painless death. 11 This difference is “clear and

In Hoffman v. Westcott, a divided panel of the Fifth Circuit, in a preliminary injunction posture, rejected

a challenge to Louisiana’s nitrogen hypoxia protocol in which the plaintiff, as here, proposed firing squad

as an alternative method. 131 F.4th 332, 335–36 (5th Cir. 2025). The Eleventh Circuit concluded that the

Fifth Circuit’s reasoning on the first prong (whether nitrogen hypoxia presents a substantial risk of severe

pain) is inapplicable given this Court’s factual findings. Lee, 2026 WL 1651147, at *7. Hoffman’s

reasoning on the second prong (whether firing squad significantly reduces that risk) is also inapposite on

this record, as the record in Hoffman indicated that nitrogen hypoxia was painless and that firing squad was

not. See 131 F.4th at 336. The Court agrees with the Fifth Circuit that the Eighth Amendment “does not

require State officials to favor more painful methods of execution over less painful ones.” Id. But the

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considerable,” see Bucklew, 587 U.S. at 143, and the Court therefore finds that Lee’s

proposed firing squad protocol “significantly reduce[s] a substantial risk of severe pain,”

Glossip, 576 U.S. at 877 (quoting Baze, 553 U.S. at 52).

Legitimate Penological Reasons

Lee’s Eighth Amendment claim faces a final hurdle. The State “may refuse to adopt

a prisoner’s proposed alternative method of execution for a legitimate penological reason.”

Nance v. Comm’r, Ga. Dep’t of Corr., 59 F.4th 1149, 1155–56 (11th Cir. 2023). 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.” Bucklew, 587 U.S. at 134 (quoting Baze, 553 U.S. at 51 & nn.2–

3). That includes, for example, where an inmate requests an alternative that is “untried and

untested,” as a state can legitimately “choos[e] not to be the first to experiment with a new

method of execution.” Id. at 142 (quoting Baze, 553 U.S. at 41). Of course, such an

argument would have no purchase here, where the proposed alternative has been in use for

centuries. Cf. Wilkerson v. Utah, 99 U.S. 130 (1878); (doc. 173-40 at 14 (Dr. Williams’

expert report (“Death by [firing squad] . . . has been a common means of military execution

since at least the Napoleonic era.”)).

The State articulates two penological reasons for refusing to adopt Lee’s method:

(1) the ADOC cannot reliably source volunteers “willing and capable of serving in a firing

Eleventh Circuit has concluded that, on this record, nitrogen hypoxia poses a substantial risk of severe pain,

and this Court finds that the firing squad does not.

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squad”; and (2) the ADOC may be unable to procure materials used in firing squad

executions. 12 (See doc. 148 at 31–33; doc. 149 at 137:17–19). Neither reason is persuasive.

1. Execution Volunteers

The State contends that it would be unable to execute Lee by firing squad because

the ADOC cannot reliably locate volunteers “willing and capable of serving in a firing

squad.” (Doc. 148 at 31). The State asserts that it would not only face staffing shortages

but also raises concerns regarding the ability for volunteer marksmen to effectively

administer death by firing squad. The Court addresses each of these arguments in turn.

Citing Hamm’s testimony, the State points out that the ADOC cannot compel

ADOC staff to participate in a firing squad execution. (See doc. 146 at 237:16–238:3).

Notwithstanding the State’s argument, Hamm and Charles Williams both testified that if

firing squad were an approved method of execution, the ADOC would be able to train and

staff an execution team capable of executing an inmate by firing squad. (See id. at 229:1–

11 (Hamm’s trial testimony); id. at 256:25–258:1 (Charles Williams’ trial testimony)).

And the State’s concern regarding the use of volunteers would apply to all methods of

execution—the State cannot compel staff to participate in any execution, regardless of the

method. (See id. at 237:16–238:3). The inability to compel participation apparently has

not presented an issue in the past, and the State has identified no reason it would pose one

In its closing argument at trial, the State also claimed an interest in “preserving the dignity of the

proceedings.” (See doc. 149 at 137:17–19). However, the State did not elaborate or present evidence

regarding how an execution by firing squad would inhibit this interest. Thus, to the extent the State relies

on this asserted legitimate penological interest, the Court finds it unavailing on this record.

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now. (See doc. 173-40 at 13 (Dr. Williams expert report) (stating that “there are roughly

14,000 sworn law enforcement officers in the state of Alabama”)).

The State also asserts that even if it could find five volunteers, those volunteers

would be unable to meet the “exacting degree of proficiency necessary for a firing squad

execution.” (Doc. 148 at 32).

The Alabama Peace Officers Standards Training

Commission (“APOSTC”) scores law enforcement officers’ (including ADOC personnel)

marksmanship on a numerical scale. (See doc. 146 at 236:20–237:8 (Hamm’s trial

testimony); doc. 148 at 32 (the State’s proposed findings of fact and conclusions of law)).

Officers are required to receive a score of “at least a 70 to pass” with “100 [being] the top

score.” (Doc. 146 at 236:20–237:3). Dr. Williams opined that any APOSTC qualified

marksman “is . . . capable of performing a firing squad execution effectively.” (Doc. 147

at 52:14–17). But, on cross-examination, Dr. Williams—consistent with Utah’s protocol—

testified that the ADOC would need to locate “riflemen who can shoot considerably more

accurately than” the minimum APOSTC certification. (Id. at 113:1–7). Dr. Williams

conceded that he could not testify regarding whether this heightened shooting requirement

would limit the number of qualified marksmen in Alabama but testified that Utah’s

volunteer pool did not shrink as a result of the heightened skill requirement. (Id. at 113:21–

23). In any event, even if the ADOC chose to use marksmen who were more skilled than

required, Hamm and Charles Williams testified that the ADOC would be able to staff a

firing squad execution team with five capable shooters. The Court credits their testimony.

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Finally, the State contends that Dr. Williams’ testimony that “glitches” may occur

during firing squad executions constitutes a legitimate penological reason to reject Lee’s

proposed alternative—in other words, it submits that the risk that a firing squad may go

awry is a sufficient reason to reject it entirely. (Doc. 148 at 32–33). The State cites Mahdi’s

recent execution in South Carolina as an example of a firing squad execution gone wrong.

(Id.). It is true, as Dr. Williams conceded, that even a method that dates to the Napoleonic

era can be botched. 13 (See doc. 173-40 at 14; doc. 147 at 110:2–8). Nonetheless, on this

record the State’s concern about potential problems with firing squad executions is

unavailing for several reasons. First, Lee’s proposed method relies heavily on Utah’s

protocol, which is meaningfully different than South Carolina’s. (See doc. 147 at 53:15–

23 (Dr. Williams noting that South Carolina’s protocol uses fewer and different-caliber

bullets)). Second, assuming without deciding that Mahdi’s execution was “botched,” an

“isolated mishap alone” does not render the firing squad constitutionally suspect. See Baze,

553 U.S. at 50 (noting that the Supreme Court had previously “upheld a second attempt at

executing a prisoner by electrocution after a mechanical malfunction had interfered with

the first attempt” (citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947))).

Further, the State fails to adequately identify any unique concerns regarding the efficacy

of firing squad—a method that Dr. Williams opines rarely results in botched executions.

(Doc. 147 at 71:9–18).

The Court expresses no view as to whether Mahdi’s execution was “botched.”

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2. Supply Concerns

The State also expresses concern that it would be unable to easily procure and

maintain the materials necessary to carry out executions by firing squad. (See doc. 148 at

31–32). In support, the State asserts that execution by firing squad faces similar “supply

concerns” that “have hampered the use of lethal injection.” (Id. at 32). In recent years,

death penalty opponents have successfully “pressured pharmaceutical companies to refuse

to supply the drugs used to carry out” lethal injection executions. Glossip, 576 U.S. at 870.

In response, many states, including Alabama, have moved away from methods of execution

that require reliance on third party suppliers. See Frazier v. Hamm, 2025 WL 361172 at

*13 (M.D. Ala. Jan. 31, 2025). Courts have found that supply-chain difficulties can

constitute legitimate penological reasons to move away from methods of execution that

require such reliance. See id.; see also Price v. Comm’r, Dep’t of Corr., 920 F.3d 1317,

1327 (11th Cir. 2019) (per curiam) (noting that “[n]o supply concerns exist for nitrogen”).

But here, the State does not identify which materials necessary to carry out firing squad

executions would be subject to “supply concerns,” (see doc. 148 at 31–32), so the Court

must assume that the State’s concern applies to rifles, ammunition, and the materials

necessary to fortify an execution chamber, such as sandbags, lumber, and some form of a

ballistic barrier. (See doc. 173-40 at 18–19). To the extent these are the State’s concerns—

and, again, the State has not adequately articulated what, exactly, its concerns on this point

are—the Court finds them unavailing. It is true that death penalty opponents have

successfully lobbied certain pharmaceutical companies into refusing to provide Alabama

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with lethal injection drugs. But the State has presented no evidence that this same concern

exists as to the materials necessary to carry out firing squad executions.

And importantly, Dr. Williams and the State’s own witnesses testified that the

materials required to carry out an execution by firing squad could be readily procured.

Indeed, the State concedes that it can “procure guns and ammunition of a variety of

calibers.” (Doc. 148 at 29). And materials such as bullet-proof glass are “commonly used

in construction,” thus undermining any supply chain concerns. (See, e.g., doc. 147 at

54:16–23 (Dr. Williams’ trial testimony)). Nor has the State presented evidence that its

current supply of firearms and ammunition are insufficient to carry out firing squad

executions. (See doc. 173-40 at 18 (Dr. Williams noting that “[s]ervice rifles of the types

currently used by Alabama law enforcement agencies . . . would be suitable for firing

squad executions”)).

Although the State cites the unreliability of supply as a reason for refusing to

implement firing squad, the State is inconsistent on this point. In its proposed findings of

fact and conclusions of law, the State notes that on April 24, 2026, the Department of

Justice (“DOJ”) released a report “recommending policy changes within the Federal

Bureau of Prisons as to capital punishment” wherein the DOJ explored “adding different

methods of execution in case of supply chain issues, such as . . . firing squad.” 14 (Doc. 148

at 30 n.5) (emphasis added). While the State could articulate supply chain concerns as a

See U.S. DEP’T OF JUST. OFF. OF LEGAL POLICY, Restoring and Strengthening the Federal Death Penalty

19–38 (2026), https://www.justice.gov/ag/media/1437806/dl?inline.

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legitimate penological reason for refusing to adopt a plaintiff’s proposed alternative, it has

not done so here.

Lee’s Requested Permanent Injunctive Relief

In the operative complaint, Lee seeks a declaration that the Protocol is facially

unconstitutional and an injunction prohibiting the ADOC from executing him by nitrogen

hypoxia or “any method other than one of the alternatives provided by his attorneys.” (Doc.

40 at 23). He seeks similar relief in his pending motion, asking the Court to “permanently

enjoin [the State] from executing him by nitrogen [hypoxia] or any other method other

than firing squad.” (Doc. 185 at 1 (emphasis added)). But Alabama law authorizes two

other methods of execution: lethal injection and electrocution. See ALA. CODE § 15-1882.1. Here, Lee challenged only the ADOC’s nitrogen hypoxia protocol—not lethal

injection or electrocution. After carefully considering traditional equitable principles, and

given the Court’s legal conclusions, the Court concludes that a permanent injunction should

issue prohibiting the State from executing Lee using the Protocol. See eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (explaining that a plaintiff seeking a

permanent injunction must show (1) irreparable injury; (2) that “remedies available at law,

such as monetary damages, are inadequate to compensate for that injury”; (3) that an

equitable remedy is warranted “considering the balance of hardships between the plaintiff

and defendant[s]”; and (4) that “the public interest would not be disserved by a permanent

injunction”); Angel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th

Cir. 2008) (same). But because Lee has not established that Alabama’s other statutorily

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authorized methods violate the Eighth Amendment, he is not entitled to an injunction

barring the State from executing him using one of those methods. 15

VI. FINDINGS OF FACT AND CONCLUSIONS OF LAW 16

Findings of Fact 17

An execution pursuant to Lee’s proposed firing squad alternative, involving four

.30-caliber bullets fired at the heart, renders an inmate unconscious in three to five seconds.

Due to the related phenomena of delayed brain processing and neural stunning, an inmate

executed under Lee’s firing squad alternative is rendered unconscious before his brain can

process any pain. Thus, Lee’s proposed alternative produces a quick and painless death.

The State can readily obtain rifles, ammunition, and other materials necessary to

carry out a firing squad execution. Additionally, the State would be able to modify space

at Holman to carry out executions by firing squad. The State is also able to source and

train volunteers willing to carry out such an execution.

That the State will be prohibited only from executing Lee using nitrogen hypoxia bolsters the Court’s

conclusion that entry of this permanent injunction is appropriate, as it is narrowly tailored to remedy the

specific harm at issue here: that the Protocol violates the Eighth Amendment.

To the extent that any findings of fact may constitute conclusions of law, they are adopted as such, and

to the extent that any conclusions of law may constitute findings of fact, they are adopted as such.

The Eleventh Circuit discerned no error in the Court’s prior findings of fact. Lee, 2026 WL 1651147, at

*6. The Court accordingly incorporates its previous factual findings into this Memorandum Opinion and

Order, see Lee, 2026 WL 1493098, at *24–25, with one clarification. The Court did not find that air hunger

is “worse than pain” but instead recounted patients’ descriptions in a clinical setting that air hunger can be

“‘worse than pain’ because it is associated with the fearing of dying.” See id. at *24.

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Conclusions of Law

Consistent with the Eleventh Circuit’s opinion, Lee has shown by a preponderance

of the evidence that the Protocol “presents a ‘substantial risk of serious harm’—severe pain

over and above death itself.” Lee, 2026 WL 1651147, at *2 (quoting Nance, 597 U.S. at

164). Additionally, Lee has shown by a preponderance of the evidence that his proposed

firing squad alternative is feasible, readily implemented, and significantly reduces the

substantial risk of serious harm posed by the Protocol. The State has failed to articulate a

legitimate penological reason for refusing to adopt Lee’s proposed alternative. Therefore,

Lee has shown by a preponderance of the evidence that the Protocol constitutes cruel and

unusual punishment in violation of the Eighth Amendment.

VII. CONCLUSION

On this record, and in this posture, Lee has shown that the ADOC’s nitrogen hypoxia

execution protocol violates the Eighth Amendment. Consequently, the Court will enter

judgment in Lee’s favor and enjoin the State from executing Lee pursuant to the Protocol.

To be clear, the Court’s decision does not disturb the State’s ability to administer

capital punishment. Lee successfully challenged only the ADOC’s nitrogen hypoxia

protocol, not its electrocution or (this time) its lethal injection protocol. Cf. Lee v. Comm’r,

Ala. Dep’t of Corr., 731 F. App’x 885 (11th Cir. 2018) (per curiam) (Lee’s challenge to

the ADOC’s lethal injection protocol). An Eighth Amendment method of execution claim

is a “necessarily comparative exercise,” Bucklew, 587 U.S. at 136 (emphasis in original),

and Lee only asks this Court to compare nitrogen hypoxia and firing squad. On this record,

and in light of the Eleventh Circuit’s opinion, Lee has shown that his proposed firing squad

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alternative significantly reduces a substantial risk of severe pain as compared to nitrogen

hypoxia. The result is that the State of Alabama cannot execute Lee by nitrogen hypoxia—

no more, no less.

Federal courts are routinely placed in the difficult position of comparing methods

of execution, both old and new alike. This Court is intimately familiar with the history of

method of execution claims in this State. As methods evolve and change, so too do the

challenges to each method. The only constant is litigation. Were Alabama to adopt firing

squad as a method of execution, that method would likely be challenged as well. Indeed,

there is likely no method—no matter how humane—that would be immune to

constitutional challenge. Cf. Bucklew, 587 U.S. at 140 (acknowledging in passing that a

condemned inmate may have just as much motivation to forestall his execution entirely as

to “avoid[] unnecessary pain”). But the Constitution does not guarantee a painless death,

see id. at 132, and human life cannot be purposefully extinguished without some risk of

pain. The Court, the condemned, and the State must all confront that sobering reality.

Accordingly, the Court DECLARES and ORDERS as follows:

The ADOC’s nitrogen hypoxia execution protocol violates the Eighth

Amendment;

The State is PERMANENTLY ENJOINED from executing Lee using the

Protocol;

Judgment is entered in favor of Lee and against the State;

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Lee’s motion to enter judgment in his favor or, in the alternative, to stay his

execution (doc. 185) is DENIED as moot;

Costs are taxed as paid.

A separate Final Judgment will be entered.

DONE this 9th day of June, 2026.

/s/ Emily C. Marks

EMILY C. MARKS

UNITED STATES DISTRICT JUDGE

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 26-11864

____________________

JEFFERY LEE,

Plaintiﬀ-Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF

CORRECTIONS,

WARDEN, HOLMAN CORRECTIONAL FACILITY,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:25-cv-00680-ECM

____________________

Before JORDAN, LUCK, and KIDD, Circuit Judges.

PER CURIAM:

Alabama is one of a number of states—the others are Arkansas, Louisiana, Mississippi, and Oklahoma—which currently

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authorize nitrogen hypoxia as a method of execution. See Ala.

Code §§ 15-18-82(a), 15-18-82.1(a)–(b). This appeal presents another challenge to the constitutionality of nitrogen hypoxia.

In Grayson v. Comm’r, Ala. Dep’t of Corr., 121 F. 4th 894 (11th

Cir. 2024), we aﬃrmed the denial of a preliminary injunction to

prohibit an execution in Alabama by nitrogen hypoxia. Without

determining the merits of the inmate’s Eighth Amendment claim,

we held that, given the evidence in the record and its factual ﬁndings, the district court had not abused its discretion in ruling that

the inmate had not shown a substantial likelihood of success on

that claim. First, the inmate’s expert had testiﬁed that the nitrogen

hypoxia protocol only inﬂicted psychological pain, a pain which

would exist regardless of the method of execution. Second, the

district court had credited the testimony of a state expert that unconsciousness would result within 10 to 40 seconds. Third, the district court rejected the testimony of the inmate’s expert that the

protocol would result in negative pressure pulmonary edema. See

id. at 898–900.

We noted in Grayson, however, that there “may exist a form

of execution that induces psychological terror or pain that is severe

enough to support an Eighth Amendment claim.” Id. at 900 n.3.

And we expressed “no view on what the result would have been

had the district court’s factual ﬁndings been diﬀerent.” Id. at 901

n.4.

In this case, Jeﬀery Lee, an Alabama inmate under sentence

of death, ﬁled an action under 42 U.S.C. § 1983 in August of 2025,

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alleging that the nitrogen hypoxia protocol violated the Eighth

Amendment. See generally D.E. 1. On February 2, 2026, Mr. Lee

ﬁled an amended complaint, where he proposed execution by ﬁring

squad, similar to Utah’s protocol, as an alternative method of execution. See D.E. 40. See also D.E. 173-40.

One week later, on February 9, 2026, Alabama moved to set

his execution. On April 15, 2026, the Governor set Mr. Lee’s execution for a 30-hour period beginning on June 11, 2026, at 12:00

a.m., and concluding on June 12, 2026, at 6:00 a.m. See D.E. 127-1.

From April 27–29, 2026, the district court held a three-day

bench trial on the constitutionality of Alabama’s nitrogen hypoxia

protocol, the ﬁrst such trial in the country. The parties introduced

voluminous evidence, including testimony from seven lay witnesses and four expert witnesses, and hundreds of exhibits totaling

thousands of pages.

After weighing the evidence presented, the district court entered an order rejecting Mr. Lee’s Eighth Amendment claim. The

district court found that an inmate who is executed under the nitrogen hypoxia protocol “consciously” experiences “severe air hunger and corresponding emotional distress, anxiety, physiological

stress, and physical discomfort” for “one to three minutes,” but

concluded that the protocol does not violate the Eighth Amendment by causing “severe pain or suﬀering ‘well beyond what’s

needed to eﬀectuate a death sentence.’” Lee v. Lovelace, No. 25-cv680, ___ F. Supp. 3d ___, 2026 WL 1493098, at *22, *25 (M.D. Ala.

May 28, 2026). Given its ruling, the district court did not address

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whether execution by ﬁring squad pursuant to Utah’s protocol constitutes a feasible and readily implemented alternative method of

execution that signiﬁcantly reduces a substantial risk of severe pain.

See id. at *22.

Mr. Lee appealed the district court’s judgment, and sought

a stay of execution. We expedited brieﬁng and heard oral argument by videoconference on Friday, June 5, 2026.

We hold that, given the district court’s factual ﬁndings—

which are not clearly erroneous—Mr. Lee has shown that the protocol “presents a ‘substantial risk of serious harm’—severe pain

over and above death itself.” Nance v. Ward, 597 U.S. 159, 164 (2022)

(quoting Glossip v. Gross, 576 U.S. 863, 877 (2015)). See also Nance v.

Comm’r, Ga. Dep’t of Corr., 169 F. 4th 1312, 1318 (11th Cir. 2016) (explaining that the question is whether the method of execution “creates 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”). We therefore reverse the district court’s judgment and remand for consideration of the ﬁring squad alternative proposed by

Mr. Lee.

A jury found Mr. Lee guilty of the 1998 murders of Jimmy

Ellis and Elaine Thompson, as well as the attempted murder of

Helen King, during a robbery. See Lee v. State, 898 So. 2d 790, 807

(Ala. Crim. App. 2001). After the penalty phase of the trial, the jury

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recommended by a vote of 7 to 5 that he be sentenced to imprisonment for life without the possibility of parole for the murders. See

id. at 807–808. Under then-governing Alabama law, the trial court

exercised its discretion to override the jury’s recommendation and

sentence Mr. Lee to death. See id. at 808.

After exhausting his direct and collateral remedies, see, e.g.,

Lee v. Comm’r, Alabama Dep’t of Corr., 726 F.3d 1172 (11th Cir. 2013),

Mr. Lee filed an action under 42 U.S.C. § 1983 challenging Alabama’s lethal injection protocol as violative of the Eighth Amendment. See Lee v. Dunn, No. 16-473, 2017 WL 1483530 (S.D. Ala. Apr.

24, 2017), vacated in part, 731 F. App’x 885 (11th Cir. 2018). That

lawsuit became moot in 2018 when Mr. Lee elected to be executed

by nitrogen hypoxia, which had recently been authorized by the

Alabama Legislature for the first time. See Lee, No. 16-473, D.E. 38

(order granting joint motion to dismiss) (S.D. Ala. July 20, 2018).

On August 22, 2025, Mr. Lee filed the present § 1983 action

against the Commissioner of Alabama’s Department of Corrections challenging Alabama’s nitrogen hypoxia protocol. Although

Alabama had not yet set his execution date, Mr. Lee explained that

he brought his suit “to avoid being denied relief . . . on timeliness

grounds.” D.E. 1 at ¶ 3.

After the district court granted in part and denied in part the

Commissioner’s motion to dismiss, Mr. Lee filed an amended complaint in February of 2026. He alleged that “[e]xecution by nitrogen

hypoxia” induces “conscious suffocation” that “is cruel and unusual

because it superadds terror and pain during the execution.” D.E.

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40 at ¶ 63. He proposed that execution by firing squad similar to

Utah’s protocol is a feasible and readily implemented alternative

method that would significantly reduce the substantial risk of severe pain associated with nitrogen hypoxia. See id. at ¶¶ 69–72. See

also D.E. 173-40. About a week later, the state asked the Alabama

Supreme Court to set Mr. Lee’s execution date. See D.E. 176 at 9.

The Alabama Supreme Court granted the motion, and on April 15,

2026, the Governor declared that Mr. Lee’s execution would take

place during a 30-hour window commencing on June 11, 2026, at

12:00 a.m. 1

Following discovery, the district court held a three-day

bench trial, at which it heard the testimony of eleven witnesses,

admitted hundreds of exhibits totaling thousands of pages, and

viewed video demonstrations of the nitrogen hypoxia systems of

Alabama and Louisiana. See Lee, 2026 WL 1493098, at *6. Mr. Lee

called three experts, two of whom were Dr. Richard Schwartzstein

and Dr. Julie Bastarache. Dr. Schwartzstein was admitted as an expert in pulmonology, critical care medicine, physiology, hypoxia,

dyspnea, and air hunger. Dr. Bastarache was admitted as an expert

in pulmonology, critical care medicine, and pathology. For its part,

1 As the district court explained, a number of other Alabama inmates also filed

a similar action challenging the nitrogen hypoxia protocol. Their cases were

initially consolidated with Mr. Lee’s, but when the state indicated that it was

going to move to set an execution date for Mr. Lee, his case was deconsolidated. See Lee, 2026 WL 1493098, at *4.

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the Commissioner called Dr. Joseph F. Antognini, an expert in anesthesiology. See id. at *5. We summarize the evidence and the

district court’s findings of fact below. 2

“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.’” Grayson, 121 F.4th at 896. The parties generally

agree on how Alabama’s nitrogen hypoxia protocol is carried out.

As the district court explained, the execution team escorts

the inmate to the execution chamber. See Lee, 2026 WL 1493098,

at *3. They then secure the inmate to the gurney with a chest and

shoulder harness made of nylon straps, attach pulse oximeters, and

secure a mask to the inmate’s face. See id. After the death warrant

is read and the inmate makes his final statement, the warden activates the nitrogen hypoxia system, which causes ultra-high purity

nitrogen gas to flow into the mask. See id. The nitrogen gas displaces breathable air until the inmate is breathing almost pure nitrogen. See id. The mask allows exhaled carbon dioxide to exit via

a one-way valve, which prevents the inmate from rebreathing carbon dioxide. See id. When the brain is deprived of oxygen for long

enough, unconsciousness and death ensue. See id.

2 We thank the district court for its comprehensive order.

Given time constraints, we do not summarize all of the evidence presented at the bench trial.

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Mr. Lee is scheduled to be the eighth inmate in Alabama executed by nitrogen hypoxia. In March of 2025, Louisiana executed

Jessie Hoffman, Jr. via a nitrogen hypoxia protocol similar to Alabama’s. See id. at *4.

The district court credited the following opinions of Dr.

Schwartzstein and/or Dr. Bastarache regarding severe air hunger

caused by the nitrogen hypoxia protocol.

• Inmates executed under the nitrogen hypoxia protocol

“likely experience severe air hunger, which evokes distress

and anxiety.” Id. at *14. Specifically, the district court credited Dr. Bastarache’s opinion that “air hunger triggers the

body’s ‘extreme physiologic need to get more oxygen’ and

produces ‘intense physiologic stress that causes intense suffering.’” Id. (record citations omitted). “Because the inmate

cannot respond to his ‘basic survival instincts’ to address the

air hunger, a ‘vicious cycle of increasing air hunger and panic

symptoms’ can occur.” Id. (record citations omitted).

• “Unlike pain, which is normally localized to a specific body

part, air hunger is ‘a holistic discomfort sensation,’ and individuals struggle to distract themselves from their dyspnea.”

Id. at *15 (record citation omitted). “Because it evokes a fear

of dying, air hunger can be worse than pain.” Id.

• “[A]t a partial pressure of oxygen (PO2) below 60 mm

Hg . . . , a person’s drive to breathe ‘takes off,’ making him

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or her ‘desperate to try to do something to correct the hypoxemia.’” Id. (record citations omitted). Given that the

goal of the nitrogen hypoxia protocol “is to take the inmate’s

PO2 all the way down to 0 mm Hg,” the protocol “evokes

an ‘incredibly strong stimulus’ to breathe.” Id. And, “while

only a minor factor, the inmate’s awareness that he cannot

alleviate his dyspnea . . . would exacerbate his anxiety and

the air hunger itself.” Id.

• “[F]our inmates executed under the [p]rotocol had flash pulmonary edema, which would have exacerbated their dyspnea.” Id. “[F]lash pulmonary edema is a condition triggered

by extreme distress in which the lungs ‘almost instantaneously’ fill with fluid, making it ‘extremely difficult to

breathe.’” Id. “Of the inmates executed under the [p]rotocol

who have had autopsies performed . . . , all four had evidence of flash pulmonary edema caused by a sudden rise in

blood pressure,” which is “an abnormal autopsy finding.”

Id. “Flash pulmonary edema indicates severe physiological

stress; exacerbated the inmates’ dyspnea; and would have

occurred ‘very early on in the executions’ while the inmates

were conscious and ‘when air hunger was occurring and

reaching its peak[.]’” Id.

• “[H]ypoxia causes dyspnea even when carbon dioxide levels

are normal and, therefore, the lack of carbon dioxide

buildup in the mask does not eliminate or reduce the possibility of severe air hunger.” Id. at *16.

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• “Several factors can alleviate air hunger, including taking

larger breaths and reducing anxiety. In the clinical and research settings, mitigating the dyspneic subject’s anxiety is

possible. In the research setting, for example, researchers

can reassure the subjects that the air hunger is merely part

of the experiment, and this reassurance helps the subjects

tolerate the discomfort of air hunger. And in the clinical setting, doctors can reassure many patients that the patients’

dyspnea is a consequence of their condition and that it does

not mean they are going to die. In an execution setting, such

reassurance is not possible because the goal is to cause the

inmate’s death.” Id. at *25.

Mr. Lee and the Commissioner “vigorously contest[ed]”

how long it takes an inmate being executed by nitrogen hypoxia to

become unconscious and how long he is capable of experiencing

suffering. See id. at *16. Dr. Antognini opined that inmates are

rendered unconscious within 60 to 75 seconds after the nitrogen

gas is turned on, while Dr. Bastarache posited that four inmates

previously executed by nitrogen hypoxia remained conscious for

three to seven minutes. See id.

Ultimately, after considering the conflicting evidence, the

district court found that an inmate who is executed under the protocol “experiences severe air hunger and corresponding emotional

distress, anxiety, physiological stress, and physical discomfort” for

“not significantly more than one to three minutes.” Id. at *25. It

explained that “air hunger causes extreme emotional distress,

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panic, anxiety, and fear because breathing is essential to human life.

Patients often describe air hunger as akin to suffocation or drowning.” Id. at *24 (internal quotation marks omitted). 3

After making these factual findings, the district court concluded that Alabama’s nitrogen hypoxia protocol does not cause

needless suffering and therefore does not violate the Eighth

Amendment. See id. Although the protocol “likely causes severe

air hunger—the most severe form of breathing discomfort—for

one to three minutes,” that “pain, anxiety, and dread” is primarily

a result of inmates “know[ing] they are going to die” and “their

body’s survival instincts” kicking in. See id. at *22–23. Thus, the

district court reasoned, the nitrogen hypoxia protocol does not

cause suffering “well beyond what’s needed to effectuate a death

sentence.” Id. at *22 (quoting Bucklew v. Precythe, 587 U.S. 119, 136–

37 (2019)). See also id. at *23 (“[T]he physiological discomfort

caused by the Protocol does not violate the Constitution.”).

3 Dr. Schwartzstein opined that a person being executed by nitrogen hypoxia

continues to suffer pain for three to five minutes after becoming unconscious.

The district court did not address whether that opinion was persuasive or not.

See id. at *17. Instead, it declined to consider the opinion because, in its view,

an unconscious person “does not experience or perceive dyspnea of a constitutionally relevant kind.” Id. At oral argument, counsel for Mr. Lee asserted

(without waiving any argument in his brief) that this Court could grant him

relief without addressing that ruling. We agree, and express no view on the

alleged unconscious suffering.

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Because it concluded that the nitrogen hypoxia protocol did

not cause needless suffering in violation of the Eighth Amendment,

the district court did not reach Mr. Lee’s proposed alternative of

execution by firing squad. See id. at *25. See also Nance, 169 F.4th

at 1318 (“If the planned method does not present a substantial risk

of serious harm, the officials may use it regardless of the proposed

alternatives.”).

In an appeal from a bench trial, we review factual findings

for clear error and legal conclusions de novo. See Dish Network, LLC

v. Fraifer, 171 F.4th 1344, 1351 (11th Cir. 2026).

Under clear error review, a factual “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). “This

standard does not entitle us to overturn a finding simply because

we are convinced that we would have decided the case differently.”

Glossip, 576 U.S. at 881 (internal quotation marks and brackets

omitted).

Once the relevant underlying facts are determined, whether

a method of execution violates the Eighth Amendment presents a

question of law. See Grayson v. Warden, Comm’r, Ala. Dep’t of Corr.,

869 F.3d 1204, 1239 (11th Cir. 2017). Accord Bucklew v. Precythe, 883

F.3d 1087, 1094 (8th Cir. 2018) (“[W]hether a method of execution

‘constitutes cruel and unusual punishment is a question of law.’”)

(citation omitted), aff’d, 587 U.S. 119 (2019).

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III

Under governing Supreme Court precedent,

[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, 587 U.S. at 134 (citations omitted).

To succeed on a method-of execution claim, an inmate must

satisfy two requirements.

First, he “must establish that

the . . . method of execution presents a ‘substantial risk of serious

harm’—severe pain over and above death itself.” Nance, 597 U.S. at

164 (quoting Glossip, 576 U.S. at 877). Second, he “‘must identify

an alternative method that is feasible, readily implemented, and in

fact signiﬁcantly reduces’ the risk of harm involved.” Id. (quoting

Glossip, 576 U.S. at 877) (brackets omitted). See Bucklew, 587 U.S. at

136 (“Distinguishing between constitutionally permissible and impermissible degrees of pain . . . is a necessarily comparative exercise.

To decide whether the State has cruelly ‘superadded’ pain to the

punishment of death isn’t something that can be accomplished by

examining the State’s proposed method in a vacuum, but only by

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‘compar[ing]’ that method with a viable alternative.”). “Where a

prisoner claims a safer alternative to the State’s . . . protocol, he

cannot make a successful challenge by showing a ‘slightly or marginally safer alternative.’” Price v. Comm’r, Ala. Dep’t of Corr., 920

F.3d 1317, 1326 (11th Cir. 2019) (quoting Glossip, 576 U.S. at 877).

Nevertheless, he may identify “an alternative method that is not

[currently] authorized” by state law. See Nance, 597 U.S. at 163–64,

173. See also Bucklew, 587 U.S. at 139–40.

The district court found that the nitrogen hypoxia protocol

causes one to three minutes of “severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical

discomfort.” Lee, 2026 WL 1493098, at *25.

Air hunger involves activation of brain regions dedicated to basic survival instincts, which include the

need to breathe adequately. When breathing is insufﬁcient, severe distress, anxiety, and panic are normal

and expected human sensations that, under typical

circumstances, highly motivate an individual to improve [his] breathing immediately or face imminent

death.

Id. at *24. “Many people ﬁnd air hunger worse than pain because

it is associated with the fear of dying.” Id.

The parties challenge some of the district court’s factual

ﬁndings. Mr. Lee, for example, asserts that the district court should

have found, based on the expert testimony he presented, that inmates subjected to execution by nitrogen hypoxia could remain

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conscious for three to seven minutes. The Commissioner, for his

part, attacks the district court’s ﬁnding that the protocol causes an

inmate to experience air hunger and associated distress for not signiﬁcantly more than one to three minutes. See Brief for Appellant

at 26; Brief for Appellee at 35.

We discern no clear error in any of the district court’s factual

ﬁndings. As noted, a ﬁnding that is plausible, even if another is

equally or more so, must govern. See Cooper, 581 U.S. at 293. And

we cannot “overturn a ﬁnding simply because we are convinced

that we would have decided the case diﬀerently.” Glossip, 576 U.S.

at 881 (internal quotation marks and brackets omitted).

A district court in a bench trial is not required to accept an

expert’s opinion even if unimpeached. See, e.g., Eason v. Weaver, 484

F.2d 459, 460 (5th Cir. 1973). And, like a jury, when a district court

performs the role of factﬁnder it “is not required to accept ‘all or

none’ of a witness’[ ] testimony; rather, [it] may accept those portions of a witness’[ ] testimony which it considers credible and reject other portions which it ﬁnds to be improbable.” Rixey v. W.

Paces Ferry Hosp., Inc., 916 F.2d 608, 616 (11th Cir. 1990). The district

court here did not err, much less clearly err, in accepting some of

the expert testimony and in rejecting other aspects of that same

testimony. See United States v. Stein, 964 F.3d 1313, 1322 (11th Cir.

2020) (“Our case law is . . . unambiguous: the district court frequently must choose between dueling experts, and if that decision

is reasonably based on evidence found in the record, the choice is

not clear error.”).

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Based upon the district court’s factual ﬁndings, we hold that

Alabama’s nitrogen hypoxia protocol “presents a ‘substantial risk

of serious harm’—severe pain over and above death itself.” Nance,

597 U.S. at 164. Mr. Lee has therefore satisﬁed the ﬁrst prong of

the Glossip Eighth Amendment standard.4

As intended, the protocol causes death by introducing pure

nitrogen gas through a respirator mask until the inmate is declared

dead. The district court found that an inmate executed under the

protocol suﬀers one to three minutes of “severe air hunger and corresponding emotional distress, anxiety, physiological stress, and

physical discomfort.” Lee, 2026 WL 1493098, at *25. This mental

distress, physiological suﬀering, and physical discomfort, the district court found, will likely take place. There is, in other words, a

substantial risk of serious harm. The risk is not conjectural, speculative, or doubtful.

The Eighth Amendment does not “guarantee a prisoner a

painless death.” Bucklew, 587 U.S. at 132. Yet at the Founding,

“cruel” was “often deﬁned to mean . . . ‘[d]isposed to give pain to

others, in body or mind[.]’” Id. at 130 (quoting 1 Noah Webster, An

4 Mr. Lee challenges the district court’s order allowing the testimony of

Dr.

Antognini, the Commissioner’s expert, on the ground that he did not sufficiently explain the extrapolation underlying some of his opinions. See Gen.

Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Given our resolution on the first

prong of Glossip, we need not address this issue.

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American Dictionary of the English Language (1828) (ﬁrst set of

brackets in original)).

In our view, the overall suﬀering described by the district

court, which lasts for one to three minutes, presents a substantial

risk of serious harm over and above death itself. Counting to 60 or

180 seconds is not a quick exercise, and constitutionally speaking,

that timeframe is intolerable given the suﬀering that would likely

take place under Alabama’s nitrogen hypoxia protocol. Such suffering, we believe, is over and above the mental distress that typically accompanies the knowledge of impending death by execution.

The Fifth Circuit’s 2-1 decision in Hoﬀman v. Westcott, 131

F.4th 332 (5th Cir. 2025), does not call for a diﬀerent result.

In Hoﬀman, Louisiana appealed a preliminary injunction that

prevented state oﬃcials from executing an inmate through nitrogen hypoxia. The Fifth Circuit vacated the preliminary injunction.

It held that the inmate failed to meet the two requirements demanded under Supreme Court precedent—namely, that the

method of execution “presents a risk that is ‘sure or very likely to

cause serious illness and needless suﬀering,’” id. at 335 (quoting

Glossip, 576 U.S. at 877), and that the State could use “a feasible and

readily implemented alternative method of execution that would

signiﬁcantly reduce a substantial risk of severe pain” which it “has

refused to adopt without a legitimate penological reason,” id.

(quoting Bucklew, 587 U.S. at 134).

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As to the ﬁrst requirement, the Fifth Circuit explained that

“the district court heard expert testimony from both parties that

nitrogen hypoxia is painless.” Id. at 336. With respect to the second

requirement, the Fifth Circuit concluded that “experts for both parties agreed that death by ﬁring squad”—Mr. Hoﬀman’s proposed

alternative means of execution—would “be more painful than execution by nitrogen hypoxia.” Id. 5

Here, in contrast, the district court found that nitrogen hypoxia causes an inmate to suﬀer “profound physiological discomfort and distress”—in addition to mental distress—through severe

air hunger, see Lee, 2026 WL 1493098 at *22, and physiological distress is at least partly physical. See Webster’s Third New World Dictionary (Unabridged) 1707 (2012) (deﬁning “physiological” in part

as “characteristic of or appropriate for an organism’s healthy or

normal functioning”); The American Heritage Dictionary of the

English Language 1325 (4th ed. 2009) (deﬁning “physiological” in

part as “[b]eing in accord with or characteristic of the normal functioning of a living organism”); 2 Shorter Oxford English Dictionary

2194 (5th ed. 2002) (deﬁning “physiological” in part as “[p]ertaining

5 The dissent in Hoffman believed that the majority had failed to address the

district court’s findings that inmates executed by nitrogen hypoxia faced conscious terror and a sense of suffocation for 35 to 40 seconds on the low end

and conscious psychological suffering for three to five minutes if they held

their breath. See id. at 337 (Haynes, J., dissenting).

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to the material universe or to natural science; physical”). The district court here also did not make any ﬁndings about the ﬁring

squad as an alternative method of execution.

Under the second prong of Glossip, Mr. Lee must also identify an alternative method that “is feasible, readily implemented,

and in fact signiﬁcantly reduces the risk of harm involved.” Nance,

597 U.S. at 164 (quotations and brackets omitted). He asserts that

execution by ﬁring squad pursuant to the Utah protocol is a feasible, readily implementable, and less painful alternative within the

meaning of the Eighth Amendment. As noted, an “inmate seeking

to identify an alternative method of execution is not limited to

choosing among those presently authorized by a particular State’s

law.” Bucklew, 587 U.S. at 139–40. Cf. Nance v. Comm’r, Ga. Dep’t of

Corr., 59 F. 4th 1149, 1155–56 (11th Cir. 2023) (holding that a Georgia inmate set for execution by lethal injection suﬃciently pled that

the ﬁring squad was an alternative method of execution, but not

addressing whether the state had a “legitimate penological reason”

for refusing to use the ﬁring squad and allowing district court to

address that issue on remand).

The district court, as noted, did not address whether Mr. Lee

had shown that the ﬁring squad was a feasible and readily implemented alternative method that would signiﬁcantly reduce the risk

of harm. Mr. Lee asks us to resolve that issue now, but we are not

equipped to do so. As an appellate tribunal, it is not our “role to

ﬁnd facts,” United States v. Barnette, 10 F.3d 1553, 1558 (11th Cir.

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1994), and we cannot therefore make ﬁndings with respect to feasibility given the conﬂicting testimony on matters that might aﬀect

that issue (e.g., the risk of failure with the ﬁring squad, and whether

the need for volunteer marksmen from the correctional staﬀ

amounts to a valid penological reason to reject that method). Compare Br. for Appellant at 50–52, with Br. for Appellee at 39–46. Nor

are we able to make factual determinations about what pain, if any,

an inmate will suﬀer if executed by ﬁring squad. Mr. Lee seems to

grudgingly recognize some of these problems, as he alternatively

requests a remand to the district court to address the ﬁring squad.

See Reply Br. of Appellant at 12 (“To the extent this Court doubts

whether Mr. Lee met his burden of identifying an alternative

method of execution, the appropriate remedy is to remand for further proceedings, not to dismiss [the] Eighth Amendment claim.”).

We therefore remand the case to the district court with instructions to immediately address the second prong of Glossip. And

because we cannot make a determination about likelihood of success on that prong on this record, we deny without prejudice Mr.

Lee’s current motion for a stay of his execution.

Under the facts found by the district court, Alabama’s nitrogen hypoxia protocol “presents a ‘substantial risk of serious

harm’—severe pain over and above death itself.” Nance, 597 U.S. at

164 (quoting Glossip, 576 U.S. at 877). As a result, Mr. Lee has satisﬁed the ﬁrst prong of Glossip, and we reverse the district court’s

judgment in favor of the Commissioner.

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Given the parties’ disputes on prong two of Glossip, some of

which are factual, the district court will now need to determine in

the ﬁrst instance whether Mr. Lee has demonstrated that the ﬁring

squad is an alternative method of execution that “is feasible, readily

implemented, and in fact signiﬁcantly reduce[s]” the risk of harm

posed by nitrogen hypoxia. See id. If Mr. Lee ﬁles a motion for stay

of execution, the district court will have to rule on that as well.

Given the impending execution window for Mr. Lee, we order the clerk to issue the mandate immediately (i.e., along with the

ﬁling of this opinion). That way the district court will reacquire

jurisdiction right away. See United States v. Sears, 411 F.3d 1240, 1241

(11th Cir. 2005) (“Issuance of the mandate g[ives] the district court

jurisdiction over the case again.”).6

REVERSED AND REMANDED.

6 If we issued a published opinion in this case, we could not expedite the issu-

ance of the mandate without providing “reasonable notice” to the other members of this Court. See 11th Cir. R. 41-2.

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JEFFERY LEE,

)

Plaintiff,

)

GREG LOVELACE, Commissioner,

)

Alabama Department of Corrections, et al., )

)

Defendants.

)

CASE NO. 2:25-cv-680-ECM

[WO]

MEMORANDUM OPINION and ORDER

I. INTRODUCTION

On December 12, 1998, Jeffery Lee (“Lee”) murdered Jimmy Ellis (“Ellis”) and

Elaine Thompson (“Thompson”). A jury convicted Lee of capital murder. As punishment

for his crimes, the State of Alabama will end Lee’s life. The question before the Court is

whether the nitrogen hypoxia protocol the State plans to use to execute Lee is cruel and

unusual in violation of the Eighth Amendment to the United States Constitution.

The Court held a three-day bench trial on that question—the first trial in this Court,

and in the entire country, examining the constitutionality of nitrogen hypoxia. 1 This

method of execution causes death via oxygen deprivation by replacing the condemned

inmate’s breathing air with 100% nitrogen. 2 Our bodies need adequate oxygen to function,

The undersigned presided over two earlier Eighth Amendment challenges to this nitrogen hypoxia protocol

without the benefit of a trial. See Frazier v. Hamm, 2025 WL 361172 (M.D. Ala. Jan. 31, 2025); Boyd v.

Hamm, 2025 WL 2884410 (M.D. Ala. Oct. 9, 2025).

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and an environment with little to no oxygen results in death. And while nitrogen itself is

not harmful, nitrogen can kill by displacing the oxygen that would otherwise be present.

Lee claims that the Alabama Department of Corrections’ (“ADOC”) nitrogen

hypoxia protocol (“Protocol”) causes inmates to experience prolonged air hunger and

feelings of suffocation, which evoke severe anxiety, fear, and physiological distress. Lee

does not argue that nitrogen hypoxia is physically painful like a broken bone. Rather, Lee

claims that nitrogen hypoxia triggers inmates’ survival instincts to breathe oxygen while

also preventing them from doing so. The State disagrees, 3 arguing that inmates executed

under the Protocol experience only the suffering necessary to carry out a death sentence.

Because the Constitution does not guarantee inmates a painless death, Lee must do

more than show a risk of pain—he must show that the Protocol causes severe pain, pain

that is “well beyond what’s needed to effectuate a death sentence.” Bucklew v. Precythe,

587 U.S. 119, 136–37 (2019). While Lee has shown that executions under the Protocol

involve some suffering, on this record he has failed to prove that the Protocol causes more

than “the necessary suffering involved in any method employed to extinguish life

humanely.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947). Because Lee

has not shown that the Protocol cruelly superadds pain, his claim that the Protocol violates

the Eighth Amendment fails as a matter of law.

Because the Defendants are state officials sued in their official capacities, this Opinion refers to them as

“the State.”

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II. 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.

III. PROCEDURAL HISTORY AND BACKGROUND

The Court begins by summarizing Lee’s crimes, capital litigation history, and prior

lawsuit challenging the ADOC’s lethal injection protocol. The Court concludes this section

by explaining the Protocol, reciting the relevant procedural history in this case, and

summarizing the witness testimony and evidence presented during the three-day bench trial

on Lee’s Eighth Amendment claim.

Lee’s Capital Litigation History

On the morning of December 12, 1998, Lee walked into a pawn shop and, without

warning, began firing his sawed-off shotgun. Lee v. Thomas, 2012 WL 1965608, at *1

(S.D. Ala. May 30, 2012). He fired multiple rounds at Ellis, the store’s owner, and Ellis’

employees, Thompson and Helen King (“King”). Id. Ellis and Thompson were killed. Id.

Lee then tried and failed to dislodge the cash register before fleeing, leaving behind his

shotgun and the carnage he had caused. Id. Miraculously, King survived the attack and

alerted the authorities. Id. Lee was apprehended the following day and confessed. Id.

Lee was charged with three counts of capital murder—one count apiece for Ellis’

and Thompson’s murders during the commission of an attempted robbery, and a third count

for murdering Ellis and Thompson pursuant to a single scheme or course of conduct—and

one count of attempted murder. Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1177–

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78 (11th Cir. 2013) (citing ALA. CODE §§ 13A-4-2, 13A-5-40(a)(2), (10), 13A-6-2)). He

was convicted on all four counts. Lee v. Comm’r, Ala. Dep’t of Corr., 731 F. App’x 885,

886 (11th Cir. 2018) (per curiam). The jury recommended a sentence of life imprisonment

without the possibility of parole by a seven-to-five vote. Lee v. State, 898 So. 2d 790, 807–

08 (Ala. Crim. App. 2001). However, the trial court overrode the jury’s recommendation

and sentenced Lee to death. 4 See Lee, 898 So. 2d at 808.

Lee spent the better part of the following two decades unsuccessfully challenging

his convictions in state and federal court. See Lee, 726 F.3d at 1188–91, 1228. In 2017,

Lee challenged the ADOC’s lethal injection protocol, 5 arguing that it violated the Eighth

Amendment’s prohibition on cruel and unusual punishment. Lee v. Dunn, 2017 WL

1483530, at *1 (S.D. Ala. Apr. 24, 2017), vacated in part by Lee, 731 F. App’x 885. That

claim became moot in 2018, however, when Lee elected to be executed by a new method

The Alabama Legislature has since amended the Alabama Code to make a jury’s sentencing verdict

binding on the trial court. See ALA. CODE §§ 13A-5-45, 13A-5-46, and 13A-5-47 But because Lee was

charged, convicted, and sentenced to death for capital murder before April 11, 2017, his jury’s sentencing

verdict was merely advisory. See ALA. CODE § 13A-5-47.1 (“Sections 13A-5-45, 13A-5-46, and 13A-5-47

shall apply to any defendant who is charged with capital murder after April 11, 2017, and shall not apply

retroactively to any defendant who has previously been convicted of capital murder and sentenced to death

prior to April 11, 2017.”).

When Lee was convicted and sentenced, electrocution was Alabama’s default method of execution. In

July 2002, the Alabama Legislature amended Alabama Code § 15-18-82 to make lethal injection the default

method. See 2002 Alabama Laws Act 2002-492; Ziegler v. State, 886 So. 2d 127, 148–49 (Ala. Crim. App.

2003). The change “applie[d] to all persons . . . on Alabama’s death row.” Turner v. State, 924 So. 2d 737,

783 (Ala. Crim. App. 2002) (citation omitted). Thus, even an inmate like Lee, convicted and sentenced

before July 2002, would be executed by lethal injection unless he “affirmatively elect[ed] to be executed

by electrocution.” ALA. CODE § 15-18-82.1(a) (2002); see also Turner, 924 So. 2d at 783.

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of execution authorized by the Alabama Legislature: nitrogen hypoxia. (See doc. 38 in Lee

v. Dunn, 1:16-cv-473-WS (S.D. Ala. July 20, 2018)); see also ALA. CODE § 15-18-82.1(a). 6

The ADOC’s Nitrogen Hypoxia Protocol

Executions by all three statutorily authorized methods—electrocution, lethal

injection, and nitrogen hypoxia—occur at the Holman Correctional Facility (“Holman”) in

Atmore, Alabama. 7 See ALA. CODE § 15-18-82(b); (doc. 173-7 at 3). Once Alabama’s

Governor sets an execution timeframe, the ADOC prepares to carry out the inmate’s death

sentence. 8

After the execution date is set, the Warden briefs the members of the execution team

on the Protocol and provides them with training materials on the hazards associated with

nitrogen gas. (Doc. 173-7 at 5–6). Next, the ADOC inspects and calibrates “[a]ll portable

[oxygen] monitors and/or gas-measurement devices.” (Id. at 6–7). The Warden also

examines the nitrogen and breathing air tanks and verifies “that the volume of gas in each

bank . . . exceeds the minimum acceptable thresholds.” (Id. at 7).

“When Alabama added nitrogen hypoxia as an alternative method of execution, it did not . . . have a

protocol in place for nitrogen-hypoxia executions.” See Woods v. Comm’r, Ala. of Corr., 951 F.3d 1288,

1291 (11th Cir. 2020). In August 2023, approximately five years after Alabama authorized nitrogen

hypoxia as an execution method, the ADOC finalized and released a redacted, publicly available version of

the Protocol. (Doc. 40 at 10, para. 39).

During discovery, Lee moved to compel “inspection of the nitrogen hypoxia delivery system . . . , the

control room from which the delivery of nitrogen hypoxia is initiated, the nitrogen storage area, and any

other equipment and locations associated with nitrogen hypoxia executions.” (Doc. 70 at 1). The Court

granted Lee’s motion. (Doc. 79). The undersigned attended the parties’ inspection at Holman and observed

several key rooms, including the control room, the execution chamber, the viewing rooms, and the nitrogen

tank storage room. (See id.; see also doc. 173-7).

In Alabama, once a death sentence is imposed, the Attorney General must move the Alabama Supreme

Court to authorize the Commissioner of the ADOC to carry out the execution, which is only then set “within

a time frame set by the governor.” ALA. R. APP. P. 8(d)(1).

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The week of the execution, the execution team meets to “walk through the steps of

the procedure.” (Id. at 8). At least two ADOC officers observe the condemned inmate at

all times during this period. (Id. at 9). The officers’ observations are memorialized in “duty

post logs” which chronicle various events, including the inmate’s meals, phone calls, and

visits. (Id. at 9–10; see, e.g., doc. 173-8 (Anthony Boyd’s Duty Post Log)). These duty

post logs also describe the executions themselves, albeit at a high level of generality. (See,

e.g., doc. 173-14 at 9 (Geoffrey West’s Duty Post Log)).

On the day of the execution, the Protocol proceeds as follows: The Warden,

Assistant Warden, or Execution Team Captain (1) pressurizes the nitrogen hypoxia system,

(2) connects an industrial-use respirator mask to the breathing gas tubing, and (3) inspects

the oxygen monitors to ensure they are functioning properly. (Doc. 173-7 at 14). The

execution team escorts the condemned inmate to the execution chamber and secures him

to the gurney. (Id. at 15). The condemned inmate is secured to the gurney by a chest and

shoulder harness and one or more nylon straps (“chest restraints”)—“the same type [of]

material that you would make a seat belt out of.” (Doc. 147 at 187:14–25; see also doc.

173-5 at 20–21, paras. 77–82).

Execution team members attach pulse oximeters, devices that measure the oxygen

saturation in the blood, to the condemned inmate on the gurney. (Doc. 173-7 at 15). The

mask is secured to the inmate’s face and adjusted as necessary. (Id. at 16). The Warden

then enters the execution chamber and reads the death warrant. (Id.). Shortly thereafter,

the inmate is given two minutes to make a final statement. (Id.). After a series of final

safety checks, the execution begins. The Warden activates the nitrogen hypoxia system,

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starting the flow of ultra-high purity nitrogen gas into the mask, which lasts for the longer

of fifteen minutes or five minutes after a flatline indication on the inmate’s EKG. (Id. at

16–17). Once the nitrogen gas begins to flow, it displaces the breathing air in the mask

until the inmate is breathing almost pure nitrogen. (Doc. 173-141 at 5, para. 8). And when

the brain is deprived of oxygen for long enough, unconsciousness and death ensue. (Id.).

Additionally, the mask allows exhaled carbon dioxide to exit via a one-way valve, which

eliminates “rebreathing” of carbon dioxide by the inmate. (Id. at 6, para. 9).

Lee is scheduled to be the eighth inmate executed by this Protocol. 9 Additionally,

in March 2025, the State of Louisiana executed Jessie Hoffman Jr. via nitrogen hypoxia

under a substantially similar protocol to Alabama’s.

Lee’s Nitrogen Hypoxia Challenge

Lee initiated this lawsuit on August 22, 2025, naming as Defendants John Q. Hamm

(“Commissioner Hamm”), then-Commissioner of the ADOC, 10 and Terry Raybon

(“Warden Raybon”), the Warden of Holman, in their official capacities. (Doc. 1). Lee’s

sole remaining claim, brought pursuant to 42 U.S.C. § 1983, is that the Protocol facially

violates the Eighth Amendment. (Doc. 40 (operative complaint)). And the only alternative

The others were Kenneth Smith (“Smith”), Alan Miller (“Miller”), Carey Grayson (“Grayson”),

Demetrius Frazier (“Frazier”), Gregory Hunt (“Hunt”), Geoffrey West (“West”), and Anthony Boyd

(“Boyd”).

While this case was pending, Hamm retired from his position as Commissioner of the ADOC. (See doc.

144 at 1). On May 1, 2026, Greg Lovelace became the Commissioner of the ADOC and was substituted

as a named Defendant pursuant to Federal Rule of Civil Procedure 25(d). (Id.).

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method of execution he now proposes is the firing squad. (Id. at 20–22; see also doc. 98). 11

Lee seeks a declaration that the Protocol is unconstitutional and an injunction prohibiting

the ADOC from executing him by nitrogen hypoxia or “any method other than one of the

alternatives provided by his attorneys.” (Doc. 40 at 23).

On the same day that Lee filed his lawsuit, seven other Alabama death row inmates

filed § 1983 actions claiming (among other things) that the Protocol violates the Eighth

Amendment. 12 The parties in all eight lawsuits filed joint motions to consolidate the cases

for purposes of case management and discovery. (See, e.g., doc. 22). On January 14, 2026,

the Court held a hearing on the motions to consolidate. At that hearing, the State notified

the Court and Lee’s counsel for the first time that Lee was the next person for whom the

State would move to set an execution date. At a later status conference, the State

represented that it anticipated moving to set Lee’s execution date by mid-February.

Accordingly, although Lee’s case was briefly consolidated with the others (see doc. 35),

on January 29, 2026, the Court deconsolidated his case and set it on a separate, expedited

schedule (see doc. 36).

Lee originally raised other claims arising under the federal and Alabama constitutions. (See doc. 1). The

Court dismissed those claims on the State’s motion. (Doc. 33). Likewise, Lee’s original and amended

complaints identified medical-aid-in-dying as an alternative method of execution (doc. 1 at 21, para. 72;

doc. 40 at 22, para. 72), but he filed a notice prior to trial withdrawing that method as an alternative (doc.

98). The Court construed that notice (doc. 98) as containing a motion to amend the operative complaint

(doc. 40), which the Court granted (see doc. 172).

Van Pelt v. Hamm, 2:25-cv-671-ECM; Belisle v. Hamm, 2:25-cv-673-ECM; Brooks v. Hamm, 2:25-cv674-ECM; George v. Hamm, 2:25-cv-675; Jenkins v. Hamm, 2:25-cv-676-ECM; Williams v. Hamm, 2:25cv-677-ECM; and Taylor v. Hamm, 2:25-cv-678-ECM. These seven cases have since been consolidated

with another § 1983 method of execution case, Wilson v. Hamm, 2:24-cv-111-ECM (“Wilson”), and

recaptioned In Re: Alabama Nitrogen Hypoxia Protocol Litigation, 2:24-cv-111-ECM (M.D. Ala.).

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True to its word, on February 9, 2026, the State moved to set Lee’s execution. (See

doc. 106-1). On April 2, 2026, the Alabama Supreme Court granted that motion and

authorized Alabama’s Governor to set Lee’s execution date. (Id.). On April 15, 2026, the

Governor declared that Lee’s execution would take place in the thirty-hour timeframe

commencing on June 11, 2026 at 12:00 a.m., and concluding on June 12, 2026 at 6:00 a.m.

(Doc. 127-1).

During discovery in Wilson, it was brought to the Court’s attention that the pulse

oximeters used in previous executions retained residual data from those executions.

Specifically, the pulse oximeters retained periodic readings of the inmates’ blood oxygen

saturation levels and pulse rates. And on April 21, 2026—six days before the start of Lee’s

bench trial—the State filed a notice in Wilson notifying the Court that data from what

appeared to be prior executions had been extracted from the pulse oximeters. (Doc. 118 in

2:24-cv-111-ECM (M.D. Ala.)). Lee filed a motion to exclude, seeking to preclude the

State from offering at trial the pulse oximeter data and any testimony or evidence related

to pulse oximeter readings. (Doc. 136).

At the pretrial conference, the parties agreed to bifurcate the trial as follows: Phase

1 would commence on April 27 and address all matters not related to the pulse oximeter

data; and Phase 2, if necessary, would address matters related to the pulse oximeter data

and would be set later pending an opportunity for Lee to conduct additional discovery. The

parties reserved the right to recall witnesses, call new witnesses, or both during Phase 2.

The Court denied Lee’s motion to exclude the pulse oximeter evidence without prejudice.

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(Doc. 142). As discussed further below, the parties submitted evidence regarding the new

pulse oximeter data but did not reconvene for additional in-court testimony.

Overview of Trial Evidence

Eleven witnesses testified during the bench trial: seven lay witnesses and four

experts. 13 Lee called as experts three medical doctors: (1) Dr. Richard Schwartzstein (“Dr.

Schwartzstein”), an expert in pulmonology, critical care medicine, physiology, hypoxia,

dyspnea, 14 and air hunger; (2) Dr. Julie Bastarache (“Dr. Bastarache”), an expert in

pulmonology, critical care medicine, and pathology; and (3) Dr. James Williams (“Dr.

Williams”), an expert in emergency and family medicine, gunshot wounds, firearms, and

ballistics. 15 (Doc. 146 at 10:17–20; id. at 129:15–17; doc. 147 at 8:6–10). The State

proffered Dr. Joseph F. Antognini (“Dr. Antognini”) as an expert in anesthesiology. 16 (Doc.

147 at 251:2–5). Lee filed a motion to exclude Dr. Antognini (doc. 103), which the Court

held in abeyance pending the conclusion of trial and ultimately denied (see doc. 175).

The parties also stipulated to the admission of Dr. Brian McAlary’s (“Dr. McAlary”) declaration

testimony from two previous nitrogen hypoxia lawsuits. (Doc. 128 at 2); see Frazier, 2025 WL 361172;

see also Boyd, 2025 WL 2884410. Dr. McAlary is a board-certified anesthesiologist who witnessed

Grayson’s execution by nitrogen hypoxia. (See doc. 173-19 at 2–4, paras. 1–18).

As explained further below, dyspnea is breathing difficulty or breathing discomfort, the most severe form

of which is air hunger.

Dr. Williams testified regarding the firing squad, Lee’s proposed alternative method of execution.

Specifically, Dr. Williams testified to a reasonable degree of medical certainty that execution by firing

squad (1) causes a quick and painless death and (2) is feasible and readily implemented. (Doc. 147 at 8:15–

23). But because Lee fails to show that the Protocol poses a substantial risk of severe pain, the Court

pretermits discussion of Dr. Williams’ opinions on the firing squad.

The State also sought to offer Dr. Antognini as an expert “in the field of general medicine.” (Doc. 147 at

251:2–4).

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The Court also admitted hundreds of exhibits totaling thousands of pages, including

scientific literature, ADOC records, news articles about prior nitrogen hypoxia executions,

witness testimony from prior nitrogen hypoxia litigation, and video demonstrations of

Alabama’s and Louisiana’s nitrogen hypoxia execution systems. Among the exhibits are

the pulse oximeter data and expert witness declarations interpreting aspects of the data,

which the Court addresses infra Section III.E.

The Court does not exhaustively summarize each piece of evidence or each

witness’s testimony. However, the Court describes the following evidence and testimony:

(1) information about nitrogen and oxygen as atmospheric gases, (2) demonstrations of

Alabama’s and Louisiana’s nitrogen hypoxia execution systems, (3) background about

different types of pain, (4) background about dyspnea and air hunger, (5) an overview of

the experts’ opinions on the effects of the Protocol, and (6) an overview of the lay witnesses

testimony.

1. Nitrogen and Oxygen

Our bodies need oxygen to function. The normal oxygen concentration in the air is

around 21%. (Doc. 173-141 at 15, para. 25 (Declaration of Dr. Antognini)). But the most

abundant atmospheric gas is nitrogen, comprising approximately 78% of air. (Id. at 5, para.

7).

Nitrogen itself is not harmful under normal circumstances, but it can kill via

displacement of the oxygen that is normally present in our breathing air. (Id.).

An oxygen concentration of 6.2% is “just sufficient to maintain consciousness.” (Id.

at 22, para. 40). If the oxygen concentration is less than 5%, “you start to get critically low

oxygen levels of inspired gas.” (Doc. 146 at 132:15–16 (Dr. Bastarache trial testimony)).

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An oxygen concentration of 2.1% would “rapidly cause death.” (Doc. 173-141 at 16, para.

26). An atmosphere containing 0.8% oxygen is not “supportive of human life,” and

exposure to an atmosphere with 0.8% oxygen would result in unconsciousness very quickly

and death soon thereafter. (Doc. 149 at 17:16–23 (Dr. Antognini trial testimony)).

2. Demonstrations of Nitrogen Hypoxia Systems

At trial, the State presented video demonstrations of Louisiana’s and Alabama’s

nitrogen hypoxia systems (doc. 173-198, doc. 173-197), as well as Dr. Antognini’s written

account of another demonstration of the Alabama system (doc. 173-141 at 11–12, para.

19). The Louisiana video depicts a masked mannequin with an oxygen monitor attached

to a tube placed inside the mask, which tracks the decrease in oxygen level after the

nitrogen gas is turned on. (Id. at 16:6–25; doc. 173-196). The video shows the oxygen

level inside the mask rapidly decreasing to 0.8% within one minute after the nitrogen began

to flow. (Doc. 149 at 17:1–15; doc. 173-196). 17

The Alabama video is similar, depicting a mask strapped to a gas tank and an oxygen

monitor attached to a tube inside the mask. (Doc. 173-197). Like the Louisiana video, the

Alabama video shows the oxygen concentration in the mask quickly plummeting: around

twenty-five seconds after the breathing air supply is cut off and nitrogen is turned on, the

oxygen concentration is less than 6%. (Id.; see also doc. 147 at 143:24–144:2 (Houts trial

testimony)). Approximately thirty to thirty-three seconds after the nitrogen gas is turned

The oxygen level inside the mask reached 0.8% despite a “gap” in the mask seal caused by the tube

attached to the oxygen monitor (see doc. 149 at 18:3–5), which would not be present in an execution under

the Protocol.

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on, the oxygen concentration in the mask is less than 3%. (Doc. 173-197). And thirty-five

to forty seconds in, the oxygen concentration is less than 2%. (Id.). In the separate

demonstration witnessed by Dr. Antognini, “an oxygen monitor was placed in the mask

and surrounded by sheets and a towel.” (Doc. 173-141 at 11, para. 19). According to Dr.

Antognini, this demonstration showed results similar to those in the video: less than

twenty-four seconds after nitrogen gas was turned on, the oxygen concentration in the mask

was 5%; and approximately forty-two seconds in, the oxygen concentration was 2%. (Doc.

173-141 at 11–12, para. 19).

3. Types of Pain

To explain how the medical community understands pain, Dr. Williams testified

regarding how pain is processed by the brain. (Doc. 147 at 10:9–13). Dr. Williams defined

pain as a noxious stimulus that is “transmitted to the brain via sensory nerves.” (Doc. 17340 at 5). Th

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