Hoffman v. Westcott et al

Filing 89

RULING: Plaintiff's Motion to Reconsider the Court's Denial of his RLUIPA Claim (Count VI) shall be DENIED. Plaintiff's 4 Motion for Preliminary Injunction shall be GRANTED on the Eighth Amendment claim, and Defendants are enjoi ned from executing Jessie Hoffman on March 18, 2025, using nitrogen hypoxia. Plaintiff's Motion for Preliminary Injunction is DENIED as to Counts III and IV. Signed by Chief Judge Shelly D. Dick on 3/11/2025. (SWE) Modified on 3/11/2025 to edit title of document (SWE).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JESSIE HOFFMAN
CIVIL ACTION
VERSUS
NO. 25-169-SDD-SDJ
GARY WESTCOTT, et al.
RULING
Before the Court is a Motion for Preliminary Injunction filed by Plaintiff Jessie
Hoffman, (“Plaintiff” or “Hoffman”).1 Defendants Gary Westcott, (“Secretary Westcott”),
Secretary for the Louisiana Department of Public Safety and Corrections, (“DPSC); Darrel
Vannoy, Warden of the Louisiana State Penitentiary, (“Warden Vannoy”); and John Does,
unknown executioners, (collectively, “Defendants” or “the State”), oppose the motion.2
Plaintiff has filed a reply.3 The Court held a preliminary injunction hearing on March 7,
2025. During this hearing, Plaintiff urged the Court to reconsider its denial of his RLUIPA4
claim (Count VI).5
After reviewing the evidence, and considering the law and arguments of the
parties, for the reasons which follow, the Court shall GRANT the Plaintiff’s Motion for
Preliminary Injunction under the Eighth Amendment, DENY the Plaintiff’s Motion to
Reconsider the RILUIPA claim, and DENY Injunctive Relief in all other respects. The
Defendants shall be enjoined from executing Jessie Hoffman on March 18, 2025, using
nitrogen hypoxia.

1

Rec. Doc. 4.
Rec. Doc. 56.
3
Rec. Doc. 75.
4
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.
5
Rec. Doc. 87, p. 115.
2

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I.

BACKGROUND
Plaintiff is a death row inmate at the Louisiana State Penitentiary in Angola,

Louisiana, (“Angola”). He was sentenced to death by lethal injection on September 11,
1998, for the murder of Mary “Molly” Elliot.6 Over 26 years later on February 20, 2025,
Plaintiff was served the death warrant for his March 18, 2025 execution.7 Secretary
Westcott8 chose nitrogen hypoxia as Plaintiff’s method of execution, not lethal injection
as per his September 11, 1998 death sentence.9
Hoffman does not challenge his conviction or death sentence. He challenges the
method of his execution under 42 U.S.C. § 1983. He seeks to be executed by firing squad
or a drug cocktail known as DDMAPh instead of nitrogen hypoxia, which he argues poses
a substantial risk of severe psychological pain when compared to the alternatives he
proposes.
Nitrogen hypoxia is the deprivation of oxygen through the inhalation of nitrogen.10
In February 2024, the Louisiana legislature amended La. R.S. § 15:569 to add nitrogen
hypoxia as a method of execution effective July 2024.11 Now, the State has the option to
execute those on death row in one of three ways: lethal injection, electrocution, and
nitrogen hypoxia.12 Louisiana is one of only four states that authorizes execution by

6

State v. Hoffman, 1998-3118 (La. 4/11/00); 768 So. 2d 542, 549–50.
See Rec. Doc. 56-2, p. 5 (suggesting the death warrant was issued on February 10, 2025); Rec. Doc. 86,
pp. 25–26 (Plaintiff’s testimony from PI hearing that he was served the death warrant on February 20,
2025).
8
Secretary Westcott has been the Secretary of the Louisiana Department of Public Safety and Corrections
since August 2024. Rec. Doc. 87, p. 24.
9
Id.
10
See, e.g., id. at p. 30 (Dr. Bickler defining hypoxia).
11
See La. R.S. § 15:569(A); La. Acts 2024, 2nd Ex. Sess., No. 5, §1, eff. July 1, 2024.
12
La. R.S. § 15:569(A).
7

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nitrogen hypoxia.13 Alabama is the only state that has used this method and has done so
on four occasions since January 25, 2024.14 The parties do not dispute that Louisiana’s
nitrogen hypoxia protocol was modeled after, and is identical to, Alabama’s protocol in all
relevant respects.
After years of being unable to conduct executions through lethal injection, the
Governor on March 5, 2024, signed a law that adds nitrogen hypoxia as a means of
execution available to the DPSC.15 This law took effect on July 1, 2024.16 Before the law
took effect, the DPSC visited Alabama to see its nitrogen gas execution system17 and
purchased the nitrogen that would be used in executions.18 By November 2024, and after
two trips to Alabama, Louisiana’s nitrogen gas execution system was “assembled and in
place” at Angola.19 Training on the nitrogen system started in November 2024.20
Obviously, DPSC anticipated the ability to use nitrogen for executions. Yet, despite the
leg work that DPSC had already undertaken, Louisiana’s execution protocol, a carbon
copy of Alabama’s, was not promulgated until February 7, 2025.21
Almost immediately thereafter, Hoffman’s death warrant was signed and served
upon him, giving him less than 60 days to challenge his method of execution. Then he
was stymied by the State’s refusal to produce even a redacted version of his execution
protocol. By order of the Court, the State produced the protocol to Hoffman pursuant to a
13

Oklahoma, Mississippi, and Alabama also have nitrogen hypoxia as a method of execution. See Okla.
Stat. tit. 22, § 1014(B); Miss. Code § 99-19-51(1); Ala. Code § 15-18-82.1.
14
See Frazier v. Hamm, No. 24-732, 2025 WL 361172 (M.D. Ala. Jan. 31, 2025) (discussing the Alabama
executions of Demetrius Frazier, Kenneth Smith, Alan Miller, and Carey Grayson by nitrogen hypoxia).
15
See La. R.S § 15:569 and its legislative history, available at https://legis.la.gov/legis/BillInfo.aspx?s=
242ES&b=ACT5&sbi=y.
16
Id.
17
Rec. Doc. 86, p. 178.
18
Id. at pp. 162–63.
19
Rec. Doc. 87, p. 18.
20
Id. at pp. 14–15
21
Id. at p. 12.

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protective order three days before the hearing.22 This highlights a key difference between
Louisiana and Alabama. Alabama finalized its execution protocol in late August of 2023,23
and its first nitrogen hypoxia execution was on January 25, 2024.24 Here, Louisiana
finalized its protocol in the eleventh hour, allowing Hoffman virtually no time to seek
redress.
Plaintiff filed this suit on February 25, 2025, challenging the constitutionality of
nitrogen hypoxia as Louisiana’s chosen method of his execution.25 He brings multiple
claims, including violations of the First, Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution; the Ex Post Facto Clause, Article 1, § 10 of the Constitution;
18 U.S.C. § 3599, providing access to counsel; and RLUIPA, 42 U.S.C. § 2000cc et seq.26
Plaintiff filed a Motion for Preliminary Injunction seeking to prohibit the State from
executing him on March 18, 2025, through nitrogen hypoxia.27 He prays that “the
execution should be stayed by preliminary injunction to allow for a reasonable period of
expedited discovery, briefing and a hearing with experts so that this case may be decided
on a developed record.”28
Given Plaintiff’s scheduled execution date of March 18, 2025, the Court set a
preliminary injunction hearing for March 7, 2025.29 The parties had exactly one week to
prepare for the hearing, which included exchanging expert declarations, redacting
sensitive information from documents, agreeing to stipulations of fact, responding to

22

Rec. Doc. 41.
Frazier, 2025 WL 361172, at *3.
24
Id. at *5.
25
Rec. Doc. 1.
26
Id.
27
Rec. Doc. 4.
28
Rec. Doc. 4-1, p. 3.
29
Rec. Doc. 29.
23

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written discovery, conducting numerous depositions, preparing witnesses, assembling
exhibits, and engaging in motion practice.30
With respect to motion practice, Defendants filed a Motion to Dismiss Plaintiff’s
claims,31 which Plaintiff opposed.32 The Court granted Defendants’ Motion to Dismiss in
part and denied it in part.33 Specifically, the Court dismissed as moot the claim for Refusal
to Disclose the Execution Protocol Claim (Count V). The Court dismissed the Religious
Exercise Claims (Counts VI and VII) with prejudice. The Eighth Amendment, Ex Post
Facto and Right to Counsel/ Access to Courts claims (Counts I-IV) proceeded to hearing.
Plaintiff urges the Court to reconsider denying his RLUIPA claim (Count VI).34
The Court held a preliminary injunction hearing on March 7, 2025, beginning
approximately at 9:00 a.m. and ending sometime past 8:00 p.m. Multiple witnesses
testified, making the hearing transcript over 400 pages.35 The parties received copies of
the hearing transcript on the morning of Saturday March 8, 2025, and had until March 9,
2025, at 9:00 a.m. to submit to the Court Proposed Findings of Fact and Conclusions of
Law.
Now, after an expedited hearing, and absent a fully developed record, this Court
must answer the ultimate question: is nitrogen hypoxia cruel and unusual punishment
under the Eighth Amendment? If Plaintiff can prove there is a substantial likelihood that
he will succeed on this claim—or any of his remaining claims for that matter—do the
balance of equities weight in his favor, insomuch as it is in the public’s interest for this

30

See, e.g., Rec. Docs. 10, 33, 40, 55.
Rec. Doc. 55.
32
Rec. Doc. 69.
33
Rec. Doc. 79. Defendants filed a 12(b)(6) Motion to Dismiss but have not yet answered the Complaint.
34
Rec. Doc. 87, p. 115.
35
See Rec. Docs. 86, 87.
31

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Court to issue an injunction prohibiting the irreparable harm that will result from his March
18, 2025 execution?
II.

MOTION TO RECONSIDER DISMISSAL OF PLAINTIFF’S RLUIPA CLAIM
Plaintiff moves for reconsideration of the Court’s 12(b)(6) dismissal of his RLUIPA

claim.36 Count VI alleges that the execution by nitrogen hypoxia violates RLUIPA because
it substantially burdens Hoffman’s religious exercise to breathe meditatively since he will
be deprived from breathing air.37
RLUIPA states that
[n]o government shall impose a substantial burden on the religious exercise
of a person residing in or confined to an institution . . . even if the burden
results from a rule of general applicability, unless the government
demonstrates that imposition of the burden on that person—(1) is in
furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.38
The Supreme Court has summarized the RLUIPA test as follows:
A plaintiff bears the initial burden of proving that a prison policy implicates
his religious exercise. Although RLUIPA protects any exercise of religion,
whether or not compelled by, or central to, a system of religious belief, a
prisoner's requested accommodation must be sincerely based on a
religious belief and not some other motivation. The burden on the prisoner's
religious exercise must also be substantial. Once a plaintiff makes such a
showing, the burden flips and the government must demonstrate that the
imposition of the burden on that person is the least restrictive means of
furthering a compelling governmental interest.39
The Court finds that meditative breathing is an exercise attendant to practicing
Hoffman’s chosen faith of Buddhism.40 The Court dismissed Hoffman’s RLUIPA claim
finding that substituting nitrogen for atmospheric air does not substantially burden
36

Rec. Doc. 87, p. 115.
Rec Doc. 1, ¶¶ 233–38.
38
42 U.S.C. § 2000cc–1(a).
39
Ramirez v. Collier, 595 U.S. 411, 425 (2022) (quoting 42 U.S.C. § 2000cc–1(a); Holt v. Hobbs, 574 U.S.
352, 360–62 (2015)) (cleaned up).
40
“[T]raditional forms of religious exercise” satisfy the religious exercise prong of RLUIPA. Id. at 425, 427.
37

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Hoffman’s ability to breath. Nothing in the evidence changes this conclusion. The record
evidence established that nitrogen is an inert, tasteless, colorless, odorless gas.41
“[A] government action or regulation creates a ‘substantial burden’ on a religious
exercise if it truly pressures the adherent to significantly modify his religious behavior and
significantly violate his religious beliefs.”42 Plaintiff responds that Hoffman’s “sincerely
held religious beliefs are substantially burdened not because he will be unable to breathe”
but because he will be forced to breath nitrogen instead of air.43 At the preliminary
injunction hearing, two Buddhist clerics testified that air (not nitrogen) is necessary for
meditative breathing.44 They cited no religious text or instruction by the historical Buddha
in support of this proposition.
The Court finds that Buddhism calls its adherents to a ritual of breathing
rhythmically to achieve a mediative state, what the clerics referred to as “zen.” This is
analogous to Western religions’ practice of prayer. The Plaintiff admits that he will have
the ability to breathe in the nitrogen as it is administered.45 The Court finds there is no
substantial burden to his exercise of rhythmic breathing. The Court denies
reconsideration of this claim.
III.

EXHAUSTION UNDER THE PLRA
Hoffman filed a grievance as soon as the law adding nitrogen hypoxia as a method

of execution went into effect on July 1, 2024.46 The Defendants rejected his grievance as
premature, stating:
REJECTED. Your request has been rejected for the following reason(s):
41

Rec. Doc. 87, p. 89.
Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004).
43
Rec. Doc. 69, p. 20 (emphasis added).
44
Rec. Doc. 86, pp. 48, 49 (Reverend Michaela Bono), 103 (Reverend Reimoku Gregory Smith).
45
Id. at p. 39.
46
Rec. Doc. 69-1, pp. 1–6.
42

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YOUR GRIEVANCE ALLEGING THAT VARIOUS EXECUTION METHODS
CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF
THE CONSTITUTION HAS BEEN REJECTED AS PREMATURE, AS IT
CONCERNS EVENTS THAT HAVE NOT YET HAPPENED AND/OR
ACTIONS OR DECISIONS THAT HAVE YET TO OCCUR. A VALID DEATH
WARRANT HAS YET TO ISSUE IN YOUR CASE, AND THE LAW
ENACTING THE VARIOUS EXECUTION MEANS OUTLINED IN YOUR
GRIEVANCE HAS YET TO TAKE LEGAL EFFECT. FOR THE REASONS
STATED ABOVE, YOUR REQUEST FOR RELIEF IS REJECTED
WITHOUT CONSIDERATION ON THE MERITS. PLEASE NOTE THAT
REJECTED REQUESTS FOR ADMINISTRATIVE REMEDY ARE NOT
APPEALABLE TO THE SECOND STEP. 47
After his attorneys received notice that the State was seeking an execution warrant,
Hoffman filed a grievance under the prison’s Administrative Remedy Procedure (“ARP”)
on February 10, 2025.48 Angola responded to his grievance advising that a response
would be issued within 40 days, i.e., after his scheduled execution.49 Hoffman then filed
a second emergency grievance on February 14, 2025.50 No response to the second
emergency grievance is contained in the record.
“Where an administrative process does not facilitate addressing execution-related
claims within the timeframe of a scheduled execution, it is likely not an ‘available’ remedy
that must be exhausted under the PLRA.”51 When prison officials mishandle an inmate’s
grievance, it cannot be said that he failed to exhaust his remedies.52
Defendants complain that Hoffman did not plead an alternative method of
execution in his emergency ARP. However, the Prison Litigation Reform Act does not
require legal detail in a grievance. Grievances must provide a factual basis “to identify

47

Id. at p. 8.
Rec. Doc. 56-2, pp. 2, 5–7.
49
Id. at p. 4.
50
Id. at pp. 9–12.
51
Ramirez, 595 U.S. at 438 (2022) (Sotomayor, J., concurring).
52
Dole v. Chandler, 438 F.3d 804, 811 (7th Cir. 2006).
48

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problems, but need not necessarily advance specific legal theories.”53 An incarcerated
person “need not present legal theories in his grievance[].”54 The purpose of an ARP is
fair notice. The State was on notice that Hoffman challenged his method of execution.
Defendants challenge Hoffman’s failure to include his Ex Post Facto and Right to
Counsel/Access to Courts Claims in is ARP. The Prison Litigation Reform Act provides
that “[n]o action shall be brought with respect to prison conditions . . . by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.”55 This is not a conditions of confinement claim. The
remedy Hoffman seeks—a declaration that La. R.S. § 15:569 is unconstitutional under
the Ex Post Facto Clause, 18 U.S.C. 3599, and the Sixth and Eighth Amendments of the
U.S. Constitution cannot be redressed through the prison grievance process.56
The Court finds that Plaintiff has exhausted all available remedies. Based on these
facts, there is no administrative process available for Hoffman to obtain any relief for the
actions complained of. An administrative process is not available if it is not “‘capable of
use’ to obtain ‘some relief for the action complained of.’”57
IV.

MOTION FOR PRELIMINARY INJUNCTION
Legal Standard for Preliminary Injunctions
A preliminary injunction is an “extraordinary and drastic remedy” that may only be

awarded upon a clear showing that the plaintiff is entitled to such relief.58 A plaintiff
seeking injunctive relief must demonstrate by a preponderance of the evidence that “(1)
53

Williams v. Estelle Unit Prison Offs., No. 23-20036, 2024 WL 3026778, at *3 (5th Cir. June 17, 2024)
(citing Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004)).
54
Johnson, 385 F.3d at 517.
55
42 U.S.C. § 1997e(a).
56
Ross v. Blake, 578 U.S. 632, 639 (2016).
57
Id. at 642 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).
58
Munaf v. Geren, 553 U.S. 674, 689 (2008).

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it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm without an
injunction, (3) the balance of equities tips in its favor, and (4) an injunction is in the public
interest.”59
“The decision to grant or deny a preliminary injunction is discretionary with the
district court.”60 However, because a preliminary injunction is an extraordinary remedy, it
“should not be granted unless the party seeking it has clearly carried the burden of
persuasion on all four requirements.”61 Consequently, the decision to grant a preliminary
injunction is “the exception rather than the rule.”62
Irreparable Harm
Wright & Miller instructs that “[p]erhaps the single most important prerequisite for
the issuance of a preliminary injunction is a demonstration that if it is not granted the
applicant is likely to suffer irreparable harm before a decision on the merits can be
rendered.”63 Here, Plaintiff will most certainly suffer irreparable harm if his claim for
injunctive relief is not decided prior to his March 18, 2025 execution date. No harm is
more irreparable than death. Finding so, the Court moves to the remaining elements of
the preliminary injunction analysis.
Substantial Likelihood of Success on the Merits
A. Eighth Amendment Claims (Counts I and II)
Plaintiff argues that nitrogen hypoxia execution violates the Eighth Amendment
prohibition against cruel and unusual punishment facially and as applied to him.

59

United States v. Abbott, 110 F.4th 700, 706 (5th Cir. 2024) (citation omitted).
Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
61
Planned Parenthood v. Suehs, 692 F.3d 343, 348 (5th Cir. 2012).
62
Miss. Power & Light Co., 760 F.2d at 621.
63
11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1
(3d ed. 2024).
60

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“[C]lassfying a lawsuit as facial or as-applied affects the extent to which the
invalidity of the challenged law must be demonstrated and the corresponding ‘breadth of
the remedy,’ but it does not speak at all to the substantive rule of law necessary to
establish a constitutional violation.”64 It is well settled that “[w]hile the Eighth Amendment
doesn’t forbid capital punishment, it does speak to how States may carry out that
punishment, prohibiting methods that are ‘cruel and unusual.’”65 “Punishments are cruel
when they involve torture or a lingering death[.]”66 “It implies . . . something inhumane and
barbarous, something more than the mere extinguishment of life.”67
To that end, the question in dispute is whether the State’s chosen method of
execution “intensifie[s] the sentence of death” with “a (cruel) superaddition of terror, pain
or disgrace.”68 “As originally understood, the Eighth Amendment tolerated methods of
execution, like hanging, that involved a significant risk of pain, while forbidding as cruel
only those methods that intensified the death sentence by ‘superadding’ terror, pain, or
disgrace.”69 “To establish that a State's chosen method cruelly ‘superadds’ pain to the
death sentence, a prisoner must show a feasible and readily implemented alternative
method that would significantly reduce a substantial risk of severe pain and that the State
has refused to adopt without a legitimate penological reason.”70
“Only through a ‘comparative exercise,’ . . . can a judge ‘decide whether the State
has cruelly “superadded” pain to the punishment of death.’”71 Here, Plaintiff proposes two

64

Bucklew v. Precythe, 587 U.S. 119, 138 (2019) (citing Citizens United v. Fed. Election Comm'n, 558 U.S.
310, 331 (2010)).
65
Id. at 130.
66
Baze v. Rees, 553 U.S. 35, 49 (2008) (quoting In re Kemmler, 136 U.S. 436, 447 (1890)).
67
Id. (quoting In re Kemmler, 136 U.S. at 447).
68
Bucklew, 587 U.S. at 133 (cleaned up).
69
Id. at 119.
70
Id. at 119–20 (citing Baze, 553 U.S. at 52; Glossip v. Gross, 576 U.S. 863, 867–78 (2015)).
71
Nance v. Ward, 597 U.S. 159, 164 (2022) (quoting Bucklew, 587 U.S. at 136).

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alternative methods of execution: firing squad and DDMAPh, which is a regimen used for
medical-aid-in-dying. The fact that these methods are not authorized under Louisiana law
is immaterial.72 In such a scenario, as the United States Supreme Court has explained,
“the State can enact legislation approving what a court has found to be a fairly easy-toemploy method of execution.”73 When a state “has legislated changes to its execution
method several times before[,]” there is “no reason to think that the amendment process
would be a substantial impediment.”74
Therefore, the Court’s analysis turns on whether Plaintiff has shown a substantial
likelihood that (1) making the condemned breath pure nitrogen until dead cruelly
superadds pain and suffering to the execution when compared to firing squad or
DDMAPh; (2) firing squad or DDMAPh is “feasible, readily implemented and in fact
significantly reduce[s] a substantial risk of severe pain;”75 and (3) the state has refused to
adopt one of these methods without a legitimate penological reason.
1. Substantial Risk of Harm
“Nitrogen hypoxia” as a method of execution was first advanced in 2014 by four
criminal law professors at Oklahoma’s East Central University.76 Louisiana has never
executed or attempted to execute a condemned inmate by nitrogen gassing, nor has the
federal government. The only state to have used nitrogen gas as a method of execution

72

See Nance, 597 U.S. 159 (holding that Section 1983 is an appropriate vehicle for a method-of-execution
claim where the prisoner proposes an alternative method not authorized under their State's law).
73
Id. at 170.
74
Id.
75
Glossip, 576 U.S. at 877 (quoting Baze, 553 U.S. at 52).
76
MICHAEL COPELAND ET AL., NITROGEN INDUCED HYPOXIA AS A FORM OF CAPITAL PUNISHMENT (2014) (a white
paper by Professors Michael Copeland, Christine Pappas, and Thomas Parr proposing asphyxiation by
nitrogen gas, coining “nitrogen hypoxia” as an alternative to lethal injection).

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is Alabama. To date, Alabama has executed four condemned men by nitrogen hypoxia.77
In the execution context, the condemned is forced to inhale pure nitrogen, which displaces
the oxygen in the lungs thereby robbing the body of oxygen needed for survival.
Eyewitness accounts from these executions are the most probative evidence of what
death by forced inhalation of nitrogen looks like.
The accounts of all four Alabama executions describe suffering, including
conscious terror for several minutes, shaking, gasping, and other evidence of distress. In
particular, eyewitnesses observed:
?

violent writhing of the entire body under the straps “to the point that the
entire gurney [was] moving up and down”;78

?

vigorous convulsing and shaking for four minutes;79

?

repeated gasping while conscious;80

?

minutes of conscious struggling for life;81

?

heaving and spitting;82

?

two minutes of shaking and trembling “followed by about six minutes of
periodic gulping breaths before [becoming still]”;83

77
See Frazier, 2025 WL 361172 (discussing the Alabama executions of Demetrius Frazier, Kenneth Smith,
Alan Miller, and Carey Grayson by nitrogen hypoxia).
78
Rec. Doc. 68-2, James Finn, Jeff Landry supports death penalty by nitrogen gas. Here's how an
eyewitness described it, THE ADVOCATE, February 20, 2024,
Https://www.nola.com/news/politics/legislature/witness-recounts-nitrogen-execution-supported-by-jefflandry/article_be56ebb8-d021-11ee-8b2b-772fa7c8c892.html.
79
Rec. Doc. 4-5, pp. 213–14.
80
Id. at pp. 211, 218.
81
Id. at pp. 228, 285.
82
Id. at pp. 74, 271.
83
Rec. Doc. 4-1, Ivana Hrynkiw, Alabama inmate Alan Miller executed with nitrogen gas Thursday for 1999
shootings, AL.com (Sept. 26, 2024 8:59 PM), https://www.al.com/news/2024/09/alabama-inmate-alanmiller-set-to-be-executed-with-nitrogen-gas-thursday-for-1999-shootings.html.

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A spiritual advisor, who also happens to be a physician, recounts his observations as
follows: “We don’t see people jerking around like that while they’re dying normally. His
face was twisted, and he looked like he was suffering.”84
None of these eyewitnesses testified at the preliminary injunction. In the absence
of eyewitness testimony of executions by nitrogen hypoxia, the parties’ called medical
experts. Plaintiff called Dr. Philip Bickler,85 a Board-Certified Anesthesiologist whom the
State stipulated is an expert in the fields of “Anesthesiology and Human Hypoxia.”86
Defendants called Dr. Joseph F. Antognini, a Board-Certified Anesthesiologist whom
Plaintiff’ stipulated is an expert in the fields of “Anesthesiology, General Medicine, and
Physiology.”87
Dr. Bickler has extensive clinical experience observing the effects oxygen
deprivation (hypoxia) on humans and the scientific study of controlled blood oxygen
desaturation. For thirty years, he has conducted clinical research on human subjects in
various states of hypoxia.88 He has conducted at least 5,000 hypoxia studies on humans
involving administering low oxygen containing gas and monitoring the subjects’
responses.89 From his work at the Hypoxia Research Laboratory, he has published
extensively in peer-reviewed scientific and medical journals regarding the physiological
effects of hypoxia on humans and other animals.90 The Court finds Dr. Bickler is a qualified
expert in the field on anesthesiology, and the Court finds Dr. Bickler to be superbly

84

Ivana Hrynkiw, Alabama inmate Alan Miller executed with nitrogen gas Thursday for 1999 shootings,
AL.com (Sept. 26, 2024 8:59 PM), https://www.al.com/news/2024/09/alabama-inmate-alan-miller-set-tobe-executed-with-nitrogen-gas-thursday-for-1999-shootings.html.
85
Rec. Doc. 4-5, pp. 5–72 (Dr. Bickler CV).
86
Rec. Doc. 87, p. 27.
87
Id. at pp. 126–27.
88
Id. at p. 30. He runs a Hypoxia Research Lab.
89
Id. at p. 44.
90
See Rec. Doc. 4-5, pp. 5–72 (Dr. Bickler CV).

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qualified in the field of human hypoxia, owing to his long and extensive clinical work in the
effect of low oxygen (hypoxia) on humans.
On the other hand, Dr. Antognini has never clinically studied the effects of hypoxia
on humans. He has not published nor presented any studies regarding the effects of
nitrogen hypoxia. Professionally, the only study of human hypoxia Dr. Antognini has done
is in connection to providing opinions to Alabama and Louisiana in support of nitrogen
hypoxia execution. He has testified for various states in fifteen to twenty lethal injection
execution cases and in five cases involving nitrogen hypoxia.91
Dr. Bickler explained the physiological effects of oxygen depletion. When oxygen
levels drop, “it sets off all our alarm bells. It hyperactivates our sympathetic nervous
system, so there is an increase in heart rate, in blood pressure. You feel blood pounding
in your head. You have an increased drive to breathe. You feel like you're gasping for
air.”92 Hypoxia “elicits [a] massive sympathetic nervous system response . . . it produces
a terror response.”93 “Your drive to breathe overcomes your conscious will.”94 He
explained that the “lungs are a four-to-five-quart reservoir of air which contains 20%
oxygen. So it may take a number of minutes depending on the breathing volume [for
nitrogen] to wash out all the oxygen that is remaining in the lungs.”95 “[W]hat this
represents is forced asphyxiation, gassing a subject to death, exposing him to a lack of
oxygen such that both extreme discomfort, distress, pain, and terror would be felt all the

91

Rec. Doc. 87, p. 203. The five cases involving nitrogen hypoxia include: Smith v. Hamm, No. 23-656,
2024 WL 116303 (M.D. Ala. Jan. 10, 2024); Miller v. Marshall, No. 24-197, 2024 WL 3737346 (M.D. Ala.
July 8, 2024); Grayson v. Hamm, No. 24-376, 2024 WL 4701875 (M.D. Ala. Nov. 6, 2024); Frazier v. Hamm,
No. 24-732, 2025 WL 361172 (M.D. Ala. Jan. 31, 2025); and the instant matter.
92
Rec. Doc. 87, pp. 34–35.
93
Id. at pp. 40–41.
94
Id. at p. 43.
95
Id. at p. 93.

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way up to the point of losing consciousness.”96 Dr. Bickler agrees that nitrogen hypoxia
does not cause physical pain. “It does not cause physical pain in terms of somatic pain.
It causes emotional terror.”97 Both experts agree that nitrogen hypoxia does not produce
physical pain.98
On the question of psychologic pain, Dr. Antognini agreed that oxygen deprivation
in the lungs triggers an instinctual response driven by respiratory centers in the brain that
tell your body to breathe.99 He also agreed that if your brain is telling you to breathe and
your mind knows breathing will kill you, this creates “severe emotional suffering.”100 Thus,
there is agreement among the experts that the inability to quiet the primal urge to breathe
is severe emotional suffering. The question becomes how long this psychological
suffering is likely to endure. What is the time between nitrogen onset and
unconsciousness?
Dr. Bickler candidly concedes that a person who is administered 100% pure
nitrogen and is breathing normally will lose consciousness in less than one minute.101 But
if the condemned holds his breath, Dr. Bickler opines that it could take 3 to 5 minutes to
lose consciousness.102 In order to minimize the time to unconsciousness, and thus the
duration of suffering, the condemned must cooperate in his own execution. However, the
ability to cooperate (repeatedly inhale deeply) would require the condemned to mentally

96

Id. at pp. 32–33.
Id. at p. 98.
98
Id. at pp. 98, 169.
99
Id. at p. 187. Dr. Antognini tries to limit the primal response to breathe to circumstances of hypercapnia,
a condition caused by excess CO2 in the lungs. Id. at pp. 380–81. The court finds Dr. Bickler's opinion that
oxygen deficiency, and not the type of gas depleting the oxygen, triggering the panic response to breathe
is more credible.
100
Id.
101
Id. at p. 83.
102
See id. at pp. 50, 58.
97

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overcome the primal urge to breathe that is triggered by lack of oxygen.103 On the other
hand, if the condemned holds his breath, Dr. Bickler opines that it could take 3 to 5
minutes to lose consciousness.104 The State’s expert, Dr. Antognini, agrees that breathholding will increase the time until loss of consciousness.105
After careful consideration of these medical experts and their opinions in the
context of their reliance materials and experience, the Court credits Dr. Bickler’s testimony
and opinions over Dr. Antognini’s. Dr Antognini’s opinions are untested scientific
hypotheses. The studies on which he relies are either irrelevant or unpersuasive.106
The Court is convinced by Dr. Bickler’s testimony and by common sense107 that
the deprivation of oxygen to the lungs causes a primal urge to breathe and feelings of
intense terror when inhalation does not deliver oxygen to the lungs. The experts agree
and the Court finds that this causes severe psychological pain. The experts also agree
that this severe psychological pain endures until the loss of consciousness.108 Dr.
Antognini argues that loss of consciousness will occur between 10 and 40 seconds from
inhalation of nitrogen, and Dr. Bickler opines that consciousness will more likely persist

103

Id. at p. 211 (rebuttal testimony of Dr. Bickler explaining that low oxygen, not CO2 or other gas,
displacement creates the hunger and panic for air).
104
See id. at pp. 50, 58.
105
Id. at pp. 184–85.
106
Dr. Antognini relied on an Ernsting paper, two Ogden papers, Miller and Mazur, and a “dog study.”
Reliance on the dog euthanasia study is flawed. Dr. Antognini admits dogs have different ventilation,
different cardiac output, and different metabolisms as compared to humans and would be unlikely to hold
their breath. Id. at pp. 199–200. The Ernsting paper is not instructive on time to loss of consciousness for
the reasons discussed in this Ruling at infra p. 18 and note 10. The Miller and Mazur paper is a white paper,
not a study or experiment. Rec. Doc. 87, p. 200. It includes no method information or data. The Ogden
papers were the work of a Sociologist who observed videos of four voluntary suicides by helium ingestion.
Id. at pp. 152; 197–99.
107
One need only hold their breath to understand that there is a primal urge to breath. Breath-holding
causes inhaled CO2 to displace the oxygen in the lungs as it is carried out of the lungs to the rest of the
body. In the case of breath-holding, O2 is displaced by CO2; the physiological effect of displacement by
nitrogen is no different. See id. at pp. 210–17 (Bicker Rebuttal).
108
Id. at pp. 98, 169.

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for a minute or more. On the low end, conscious terror and a sense of suffocation endures
for 35 to 40 seconds.109 On the high end, conscious psychological suffering endures for
3 to 5 minutes if an unwilling inmate holds his breath.
The Ernsting study,110 cited and relied upon by both Dr. Bickler and Dr. Antognini,
is a human nitrogen hypoxia study done in 1960 and is the only study that recorded time
to unconsciousness following the inhalation of pure nitrogen. In the Ernsting study, human
subjects were instructed to fully exhale and then hyperventilate 100% pure nitrogen.
Under those circumstances, the subjects lost consciousness in 30 to 40 seconds.111 The
controlled variables in the Ernsting study (complete exhalation and hyperventilated inhale
of nitrogen) are not analogous to execution conditions. The Ernsting study supports the
conclusion that when the inhalation and exhalation variables are uncontrolled, as it will
be in an execution setting, the time to unconsciousness will be longer than 30-40 seconds.
Dr. Antognini admitted that the results of experiments using different methods cannot be
compared and that the Ernsting method, involving the purging of lung air followed by the
hyperventilation of nitrogen, is “very different” from Louisiana’s nitrogen hypoxia
method.112
The Court does not credit Dr. Antognini’s opinion that the Louisiana’s system “will
cause unconsciousness within 35 to 40 seconds or perhaps sooner once the inmate starts
to inhale in 90 to 100% nitrogen gas.”113 This opinion is belied by the Ernsting study which
documents unconsciousness occurring 30 to 40 seconds after purging of air from the

109

Rec. Doc. 87, p. 326
Id. at p. 57.
111
Id.
112
Id. at pp. 192–93.
113
Id. at p. 132.
110

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lungs followed by the hyperventilation of nitrogen. Dr. Antognini conceded that “Dr. Bickler
is absolutely right that the lungs will have some oxygen in [them,] [s]o you have to
consider not just the volume of the mask but also the volume of the lungs."114 He opines
that unconsciousness will occur “around 10 to 12 seconds” after the “inspired oxygen
level is down to about 5%.”115 He candidly referred to his time to unconsciousness as an
“estimate.”116
Short of direct observation of humans in hypoxic states, Dr. Antognini presents
nothing more than a scientific hypothesis. The scientific method calls for testing
hypotheses. His hypothesis could have been tested by observation of the Alabama
executions. Dr. Antognini testified for the state in the first Alabama execution (Smith).
Alabama hired him in connection with the next three nitrogen hypoxia executions (Miller,
Grayson, and Frazier). Dr. Antognini did not observe any of these three Alabama
executions following his initial opinion and hypothesis. His hypothesis regarding time until
unconsciousness remains untested and unsubstantiated.
The Court finds that Dr. Bickler’s thirty years of clinical research, specifically
studying hypoxia in humans, results in reliable scientific understanding of the
physiological effect of hypoxia in humans. Anecdotal evidence from eyewitnesses to the
four Alabama nitrogen hypoxia executions corroborate and reinforce his opinions.117 The
Court finds that Plaintiff has clearly shown that he is substantially likely to prove that
nitrogen hypoxia poses a substantial risk of conscious terror and psychological pain.

114

Id. at p. 147.
Id. at p. 149.
116
Id. at p. 151.
117
See Rec. Doc. 4-5, pp. 206–285.
115

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2. Alternative Methods
Plaintiff’s two proposed alternatives are firing squad and DDMAPh. The Court
begins with addressing firing squad as a proposed alternative.
At the preliminary injunction hearing, Plaintiff called Dr. James Williams to testify,
whom the State stipulated is an expert in the fields of “Emergency Medicine and
Firearms.118 Dr. Williams has been an Emergency Room physician for over 30 years and
has seen and treated scores of gunshot wounds.119 Dr. Williams is also recognized by the
International Association of Law Enforcement Instructors and the International Law
Enforcement Educators and Trainers Association as having an expertise in firearms and
ballistics.120 Dr. Williams testified at length, basing his opinions on his professional
observations and experience, his knowledge of firearms and ballistics, and the State of
Utah’s Department of Corrections and the United States Military’s firing squad
protocols.121
Stated simply, execution by firing squad is the process of firing multiple high caliber
bullets122 in someone’s “cardiac bundle.” The cardiac bundle is “the larger organ of the
heart and all of its accessory structures, as well as the great vessels above and around
the heart . . . .”123 Military rifle calibers are used, causing multiple bullets to strike “the
individual’s body at a velocity of around 2800 feet per second . . . .”124 These bullets “strike
the body with a combined energy of roughly the equivalent of being struck by a 3-quarter-

118

Rec. Doc. 86, p. 105.
Id. at p. 104.
120
Id. at p. 105.
121
Id. at pp. 104–31.
122
Utah’s protocol provides for four bullets, South Carolina’s three, and the Military’s up to eight. See id. at
p. 108.
123
Id. at pp. 106–07.
124
Id. at p. 108.
119

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ton fully loaded truck in about .04 seconds and traverse the torso of the individual.”125
“[T]he bullets will strike the outside of the body and then traverse through the heart,
unleashing tremendous destructive energy upon the heart, which will literally tear the
heart to pieces . . . .”126 “This is significant destructive power which is unleased in less
than a fraction of a second and would cause complete cessation of all cardiac output from
the moment the bullets traverse the heart.”127 “[U]nconsciousness occurs very rapidly in
a period of about 3 to 4 seconds.”128
The Court finds Dr. Williams’ testimony that the condemned would be rendered
unconscious in 3 to 4 seconds credible. As explained above, Dr. Bickler and Dr. Antognini
differ on how long the condemned will suffer psychological terror before becoming
unconscious during a nitrogen hypoxia execution. The Court finds it substantially likely
that Hoffman will be able to prove a duration of conscious suffering of 30 to 40 seconds.
Thus, the Court concludes that Hoffman has clearly demonstrated that he is substantially
likely to prevail in his assertion that nitrogen hypoxia superadds pain and terror as
compared to firing squad.
Execution by firing squad has been upheld by the Supreme Court under the Eighth
Amendment.129 The firing squad method of execution is currently approved by five
states,130 and South Carolina most recently utilized this method on March 7, 2025.131
125

Id.
Id.
127
Id. at p. 109.
128
Id. at p. 110.
129
Wilkerson v. Utah, 99 U.S. 130 (1878) (upholding a sentence to death by firing squad imposed by a
territorial court, rejecting the argument that such a sentence constituted cruel and unusual punishment).
(cited in Baze, 553 U.S. at 48, and Bucklew, 587 U.S. at 131).
130
Mississippi, Miss. Code § 99-19-51; Oklahoma, Okla. Stat. tit. 22, § 1014; Utah, Utah Code § 77-18-113;
South Carolina, S.C. Code § 24-3-530; and Idaho, Idaho Code § 19-2716.
131
Jeffrey Collins and Patrick Phillips, ‘Violent and sudden’: Witness to first SC firing squad execution
describes
what
he
saw,
LIVE
5
WCSC
(Mar.
8,
20225,
11:15
AM),
126

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“Point[ing] to a well-established protocol in another State as a potentially viable option” is
probative of whether a proposed alternative is acceptable and available.132 Considering
this, there is no legitimate, penological reason why the State has refused to adopt this
method of execution. Just as the State modeled its nitrogen hypoxia protocol and
procedures after Alabama, it could do the same with the five other states that use firing
squad as a method of execution. Chief Operations Offer of the DPSC Seth Smith, (“COO
Smith”), testified that the DPSC maintains a supply of firearms and ammunition and has
officers trained and skilled in the use of firearms.133
The Court finds that Plaintiff has clearly shown a substantial likelihood that (1)
making the condemned breath pure nitrogen until dead cruelly superadds pain and
suffering to the execution when compared to firing squad; (2) firing squad is “feasible,
readily implemented, and in fact significantly reduce[s] a substantial risk of severe
pain;”134 and (3) that the State has failed to adopt firing squad as a method of execution
without a legitimate penological reason.
Though Plaintiff satisfies his burden through his first proposed alternative of firing
squad, he does not meet this burden with respect to his second proposed alternative of
DDMAPh. At the preliminary injunction hearing, Plaintiff called Dr. Charles David Blanke,
whom Defendants stipulated was an expert in medical-aid-in-dying and the drugs and
methods used in the field.135 Dr. Blanke testified that DDMAPh is a five-drug cocktail of
digoxin, diazepam (commonly known as Valium), amitriptyline, morphine, and
https://www.live5news.com/2025/03/08/violent-sudden-witness-first-sc-firing-squad-execution-describeswhat-he-saw/.
132
Nance v. Ward, 597 U.S. 159, 165 (2022) (quoting Bucklew, 587 U.S. at 140). Again, the Court need not
hinge its analysis on the fact that firing squad is not authorized under Louisiana law. See id. at 170.
133
Rec. Doc. 86, p. 160.
134
Glossip, 576 U.S. at 877 (quoting Baze, 553 U.S. at 52).
135
Rec. Doc. 86, p. 133.

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phenobarbital.136 “Most commonly, people ingest the combination of drugs mixed up in
some apple juice and/or apple syrup by swallowing it.”137 However, DDMAPh in the
execution context would likely involve rectal administration. According to Dr. Blanke, the
average time to unconsciousness is 5.8 minutes, and the average time to death is about
96 minutes.138
DDMAPh is not a feasible and readily available form of execution in Louisiana. At
the hearing, COO Smith testified credibly that drugs used for executions are not available
to the State. He testified that “Morris and Dickson and Pfizer, and other drug
manufacturers, maybe not in writing, have made it very clear to [the DPSC] that if [it]
use[s] any of their medication for a capital punishment case, they reserve the right to pull
all of their medication off the table.”139 He went on to explain that the DPSC has an aging
population and runs “large infirmaries” and “full-blown hospitals.”140 In short, the DPSC
“cannot run the risk of losing access to life-saving drugs . . . .”141 The Court agrees and
finds that DDMAPh is not a feasible and readily available form of execution. Accordingly,
Plaintiff has failed to meet his burden with respect to DDMAPh.
The Court concludes that there is a substantial likelihood that Plaintiff will succeed
on the merits that nitrogen hypoxia violates the Eighth Amendment’s prohibition against
cruel and unusual punishment. Plaintiff has shown that nitrogen hypoxia superadds
psychological pain, suffering, and terror to his execution when compared to execution by
firing squad. He has shown that execution by firing squad is a feasible and readily

136

Id. at p. 135.
Id.
138
Id. at p. 139.
139
Id. at p. 176–77.
140
Id. at p. 177.
141
Id.
137

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available alternative that the State has no legitimate penological reason for not adopting.
Finding that Plaintiff has met his burden as to his facial challenge, the Court need not
address his as-applied challenge but notes that there is evidence in the record that
execution by nitrogen hypoxia is cruel and unusual as applied to him.142
The fact that no method of execution has been violative of the Eighth Amendment
does not change the Court’s opinion. The Court in Bucklew recognized the importance of
a full record, noting that “Mr. Bucklew had ample opportunity to conduct discovery and
develop a factual record.”143 After three executions, in Frazier v. Hamm the Middle District
of Alabama recognized that “the longer an inmate remains conscious while breathing in
nitrogen during an execution, the more likely it becomes that the Eighth Amendment may
be violated.”144
B. Ex Post Facto Clause Claim (Count III)
The Ex Post Facto Clause of the United State Constitution “forbids . . . Congress
and the States to enact any law ‘which imposes a punishment for an act which was not
punishable at the time it was committed; or imposes additional punishment to that then
prescribed.’”145 In Weaver v. Graham, the Supreme Court discussed its 1915 decision in
Malloy v. South Carolina146 and explained that in Malloy, a change in the method of
execution was “not ex post facto [where] evidence showed the new method to be more
humane . . .”147 In Sepulvado v. Jindal, the Fifth Circuit cited Weaver and Malloy and

142

See, e.g., Rec. Doc. 87, pp. 33–34 (Dr. Bickler’s testimony that “for someone like Mr. Hoffman, nitrogen
asphyxiation would be a particularly horrible method, a really inhumane choice for an individual who has a
history of PTSD.”); id. at p. 36 (“If someone has an anxiety disorder, the degree of difficulty goes up
exponentially.”).
143
Bucklew, 587 U.S. at 144.
144
2025 WL 361172, at *14.
145
Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325–26 (1866)).
146
237 U.S. 180 (1915).
147
Weaver, 450 U.S. 32 n.17.

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explained that “a post-offense change in a state's execution protocols would violate the
ex post facto prohibition unless the change in execution method is more humane than the
prior method of execution.”148 In Nelson v. Campbell, the Supreme Court succinctly
explained that there is “no ex post facto violation to change [a] method of execution to [a]
more humane method.”149
The Court agrees with the Defendants that the Ex Post Facto claim “rises and falls”
on whether execution by nitrogen hypoxia will subject Plaintiff “to an increased
punishment [that is] a less humane method of execution than lethal injection, which was
his original method of execution.” 150
The method of execution change in this case was from lethal injection to nitrogen
hypoxia. The Plaintiff submitted scant evidence comparing the harm of lethal injection to
the harm of nitrogen hypoxia. The Plaintiff therefore failed to demonstrate that he is
substantially likely to succeed on this claim.
C. Right to Counsel and Access to Courts Claim (Count IV)
Hoffman argues that he has a constitutional right to have counsel151 present at his
execution, in order to protect his constitutional right to access the Courts.152 Citing the
Southern District of Ohio, Hoffman argues that he has a right to counsel throughout the
execution procedure and during the execution.153 Hoffman also cites to the Eastern
District of Arkansas, the Middle District of Tennessee, and the Sixth and Eighth Circuits

148

739 F.3d 716, 722 n.5 (5th Cir. 2013).
541 U.S. 637, 644 (2004) (citing Weaver, 450 U.S. at 32–33 n.17).
150
Rec. Doc. 81, ¶ 114.
151
Prisoners have a Sixth Amendment right to access to counsel at all “critical” stages of criminal
proceedings. United States v. Wade, 388 U.S. 218, 227-28 (1967).
152
Prisoners have a right under the First and Fourteenth Amendments to access to the courts. See, e.g.,
Lewis v. Casey, 518 U.S. 343, 350–51 (1996).
153
Rec. Doc. 1, ¶ 219; Rec. Doc. 82, ¶ 139 (citing In re Ohio Execution Protocol Litig., No. 11-1016, 2018
WL 6529145, at *4–5 (S.D. Ohio Dec. 12, 2018)).
149

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in support of his position.154 However, the Fifth Circuit holds that a claim of the right to
counsel “during the events leading up to and during the execution” under the First, Sixth,
and Eighth Amendment is “without merit.”155 The Fifth Circuit further instructs that “the
possibility of “botched executions” that access to counsel could address [to the
Courts] . . . fails as well.”156 Under the law of the Fifth Circuit, Plaintiff fails to show a
substantial likelihood of prevailing on Count IV.
D. Balance of Equities and the Public’s Interest
The final two elements Plaintiff must satisfy for a preliminary injunction are that the
threatened harm (a violation of the Eighth Amendment) outweighs any harm that may
result to the State (delay in carrying out a sentence), and that the injunction will not
undermine the public interest.157 These factors may be considered together particularly
because “[t]hese factors merge when the Government is the opposing party,”158 and these
two factors overlap considerably.159 In weighing equities, a court must balance the
competing claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief.160 The public interest factor requires the court to
consider what public interests may be served by granting or denying a preliminary
injunction.161

154

Rec. Doc. 82, ¶¶ 141–45 (citing McGehee v. Hutchinson, 463 F. Supp. 3d 870, 925 (E.D. Ark. 2020),
aff'd sub nom. Johnson v. Hutchinson, 44 F.4th 1116 (8th Cir. 2022); Coe v. Bell, 89 F. Supp. 2d 962 (M.D.
Tenn. Apr. 3, 2000); and Coe v. Bell, 230 F.3d 1357 (6th Cir. 2000)).
155
Whitaker v. Collier, 862 F.3d 490, 501 (5th Cir. 2017).
156
Id. at 467.
157
Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1051 (5th Cir. 1997).
158
Nken v. Holder, 556 U.S. 418, 435 (2009).
159
Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2015).
160
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
161
Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d 978, 997–98 (8th Cir. 2011).

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The Court finds that the balance of equities and public interest weigh in favor of
enjoining Hoffman’s March 18, 2025 execution through nitrogen hypoxia until the matter
can be resolved at a trial on the merits. The Fifth Circuit holds that an injunction does not
disserve the public interest when it prevents constitutional deprivations.162 Stated another
way, injunctions preventing the violation of constitutional rights are “always in the public
interest.”163
The Court is asked to make this important decision on an undeveloped record after
an expedited preliminary injunction hearing. Hoffman is going to be executed. It’s not a
question of if; it’s merely a question of how, and the alternatives are quickly narrowing.
Louisiana has no readily available electric chair164 and cannot get the drugs needed for
lethal injection.165 The only viable alternatives appear to be nitrogen hypoxia and firing
squad. The State’s desire for swiftness does not prevail over well-informed deliberation.
There have been only four executions by nitrogen hypoxia in the United States.
These executions were carried out by the state of Alabama between January 25, 2024,
and February 6, 2025.166 On all four occasions, the condemned chose nitrogen hypoxia
as their method of execution. In Alabama, “[a] death sentence shall be executed by lethal
injection, unless the person sentenced to death affirmatively elects to be executed by

162

Jackson Women's Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014).
Id. at 458 (quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012). See also Ingebretsen on behalf
of Ingebretsen v. Jackson Public Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996); see also, e.g., G & V Lounge,
Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071 (6th Cir. 1994); Charles H. Wesley Educ. Fdn., Inc. v.
Cox, 408 F.3d 1349, 1355 (11th Cir. 2005); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328,
338–39 (5th Cir. 1981).
164
Rec. Doc. 87, p. 15.
165
Rec. Doc. 86, p. 176–77.
166
See Frazier, 2025 WL 361172, at *3.
163

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electrocution or nitrogen hypoxia.”167 This is in stark comparison to Louisiana, which
delegates the method of execution to the discretion of the DPSC Secretary.168
The State even refused to make the new nitrogen hypoxia protocol available to the
public. The State relented to releasing a redacted protocol to the public until the day
before the preliminary injunction hearing.169 The redacted protocol easily meets the
definition of a public record170 under Louisiana law, yet the State shrouded the redacted
protocol in secrecy until the day before the hearing.
The public has an interest in knowing how its government operates. The
obfuscation of the protocol by the State is deleterious to the public’s interest. The United
States Constitution is simply the government’s promises to its citizens. The Eighth
Amendment is the government’s assurance that no citizen will be punished by means that
are cruel and unusual. Courts are the arbiter of whether the government honors this
promise to her people. It is in the best interests of the public to examine this newly
proposed method of execution on a fully developed record. The public has paramount
interest in a legal process that enables thoughtful and well-informed deliberations,
particularly when the ultimate fundamental right, the right to life, is placed in the
government’s hands. Accordingly, Plaintiff’s Motion for Preliminary Injunction is granted.

167

Ala. Code § 15-18-82.1(a).
La. R.S. § 15:569(A).
169
Rec. Doc. 70.
170
See La. R.S. § 44:1(A)(2)(a) (“All books, records, writings, accounts, letters and letter books, maps,
drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates,
photographs, including microfilm, or other reproductions thereof, or any other documentary materials,
regardless of physical form or characteristics, including electronically stored information or information
contained in databases or electronic data processing equipment, having been used, being in use, or
prepared, possessed, or retained for use in the conduct, transaction, or performance of any business,
transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority
of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate,
or order of any public body or concerning the receipt or payment of any money received or paid by or under
the authority of the constitution or the laws of this state, are ‘public records’, except as otherwise provided
in this Chapter or the Constitution of Louisiana.”)
168

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V.

CONCLUSION
Considering the foregoing, Plaintiff’s Motion to Reconsider the Court’s Denial of

his RLUIPA Claim (Count VI) shall be DENIED. Plaintiff’s Motion for Preliminary Injunction
shall be GRANTED on the Eighth Amendment claim, and Defendants are enjoined from
executing Jessie Hoffman on March 18, 2025, using nitrogen hypoxia. Plaintiff’s Motion
for Preliminary Injunction is DENIED as to Counts III and IV.
March
Baton Rouge, Louisiana, this 11th
___ day of _______________,
2025.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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