Michael Wade Nance (via Georgia Department of Corrections).
A condemned man in Georgia can move forward with his lawsuit against the state over his request to be put to death by firing squad instead of lethal injection.
Michael Wade Nance, who has been on death row since 2002, can maintain his lawsuit against the Georgia Department of Corrections (DOC), a unanimous three-judge panel on the 11th U.S. Circuit Court of Appeals ruled on Monday. Nance was sentenced to death for the 1997 murder of Gagor Balogh, 42, who Nance shot and killed while attempting to flee after robbing Tucker Federal Savings and Loan in Lilburn, a suburb some 25 miles northeast of Atlanta.
Nance had sued the Georgia DOC and commissioner Timothy C. Ward in January 2020, alleging that the state’s only method of execution — lethal injection — would amount to torture and violate his constitutional protection against cruel and unusual punishment.
In Georgia, the only method for carrying out the death penalty includes administering the drug pentobarbital, a sedative. Nance had argued that his regular use of gabapentin, an anticonvulsant that he takes regularly for back pain, would make his brain less responsive to pentobarbital, preventing him from being fully sedated during the execution.
Nance proposed that he be killed by firing squad instead. The Georgia DOC, in opposing Nance’s lawsuit, argued that Nance’s gabapentin claim fails to show that the method of death by lethal injection “creates a substantial risk of harm,” and said that Nance’s proposed method of execution is not a plausible alternative.
A unanimous three-judge panel of 11th Circuit judges disagreed with the DOC.
“Nance unambiguously alleged that his current dosage of gabapentin has made his brain less receptive to pentobarbital, the drug Georgia uses in lethal injections,” U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote in the ruling. “Specifically, he alleged that ‘[p]rolonged gabapentin use alters a person’s brain chemistry and makes the person’s brain less responsive, or even unresponsive, to other drugs, including pentobarbital.'”
Pryor, along with U.S. Circuit Judges Kevin Newsom and Barbara Lagoa, both Donald Trump appointees, also wrote that Nance’s firing squad idea is indeed plausible, as it is currently deployed by other states.
“Nance has plausibly alleged that execution by firing squad would be a viable and less painful alternative method of execution, as applied to him,” Pryor wrote. “Nance proposed execution by firing squad as an alternative that would reduce his risk of severe pain and had been implemented in another jurisdiction. His proposal, which cites the protocol described in Utah’s detailed technical manual, is ‘sufficiently detailed to permit a finding that the State could carry it out relatively easily and reasonably quickly.'”
Nance’s claim that his veins were too weak and small, making them “unidentifiable and/or inaccessible,” however, didn’t hold sway with the judges.
“Nance’s allegations based on his vein condition fail to state a claim for relief because he has not plausibly alleged that both of the identified alternative lethal injection procedures would be constitutionally impermissible,” Pryor wrote, in the ruling, but noted that Nance isn’t precluded from still pursuing that claim, as “no responsive motions have yet been filed.”
The judges noted that it may fall to the state legislature to pass a law that would essentially find a different way to kill Nance.
“If no method of execution would satisfy both the Federal Constitution and Georgia law, Nance cannot be executed,” Pryor wrote, adding that under existing Supreme Court precedent, “[a]ssuming it wants to carry out the death sentence, the State can enact legislation approving what a court has found to be a fairly easy-to-employ method of execution.”
This is the second time Nance’s case is before the 11th Circuit, following an appeal to the nation’s highest court. In a 5-4 ruling in June, the U.S. Supreme Court remanded the case back to the 11th Circuit Court of Appeals, finding that Nance’s civil rights claim was properly filed.
The judges remanded the case back down to the Northern U.S. District of Georgia, where U.S. District Judge Jean-Paul Boulee, also a Trump appointee, is overseeing the matter.
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