Split Fifth Circuit panel vacates preliminary injunction to allow Louisiana to move forward with nitrogen gas execution

As reported in this post a few days ago, a federal district judge entered a temporary injunction to prevent Louisiana from moving forward next week with it first nitrogen gas execution.  That order was swiftly appealed to the Fifth Circuit, and late yesterday a Fifth Circuit panel, by a 2-1 vote, vacated that injunction via this opinion.  Here is how the seven-page majority opinion begins:

Jessie Hoffman is scheduled to be executed by nitrogen hypoxia on March 18, 2025.  The district court has now entered a preliminary injunction preventing Louisiana state officials from carrying out his execution on the ground that death by nitrogen hypoxia violates the Eighth Amendment.

The preliminary injunction is not just wrong.  It gets the Constitution backwards, because it’s premised on the odd notion that the Eighth Amendment somehow requires Louisiana to use an admittedly more painful method of execution —namely, execution by firing squad rather than by nitrogen hypoxia.  That can’t be right.  Indeed, it contravenes Supreme Court precedent.  We accordingly vacate the preliminary injunction. 

Here is how the two-paragraph dissent by Judge Haynes begins:

I think the district court properly exercised its discretion in granting a preliminary injunction given the limited amount of time Hoffman had to challenge his execution by nitrogen hypoxia, which is new in Louisiana.  The district court fully explains all the efforts made: Hoffman tried throughout and did not wait until the last minute.  Instead, the state did not let him challenge earlier.  The timeline in which he could challenge it and the setting of his execution date, which is March 18, all happened within the last month.  As the district judge thoroughly discusses, there are issues that need more time to be resolved and decided.  Obviously, that cannot be done once he is dead.  While I am not suggesting a long time, I do think granting a preliminary injunction to allow some additional time to further review and address the method of execution (in addition to the other reasons given by the district court) is not an abuse of discretion by the district court.

I assume the defendant here will seek en banc review in the Fifth Circuit and that this matter will get to the Supreme Court thereafter.  I also assume that the execution is now much more likely to go forward on March 18.

Prior related post:

• Federal judge temporarily halts Louisiana's plans to conduct execution by nitrogen gas