by David M. Reutter
On January 30, 2023, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit rebuffed Georgia Department of Corrections (DOC) officials who wanted to execute a condemned prisoner by lethal injection. Instead, the Court found that Michael Wade Nance offered a plausible alternative method for his death: Firing Squad.
Nance was 27 when he robbed an Atlanta-area bank in 1993. After dye packets that tellers bagged with the loot exploded inside his getaway car, he ran across the street and carjacked liquor store customer Gabor Balogh, fatally shooting the 43-year-old. A jury sentenced Nance to death in 1997.
In January 2020, Nance sued DOC in federal court for the Northern District of Georgia. Proceeding under 42 U.S.C. § 1983, he argued that his veins are “severely compromised,” so inserting an intravenous catheter for lethal injection might cause a vein to “blow” and leak toxins into the surrounding tissue. He also said his prescription Gabapentin lowered the effectiveness of the pentobarbital used as a sedative in DOC’s lethal injection protocol. Both claims, he said, put him at unconstitutional risk of pain. The state had no alternative execution method, but Nance offered one - a firing squad.
The district court construed separate claims in his complaint, one about compromised veins and the other about gabapentin. It then determined that Nance had filed his claims after the limitations period expired and dismissed them. Nance appealed.
The Eleventh Circuit initially construed the action as an improper “second or successive” habeas corpus petition, dismissing it. The Supreme Court of the U.S. reversed that decision, holding that § 1983 was a proper vehicle to challenge a method of execution and propose an alternative method not permitted by state law. [See: PLN, Oct. 2022, p.20.]
On remand, the Eleventh Circuit found Nance’s complaint timely. There was no dispute that Nance’s claims were brought too long after his death sentence became final and since the last change to Georgia’s execution protocol. But Nance argued those were the wrong dates to use. Instead he said “an as-applied challenge to a State’s method of execution accrues when the plaintiff discovers or should reasonably discover the unique factual circumstances that render his execution unconstitutional.”
The Court agreed with that premise. But the timing – when Nance learned of the vein condition and his gabapentin dosage increased – presented factual questions that were inappropriately dismissed at this stage of his case.
As to the vein condition, the Court noted that Nance could not take a lethal injection and then sit back and wait to ascertain any injury. So that claim met the pleading standard.
Whether he faced risk from an increased dosage of gabapentin in the last two years was also a question of fact, the Court added. But since the statute of limitations is an affirmative defense, Nance was not required to allege the dates his conditions occurred, so it was not apparent from the record that his claims were untimely. However, the claim could be amended upon remand because a responsive pleading had not been filed.
The Court also found Nance alleged a viable alternative method of execution with a firing squad, which he cited Utah’s detailed technical manual to support. On remand, the district court was directed to determine if Georgia had a legitimate penological justification for refusing to adopt that method, too.
Nance was represented by attorneys from Holland & Knight LLP, Baker & Hostetler LLP and Georgia Resource Center, all in Atlanta. See: Nance v. Comm’r, Ga. Dep’t of Corr., 59 F.4th 1149 (11th Cir. 2023).
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