the situation had changed

A federal district judge Wednesday denied an Alabama death row inmate’s request to stop the state from executing him by lethal injection after he successfully halted his nitrogen gas execution.

In a 16-page opinion, U.S. District Judge Emily Marks rejected Jeffrey Lee’s argument that a 2018 settlement with the state prevented it from using lethal injection on him, writing that her June injunction against the state’s use of nitrogen gas executions was “narrowly tailored” to address its use and that the ruling would not “further delay” his execution.

“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,” Marks wrote.

A message was sent to Lee’s legal team on Monday seeking comment.

Lee was sentenced to death in 2000 for the 1998 murder of Jimmy Ellis and Elaine Thompson during a robbery of an Orrville pawn shop. In June, a federal appeals court ruled that executing Lee by nitrogen gas would cause “air hunger” that violated Lee’s Eighth Amendment protections against cruel and unusual punishment. Marks, who initially ruled against Lee, entered an injunction against the state using nitrogen gas, which the U.S. Supreme Court allowed to stand.

The Alabama Attorney General’s Office next moved to execute Lee by lethal injection. In a July 7 filing, Lee’s attorneys argued the state could not execute him by the method due to a 2018 agreement between Lee and the state. Lee dropped a lawsuit against Alabama’s lethal injection protocol after agreeing to be executed by nitrogen gas, while the state agreed not to execute him by nitrogen gas.

Lee’s legal team argued the state was bound by the terms of the dismissed case. His legal team also said executing Lee by lethal injection violates state law because it could only be used only if nitrogen gas was declared unconstitutional.

Nitrogen gas, as a general method of execution, remains viable in the state. Marks’ earlier ruling only prohibits the specific nitrogen gas procedure that Alabama planned to use.

The Alabama Attorney General’s Office said in a filing last week that lethal injection is allowed by the U.S. Constitution and that Alabama can use the method because Marks only permanently enjoined the nitrogen gas protocol.

Marks agreed, writing that “the change in the state’s position is attributable to a change in essential facts.”

“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,” Marks wrote. “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.”

Marks also wrote that Alabama gets to decide what is legal for the state.

“To that end, ‘federal courts do not have the authority to compel state actors to comply with state law,’” Marks said in her ruling. “This rule applies equally to a request for a declaration that state officials’ conduct violates state law.”

Gov. Kay Ivey had not set a new execution date for Lee as of Monday afternoon.