Jeffery Lee v. Commissioner, Alabama Department of Corrections

── Jeffery Lee v. Commissioner, Alabama Department of Corrections ── Court: Court of Appeals for the Eleventh Circuit Date: June 08, 2026 Category: NEW USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 1 of 21 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 26-11864 ____________________ JEFFERY LEE, Plaintiff-Appellant, versus COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, WARDEN, HOLMAN CORRECTIONAL FACILITY, Defendants-Appellees. ____________________ Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:25-cv-00680-ECM ____________________ Before JORDAN, LUCK, and KIDD, Circuit Judges. PER CURIAM: Alabama is one of a number of states—the others are Ar- kansas, Louisiana, Mississippi, and Oklahoma—which currently USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 2 of 21 2 Opinion of the Court 26-11864 authorize nitrogen hypoxia as a method of execution. See Ala. Code §§ 15-18-82(a), 15-18-82.1(a)–(b). This appeal presents an- other challenge to the constitutionality of nitrogen hypoxia. In Grayson v. Comm’r, Ala. Dep’t of Corr., 121 F. 4th 894 (11th Cir. 2024), we affirmed the denial of a preliminary injunction to prohibit an execution in Alabama by nitrogen hypoxia. Without determining the merits of the inmate’s Eighth Amendment claim, we held that, given the evidence in the record and its factual find- ings, the district court had not abused its discretion in ruling that the inmate had not shown a substantial likelihood of success on that claim. First, the inmate’s expert had testified that the nitrogen hypoxia protocol only inflicted psychological pain, a pain which would exist regardless of the method of execution. Second, the district court had credited the testimony of a state expert that un- consciousness would result within 10 to 40 seconds. Third, the dis- trict court rejected the testimony of the inmate’s expert that the protocol would result in negative pressure pulmonary edema. See id. at 898–900. We noted in Grayson, however, that there “may exist a form of execution that induces psychological terror or pain that is severe enough to support an Eighth Amendment claim.” Id. at 900 n.3. And we expressed “no view on what the result would have been had the district court’s factual findings been different.” Id. at 901 n.4. In this case, Jeffery Lee, an Alabama inmate under sentence of death, filed an action under 42 U.S.C. § 1983 in August of 2025, USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 3 of 21 26-11864 Opinion of the Court 3 alleging that the nitrogen hypoxia protocol violated the Eighth Amendment. See generally D.E. 1. On February 2, 2026, Mr. Lee filed an amended complaint, where he proposed execution by firing squad, similar to Utah’s protocol, as an alternative method of exe- cution. See D.E. 40. See also D.E. 173-40. One week later, on February 9, 2026, Alabama moved to set his execution. On April 15, 2026, the Governor set Mr. Lee’s exe- cution for a 30-hour period beginning on June 11, 2026, at 12:00 a.m., and concluding on June 12, 2026, at 6:00 a.m. See D.E. 127-1.