In Smith v. Hamm, (MD AL, Jan. 10, 2024), plaintiff, who is scheduled for execution by nitrogen hypoxia on January 25, challenges the legality of his execution on several grounds. Among these are his claims that his free speech rights as well as his free exercise rights are violated because masking him will interfere with his making an audible statement and praying audibly during his execution. The court concluded that plaintiff had made plausible claims that the execution protocol violates his First Amendment free speech rights and his religious free exercise rights under RLUIPA, the First Amendment and the Alabama Religious Freedom Act (as well as his 8th Amendment rights). Therefore, it denied defendants' motion to dismiss those claims. The court went on, however, to conclude that plaintiff had not shown a substantial likelihood of success on the merits of those claims. Therefore, the court refused to issue a preliminary injunction to bar execution of plaintiff. At issue in the case is the state's second attempt to execute plaintiff. A previous attempt to execute him by lethal injection failed when after 90 minutes of trying, authorities were unable to access his veins.
