The Supreme Court on Thursday ruled for a Georgia death row inmate who wants to be executed by firing squad instead of lethal injection.

The decision came the same day as the court’s landmark ruling that a New York law was too restrictive of the Constitution’s right to bear arms.

Justice Elena Kagan wrote for an ideologically mixed majority in the Georgia case. The case involved legal procedure, but she acknowledged that it might mean the state needs to change its law to authorize firing squads if it wants to execute Michael Nance, who killed a man after robbing a bank in 1993.

Nance’s circuitous path through the courts has already seen him resentenced once after Georgia dropped electrocution as a method of execution and adopted lethal injection. But in 2020, he filed suit saying that the method in his circumstance would violate constitutional protections against cruel and unusual punishment.

He said that because of his compromised veins, he would be subjected to excruciating pain before his death if lethal injection was used. He also alleged that his years-long use of a drug for back pain would diminish the effect of a sedative.

The Supreme Court has ruled in the past that inmates may propose another method of execution if they could show such outcomes, even if the method is not currently authorized by the state carrying out their sentences.


A panel of the U.S. Court of Appeals for the 11th Circuit said Nance’s complaint, filed under a civil rights law, had to be treated as a habeas petition challenging his sentence and rejected it as untimely. But Kagan said the civil rights suit, filed against state officials for the deprivation of constitutional rights, was proper and could go forward.

Nance “is not challenging the death sentence itself; he is taking the validity of that sentence as a given,” Kagan wrote. “And he is providing the State with a veritable blueprint for carrying the death sentence out. If the inmate obtains his requested relief, it is because he has persuaded a court that the State could readily use his proposal to execute him.”

Several states authorize firing squads, Kagan wrote, and Georgia could do so as well if lower courts agree with Nance.

She was joined by Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor and Brett Kavanaugh.

Justice Amy Coney Barrett dissented, saying the state was owed greater deference than that.

“The Court is looking too far down the road,” Barrett wrote. “In my view, the consequence of the relief that a prisoner seeks depends on state law as it currently exists. And under existing state law, there is no question that Nance’s challenge necessarily implies the invalidity of his lethal injection sentence: He seeks to prevent the State from executing him in the only way it lawfully can.”


She was joined by Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.

Kagan disputed Barrett’s contention that the court must take state law as it finds it. “Why must it be so taken — when as a matter of fact, Georgia could change its law and execute Nance?” Kagan asked. “And when Nance accepts the validity of the State’s taking that course?”

Nance robbed a back in Gwinnett County, Ga. When dye packs in the money exploded, he abandoned his car and saw Gabor Balogh backing his car out of a parking space. Nance opened the car door and shot and killed Balogh.

The case is Nance v. Ward.

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