US judge: Nevada inmate’s execution challenge may be moot

By KEN RITTER
Associated Press

LAS VEGAS (AP) — A federal judge in Las Vegas said Monday he’ll decide in three weeks whether to dismiss a condemned Nevada killer’s lawsuit challenging the state’s plan for his lethal injection, because the state doesn’t have one of the drugs it would use.

U.S. District Judge Richard Boulware II acknowledged during a brief hearing with attorneys for the state and the inmate, Zane Michael Floyd, that key questions about the execution method remain unanswered following weeks of testimony late last year.

But the Nevada Department of Corrections supply of the sedative ketamine expired on Feb. 28, and Randall Gilmer, chief deputy state attorney general, said prison officials have been unable to get more.

The prison execution method, or protocol, calls for using large doses of three or four drugs also including the potent synthetic opioid fentanyl or a substitute, alfentanil, possibly a muscle paralytic called cisatracurium and either potassium chloride or potassium acetate to stop Floyd’s heart.

Boulware said the question before him might have become moot.

“There is no foreseeable likelihood that NDOC would be able to obtain one of the main drugs in the protocol,” Boulware said, adding that there also is no current warrant for Floyd’s death.

State law calls for two weeks’ notice to schedule an execution, and for executions to be by lethal injection.

“At this point, the court is not inclined to find that there is a live issue,” Boulware said. He asked for written arguments from the state and Floyd’s attorneys by May 16.

Floyd, 46, was convicted in 2000 of killing four people and wounding a fifth in a shotgun attack at a Las Vegas grocery store. He does not want to die.

Daryl Mack was the last inmate put to death in Nevada, in April 2006, for a 1988 rape and murder in Reno. Mack asked for his lethal injection to be carried out.

Deputy federal public defenders David Anthony and Brad Levenson have tried to show Boulware that the never-before-used combination of drugs the state wants to use would cause Floyd so much pain that it would be unconstitutionally cruel and inhumane.