MONTGOMERY, Ala. — A federal judge on Thursday refused to stop an upcoming nitrogen gas execution in Alabama saying the inmate was unlikely to prevail on claims that the method, which has been used multiple times, is unconstitutionally cruel.

Chief U.S District Judge Emily Marks declined a request from Anthony Boyd to block his scheduled Oct. 23 execution. Marks said Boyd had not met the legal burden for the “extraordinary remedy of a preliminary injunction.” Boyd’s legal team is appealing the decision.

Alabama began using nitrogen gas last year to carry out some executions. The method uses a gas mask to replace breathable air with pure nitrogen gas, causing the inmate to die from lack of oxygen.

Boyd, 53, argued the method violates the Eighth Amendment because inmates are subjected to

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