Ninth Circuit Authorizes Medication over Objection for Pretrial Detainee on Dangerousness Grounds without Requiring Sell Hearing

United States v. Loughner, 672 F.3d 731 (9th Cir. 2012)

The Ninth Circuit Court of Appeals, in a 2-1 decision issued on March 5, 2012 and amended on May 14, 2012, upheld the ruling of the United States District Court in Arizona, holding that the government may treat a pretrial defendant with serious mental illness with antipsychotic medication over his objection if the inmate is a danger to himself or others. An administrative hearing comporting with the requirements in Harper v. Washington, 494 U.S. 210 (1990), is sufficient without the necessity of the judicial hearing and balancing test set out in Riggins v. Nevada, 504 U.S. 127 (1992) and Sell v. United States, 539 U.S. 166 (2003).

The defendant Jared Lee Loughner is accused of murdering six people, including U.S. District Judge John Roll, and the attempted murder of thirteen others, including Congresswoman Gabrielle Giffords in Tucson, Arizona on January 8, 2011. Loughner was committed to the Bureau of Prisons to determine whether he was competent to stand trial, and based upon the findings of the medical staff at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri(“FMC-Springfield”) that he was not, he was then committed to determine whether he could be restored to competency.

While in custody at FMC-Springfield, Loughner was determined to be a danger to himself or others and the facility conducted an administrative hearing under 28 C.F.R. § 549.46(a) to determine whether he could be involuntarily medicated. A psychiatrist not involved in the defendant’s treatment presided over the hearing that took place in Loughner’s cell. A licensed clinical social worker was assigned as his staff representative. Even though Loughner requested that one of his attorneys appear at the hearing as his “witness,” counsel was not permitted to attend the hearing. Following the hearing, the presiding psychiatrist authorized involuntary medication finding that Loughner, who had been diagnosed with schizophrenia, “had become enraged while being interviewed by his attorney and yelled obscenities; had thrown objects, including plastic chairs and toilet paper; had spat on his attorney, lunged at her, and had to be restrained by staff; and his behavior had been characterized by indications that he was experiencing auditory hallucinations, including inappropriate laughter, poor eye contact, yelling “No!” repeatedly, and covering his ears.” Id. at 737. Loughner was given 24 hours to appeal the decision to the Administrator of the Mental Health Division, which he did. Laced with profanity, Loughner’s appeal was denied.

Upon learning of Loughner’s involuntary medication, his attorneys filed an emergency motion in the district court to enjoin FMC–Springfield from forcibly medicating him, arguing that the involuntary medication violated his substantive due process rights by treating his mental illness with medication without first considering less intrusive measures, and by failing to consider how the medication might implicate his fair trial rights. They also argued that his procedural due process rights as a pretrial detainee had been violated because the hearing should have been held before the court and the specific drug and dosage should have been specified in the hearing.

The district court denied the motion and request for an evidentiary hearing on the grounds that, even though he was a pretrial detainee, Loughner was being medicated on dangerousness grounds and that the Harper standards, not the Riggins and Sell standards, applied. In so deciding, the district court adopted the rationale in United States v. Morgan, 193 F.3d 252 (4th Cir. 1999), holding that dangerousness determinations are to be made by medical professionals and the court’s involvement should be limited to a review for arbitrariness. On appeal to the Ninth Circuit, the Motions Panel granted Loughner a stay, enjoining all involuntary administration of medication pending adjudication of this appeal.

After medication was discontinued, Loughner’s condition drastically deteriorated and he was placed on suicide watch. FMC–Springfield’s psychiatrists then determined that Loughner was a severe danger to himself and administered medication on an emergency basis. Loughner’s attorneys immediately requested the district court to enforce the Ninth Circuit injunction, but the district court refused. FMC–Springfield thereupon conducted a second Harper-style hearing to continue the mediation based on Loughner’s danger to himself. Loughner again requested that his attorney appear as his “witness.” His attorney did not appear but submitted a written statement which contained legal objections to the involuntary medication. In justifying the administration of medication in this report, the presiding psychiatrist noted the deterioration in Loughner’s condition after the administration of antipsychotic medication was discontinued. Many of his most serious symptoms had receded but he “still exhibits a tendency towards motor restlessness and pacing…cries frequently, and expresses intense feelings of guilt.” United States v. Loughner, 672 F.3d at 739. The report also noted Loughner’s current medication regimen and stated that other less intrusive measures would not address Loughner’s fundamental problem.

Loughner’s attorneys filed another emergency motion with the district court to enjoin the administration of the medication which the court again denied on the grounds that the administration of medication “was predicated on the grounds of dangerousness and really has nothing to do with his competency.” Id. at 740. The district court also continued Loughner’s commitment another four months for competency restoration based on his treating psychiatrist’s testimony that he was likely to become competent in the near future.

On appeal, the Ninth Circuit first distinguished between the substantive due process and procedural due process issues presented. It reiterated that the substantive due process clause of the Fourteenth Amendment establishes the definition of the protected constitutional interest, here the liberty interest in being free from unwanted antipsychotic medication, and identifies the conditions under which competing state interests outweigh it. The procedural due process grounds set out the minimum procedures required to determine whether those liberty interests outweigh the government’s interest in overriding them. The Court then conducted an analysis of the Harper, Riggins, Sell and post-Sell decisions.

In Washington v. Harper, the United States Supreme Court reviewed the State’s regulation governing the forcible medication of a convicted prisoner with serious mental illness who posed a serious likelihood of danger to himself, others, or their property. In upholding the Washington regulation, the Supreme Court balanced the prisoner’s interest in avoiding unwanted medical treatment with the State’s penological interest in providing needed treatment to inmates. The Court held that “given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s best interest.” Washington v. Harper, 494 U.S. at 227.

In Riggins v. Nevada, the Supreme Court reviewed Nevada’s forced treatment of the defendant during trial. Riggins began taking mellaril prior to the trial, but requested it be stopped during trial because of its effect on his demeanor and his mental state. Following the testimony of three psychiatrists who questioned the need for continued medication during trial, the trial court denied Riggins motion to discontinue the mediation, but gave no rationale for the decision. The Supreme Court held that pretrial detainees possessed at least the same right as the convicted prisoners in Washington v. Harper, and denied it had determined the full constitutional protections required for pretrial detainees in that case. The Court suggested that the prosecution could have prevailed if “the district court had found that treatment with medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins own safety or the safety of others.” Riggins v. Nevada, 504 U.S. at 135. The Court reversed but set no standards for pretrial detainees because the district court had made no determination related to the need for medication and no findings to support its decision.

In Sell v. United States, the Supreme Court set out the substantive standards for determining when the government may administer antipsychotic drugs involuntarily to restore a criminal defendant to competency to stand trial. The court must first determine “whether there are important government trial related issues at stake; that involuntary medication will significantly further these governmental interests, without causing side effects that will interfere significantly with the defendant’s fair trial rights; that the medication is necessary to further the government’s interests taking into account less intrusive alternatives; and that the administration of the antipsychotic drugs is medically appropriate, i.e., in the defendant’s best medical interest.” Sell v. United States, 539 U.S. at 180-181.

After reviewing the cases decided post-Sell, the Ninth Circuit held that “when the government seeks to medicate a detainee – whether pretrial or post-conviction – on the grounds that he is a danger to himself or others, the government must satisfy the standard set forth in Harper. The Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” United States v. Loughner, 672 F.3d at 752. The Court then upheld the Bureaus of Prison’s regulation finding that a judicial hearing was unnecessary, stating that medical decisions should be made by medical personnel. Although it questioned the effectiveness of Loughner’s prison representative, it found attorney representation not necessary. The Court also held that a specific medication regimen need not be specified finding that Loughner’s treating psychiatrist must be able to titrate his existing dosages to meet his needs and to change medications as necessary. The Ninth Circuit finally held that should Loughner be restored to competency, his arguments that the antipsychotic medications substantially alter his demeanor and make him unable or unwilling to assist his counsel are issues to be decided at the time of trial.

Found in DMHL Volume 31 Issue 4