United States v. 2012-03-05 | 11-10339 | USA V. JARED LOUGHNER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, Nos. 11-10339;
Plaintiff-Appellee, 11-10504;
11-10432v.
D.C. No.  JARED LEE LOUGHNER, 4:11-cr-00187-Defendant-Appellant. LAB-1
OPINION

Appeal from the United States District Court
for the District of Arizona
Larry A. Burns, District Judge, Presiding
San Francisco, California*
Filed March 5, 2012
Before: J. Clifford Wallace, Marsha S. Berzon, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Concurrence by Judge Wallace;
Dissent by Judge Berzon
*Appeal No. 11-10339 was argued and submitted on August 30, 2011.
Appeal No. 11-10504 was argued and submitted on November 1, 2011.
Appeal No. 11-10432 was submitted, without argument, on February 27,
2012.
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COUNSEL
Judy Clarke, Clark & Rice, APC; Mark Fleming, Law Office
of Mark Fleming; Reuben Camper Cahn, Ellis M. Johnston
III, Janet Tung, Federal Defenders of San Diego, Inc., San
Diego, California, for the appellant.
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Ann Birmingham Scheel, Acting United States Attorney,
Dennis K. Burke, United States Attorney, Christina M.
Cabanillas, Appellate Chief, Bruce M. Ferg, Assistant United
States Attorney, United States Department of Justice, Tucson,
Arizona, for the appellee.
Aaron M. Panner, Kellogg, Huber, Hansen, Todd, Evans &
Figel, PLLC, Washington, D.C., for Amici American Psychi-
atric Association and the American Academy of Psychiatry
and the Law.
OPINION
BYBEE, Circuit Judge:
Jared Lee Loughner stands accused of the January 2011
murder of six people, including U.S. District Judge John Roll,
and the attempted murder of thirteen others, including U.S.
Representative Gabrielle Giffords. Loughner was committed
to a Bureau of Prisons (“BOP”) medical facility to determine
if he was competent to stand trial. After the medical staff con-
cluded that he was not competent, the district court ordered
him committed for a period of four months to determine if he
could be restored to competency. While he was in custody,
the facility determined that Loughner was a danger to himself
or others and conducted hearings pursuant to 28 C.F.R.
§ 549.46(a), referred to as Harper hearings, to determine if he
could be involuntarily medicated. See Washington v. Harper,
494 U.S. 210 (1990). The district court denied Loughner’s
emergency motion to enjoin the involuntary medication deci-
sion of June 14, 2011. The appeal from that order is before us
as No. 11-10339. In the interim, Loughner was involuntarily
medicated on an emergency basis pursuant to 28 C.F.R.
§ 549.43(b) (2010) and the district court denied Loughner’s
emergency motion for a prompt post-deprivation judicial
hearing. The appeal from that order is before us as No. 11-
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10432. The district court likewise denied Loughner’s emer-
gency motion to enjoin the involuntary medication decision of
September 15, 2011. Subsequently, the district court ordered
Loughner’s commitment to be extended by an additional four
months to render him competent to stand trial. See 18 U.S.C.
§ 4241(d). The appeal from the September 15 involuntary
medication and extension of commitment orders is before us
as No. 11-10504. We affirm both orders at issue in appeal No.
11-10504. We dismiss appeals No. 11-10339 and No. 11-
10432 as moot.
I. BACKGROUND AND PROCEEDINGS
On March 3, 2011, a federal grand jury indicted Jared Lee
Loughner for multiple criminal offenses arising from a Janu-
ary 8, 2011, shooting incident in Tucson, Arizona, in which
six people were killed and thirteen people were injured. The
charges included the attempted assassination of Congress-
woman Gabrielle D. Giffords, the murder of Federal Judge
John M. Roll, the murder and attempted murder of other fed-
eral employees, injuring and causing death to participants at
a federally provided activity, and several related weapons
offenses.
At a detention hearing on January 10, 2011, the district
court determined that Loughner was a danger to the commu-
nity and should be federally detained pending trial. Magistrate
Judge Lawrence O. Anderson found that there was no condi-
tion or combination of conditions that would reasonably
assure the safety of the community, and ordered Loughner
committed to the custody of the Attorney General for confine-
ment in a corrections facility.
On March 9, 2011, the district court granted the govern-
ment’s motion for a competency examination to be conducted
at the U.S. Medical Center for Federal Prisoners in Spring-
field, Missouri (“FMC-Springfield”), by BOP medical person-
nel, pursuant to 18 U.S.C. § 4247. BOP psychologist Dr.
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Christina Pietz and court-appointed psychiatrist Dr. Matthew
Carroll determined that Loughner was not, at that time, com-
petent to stand trial and diagnosed him with schizophrenia.
The district court agreed, and on May 25, 2011, ordered
Loughner committed for a four-month period of hospitaliza-
tion at FMC-Springfield to determine whether he could be
restored to competency, pursuant to 18 U.S.C. § 4241(d)(1).
A. Involuntary Medication
After he was returned to FMC-Springfield, Dr. Pietz asked
Loughner, “on a daily basis,” if he was willing to take psy-
chotropic medication voluntarily, but Loughner consistently
declined to engage in such treatment.
1. Harper I
On June 14, FMC-Springfield staff conducted an adminis-
trative hearing, pursuant to the procedures outlined in 28
C.F.R. § 549.431 and Harper, 494 U.S. 210, to determine
whether Loughner should be forcibly medicated on danger-
ousness grounds (“Harper I hearing”). Dr. Carlos Tomelleri,
an independent psychiatrist not involved in Loughner’s diag-
nosis or treatment, presided over the Harper I hearing, and
Dr. Pietz and Dr. Robert Sarrazin, Loughner’s treating psychi-
atrist, also participated. John Getchell, a licensed clinical
social worker (“LCSW”), was appointed by FMC-Springfield
to serve as Loughner’s staff representative in the administra-
tive hearing process. According to Getchell, he met with
Loughner the day before the hearing to explain his (Get-
chell’s) role in the proceeding, the purpose of the hearing,
Loughner’s rights, and to answer any questions Loughner
may have about the process. In a written statement, Getchell
stated that he informed Loughner of his right to have wit-
1The regulation was amended effective August 12, 2011. See 76 Fed.
Reg. 40229, 2011 WL 2648228 (Aug. 12, 2011). The former § 549.43 is
now contained in § 549.46.
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nesses present at the hearing, but that Loughner did not wish
to have any witnesses present. Before the hearing, Getchell
again asked if Loughner wanted any witnesses and Loughner
responded, “Just my attorney.” Getchell then notified Dr.
Pietz and Dr. Tomelleri of Loughner’s “request to have an
attorney present for the proceeding.”
The Harper I hearing took place in Loughner’s cell. At the
outset, Loughner said “You have to read me the Bill of Rights
or I won’t talk to you” and “I’m not an American citizen.”
After Dr. Tomelleri explained that that was not part of the
hearing procedure, Loughner barricaded himself behind his
bed and refused to participate in the hearing, even though he
was encouraged to do so by Dr. Pietz, Dr. Sarrazin, and Mr.
Getchell. When he finally spoke, Loughner stated he would
“plead the fifth,” he denied that he had a mental illness, and
he responded “No” when asked if he would consider taking
medication that would improve his condition. There is no
record of Getchell making any statements or inquiries on
Loughner’s behalf.
In the Involuntary Medication Report, Dr. Tomelleri autho-
rized involuntary medication after finding that Loughner’s
mental disease made him a danger to others. In the Justifica-
tion section of the report, Dr. Tomelleri explained that Lough-
ner had become enraged while being interviewed 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 character-
ized by indications that he was experiencing auditory halluci-
nations, including inappropriate laughter, poor eye contact,
yelling “No!” repeatedly, and covering his ears.
Noting that Loughner had been diagnosed with schizophre-
nia, Dr. Tomelleri explained in the report that “[t]reatment
with psychotropic medication is universally accepted as the
choice for conditions such as Mr. Loughner’s.” Dr. Tomelleri
rejected other, less intrusive measures (e.g., psychotherapy,
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minor tranquilizers, seclusion and restraints), because they
“are not practicable,” “do not address the fundamental prob-
lem,” “have no direct effect on the core manifestations of the
mental disease,” or “are merely temporary protective mea-
sures with no direct effect on mental disease.”
Loughner was advised that if involuntary medication was
approved, he would have twenty-four hours to appeal the
decision to the Administrator of the Mental Health Division.
With the help of Getchell, Loughner submitted a written
appeal that was laced with profanities. The Associate Warden
of Health Services (“Associate Warden”) denied the appeal.
The Associate Warden restated the evidence and found that
“[w]ithout psychiatric medication, you are dangerous to oth-
ers by engaging in conduct, like throwing chairs, that is either
intended or reasonably likely to cause physical harm to
another or cause significant property damage. . . . At this time,
medication is the best treatment for your symptoms.”
On June 21, 2011, FMC-Springfield began medicating
Loughner as prescribed by Dr. Sarrazin. After becoming
aware of Loughner’s involuntary medication, defense counsel
filed an emergency motion in the district court on June 24,
asking the court to enjoin FMC-Springfield from forcibly
medicating Loughner. Loughner argued that the involuntary
medication order violated his substantive due process rights
by treating his mental illness without considering less intru-
sive methods to ameliorate his dangerousness; failed to con-
sider how the medication would implicate his fair trial rights;
and violated his procedural due process rights, as a pretrial
detainee, because the hearing should have been held before a
court, Loughner’s requested witness should have been called,
and the specific drug and dosage that would be administered
should have been set out in the hearing.
On June 29, 2011, the district court held a hearing on the
motion. At the hearing, defense counsel requested an evidenti-
ary hearing and the opportunity to present testimony from a
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former BOP official and a forensic psychiatrist experienced in
prison administration and forced medication decisions. The
district court denied both the motion and the request for an
evidentiary hearing, first in an oral order from the bench, and
then in a written order. In the written order, the district court
explained that because Loughner was being medicated on
dangerousness grounds, the substantive and procedural stan-
dards described in the Supreme Court’s decisions in “Harper,
and not Riggins2 or Sell,3 applies,” and “Harper is clear that
doctors, not lawyers and judges, should answer the question
whether an inmate should be involuntarily medicated to abate
his dangerousness and maintain prison safety.” Order on
Def’s Mot. to Enjoin Medication 3, July 1, 2011. The court
rejected any argument that Loughner was entitled to the
higher substantive due process rights afforded in Riggins and
Sell because of his status as a pretrial detainee, finding that a
“dangerous individual is dangerous, whether he is a pretrial
detainee or has been convicted and sentenced.” Id. at 4. The
district court also rejected any argument that the staff at FMC-
Springfield operates under a structural conflict of interest.
To determine the appropriate standard of review for FMC-
Springfield’s decision to medicate forcibly a pretrial detainee
on dangerousness grounds pursuant to Harper, the district
court adopted the holding and rationale of United States v.
Morgan, 193 F.3d 252, 262 (4th Cir. 1999). In that decision,
the Fourth Circuit found that the dangerousness determination
is to be made by prison medical personnel and that the court’s
involvement should be limited to a review for arbitrariness.
The district court found that the procedures followed by
FMC-Springfield staff at the Harper I hearing, and the find-
ings of the presiding psychiatrist, were not arbitrary. In
response to Loughner’s argument that he was denied his right
to call a witness, the district court agreed “with the apparent
interpretation of [the request] by [Loughner’s] staff represen-
2Riggins v. Nevada, 504 U.S. 127 (1992).
3Sell v. United States, 539 U.S. 166 (2003).
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tative who . . . construed the statement as a request for legal
representation at the hearing, to which he is not entitled.”
Order on Def’s Mot. to Enjoin Medication 7-8.
Loughner filed a Notice of Appeal from the district court’s
order on July 1, 2011, and sought an emergency stay of forced
medication from this court (No. 11-10339). A motions panel
granted a temporary stay of forced medication that evening.
After hearing oral arguments on the emergency motion, the
motions panel issued an order on July 12, 2011, staying invol-
untary administration of all psychotropic medication until res-
olution of this appeal.
2. Emergency Medication Decision
After medication was discontinued on July 1, Loughner’s
condition deteriorated significantly. On July 8, because of
perceived changes in his behavior, FMC-Springfield placed
Loughner on suicide watch. On July 18, FMC-Springfield
doctors determined that Loughner was a severe danger to
himself and needed to be administered antipsychotic medica-
tion on an emergency basis, pursuant to 28 C.F.R. § 549.43(b).4
On July 22, 2011, we denied Loughner’s emergency
motion seeking to enforce the July 12 involuntary medication
injunction. On August 11, 2011, Loughner filed an Emer-
gency Motion for Prompt Post-Deprivation Hearing on
Forced Medication, asking the district court to enjoin the
emergency medication determination. After argument on
August 26, 2011, the district court denied Loughner’s motion.
On August 29, 2011, Loughner filed a Notice of Appeal from
that decision (No. 11-10432).
4The current regulation is located at 28 C.F.R. § 549.46(b)(1).
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3. Harper II
On August 25, 2011, FMC-Springfield conducted a second
Harper hearing (“Harper II”), pursuant to 28 C.F.R.
§ 549.46(a), and Dr. Tomelleri found continued medication
justified based on Loughner’s danger to himself. Although it
appears that Loughner again requested Anne Chapman, one of
his attorneys, to attend as a witness, she was contacted only
after the hearing took place and then informed of Loughner’s
request. Getchell, again acting as Loughner’s staff representa-
tive, filed an administrative appeal after Loughner declined to
complete the form himself. On appeal, the Associate Warden
determined that a statement from Loughner’s requested wit-
ness, Ms. Chapman, should have been obtained before, and
not after, the hearing. The appeal was therefore granted, pend-
ing a new hearing.
4. Harper III
FMC-Springfield conducted a third Harper hearing
(“Harper III”) on September 15, 2011, with Dr. Tomelleri
again presiding. Loughner again requested Ms. Chapman as
a witness. This time, Ms. Chapman was contacted and permit-
ted to submit a written statement, which contained legal
objections to the continuing involuntary medication. Accord-
ing to the Involuntary Medication Report, Dr. Tomelleri
authorized involuntary medication based on a finding that
Loughner was a danger to himself. In the Justification section
of the report, Dr. Tomelleri cited the deterioration of Lough-
ner’s condition after psychotropic medication was discontin-
ued in July. The report indicates that many of Loughner’s
most serious symptoms had receded since involuntary medi-
cation recommenced pursuant to the July emergency order,
but noted that Loughner “still exhibits a tendency toward
motor restlessness and pacing, . . . cries frequently, and
expresses intense feelings of guilt.” Dr. Tomelleri noted that
Dr. Pietz had expressed concern about Loughner’s potential
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for suicide, and at one point Loughner had asked her, “How
did you know I was going to hang myself?”
The report noted Loughner’s then-current medication regi-
men: 3mg of risperidone (antipsychotic), twice a day; 300 mg
of buproprion XL (antidepressant); 1 mg of benztropine (anti-
cholinergic to control side effects of antipsychotics), twice a
day; 1 mg of clonazepam (anxiolytic), twice a day and 2 mg
at bedtime. Finding that “psychotropic medication is the treat-
ment of choice,” Dr. Tomelleri noted that other measures did
not address the fundamental problem or had no direct effect
on the core manifestations of Loughner’s mental condition.
The report concluded that “[d]iscontinuation of current medi-
cations is virtually certain to result in an exacerbation of Mr.
Loughner’s illness as it did when medication was discontin-
ued in July.”
Getchell filed an appeal on Loughner’s behalf. On the
appeal form, Getchell relayed that Loughner wanted to appeal
because he “do[esn’t] do drugs.” The Associate Warden
upheld the involuntary medication determination, finding that
“[m]edication is the least intrusive treatment for you at this
time.”
On September 23, 2011, Loughner filed an emergency
motion in the district court to enjoin the involuntary medica-
tion authorized by the Harper III hearing. Loughner reiterated
arguments raised in his prior involuntary medication chal-
lenges and, particular to this hearing, argued that BOP failed
to find that the medication was necessary to treat his danger-
ousness and that his staff representative had provided inade-
quate assistance.
The district court denied Loughner’s motion at a hearing on
September 28, 2011, and again in a September 30 written
order. During the hearing, the district court noted that the
involuntary medication of Loughner is “predicated on the
ground of dangerousness and really has nothing to do with his
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competency,” and thus, those with medical training and expe-
rience “who have interaction with Mr. Loughner on a daily
basis are in the best position to assess whether he’s a danger
to himself and to assess his institutional needs.” Status Hr’g
Tr. 295, Sept. 28, 2011. In the written order, the district court
reiterated that the “decision to medicate Mr. Loughner to pre-
vent him from harming himself or others is best made by
prison doctors following administrative procedures,” and that
the only issue for the court was whether the decision to medi-
cate involuntarily was factually or procedurally deficient.
Order Extending Restoration Commitment 5, Sept. 30, 2011.
Finding no merit in Loughner’s challenge to the adequacy of
his staff representative, the court concluded that there was “no
defect in the Harper hearing conducted on September 15.” Id.
at 6. The district court therefore denied the motion to enjoin
Loughner’s involuntary medication, and Loughner appealed
(No. 11-10504).
B. Extension of Commitment
Independent of the question whether Loughner could be
involuntarily medicated because he was a danger to himself,
the district court also addressed whether Loughner’s commit-
ment at FMC-Springfield could be extended to render him
competent to stand trial. See 18 U.S.C. § 4241(d)(2). On
August 22 and September 7, 2011, Dr. Pietz provided the dis-
trict court with reports summarizing Loughner’s hospital
course at FMC-Springfield between May 27 and August 22,
2011; his current mental status and psychiatric treatment; and
her opinion as to the likelihood that he could be restored to
competency and the length of time it would likely take. Dr.
Pietz reported that although Loughner presently remained
incompetent to stand trial, she believed that “he w[ould] likely
be[come] competent in the near future.” She could not predict
with any degree of certainty how much additional time was
needed, but stated that “[h]istorically, most defendants reach
competency within 8 months of their commitment.” She then
recommended a four-month extension for purposes of restor-
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ing Loughner to competency.5 Loughner objected to the
extension of his commitment under 18 U.S.C. § 4241(d)(2).
On September 28, the district court conducted an evidenti-
ary hearing to determine whether there was a substantial prob-
ability that Loughner could be restored to trial competency in
a reasonable period of time. The government submitted exhib-
its and presented testimony from Dr. Pietz and Dr. James Bal-
lenger, a clinical psychiatrist, to support its request for an
extension of time. The defense submitted several exhibits, and
cross-examined the government’s witnesses, but did not call
any witnesses of its own.
At the hearing, Dr. Pietz described her observations of
Loughner and discussed the differences in his behavior and
abilities before medication was administered and since being
medicated. Dr. Pietz testified that, in her opinion, Loughner
has not experienced any significant side effects from the med-
ication. She acknowledged, however, that the medication may
be contributing to the flat, expressionless affect Loughner dis-
played when medication resumed. Dr. Pietz noted that Lough-
ner is clearly improving: he no longer responds to internal
stimuli, his thoughts are more rational and organized, he is
better able to concentrate and hold conversations, and he is
becoming more aware of how others perceive him. Overall,
Dr. Pietz testified that Loughner is still depressed, but that his
cognitive abilities and functioning have improved, and he is
more oriented, less delusional, and less obsessed. Based on
these observations, Dr. Pietz testified that she believes Lough-
ner can be restored to competency.
Dr. Ballenger, who had not examined Loughner, testified
about the rates and likelihood of restoration generally and
about the history and side effects of first- and second-
5Dr. Pietz explained at the September 28th hearing that she initially lim-
ited her extension request to four months because, in her experience,
judges ordinarily granted extensions in four-month increments.
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generation antipsychotic drugs. He testified that, in his experi-
ence, a very high percentage of people in Loughner’s condi-
tion are restored to functional competency in the clinical
setting within one year of being medicated, with most of the
improvement occurring between months three and twelve. He
explained that restoration was indicated by the fact that such
patients are no longer as delusional, are more organized in
thought, can focus and concentrate, and show improvement in
taking care of themselves. Dr. Ballenger testified that he had
reviewed Loughner’s history and medication and, in his opin-
ion, the current medication regimen is “highly appropriate.”
Dr. Ballenger concluded that, in light of Dr. Pietz’s testimony
and his own review of the records in this case, Loughner
would likely be restored to trial competency within “two to
six, eight more months.”
The district court held that because the burden of proof for
granting an extension of commitment under § 4241(d)(2) is
“substantial probability,” the government must demonstrate
that Loughner is “likely” to attain competency within a rea-
sonable time. Relying on reports submitted by Dr. Pietz
before the hearing, and the testimony of Dr. Pietz and Dr. Bal-
lenger at the hearing, the district court found that the evidence
established that it is likely that Loughner will become compe-
tent to stand trial in this case and extended Loughner’s com-
mitment under § 4241(d)(2) for four months. Loughner
appealed the district court decision, and that appeal is before
us now (No. 11-10504).6
6On February 8, 2012, the district court extended Loughner’s commit-
ment for the purpose of competency restoration to June 7, 2012. Dr. Pietz
reported to the district court that Loughner remains incompetent to stand
trial but that he has made substantial progress. The government and
Loughner filed a Joint Notice in which they indicated that they had no fur-
ther evidence to present.
The extension of the commitment for competency restoration does not
moot the issues in this appeal.
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II. JURISDICTION
Before turning to the merits, we first address our jurisdic-
tion over Loughner’s appeals.
A. The Basis for the District Court’s Authority
In No. 11-10504, Loughner appeals the district court’s
denial of his motion challenging FMC-Springfield’s Septem-
ber 15 decision authorizing involuntary medication.7 The dis-
trict court’s ruling, from which Loughner appealed, was a
pretrial order. As the court overseeing Loughner’s criminal
prosecution, the district court has the authority to review
Loughner’s motion to enjoin forcible medication. See 18
U.S.C. § 3231. The district court’s order “embodied legal
conclusions related to [FMC-Springfield]’s administrative
efforts to medicate [Loughner]; these efforts grew out of
[Loughner]’s provisional commitment; and that provisional
commitment took place pursuant to an earlier [district court]
order seeking a medical determination about [Loughner]’s
future competence to stand trial.” Sell, 539 U.S. at 175 (citing
Riggins, 504 U.S. 127; Stack v. Boyle, 342 U.S. 1, 6-7
(1951)). The district court’s authority to review pretrial
orders, therefore, gave it authority to review the involuntary
medication of Loughner. See Riggins, 504 U.S. 127 (review-
7In No. 11-10339, Loughner appeals from the district court’s denial of
his motion challenging the June 14 involuntary medication decision, Har-
per I. Because Harper I is no longer operative, but the bulk of the legal
arguments in that appeal apply also to the Harper III appeal, we have con-
solidated the cases and will consider the briefs, records, and arguments
from both appeals as applied to the September 15 Harper III hearing—the
currently operative involuntary medication order. No. 11-10339 is there-
fore dismissed as moot.
In No. 11-10432, Loughner appeals from the district court’s denial of
a prompt post-deprivation hearing after the emergency medication deci-
sion of July 18, 2011. Because that involuntary medication order is no lon-
ger operative, and because there is no relief that can be granted by this
court, that appeal is dismissed as moot.
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ing trial court’s denial of defendant’s motion to suspend
administration of medication during trial); United States v.
Weston, 206 F.3d 9 (D.C. Cir. 2000) (reviewing district
court’s order upholding BOP’s decision to medicate involun-
tarily Weston); Morgan, 193 F.3d at 257-59 (reviewing dis-
trict court’s order authorizing forcible medication pursuant to
the administrative determination after the district court
rejected Morgan’s motion to enjoin).
In No. 11-10504, Loughner appeals from the district court’s
order extending his commitment to FMC-Springfield. The
district court has the authority to extend Loughner’s commit-
ment pursuant to 18 U.S.C. § 4241(d)(2).
B. Appellate Jurisdiction
Ordinarily, an appellate court may hear appeals only from
a district court’s final decision. 28 U.S.C. § 1291. Under the
collateral order doctrine, however, we may review a district
court’s preliminary or interim decision when it: “(1) conclu-
sively determines the disputed question, (2) resolves an
important issue completely separate from the merits of the
action, and (3) is effectively unreviewable on appeal from a
final judgment.” Sell, 539 U.S. at 176 (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978)) (internal quo-
tation marks omitted); see also Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949).
The district court’s involuntary medication order falls
within the collateral order doctrine.8 First, the order conclu-
8We note that although Loughner cites 28 U.S.C. § 1292 as an alterna-
tive basis for jurisdiction, and initially filed a motion to enjoin in the dis-
trict court, the parties appear to have addressed the issues as though this
was a direct appeal from the involuntary medication order and not an
appeal from a denial of a motion for an injunction. See 28 U.S.C.
§ 1292(a)(1) (providing appellate jurisdiction for denial of an injunction).
Because direct appellate review through the collateral order doctrine does
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sively determined the disputed question—whether there is any
legal basis to medicate Loughner forcibly and whether Lough-
ner has a legal right to a judicial hearing before involuntary
medication. See Sell, 539 U.S. at 176; Morgan, 193 F.3d at
259. Second, the involuntary medication issue is important
and completely separate from the merits of the action—i.e.,
whether Loughner is guilty or innocent of the crimes charged.
See Sell, 539 U.S. at 176; Morgan, 193 F.3d at 259. Finally,
the issue is effectively unreviewable because “[b]y the time of
trial [Loughner] will have undergone forced medication—the
very harm that he seeks to avoid.” Sell, 539 U.S. at 176-77.
We therefore have appellate jurisdiction, under the collateral
order doctrine, to review the district court’s involuntary medi-
cation order. See United States v. Ruiz-Gaxiola, 623 F.3d 684,
688 (9th Cir. 2010); United States v. Grape, 549 F.3d 591,
597 (3d Cir. 2008).
The district court’s commitment order is also appealable
under the collateral order doctrine. See United States v. Fried-
man, 366 F.3d 975, 978-79 (9th Cir. 2004). First, the order
“conclusively determines [Loughner]’s ‘present right to be at
liberty prior to trial.’ ” Id. at 979 (quoting United States v.
Gold, 790 F.2d 235, 239 (2d Cir. 1986)). Second, “the issue
of involuntary commitment is completely separate from the
issue of whether [Loughner] committed the crime with which
he is charged,” and is important because it implicates his free-
dom. Id. And finally, the order is effectively unreviewable
because “nothing could recover for [Loughner] the time lost
during his confinement.” Id. at 979 (quoting Gold, 790 F.2d
not add another layer of review, and because this result is urged by Lough-
ner and acceded to by the government, we have proceeded in that manner.
Cf. Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 32 (2008)
(reviewing an injunction for abuse of discretion). We also note that it is
not necessary for a defendant to go the route of an injunction to have the
administrative Harper order reviewed in the district court. The district
court’s authority to review pretrial orders naturally extends to a review of
pretrial medication orders.
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at 239). Therefore, we have appellate jurisdiction to review
the district court’s commitment order as well.
III. THE INVOLUNTARY MEDICATION ORDERS
Loughner raises both substantive and procedural due pro-
cess challenges to his involuntary medication.
“[T]he substantive issue involves a definition of
th[e] protected constitutional interest, as well as
identification of the conditions under which compet-
ing state interests might outweigh it. The procedural
issue concerns the minimum procedures required by
the Constitution for determining that the individual’s
liberty interest actually is outweighed in a particular
instance.”
Harper, 494 U.S. at 220 (alterations in original) (quoting
Mills v. Rogers, 457 U.S. 291, 299 (1982)). In other words,
the substantive issue is “what factual circumstances must
exist” before the government may involuntarily medicate
Loughner; the procedural issue is whether the government’s
nonjudicial process used to determine the facts was sufficient.
See id.9
9The dissent argues that we have addressed “the questions before us in
the wrong order” because the “commitment decision is the currently oper-
ative one.” Dissenting Op. at 2440 (emphasis omitted). Contrary to this
claim, however, determining whether the involuntary medication order is
currently operative—i.e., is not substantively or procedurally deficient—is
a necessary predicate to determining whether Loughner’s commitment for
the purpose of competency restoration is justified. This is so because, as
we explain, if Loughner must be involuntarily medicated because he is a
danger to himself or others, then he will be medicated irrespective of
whether that treatment will restore him to competency. See Sell, 539 U.S.
at 181-82. We therefore first address whether Loughner’s current involun-
tary medication order comports with constitutional requirements, and then
address the extension of his commitment for the purposes of competency
restoration.
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The determination of the appropriate constitutional stan-
dard that governs a particular inquiry is a question of law sub-
ject to de novo review. See Pierce v. Multnomah Cnty., Or.,
76 F.3d 1032, 1042 (9th Cir. 1996). Factual findings are
reviewed for clear error. See United States v. Hinkson, 585
F.3d 1247, 1260 (9th Cir. 2009) (en banc).
We first address the contours of Loughner’s substantive
due process right and then turn to his objections to the proce-
dures afforded by 28 C.F.R. § 549.46.
A. Substantive Due Process Standard
The parties dispute the proper substantive due process stan-
dard that applies when the government seeks to medicate
forcibly a pretrial detainee on the grounds that he is a danger
to himself or others. The government argues that the standard
announced in Harper applies; Loughner argues that the
heightened standards enunciated in Riggins and Sell should
apply instead. As we explain below, neither Harper nor Rig-
gins addresses the precise question at issue here. Sell suggests
an answer, and we and every court of appeals to apply this
framework has assumed that the Court answered the question
in Sell. Consistent with Sell’s suggestion, we hold that the
standard announced in Harper applies with equal force in the
context of pretrial detainees.
1. Harper, Riggins, and Sell
Washington v. Harper is the seminal involuntary medica-
tion case. 494 U.S. 210. It involved a prisoner’s substantive
and procedural due process challenge to a Washington state
prison regulation authorizing the forcible medication of an
inmate suffering from a mental disorder if he was “gravely
disabled or pose[d] a likelihood of serious harm to himself,
others, or their property.” Id. at 215 (internal quotation marks
omitted). Harper argued that, under the Due Process Clause,
the State of Washington could not override his choice to
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refuse antipsychotic drugs absent a finding of incompetence
and substituted judgment that, if he were competent, he would
consent to drug treatment. Id. at 222. The Court framed the
substantive issue as: “what factual circumstances must exist
before the State may administer antipsychotic drugs to the
prisoner against his will.” Id. at 220.
The Court began its analysis by recognizing that inmates
possess “a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due
Process Clause of the Fourteenth Amendment.” Id. at 221-22.
This liberty interests stems from both the drugs’ intended
mind-altering effects and from their “serious, even fatal, side
effects”—including acute dystonia (“severe involuntary
spasm of the upper body, tongue, throat, or eyes”), akathisia
“(motor restlessness, often characterized by an inability to sit
still),” neuroleptic malignant syndrome “(a relatively rare
condition which can lead to death from cardiac dysfunction),”
and tardive dyskinesia (“a neurological disorder, irreversible
in some cases, that is characterized by involuntary, uncontrol-
lable movements of various muscles, especially around the
face”).10 Id. at 229-30.
10We note that some of the Court’s concerns in Harper have been less-
ened to some extent by significant pharmacological advances. The drugs
at issue in Harper—Trialafon, Haldol, Prolixin, Taractan, Loxitane, Mel-
laril, and Navane, 494 U.S. at 214 n.1—were first-generation antipsycho-
tics. As Dr. Ballenger explained at Loughner’s commitment hearing, the
“almost miraculous promise of second-generation [medications] is people
still get well, but with markedly less” side effects: the frequency of tardive
dyskinesia is “[a] fifth or one-tenth of what it was before”; neuroleptic
malignant syndrome is “vanishingly rare”; extrapryamidal effects
(Parkinson-like disorders) that had an incidence rate of 75% with Haldol
occur “very rarely,” at the same level as with a placebo; and “akathisia is
also markedly less frequent.” See Grape, 549 F.3d at 596 (citing testimony
from a FMC-Springfield psychiatrist that “[t]hese side effects, especially
neuroleptic malignant syndrome, EPS or stiffness, and tardive dyskinesia,
which could be permanent, are less common in second-generation antipsy-
chotics than in first-generation medicines such as haloperidol”); United
States v. Evans, 404 F.3d 227, 233-34 (4th Cir. 2005) (discussing the
involuntary medication report’s conclusion that “second-generation, or
atypical antipsychotic medications” have a reduced risk of side effects).
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The Court recognized, however, that an inmate’s liberty
interest in avoiding unwanted medication must be “defined in
the context of the inmate’s confinement.” Id. at 222. Specifi-
cally, the Court noted “the need to reconcile our longstanding
adherence to the principle that inmates retain at least some
constitutional rights despite incarceration with the recognition
that prison authorities are best equipped to make difficult
decisions regarding prison administration.” Id. at 223-24. To
accommodate this need, the Court reiterated that “the proper
standard for determining the validity of a prison regulation
claimed to infringe on an inmate’s constitutional rights is to
ask whether the regulation is ‘reasonably related to legitimate
penological interests.’ ” Id. at 223 (quoting Turner v. Safley,
482 U.S. 78, 89 (1987)). Among the factors that determine the
reasonableness of a prison regulation, the Court found three
particularly relevant in the context of involuntary medication:
(1) “there must be a valid, rational connection between the
prison regulation and the legitimate governmental interest put
forward to justify it”; (2) “a court must consider the impact
accommodation of the asserted constitutional right will have
on guards and other inmates, and on the allocation of prison
resources generally”; and (3) “the absence of ready alterna-
tives is evidence of the reasonableness of a prison regulation.”
Id. at 224-25 (internal quotation marks omitted).
[1] Applying these factors to the Washington regulation,
the Court concluded that the policy comported with constitu-
tional requirements. Id. at 225. Having deprived inmates of
their liberty, the State has an obligation to provide prisoners
with medical treatment consistent with both the inmates’ and
the institution’s needs. Id. Thus, when the root cause of the
inmate’s threat is his mental disability, “the State’s interest in
decreasing the danger to others necessarily encompasses an
interest in providing him with medical treatment for his ill-
ness.” Id. at 225-26. Therefore, the Court determined that
involuntary medication is a rational means of furthering the
State’s legitimate objectives: the interest in “ensuring the
safety of prison staffs and administrative personnel,” and the
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“duty to take reasonable measures for the prisoners’ own safe-
ty.” Id. at 225. Finally, the Court found that the government
was not required to adopt the alternative means proffered by
Harper (seclusion and physical restraints) because Harper
failed to demonstrate that they were “acceptable substitutes
for antipsychotic drugs, in terms of either their medical effec-
tiveness or their toll on limited prison resources.” Id. at
226-27. Accordingly, the Court held that “given the require-
ments of the prison environment, the Due Process Clause per-
mits 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.” Id. at 227.
In Riggins, the Court addressed a slightly different set of
interests: a criminal defendant’s challenge to his conviction
on the grounds that Nevada forced him to take antipsychotic
drugs during his trial. 504 U.S. 128. After being taken into
custody, Riggins began voluntarily taking Mellaril because he
was hearing voices and having trouble sleeping. See id. at
129. As preparations for trial went forward, Riggins asked the
court to suspend the medication until the end of the trial, argu-
ing that the drugs infringed upon his freedom and would deny
him due process because of their effect on his demeanor and
mental state during trial. See id. at 130. The court held an evi-
dentiary hearing, in which three different doctors questioned
the need for continued administration of the drugs, and then
denied Riggins’s motion, giving no indication for the court’s
rationale. See id. at 131-32. Riggins continued to be medi-
cated throughout the trial. See id. at 132.
In reviewing the forced medication of Riggins during trial,
the Supreme Court began from the premise that “[u]nder Har-
per, forcing antipsychotic drugs on a convicted prisoner is
impermissible absent a finding of overriding justification and
a determination of medical appropriateness.” Id. at 135. Not-
ing that the “Fourteenth Amendment affords at least as much
protection to persons the State detains for trial,” the Court
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held that the government must show both the need for and the
medical appropriateness of antipsychotic medication. Id.
(emphasis added).
The Court denied that Harper had determined the full con-
stitutional protections of pretrial detainees. Admitting that it
had “not had occasion to develop substantive standards for
judging forced administration of such drugs in the trial or pre-
trial settings,” the Court suggested that “Nevada certainly
would have satisfied due process if the prosecution had dem-
onstrated, and the District Court had found, that treatment
with antipsychotic medication was medically appropriate and,
considering less intrusive alternatives, essential for the sake of
Riggins’ own safety or the safety of others.” Id. The Court
explained, however, that it did not have “occasion to finally
prescribe such substantive standards” because the district
court’s involuntary medication order made no determination
of the need for the medication and no findings about reason-
able alternatives. Id. at 136. In other words, “[t]he [district]
court did not acknowledge the defendant’s liberty interest in
freedom from unwanted antipsychotic drugs.” Id. at 137. The
Court observed that this failure may have impaired Riggins’s
constitutionally protected trial rights—including “the sub-
stance of his own testimony, his interaction with counsel, or
his comprehension at trial”—and concluded that there was no
basis for finding that, if Riggins had been affected by his
involuntary medication, any prejudice was justified. Id. at
137-38. The Court accordingly reversed the Nevada Supreme
Court’s decision upholding Riggins’s conviction and
remanded for further proceedings. Id. at 138.
[2] Most recently, in Sell, the Supreme Court set out the
substantive standards for when the government may adminis-
ter antipsychotic drugs involuntarily to a mentally ill criminal
defendant to render him competent for trial. 539 U.S. 166.
The Court adopted a more demanding standard for medicating
a defendant facing trial to render that defendant competent
than it required in Harper for medicating a convicted inmate
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to render that inmate nondangerous. The Court held that the
government may forcibly medicate a mentally ill pretrial
detainee for the purpose of rendering him competent to stand
trial, but only if a court determines that there are important
governmental trial-related interests at stake; that involuntary
medication will significantly further these government inter-
ests, without causing side effects that will interfere signifi-
cantly 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 appro-
priate, i.e., in the defendant’s best medical interest. Id. at
180-81; see also Witt v. Dep’t of Air Force, 527 F.3d 806, 818
(9th Cir. 2008) (referring to Sell as an application of height-
ened scrutiny in the substantive due process context).
[3] Sell came with an important caveat, however. “A court
need not consider whether to allow forced medication for
[trial competency purposes], if forced medication is warranted
for a different purpose, such as the purposes set out in Harper
related to the individual’s dangerousness.” Id. at 181-82. The
Court noted that there are three reasons for determining
whether forced medication can be justified on alternative
grounds before turning to the trial competency question: First,
“the inquiry into whether medication is permissible . . . to ren-
der an individual nondangerous is usually more ‘objective and
manageable’ than the inquiry into whether medication is per-
missible to render a defendant competent.” Id. at 182 (quoting
Riggins, 504 U.S. at 140 (Kennedy, J., concurring)). Second,
“courts typically address involuntary medical treatment as a
civil matter, and justify it on these alternative, Harper-type
grounds.” Id. Finally, if medication is authorized on alterna-
tive grounds, “the need to consider authorization on trial com-
petence grounds will likely disappear.” Id. at 183. The Court
explained why the purpose of the involuntary medication is
relevant:
Whether a particular drug will tend to sedate a
defendant, interfere with communication with coun-
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sel, prevent rapid reaction to trial developments, or
diminish the ability to express emotions are matters
important in determining the permissibility of medi-
cation to restore competence, but not necessarily rel-
evant when dangerousness is primarily at issue.
Id. at 185 (citation omitted).
2. Post-Sell Cases
The parties dispute whether the Supreme Court’s precedent
answers the question in this case: what substantive due pro-
cess standard must the government satisfy to medicate invol-
untarily a pretrial detainee on the ground that he is dangerous?
The government argues that, because Loughner was being
medicated for dangerousness, he may be medicated following
a Harper hearing, and that Sell approved the use of “Harper-
type grounds” for medicating pretrial detainees. See Sell, 539
U.S. at 182, 183. Loughner responds that Harper addressed
involuntary medication for convicted inmates, not pretrial
detainees, and that Riggins requires that the government dem-
onstrate that a pretrial detainee’s “treatment with antipsycho-
tic medication [i]s medically appropriate and, considering less
intrusive alternatives, essential for the sake of [the pretrial
detainee]’s own safety or the safety of others.” Riggins, 504
U.S. at 135.
The Court’s cases have not addressed the issue directly.
The Court in Sell seemed to assume, however, that a Harper
hearing would be sufficient to medicate involuntarily a pre-
trial detainee on dangerousness grounds. More importantly,
we have made the same assumption in our prior discussions
of Harper, Riggins, and Sell. Finally, post-Sell, every court of
appeals to have considered the application of Harper in the
pretrial detainee context has made the same assumption.
The core of Loughner’s argument comes from two state-
ments in Riggins. First, the Court was careful to acknowledge
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that Harper involved a convicted prisoner: “Under Harper,
forcing antipsychotic drugs on a convicted prisoner is imper-
missible absent a finding of overriding justification and a
determination of medical appropriateness. The Fourteenth
Amendment affords at least as much protection to persons the
State detains for trial.” Riggins, 504 U.S. at 135 (emphasis
added). That parsing of Harper was followed with this obser-
vation:
Although we have not had occasion to develop sub-
stantive standards for judging forced administration
of such drugs in the trial or pretrial settings, Nevada
certainly would have satisfied due process if the
prosecution had demonstrated . . . that treatment with
antipsychotic medication was medically appropriate
and, considering less intrusive alternatives, essential
for the sake of Riggins’ own safety or the safety of
others.
Id. (emphasis added). Nothing in the holding of Sell fills this
gap, except for the Court’s significant aside that “if forced
medication is warranted for a different purpose, such as the
purposes set out in Harper related to the individual’s danger-
ousness,” then the district court need not conduct a Sell hear-
ing to determine whether a pretrial detainee may be medicated
to render him competent to stand trial. Sell, 539 U.S. at
181-82. When the Court later referred to “Harper-type
grounds,” id. at 182, and failed to renew its disclaimer that it
had not decided the Harper question for pretrial detainees,11
11Furthermore, in Sell, the Court observed that FMC-Springfield and the
magistrate judge held dangerousness hearings “applying standards roughly
comparable to those set forth here and in Harper.” Sell, 539 U.S. at 183.
The magistrate judge approved Sell’s medication on dangerousness
grounds. Although the district court found that conclusion clearly errone-
ous, the court of appeals agreed, and the government did not appeal the
finding, the Supreme Court noted that “[i]f anything, the record before us
. . . suggests the contrary,” before proceeding on the “hypothetical
assumption” that Sell was not dangerous. Id. at 184-85. If the Court had
any remaining doubts about the nature of the hearings, it had ample oppor-
tunity to renew its disclaimer in Riggins or otherwise question the stan-
dards used by FMC-Springfield and the magistrate judge.
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we and other circuits believed that the Court had, indeed,
decided just such a question.
We first addressed the Supreme Court’s trilogy with respect
to a pretrial detainee in United States v. Rivera-Guerrero, 426
F.3d 1130 (9th Cir. 2005). Rivera-Guerrero was charged with
illegal reentry. See id. at 1134. After he was found incompe-
tent to stand trial, FMC-Springfield requested an order allow-
ing it to medicate Rivera-Guerrero to restore his competence
to stand trial. See id. The magistrate judge held a Sell rather
than a Harper hearing and determined that Rivera-Guerrero
could be medicated. See id. at 1134-35. We reversed the order
on appeal on the grounds that a pretrial involuntary medica-
tion decision could not be delegated to a magistrate judge. See
id. at 1136. Following the remand, FMC-Springfield began
involuntarily medicating Rivera-Guerrero on an emergency
basis. The district court thereafter issued an opinion adopting
the recommendations of the magistrate judge—a nearly iden-
tical justification as the order we previously vacated. See id.
We began our discussion by noting that “Sell orders are dis-
favored. The Supreme Court clearly intends courts to explore
other procedures, such as Harper hearings (which are to be
employed in the case of dangerousness) before considering
involuntary medication orders under Sell.” Id. at 1137
(emphasis added). Although we reversed for a procedural
error in the Sell proceedings, we noted that because of Rivera-
Guerrero’s involuntary medication on dangerousness grounds
and confinement for more than the permissible period of time,
“on remand, conducting a Sell inquiry no longer constitutes
the appropriate procedure.” Id. at 1143. We instructed the dis-
trict court to order FMC-Springfield to report on Rivera-
Guerrero’s medical status. “If the FMC reports that Rivera-
Guerrero has been rendered competent to stand trial as a result
of its administration of the medication, and the district court
accepts that assertion, then the district court may proceed with
the criminal trial . . . .” Id. at 1144.
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In United States v. Hernandez-Vasquez, 513 F.3d 908 (9th
Cir. 2008), we addressed a slightly different circumstance.
The government had charged Hernandez-Vasquez, like
Rivera-Guerrero, with illegal reentry. See id. at 911. After the
district court found Hernandez-Vasquez incompetent, he was
transferred to FMC-Springfield where the government
requested that he be medicated to render him competent to
stand trial; in the alternative, the government asked that
Hernandez-Vasquez be evaluated for dangerousness. See id.
at 912. The district court conducted a Sell hearing and granted
the government’s motion to medicate Hernandez-Vasquez to
render him competent for trial. See id. On appeal, we noted
that “a Sell inquiry is independent of the procedure that allows
involuntary medication of dangerous inmates under Harper.”
Id. at 913. We addressed the question of whether “the district
court had an obligation to apply Harper and make a danger-
ousness inquiry before proceeding under Sell,” and held that
“[i]f a district court does not conduct a dangerousness inquiry
under Harper, it should state for the record why it is not doing
so.” Id. at 914. We concluded that the district court “should
take care to separate the Sell inquiry from the Harper danger-
ousness inquiry and not allow the inquiries to collapse into
each other.” Id. at 919.
[4] We suppose that a close reading of these cases might
yield a conclusion that our statements regarding Harper are
dicta. But given the extensive nature of our discussions, our
lack of reservation about applying Harper to pretrial detain-
ees, and our instructions on remand to conduct “the Harper
dangerousness inquiry,” id., there is little doubt that we
believe that the standards set forth in Harper apply to inmates
being held by the government, whether they are awaiting trial
or are serving a sentence of incarceration. See Ruiz-Gaxiola,
623 F.3d at 689 (referring to the magistrate judge ordering
“the government to conduct an administrative hearing pursu-
ant to Harper” prior to considering an involuntary medication
order under Sell for a pretrial detainee “[d]ue in part to our
admonition that ‘Sell orders are disfavored’ ”).
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Even if we were inclined to reweigh the factors considered
by the Supreme Court in Harper in the context of a convicted
prisoner, we would arrive at the conclusion that Harper
applies to pretrial detainees as well. Two points are sufficient.
First, we recognize that the most important factor for deter-
mining the appropriate level of scrutiny is the purpose of the
involuntary medication, not the inmate’s criminal status. See
United States v. Baldovinos, 434 F.3d 233, 240 (4th Cir.
2006) (“[T]he Court indicated that the determination of which
principles apply—those of Harper or those of Sell—depends
on the purpose for which the Government seeks to medicate
the defendant.”); United States v. Brandon, 158 F.3d 947, 957
(6th Cir. 1998) (“Harper’s rationale is based upon the premise
that if the government’s action focuses primarily on matters
of prison administration, then the action is proper if reason-
ably related to a legitimate penological interest, even if it
implicates fundamental rights.”). If the government seeks to
medicate involuntarily a pretrial detainee on trial competency
grounds, that is a matter of trial administration and the height-
ened standard announced in Sell applies. See Sell, 539 U.S. at
183. When dangerousness is a basis for the involuntary medi-
cation, however, as is the case with Loughner, the concerns
are the orderly administration of the prison and the inmate’s
medical interests. See Harper, 494 U.S. at 222-25; Bal-
dovinos, 434 F.3d at 240; Brandon, 158 F.3d at 957.
[5] Second, although we recognize that in certain contexts
there are important differences—differences of constitutional
magnitude—between pretrial detainees and convicted detain-
ees, see Bell v. Wolfish, 441 U.S. 520, 537 (1979) (“This
Court has recognized a distinction between punitive measures
that may not constitutionally be imposed prior to a determina-
tion of guilt and regulatory restraints that may.”); Friedman
v. Boucher, 580 F.3d 847, 853-58 (9th Cir. 2009) (holding
that suspicionless, warrantless searches of pretrial detainees
that do not contribute to prison security are unconstitutional,
and distinguishing cases upholding similar searches of con-
victed detainees), those differences largely disappear when
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the context is the administration of a prison or detention facil-
ity. As the Court stated in Bell,
[t]he fact of confinement as well as the legitimate
goals and policies of the penal institution limits . . .
retained constitutional rights. There must be a
mutual accommodation between institutional needs
and objectives and the provisions of the Constitution
that are of general application. This principle applies
equally to pretrial detainees and convicted prison-
ers.
441 U.S. at 546 (1979) (emphasis added) (citations omitted)
(internal quotation marks omitted); see Bull v. City & Cnty. of
San Francisco, 595 F.3d 964, 973-74 & nn.10, 11 (9th Cir.
2010) (en banc) (“We have never distinguished between pre-
trial detainees and prisoners in applying the Turner test, but
have identified the interests of correction facility officials
responsible for pretrial detainees as being ‘penological’ in
nature.”); United States v. Hearst, 563 F.2d 1331, 1345 n.11
(9th Cir. 1977) (“All legitimate intrusive prison practices have
basically three purposes: the preservation of internal order and
discipline, the maintenance of institutional security against
escape or unauthorized entry, and the rehabilitation of the
prisoners. The first two interests are implicated regardless of
the status of the prisoner. The third, of course, applies only to
prisoners already convicted of a crime. Accordingly, a pretrial
detainee may assert his status as a shield against intrusive
practices aimed solely at rehabilitation but not against prac-
tices aimed at security and discipline.” (citations omitted)
(internal quotation marks omitted)). So long as Loughner is a
pretrial detainee, and lawfully held, his rights are limited by
the facility’s legitimate goals and policies, and his dangerous-
ness to himself or to others may be judged by the same stan-
dard as convicted detainees. See Harper, 494 U.S. at 224
(“We made quite clear that the standard of review we adopted
in Turner applies to all circumstances in which the needs of
prison administration implicate constitutional rights.”).
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Finally, we observe that, post-Sell,12 every court of appeals
to have considered the interplay between Harper and Sell—a
context that necessarily implicates pretrial detainees only—
has similarly assumed that Harper is the appropriate standard
for measuring whether a pretrial detainee may be involuntar-
ily medicated because of dangerousness. See Grape, 549 F.3d
at 599 (“We do not reach consideration of the four-factor Sell
test unless an inmate does not qualify for forcible medication
under Harper, as determined at a Harper hearing generally
held within the inmate’s medical center.”); United States v.
Green, 532 F.3d 538, 545 n.5 (6th Cir. 2008) (“The Sell stan-
dard applies when the forced medication is requested to
restore competency to a pretrial detainee and the pretrial
detainee is not a danger to himself or others. When the pretrial
detainee is a potential danger to himself or others, the Harper
standard is used.”); United States v. White, 431 F.3d 431, 435
(5th Cir. 2005); United States v. Morrison, 415 F.3d 1180,
1186 (10th Cir. 2005) (“[T]he central role of dangerousness
in the Sell inquiry in this case calls out for proceeding under
Harper first.”); Evans, 404 F.3d at 235 n.3 (“The Supreme
Court has outlined different tests for when the government
may involuntarily medicate an individual, depending on
whether the medication is for purposes of prison control or
prisoner health on the one hand, see [Harper, 494 U.S. at
227], or, on the other hand, for the purpose of prosecuting an
incompetent defendant, see Sell[, 539 U.S. at 166].”); see also
Morgan, 193 F.3d at 262-63 (pre-Sell case holding that
“[u]nder Harper, due process permits institutional medical
personnel to forcibly treat a pretrial detainee with antipsycho-
12We note that in Weston, 206 F.3d 9, a pre-Sell decision, the panel
questioned whether, in light of Riggins, Harper applied to pretrial detain-
ees. Compare id. at 14 (Henderson, J., concurring) (“[T]he applicable
standards for reviewing an institution’s medical/safety determination
appear to me, at least, to be the same for a detainee as for a convicted
inmate.”), with id. at 17 (Rogers, J., concurring) (“The Supreme Court
may ultimately articulate a standard for pretrial detainees that is different
from the one applied in Harper to a prison inmate . . . .”). So far as we
can determine, the D.C. Circuit has not revisited the question after Sell.
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tic medication once they conduct the type of administrative
proceeding the State of Washington employed”).
[6] If there was any remaining doubt in our cases about the
proper standard, we now hold 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.
“[T]he 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.”
Harper, 494 U.S. at 227.
3. The Standard Applied
Having decided that Harper supplies the standard, we can
easily address Loughner’s argument. Loughner argues that
FMC-Springfield applied the wrong standard. Based on the
assumption that Riggins governs here, Loughner claims that
FMC-Springfield failed to demonstrate that forcibly medicat-
ing him was (1) medically appropriate and, (2) “considering
less intrusive alternatives, essential for the sake of [Lough-
ner]’s own safety or the safety of others.” Riggins, 504 U.S.
at 135.
[7] For the reasons we have explained, the Riggins stan-
dard does not govern. We are satisfied that FMC-Springfield
used the proper standard from Harper. At the Harper III hear-
ing, Dr. Tomelleri heard the evidence from Loughner’s treat-
ing psychiatrist and psychologist and concluded that
Loughner was a danger to himself, and that “[i]nvoluntary
medication is . . . in the patient’s best medical interest.” Dr.
Tomelleri first noted that Loughner “has a well-documented
history of persistent manifestations of schizophrenia” and that
following discontinuation of a previous medication order,
Loughner’s condition deteriorated. He further explained that
“[p]sychotropic medication is the treatment of choice for con-
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ditions such as Mr. Loughner is experiencing” and that
“[d]iscontinuation of current medications is virtually certain
to result in an exacerbation of Mr. Loughner’s illness as it did
when medication was discontinued in July [2011].” Even
though the facility was not required to demonstrate that there
were no less intrusive alternatives available or that medication
was “essential,” Harper, 494 U.S. at 226-27, Dr. Tomelleri
did note that other measures were inadequate because they
failed to “address the fundamental problem” or “core manifes-
tations of the mental illness.” Antipsychotics are “one of the
most effective means of treating and controlling a mental ill-
ness likely to cause violent behavior”; the fact that there
might be alternative means for rendering Loughner temporar-
ily harmless (minor tranquilizers, seclusion and restraints),
“do[es] not demonstrate the invalidity of the [government]’s
policy” of treating the underlying mental disorder. Harper,
494 U.S. at 226. We reject Loughner’s claim that FMC-
Springfield failed to apply the appropriate substantive stan-
dard.
B. Procedural Objections
Loughner raises a number of challenges to the procedures
used by FMC-Springfield to determine that he was a danger
to himself or others and should be involuntarily medicated.
We begin with a discussion of 28 C.F.R. § 549.46, which sets
forth BOP’s “[p]rocedures for involuntary administration of
psychiatric medication.” Then we address Loughner’s general
or facial challenges to these regulations. We then turn to
Loughner’s as-applied challenges to the Harper III hearing
held by FMC-Springfield.
1. BOP’s Regulation, 28 C.F.R. § 549.46
[8] Like the regulation at issue in Harper, § 549.46
requires that “[w]hen an inmate is unwilling or unable to pro-
vide voluntary written informed consent for recommended
psychiatric medication, the inmate will be scheduled for an
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administrative hearing.” 28 C.F.R. § 549.46(a). The regula-
tion requires twenty-four-hour written notice of the hearing
and a written “explanation of the reasons for the psychiatric
medication proposal.” Id. § 549.46(a)(2). The inmate has the
right to appear, present evidence, have a staff representative,
request witnesses at the hearing, and request that his witnesses
be questioned by either his staff representative or the hearing
officer. If the inmate does not request a staff representative,
or requests a staff representative with insufficient experience,
the facility administrator must appoint a qualified staff repre-
sentative. See id. § 549.46(a)(3). The hearing officer must be
a psychiatrist who is not the attending psychiatrist and who is
not involved in the diagnosis or treatment of the inmate, thus
ensuring that there is an independent decision maker. See id.
§ 549.46(a)(4). The inmate’s treating psychiatrist must attend
and present background information and clinical data relative
to the inmate’s need for antipsychotic medication. See id.
§ 549.46(a)(6). The hearing officer determines
whether involuntary administration of psychiatric
medication is necessary because, as a result of the
mental illness or disorder, the inmate is dangerous to
self or others, poses a serious threat of damage to
property affecting the security or orderly running of
the institution, or is gravely disabled (manifested by
extreme deterioration in personal functioning).
Id. § 549.46(a)(7). If the hearing officer determines that medi-
cation is necessary, the inmate has the right to appeal within
twenty-four hours, and the staff representative must assist in
preparing and submitting the appeal. See id. § 549.46(a)(8).
Unless there is a “psychiatric emergency,” no medications
may be administered if the inmate appeals the decision. See
id. § 549.46(a)(9), (b)(1). The appeal will ordinarily be
decided within twenty-four hours. See id. § 549.46(a)(9).
These regulations are substantially equivalent to the Wash-
ington procedures approved in Harper. See Harper, 494 U.S.
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at 215-16. We notice two differences, however, between the
BOP’s regulations and Washington’s procedures. First, the
Washington policy contained a periodic review requirement.
See id. at 216. Second, the Washington policy required that
the hearing be held before a three-person “special committee”
comprised of a psychiatrist, a psychologist, and the Associate
Superintendent of the facility. See id. at 215. It is not clear
that either of these procedures are constitutionally required.
Harper simply found them to be constitutionally sufficient.
These differences do not render § 549.46 constitutionally
infirm. First, a periodic review requirement is unnecessary in
the context of pretrial detainees because a pretrial detainee’s
status is by definition temporary—after the trial the defendant
will either become a convicted inmate or a free person. Addi-
tionally, the involuntary medication order will often be part of
either a determination of competency, which is limited to four
months, 18 U.S.C. § 4241(d)(1), or a restoration to compe-
tency, which is limited to “an additional reasonable period of
time,” id. § 4241(d)(2). The involuntary medication order is
limited precisely because of the inmate’s status, thus dimin-
ishing the need for periodic review. Cf. Harper, 494 U.S. at
216 n.4 (noting that the periodic review requirement of the
Washington policy was amended to require bi-weekly reports
to the Department of Corrections medical director and a new
hearing at the end of 180 days).
Second, unlike the procedures approved in Harper, BOP
provides for a single hearing officer, rather than the three-
person committee provided in Washington’s policy. See 28
C.F.R. § 549.46(a)(4). We do not think a multi-member com-
mittee is constitutionally compelled. Indeed, the Court in Har-
per focused only on the fact that a second psychiatrist—as a
member of the special committee—was reviewing the medi-
cations prescribed by the inmate’s treating psychiatrist. See
Harper, 494 U.S. at 222 (“[T]he fact that the medication must
first be prescribed by a psychiatrist, and then approved by a
reviewing psychiatrist, ensures that the treatment in question
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will be ordered only if it is in the prisoner’s medical interests
. . . .”). BOP’s decision to provide a hearing conducted by a
single non-treating psychiatrist is thus consistent with the
Court’s analysis in Harper.
We now turn to Loughner’s challenges to § 549.46 gener-
ally and then to his particular challenges to his Harper III
hearing.
2. Loughner’s General Challenges to 28 C.F.R. § 549.46
Loughner raises three claims. First, he argues that, as a pre-
trial detainee, he is entitled to a judicial, rather than an admin-
istrative, determination of his dangerousness and the need for
medication. Second, he argues that the government’s burden
of proof is clear and convincing evidence. Third, he argues
that he is entitled to be represented at the hearing by counsel.
We think that Harper largely forecloses these arguments.
a. Judicial hearing
[9] The Court in Harper rejected the argument that an
involuntary medication decision based on dangerousness
grounds must be made by a judicial decision maker after a
judicial hearing. Indeed, the Court concluded that “an
inmate’s interests are adequately protected, and perhaps better
served, by allowing the decision to medicate to be made by
medical professionals rather than a judge.” Id. at 231.
[10] Nevertheless, citing the “rhythmically insistent pulse
of Sell’s refrain,” the dissent argues that “Sell[ ] and its prog-
eny require the district court to determine whether a pretrial
detainee may be involuntarily drugged on dangerousness
grounds.” Dissenting Op. at 2442-46. But the passage that the
dissent relies on, and our subsequent cases dealing with the
Sell/Harper distinction, is premised on the assumption that
the involuntary medication are being sought “solely for trial
competence purposes.” Sell, 539 U.S. at 180. When this is the
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case, Sell clearly mandates that the district court, using a
higher substantive standard, make the involuntary medication
determination. The dissent reads Sell to mean that the district
court, applying the demanding standard of Sell, may consider
whether there might be alternative means (dangerousness) of
justifying the involuntary medication. Because the issue of
dangerousness could be raised before the court at that point,
it would be the district court that determines whether medica-
tion might be justified on Harper-type grounds. The dissent
thus concludes that whenever “the government’s ultimate aim
is restoration of competency” the “court must itself address
the involuntary medication issue.” Dissenting Op. at 2442-43.
[11] The dissent reads too much into Sell. Sell tells us that
“[a] court need not consider whether to allow forced medica-
tion for [trial competency purposes], if forced medication is
warranted for . . . the purposes set out in Harper.” Sell, 539
U.S. at 181-82. In such a case, “the need to consider authori-
zation on trial competence grounds will likely disappear.” Id.
at 183. When read in connection with the analysis in Harper,
Sell provides that a district court may authorize involuntary
medication on dangerousness grounds, using the substantive
standard outlined in Harper, not that the district court must
make this determination. Sell thus incorporates Harper into its
structure, but nothing in Sell requires the district court to
revisit the dangerousness inquiry de novo.
Loughner offers a slightly different perspective. He argues
that there would be substantial added value to having judicial
decision makers and a judicial hearing in the pretrial context
because the administrative review is not very “probing,” the
prison doctors are charged with conflicting goals, and the
medical expertise of the judicial decision maker would be
advanced by allowing the defense to present additional evi-
dence at a judicial hearing.
Nothing about Loughner’s status as a pretrial detainee ren-
ders administrative review more or less “probing,” or affects
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the medical expertise of a potential judicial decision maker.
Harper rejected these claims, and they are equally unpersua-
sive when applied to pretrial detainees. See id. at 233 (“A
State may conclude with good reason that a judicial hearing
will not be as effective, as continuous, or as probing as
administrative review using medical decisionmakers.”).
[12] The structural conflict of interest argument was also
considered and rejected in Harper. See id. at 233-34 (noting
that prior cases involving similar deprivations of liberty have
approved the use of internal decision makers (citing Vitek v.
Jones, 445 U.S. 480, 496 (1980); Parham v. J.R., 442 U.S.
584, 613-16 (1979); Wolff v. McDonnell, 418 U.S. 539,
570-71 (1974))). In fact, the Court has made clear that “it is
only by permitting persons connected with the institution to
make these decisions that courts are able to avoid ‘unneces-
sary intrusion into either medical or correctional judg-
ments.’ ” Id. at 235 (quoting Vitek, 445 U.S. at 496). The
dissent disagrees, pointing to possible confusion in this partic-
ular case as to what FMC-Springfield’s role was in adminis-
tering involuntary medication, and arguing that courts may be
better situated to render objective decisions in the pretrial
context. Dissenting Op. at 2451-53. We maintain, however,
that the decision to medicate involuntarily a pretrial detainee
based on dangerousness grounds is a penological and medical
decision that should be made by the medical staff. Although
it is conceivable that a situation might arise in which a con-
flict of interest exists, “we will not assume that physicians
will prescribe these drugs for reasons unrelated to the medical
needs of the patients.” Harper, 494 U.S. at 222 n.8. Although
the medical staff may have an interest in curing the patient or
restoring competency, even when charged merely with deter-
mining if restoration is possible, we trust that these profes-
sionals will act within the pretrial detainee’s and prison’s best
interests, within the limits of their charge. Therefore, any con-
flict of interest argument should be dealt with on a case-by-
case basis and not deemed a bar to leaving the involuntary
medication decision to the prison medical staff.
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Finally, Loughner contends that a judicial determination
will not be unduly burdensome because a pretrial detainee is
already subject to ongoing judicial proceedings. Additional
judicial proceedings, however, always have costs. Judicial
determinations of medical issues occasion unnecessary intru-
sion into both medical and custodial judgments, see id. at 235;
see also Brief for Am. Psychiatric Ass’n & Am. Acad. of Psy-
chiatry & the Law as Amici Curiae Supporting Affirmance
(“APA Br.”) at 24, and “divert scarce prison resources, both
money and the staff’s time, from the care and treatment of
mentally ill inmates,” Harper, 494 U.S. at 232; see Parham,
442 U.S. at 606; APA Br. at 24-25 (discussing increase of
judicial resources after Massachusetts began requiring state
courts to review involuntary medication orders). This is so
regardless of whether the inmate has already been through the
judicial process or is still in the pretrial phase.
The Due Process Clause requires that we measure the cost
of additional procedures against the risk of error in the exist-
ing procedures and the private interest at stake. Mathews v.
Eldridge, 424 U.S. 319, 335 (1976). Thus, the mere fact that
a party can design a set of more expansive procedures does
not entitle him to such process. The fact that Loughner can
conceive of more process does not entitle him to it as the pro-
cess that is due. Loughner has made no argument beyond his
own comfort level to demonstrate the superiority of judicially
directed hearings over medically directed hearings. He has
offered no explanation for why there is an unacceptable risk
of error “by allowing the decision to medicate to be made by
medical professionals rather than a judge.” Harper, 494 U.S.
at 231.
[13] Thus, the Due Process Clause does not require a judi-
cial determination or a judicial hearing before a facility autho-
rizes involuntarily medication.
b. Clear, Cogent, and Convincing Standard
[14] Loughner next argues that because he is a pretrial
detainee, the Due Process Clause requires that the determina-
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tion to medicate forcibly be made by clear and convincing
evidence. Harper held that a “clear, cogent, and convincing”
standard “is neither required nor helpful when medical per-
sonnel are making the judgment.” Id. at 235. Because it is the
type of decision to be made and not a person’s status as a pre-
trial inmate that is relevant to this factor, we reject the conten-
tion that the Due Process Clause requires a heightened
standard of proof.
c. Representation by Counsel
[15] Loughner argues that a pretrial detainee is entitled to
counsel at the involuntary medication hearing. This argument
is largely an outgrowth of his argument for a judicial hearing.
In any event, we disagree that Loughner is entitled to counsel
in a BOP administrative hearing.13 It is not an inmate’s trial
posture that governs the need for lawyers; instead, it is the
nature of the judgment required. The decision to medicate
involuntarily based on dangerousness grounds is a quintessen-
tial medical judgment, and in rejecting the necessity of coun-
sel, Harper noted that “ ‘[i]t is less than crystal clear why
lawyers must be available to identify possible errors in medi-
cal judgment.’ ” Id. at 236 (quoting Walters v. Nat’l Ass’n of
Radiation Survivors, 473 U.S. 305, 330 (1985)). Harper then
defined what would be sufficient representation: “the provi-
sion of an independent lay adviser who understands the psy-
chiatric issues involved is sufficient protection.” Id. We agree
that this is the only requirement in the pretrial context as well.
3. Loughner’s As-applied Challenges to His Harper III
Hearing
We next address whether the Harper III hearing, under
which Loughner is currently being forcibly medicated, com-
13We have some additional concerns with how, short of having legal
counsel, a detainee’s interests are represented at the dangerousness hear-
ing. These are addressed infra at Part III.B.3.d.
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plied with the procedural protections of 28 C.F.R. § 549.46.
Loughner argues that even if Harper applies, his rights were
violated, for four reasons: First, the decision maker failed to
demonstrate that he was dangerous; second, FMC-Springfield
failed to specify the course of treatment, that is, the types or
dosages of drugs that may be administered to him; third, the
BOP decision makers were not actually independent; and,
finally, Loughner was not provided meaningful representation
at the hearings.
Although no statute affirmatively grants an inmate the right
to obtain judicial review of a Harper-dangerousness hearing,
the court that authorized commitment in the first place pursu-
ant to 18 U.S.C. § 4241(d) has jurisdiction over the involun-
tary medication order, and we have appellate jurisdiction
under the collateral order doctrine. In reviewing the order, we
recognize that “deference . . . is owed to medical profession-
als who have the full-time responsibility of caring for men-
tally ill inmates . . . and who possess, as courts do not, the
requisite knowledge and expertise to determine whether the
drugs should be used in an individual case.” Harper, 494 U.S.
at 230 n.12. Giving such deference, we review Loughner’s
involuntary medication order to ensure the decision is not
arbitrary. See Morgan, 193 F.3d at 263 (“[S]uch a determina-
tion is subject to judicial review for arbitrariness.”).
a. Dangerousness Finding
Loughner maintains that FMC-Springfield never deter-
mined that medication was necessary to mitigate any danger
that he posed to himself. In the Justification section of the
Involuntary Medication Report that followed the Harper III
hearing on September 15, Dr. Tomelleri cited Loughner’s
deterioration after the discontinuation of antipsychotics autho-
rized by Harper I. Loughner “expressed feelings of depres-
sion and hopelessness, complained of a radio talking to him
inserting thoughts into his mind, . . . engaged in yelling, cry-
ing, [and] rocking back and forth for prolonged periods of
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time, made statements such as that he wanted to die, [and]
requested to be given an injection to be killed.” His sleep
schedule became erratic, including a 50-hour period without
sleep. His food intake was poor and he lost weight, and he
would pace or spin in circles for hours without interruption.
Since involuntary medication resumed, Loughner’s agitation
has decreased, his sleep has improved, and his communication
with staff is progressing, but he is still restless and paces and
cries frequently. Dr. Tomelleri concluded that “[p]sychotropic
medication is the treatment of choice for conditions such as
Mr. Loughner is experiencing,” and rejected the alternatives.
Psychotherapy, he wrote, would “not address the fundamental
problem”; minor tranquilizers are useful to reduce anxiety and
agitation and were being used for that purpose; and seclusion
and restraints are “merely protective temporary measures with
no direct effect on the core manifestations of the mental ill-
ness.” Rejecting the argument that Loughner is no longer a
danger to himself, Dr. Tomelleri stated that “[d]iscontinuation
of current medications is virtually certain to result in an exac-
erbation of Mr. Loughner’s illness as it did when medication
was discontinued in July.”14
[16] Loughner attempts to recharacterize his current dan-
ger to himself as being caused by his depression, which he
attributes to the effects of the antipsychotic drugs because
they are making him more lucid. Loughner thus alleges that
the antipsychotics are not in his medical interest, but offers no
medical opinion or other evidence to counter Dr. Tomelleri’s
determination. By contrast, Dr. Ballenger testified before the
district court that Loughner’s depression, borne of his “re-
morse of what happened,” is “logical” and his “self-
realization [was] an indication that the medication is helping”
and “a very strong indication that his psychosis is better.” We
must leave such medical judgments to medical staff and pro-
14Dr. Tomelleri noted that, during the hearing, Loughner complained of
“drowsiness” and said that his treating psychiatrist would modify his med-
ications to address this side effect.
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fessionals. See Harper, 494 U.S. at 230 n.12. Based on the
substantial evidence in the record, we conclude that FMC-
Springfield did not act arbitrarily in finding Loughner to be a
danger to himself and that antipsychotic medication was in his
best interest.
b. Medication Regimen
Loughner next contends that the Harper III hearing vio-
lated the Due Process Clause because no specific, future
course of treatment was identified and no limitations were
placed upon the types or dosages of drugs that could be
administered to him. He further faults FMC-Springfield staff
for modifying his medication without first seeking “ ‘due pro-
cess’ authorization,” and the hearing psychiatrist for relying
on the current medication regimen rather than a proposed
future plan.
Loughner’s complaints may be contrary to his own medical
interests. Loughner relies on three cases for the proposition
that the government must specify his drug regimen in
advance: Hernandez-Vasquez, 513 F.3d 908; Evans, 404 F.3d
227; and United States v. Williams, 356 F.3d 1045 (9th Cir.
2004). All involved persons who were ordered involuntarily
medicated, either to render them competent to stand trial, see
Hernandez-Vasquez, 513 F.3d at 912; Evans, 404 F.3d at 236,
or as a condition of supervised release, see Williams, 356 F.3d
at 1047. In each of these cases, the defendant or probationer
had not been found to be a danger to himself or others. See
Hernandez-Vasquez, 513 F.3d at 915; Evans, 404 F.3d at 235
n.3; Williams, 356 F.3d at 1057. The difference between Har-
per and Sell is critical here. When an inmate is involuntarily
medicated because he is a danger to himself or others, he is
being treated for reasons that are in his and the institution’s
best interests; the concern is primarily penological and medi-
cal, and only secondarily legal. But when the government
seeks to medicate an inmate involuntarily to render him com-
petent to stand trial, the inmate is being treated because of the
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government’s trial interests, not the prison’s interests or the
inmate’s medical interests; the concern is primarily a legal
one and only secondarily penological or medical. Hence, the
Supreme Court has emphasized that resorting to a Sell hearing
is appropriate only if there is no other legitimate reason for
treating the inmate. See Sell, 539 U.S. at 181-82.
Loughner’s treating psychiatrist is addressing Loughner’s
serious and immediate medical needs and, accordingly, must
be able to titrate his existing dosages to meet his needs, and
to change medications as necessary, as other treatments
become medically indicated. No one who is being treated for
a serious medical condition would benefit from a court order
that restricted the drugs and the dosages permissible; mental
illness cannot always be treated with such specificity.15 We
are not the dispensary and should let the doctors conduct their
business.
The Washington policy approved in Harper required that
the treatment plan be proposed by the treating psychiatrist and
then approved by a reviewing psychiatrist. The purpose of this
scheme, however, was not to limit the prison personnel’s
future course of treatment; it was to ensure that treatment
“will be ordered only if it is in the prisoner’s medical inter-
ests.” Harper, 494 U.S. at 222. Harper did not envision a pro-
cess in which medical professionals were limited to a
15We have recognized that such specificity is appropriate when an
inmate is not a danger to himself or to others and is being medicated pur-
suant to Sell. See Hernandez-Vasquez, 513 F.3d at 916-17; Rivera-
Guerrero, 426 F.3d at 1140, 1142. Even as we have expressed concern
“not to grant physicians unlimited discretion in their efforts to restore a
defendant to competency for trial,” we have also stated that we will not
“micromanage the decisions of medical professionals” and must “give
physicians a reasonable degree of flexibility.” Hernandez-Vasquez, 513
F.3d at 916-17. Noting “that instances in which an order for involuntary
medication would be appropriate under Sell ‘may be rare,’ ” we advised
that it may be better “if the facts warrant, to find another legal basis for
involuntary medication.” Id. at 916 (quoting Sell, 539 U.S. at 180).
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treatment plan set out in the original hearing. Rather, the
Court recognized that treatment of a mental illness is a
dynamic process. See id. at 232-33 (“Under the Policy, the
hearing committee reviews on a regular basis the staff’s
choice of both the type and dosage of drug to be administered,
and can order appropriate changes.”). Loughner’s suggestion
that FMC-Springfield abused its authority by increasing the
dosages and changing the types of prescribed medication
ignores the realities of psychiatric medicine and overlooks the
fact that BOP’s doctors have an ethical duty to do what is in
the best interest of the patient. See id. at 222 n.8 (“[W]e will
not assume that physicians will prescribe these drugs for rea-
sons unrelated to the medical needs of the patients; indeed,
the ethics of the medical profession are to the contrary.”).
[17] Finally, even if specificity of the treatment were
required, the Involuntary Medication Report from the Harper
III hearing lists Loughner’s then-current medication regimen
as 3 mg of risperidone, twice a day; 300 mg of buproprion
XL, daily; 1 mg of benztropine, twice a day; 1 mg of clonaze-
pam, twice a day, and 2 mg at bedtime. The report also states:
“There is a documented treatment plan on patient’s chart,”
and the box is checked indicating that Dr. Tomelleri consid-
ered and/or reviewed a treatment proposal and justification.
Additionally, Dr. Pietz’s August 22, 2011, progress report
describes Loughner’s psychiatric treatment as of that day, and
we note that it is substantially the same as the treatment plan
on September 15 3mg of risperidone, twice a day; 300 mg of
buproprion XL, daily; 1 mg benztropine, twice a day; 1 mg
lorazepam (anti-anxiety), three times a day, at bedtime, and as
needed. Both his treating psychiatrist, Dr. Sarrazin, and the
hearing officer, Dr. Tomelleri, have opined that Loughner
requires medication. The district court heard additional testi-
mony from Dr. Ballenger that Loughner’s medication regimen
was a standard approach to his schizophrenia and other medi-
cal conditions. Loughner has offered no evidence to the con-
trary, and we hold that there was no due process violation
relating to the medication regimen.
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c. Independent Decision Makers
Loughner argues that FMC-Springfield doctors were
charged with competing responsibilities and that the decision
makers were not independent. Independence of the decision
maker is required by 28 C.F.R. § 549.46(a)(4), however, and
the hearing in this case was conducted by Dr. Tomelleri, a
psychiatrist who is not currently involved in the diagnosis or
treatment of Loughner. The decision to medicate Loughner
was upheld by the Associate Warden, who agreed with Dr.
Tomelleri’s findings, conclusions, and diagnosis. The bare
fact that the involuntary medication decision was made at
FMC-Springfield, by BOP-employed doctors, is insufficient
to demonstrate a conflict without proof of actual bias. See
Harper, 494 U.S. at 233-34. BOP is charged with caring for
those who have been committed to a detention facility; it is
not a prosecuting arm of the government and has no particular
interest in the continued incarceration of those inmates.
The district court found “no evidence that the FMC[-
Springfield] staff is in any way an ally of the Government
prosecution team,” Order on Def’s Mot. to Enjoin Medication
5, and elaborated this point during the hearing:
I just don’t see any evidence whatsoever that the
findings—the determination made by FMC[-
Springfield] to take this action was colored in any
way by considerations of how it’s going to affect the
pending charges. . . . [The] professional staff, includ-
ing the professional psychologists and psychiatrists,
are calling things as they see them and they’re acting
on the basis of observation and judgment and experi-
ence and training.
Hr’g on Mot. to Enjoin Tr. 50, June 29, 2011.
[18] We are also not persuaded that FMC-Springfield is in
league with the prosecution team. It was, after all, FMC-
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Springfield doctors who found Loughner incompetent to stand
trial in the first place, a conclusion instinctively contrary to a
prosecutor’s interests. Moreover, we can take notice of the
fact that the same doctors involved in Loughner’s treatment
have had to make these judgments in other cases, and the
judgments do not always favor the prosecution. For example,
in Grape, Dr. Pietz and Dr. Sarrazin opined that Grape was
not competent to stand trial. 549 F.3d at 594-95. At a Harper
hearing, Dr. Tomelleri found that, although Grape was a
potential danger to others, he could be managed without resort
to involuntary medication. See id. at 595. That finding forced
the prosecution to ask for a Sell hearing, which has a much
more demanding burden of proof, to medicate Grape in order
to restore him to trial competency. Id. at 594-95. We can find
no evidence that FMC-Springfield staff was biased or lacked
independence.
The dissent argues that a conflict of interest may have
existed because whereas the currently operative commitment
order charges the medical staff with restoring Loughner to
competency, the initial order charged FMC-Springfield only
with determining whether restoration was possible. Dissenting
Op. at 2451-52. The dissent cites language from Loughner’s
Notice of Medication Hearing and Advisement of Rights form
as evidence that there may have been a “confusion of roles . . .
with respect to FMC-Springfield’s involuntary medication
decision in this case.” Id. at 2452. This form was filled out
prior to the first involuntary medication decision by Lough-
ner’s treating psychologist, Dr. Pietz, who participated in the
Harper hearings, and stated that Loughner “was referred to
this facility to restore competency.” Therefore, the argument
proceeds, in making the initial decision to medicate involun-
tarily Loughner on dangerousness grounds, the medical staff
may have been clouded by their interest in actually restoring
him to competency.
Dr. Pietz, however, was not a key decision maker in the
involuntary medication determination. 28 C.F.R.
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§ 549.46(a)(6) requires the treating psychiatrist to attend the
hearing and present data and background information demon-
strating the patient’s need for antipsychotic medication;
§ 549.46(a)(7) vests the presiding psychiatrist, who must not
be currently involved in the detainee’s treatment or diagnosis,
with the authority to determine whether treatment with antip-
sychotic medication is necessary because of an inmate’s dan-
gerousness; § 549.46(a)(9) vests the institution’s mental
health division administrator with authority to resolve any
appeal from the presiding psychiatrist’s decision. There is no
evidence that these decision makers shared Dr. Pietz’s possi-
bly mistaken understanding of the reasons for Loughner’s
commitment and their concomitant statutory obligations.
Therefore, the district court did not clearly err in finding that
FMC-Springfield did not operate under a conflict of interest.
d. Staff Representative
Loughner argues that his appointed staff representative,
John Getchell, did not adequately represent his interests at the
Harper III hearing. He claims that in all three of the hearings,
Getchell “failed to seek out or present any witnesses, cross-
examine or challenge the prison’s witnesses, or advocate in
any other meaningful way against forced medication.”
Instead, Loughner contends, Getchell’s sole efforts were to
relay to the administrative hearing officer Loughner’s witness
request and continued objection to involuntary medication.
Loughner further contends that the inadequacy of his staff
representative deprived him of his substantive and procedural
due process, and that he should have been afforded “[a]
proper adversarial hearing, before a judge,” and with repre-
sentation of counsel. The government does not dispute
Loughner’s factual assertions, but argues that Getchell’s rep-
resentation satisfied due process.
Due process does not require that a pretrial detainee be rep-
resented by counsel. The Supreme Court has held that provid-
ing a lay adviser who understands the psychiatric issues
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involved provides sufficient procedural protection. The Court
has not defined further the required qualifications of the per-
sonal representative, except to hold that it need not be an
attorney. See Harper, 494 U.S. at 236. Following the proce-
dures outlined in Harper, 28 C.F.R. § 549.46 requires that the
facility provide the inmate with a staff representative for the
hearing. If the inmate does not request a staff representative,
or requests one with “insufficient experience or education,”
FMC-Springfield “must appoint a qualified staff representa-
tive.” 28 C.F.R. § 549.46(a)(3) (emphasis added).
Although the Supreme Court has only held that it is suffi-
cient that the representative “understand[ ] the psychiatric
issues involved,” Harper, 494 U.S. at 236, we have some con-
cerns with the adequacy of Loughner’s representation. Lough-
ner’s representative, Getchell, is an LCSW. We do not doubt
the ability of an LCSW to understand psychological issues in
general, particularly those related to counseling and psycho-
therapy. What is less clear is whether an LCSW has the back-
ground necessary to challenge either the diagnosis or the
medical regimen prescribed by a psychiatrist.
Our concerns may stem from some confusion over the
nature of Harper hearings. Although the Court characterized
Washington’s policy in Harper as “an adversary hearing,”
494 U.S. at 235, BOP’s regulations create something of a
hybrid between an adversarial hearing and an inquisitorial
hearing. The expectations of advocates participating in those
respective hearings are quite different. The adversarial mode
is party driven, as each side has the opportunity to present its
best case, and the judge or hearing officer makes a decision
based on the evidence the parties have mustered. Advocates
take an active role, whereas the judge remains a passive par-
ticipant. By contrast, in the inquisitorial model more familiar
to continental systems, the judge takes a far more active role
in directing the case and developing the evidence, whereas the
advocate takes a passive role. See McNeil v. Wisconsin, 501
U.S. 171, 181 n.2 (1991) (“What makes a system adversarial
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rather than inquisitorial is not the presence of counsel . . . but
rather, the presence of a judge who does not (as an inquisitor
does) conduct the factual and legal investigation himself, but
instead decides on the basis of facts and arguments pro and
con adduced by the parties.”); see also Stephan Landsman, A
Brief Survey of the Development of the Adversary System, 44
Ohio St. L.J. 713, 714-15, 724 (1983); Jeffrey S. Wolfe &
Lisa B. Proszek, Interaction Dynamics in Federal Administra-
tive Decision Making: The Role of the Inquisitorial Judge and
the Adversarial Lawyer, 33 Tulsa L.J. 293, 313-15 (1997).
Although the adversarial model is more familiar, we have
examples of inquisitorial proceedings, particularly in agencies
charged with administering benefits programs, such as social
security or veterans’ benefits. See Sims v. Apfel, 530 U.S. 103,
110-11 (2000) (“Social Security proceedings are inquisitorial
rather than adversarial.”); Nat’l Ass’n of Radiation Survivors,
473 U.S. at 309-11 (explaining that the Veterans’ Administra-
tion benefits system is not an “adversary mode”).
The Harper hearing bears some characteristics of both sys-
tems. At first glance, the Harper hearing is decidedly adver-
sarial because the purpose is to determine if the inmate can be
medicated against his will. Unlike agency hearings to deter-
mine an applicant’s eligibility for federal largesse, the Harper
hearing pits the inmate against his prison doctor in a clash
over his best interests. Beyond this obvious difference, how-
ever, it is less clear that the hearing has been structured in
either a plainly adversarial or plainly inquisitorial fashion.
The hearing officer is not a judge but a doctor charged with
confirming or rejecting the medical judgment of a colleague.
That makes the hearing officer not just a neutral decision
maker, but a decision maker who has been selected precisely
because of his own expertise in the field. As in an inquisitorial
system, the hearing officer conducts the proceeding and
directs the development of the evidence. See 28 C.F.R.
§ 549.46(a)(4), (7).
In a Harper hearing, the government is not represented by
counsel, but by the inmate’s own treating psychiatrist or psy-
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chologist who is there to testify as to why, in her judgment,
the inmate’s own interests, as well as BOP’s institutional
interests, require that the inmate be involuntarily medicated.
The treating psychiatrist has no interest in the outcome of the
hearing other than to present and defend her own diagnosis
and recommendation. Importantly, she is not directing the
case in the sense that we would expect from the government’s
advocate in a purely adversarial proceeding. For his part, the
inmate may present evidence, request his own witnesses, and
ask that any witnesses be questioned. BOP’s regulations pro-
vide, somewhat ambiguously, that witnesses may be ques-
tioned either “by the staff representative or by the person
conducting the hearing.” Id. § 549.46(a)(3). The staff repre-
sentative also “assist[s] the inmate in preparing and submit-
ting the appeal.” Id. § 549.46(a)(8). The acts required of the
staff representative do not necessarily speak in terms of advo-
cacy, but require that the staff representative facilitate the
inmate’s presentation at the hearing and any appeal.
The role of the inmate’s staff representative changes—and
perhaps dramatically—as we characterize the Harper hearing
as adversarial or inquisitorial. If it is adversarial, then we
would expect the staff representative to assist the inmate to
present any evidence or request witnesses who would chal-
lenge his treating psychiatrist’s assessment that he is a danger
to himself or others and the recommendation that the inmate
be medicated against his will. Indeed, in some circumstances,
we might assume that the staff representative should vigor-
ously represent the inmate’s desire not to be medicated. On
the other hand, if the Harper hearing is largely inquisitorial
in nature, then the hearing officer has the primary duty to
develop the evidence to his own satisfaction, and the staff rep-
resentative is there to facilitate the presenting of evidence or
witnesses for the inmate.
On balance, although the question is a curious one, the
Harper hearing is about countermanding the desires of the
inmate in an area in which he “possesses a significant liberty
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interest in avoiding the unwanted administration of antipsy-
chotic drugs.” Harper, 494 U.S. at 221. Within our traditions,
and in the absence of clearer direction in the regulations, we
consider the Harper hearing to be adversarial.
Based on that premise, we question whether any represen-
tative appointed by BOP who is not qualified to make medical
diagnoses or prescribe medication—or, at the least, qualified
by training to know what medications are typically called for
to treat serious mental illnesses—can meet the inmate’s treat-
ing psychiatrist on a level playing field. We thus question
whether Getchell, as Loughner’s representative, was placed in
a situation where his training did not qualify him to challenge
Loughner’s treating psychiatrist. In other words, in the Ameri-
can adversarial tradition, we wonder whether, in a contest to
be decided by a hearing officer who is a psychiatrist, the hear-
ing really pits adversaries and advocates prepared to challenge
each other fairly. We do not mean to suggest that a Harper
hearing requires that counsel be present, lest “[t]he role of the
hearing [officer] itself . . . may become more akin to that of
a judge at a trial, and less attuned to the [medical] needs of
the individual.” Gagnon v. Scarpelli, 411 U.S. 778, 787-88
(1973). But it may suggest a more demanding role for the
staff representative.
Here, Getchell’s failure to present any affirmative evidence
or question any of the evidence in support of involuntary
medication may indicate that his representation was unquali-
fied or procedurally defective.16 See Morgan, 193 F.3d at
265-66 (noting that the staff representative’s lack of “mean-
ingful participation” during the administrative hearing sup-
16The government points out that one of Loughner’s attorneys, Anne
Chapman, acted as a witness by submitting a written statement raising fac-
tual and legal arguments against involuntary medication. A written state-
ment, however, may not necessarily cure a procedural defect because it
does not afford the opportunity to respond to evidence or arguments put
forward at the hearing.
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ported the inference that the staff representative lacked
“sufficient education and experience” as required by the regu-
lations); United States v. Humphreys, 148 F. Supp. 2d 949,
953 (D.S.D. 2001) (finding that the staff representative did
not meet the requirements of due process because she pre-
sented no evidence; testified against the defendant, stating
that she believed he had a mental illness; and may have filed
a disciplinary report against the defendant when he first
arrived at FMC-Rochester). Or, it may simply indicate that
Getchell had nothing to say because the evidence was over-
whelming that Loughner required medication and that his pre-
scriptions were standard protocol. We cannot determine the
answers to these questions from this record. If we were decid-
ing this matter based on the Harper III hearing alone, we
might well send the case back for further proceedings or a
new Harper hearing.
[19] The record in this case, however, is far more complete
because the district court held an extensive hearing following
Harper III. See Order Den. Stay 2, Oct. 3, 2011 (referring to
“the lengthy and, at times, tedious hearing”). Thus, we think
that any error that may have resulted from the staff represen-
tative’s lack of advocacy in the Harper III hearing was harm-
less. Three Harper hearings all reached the same conclusion:
Loughner is a danger and needs to be medicated.
The Harper III hearing was followed by a district court
hearing where each party had the opportunity to call wit-
nesses. The government called Dr. Pietz, Loughner’s treating
psychologist, and Dr. Ballenger, a clinical psychiatrist and
independent expert. At the hearing before the district court in
late September 2011, Dr. Pietz testified to her daily contact
with Loughner, beginning in March 2011. She testified con-
cerning Loughner’s behavior, her conversations with him, and
his contacts with other FMC-Springfield staff. Dr. Ballenger
provided a written statement and testified before the district
court. Dr. Ballenger has more than forty years experience,
having served as a professor at the University of Virginia
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Medical Center and Chairman of the Department of Psychia-
try and Behavioral Sciences at the Medical University of
South Carolina. He has authored or co-authored almost 400
peer-reviewed articles and 16 books, most of which deal with
psychopharmacology. Dr. Ballenger did not examine Lough-
ner or perform a comprehensive review of his treatment
records, but he had reviewed Loughner’s progress notes and
had spoken to Loughner’s treating psychiatrist, Dr. Sarrazin.
He provided general background on first- and second-
generation antipsychotic medications and their effectiveness
and side-effects. Dr. Ballenger testified regarding the drugs
and dosages prescribed for Loughner, and he affirmed that the
regimen was “the logical routine” and the dosages were
“highly appropriate.” He confirmed that the combination of
drugs Loughner’s psychiatrist had prescribed presented “no
problems of using them together.”
Although the district court attempted to keep both sides
“focus[ed] on the issue of the day”—i.e., the extension of
commitment under 18 U.S.C. § 4241(d)(2)—the district court
also addressed the adequacy of the Harper III hearing. Thus,
at the hearing, Loughner had the opportunity to challenge the
assessments of his doctors, and to present evidence that the
dangerousness finding at his Harper hearings was arbitrary.
Loughner’s counsel cross-examined both Dr. Pietz and Dr.
Ballenger. His counsel called no witnesses, but produced
graphs and charts compiled from Loughner’s own FMC-
Springfield medical records. Ultimately, the government’s
presentation was nearly unchallenged by Loughner’s counsel.
Indeed, over the course of months, and numerous hearings
before the district court, Loughner has never presented any
witnesses or other evidence that calls into question his diag-
nosis or treatment. The evidence before the district court thus
fully supported the judgment reached at the Harper hearings.
Additionally, in making the finding that there was “a sub-
stantial probability that within a reasonable period of time . . .
Mr. Loughner can be restored to competency,” see 18 U.S.C.
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§ 4241(d)(2), the district court relied on Loughner’s “ongoing
treatment” at FMC-Springfield. Because his “ongoing treat-
ment” necessarily encompassed the involuntary medication of
Loughner, a current, valid involuntary medication order must
exist. Thus, Loughner effectively had two chances to attack
the existing Harper order during the hearing regarding the
extension of his commitment: by either attacking the Harper
order directly or as a challenge to the § 4241 determination.
But Loughner called no witnesses, introduced no new evi-
dence, and did not allege that the doctors chose a course that
was medically inappropriate. Any deficiency in Getchell’s
representation in Loughner’s case was cured in the district
court’s subsequent hearing.
* * * * *
[20] We conclude that Loughner was provided with the
substance and procedure demanded by the Due Process
Clause before the government involuntarily medicated him. It
is clear that Loughner has a severe mental illness, that he rep-
resents a danger to himself or others, and that the prescribed
medication is appropriate and in his medical interest. There
was no arbitrariness in the district court’s order denying the
motion to enjoin Loughner’s emergency treatment. He may be
involuntarily medicated.
IV. COMMITMENT TO RESTORE COMPETENCY
We next turn to Loughner’s appeal of the district court’s
extension of his commitment. This is a separate inquiry and,
although the issues are related, we must keep the issues dis-
tinct. The dissent, however, argues that the involuntary medi-
cation and commitment decisions are one and the same. See
Dissenting Op. at 2446-47. Because “the court . . . must
decide whether Loughner is to be medically treated so as to
be restored to competency” and because that decision “de-
pends on the availability of involuntary medication,” the dis-
sent argues that the district court may not rely on a previous
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involuntary medication order, but instead must make an inde-
pendent decision as to whether the medication is justified and
unlikely to infringe on Loughner’s fair trial rights. Id. at
2440-42. But these determinations must be kept separate. 18
U.S.C. § 4241(d)(2) requires a court to decide whether “there
is a substantial probability that . . . [the detainee] will attain
the capacity to permit the proceedings to go forward.”
Although the court will necessarily have to consider the pre-
existing treatment that will lead to such attainment, the basis
for that treatment, when it is involuntary medication, is 28
C.F.R. § 549.46. This is a completely separate authorization,
and one that the Supreme Court has indicated may be made
in an administrative hearing. We therefore address whether,
given the currently operative involuntary medication order,
the district court properly extended Loughner’s commitment
pursuant to § 4241(d)(2).
[21] Under 18 U.S.C. § 4241(d), if a court finds that a
defendant’s mental disease renders him “mentally incompe-
tent to the extent that he is unable to understand the nature
and consequences of the proceedings against him or to assist
properly in his defense,” the court shall commit the defendant
for up to four months to determine if there is a “substantial
probability” that he will be restored to competency. 18 U.S.C.
§ 4241(d)(1). After such time, the court shall commit the
defendant “for an additional reasonable period of time until”
he is fit to proceed to trial, “if the court finds that there is a
substantial probability that within such additional period of
time he will attain the capacity to permit the proceedings to
go forward.” Id. § 4241(d)(2); see also Jackson v. Indiana,
406 U.S. 715, 738 (1972).
In challenging the extension of his commitment, Loughner
raises three claims. First, he contends that the district court’s
order extending his commitment is flawed because the court
failed to demand a particularized course of treatment from
FMC-Springfield. Second, he argues that the district court did
not consider whether the antipsychotic medications would
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render his trial unfair. Third, he maintains that the district
court clearly erred in finding that there is a “substantial proba-
bility” that Loughner will regain competency. We will con-
sider each in turn.17
A. Particularized Course of Treatment
Loughner argues that the district court failed to consider the
medical appropriateness of his treatment regimen and, without
considering that regimen, could not assess the likelihood of
Loughner being restored to competency.
We think Loughner has failed to distinguish between the
reasons for which he may be medicated pursuant to Harper—
reasons that predominantly have to do with the prison’s and
his own medical interests—and the reasons for which he may
be medicated pursuant to Sell—which involve the govern-
ment’s interests. Loughner is being medicated for his serious
mental illness irrespective of whether he can concomitantly be
restored to competency in order to stand trial. The purpose of
the district court’s hearing was to determine whether, in light
of his existing treatment, there is a “substantial probability
that within [the] additional period of time he will attain the
capacity to permit the proceedings to go forward.” 18 U.S.C.
§ 4241(d)(2). If his current regimen is sufficient to determine
that there is a substantial probability that he can be rendered
competent, then he can be “hospitalize[d] . . . in a suitable
facility.” Id. § 4241(d). If, however, the treatment for his dan-
gerousness will not concomitantly render him trial-competent,
17We review the district court’s legal conclusions de novo and its fac-
tual findings for clear error. See Ruiz-Gaxiola, 623 F.3d at 693. We review
a district court’s competency determination for clear error. Friedman, 366
F.3d at 980; United States v. Gastelum-Almeida, 298 F.3d 1167, 1171 (9th
Cir. 2002). “A trial court’s factual finding is clearly erroneous when,
although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has
been committed.” Ruiz-Gaxiola, 623 F.3d at 693 (internal quotation marks
omitted).
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then additional medication could be forced upon him only if
it is in the government’s (rather than his own) interests, and
in such case the government would have to proceed under
Sell. As the Court explained in Sell, “[a] court need not con-
sider whether to allow forced medication for [trial compe-
tency purposes], if forced medication is warranted for a
different purpose . . . . If a court authorizes medication on
these alternative grounds, the need to consider authorization
on trial competence grounds will likely disappear.” 539 U.S.
at 181, 183.
We agree with Loughner that the existing involuntary med-
ication decision is important to the overall outcome of the
§ 4241(d)(2) proceeding because it “likely affect[s] both the
scope and term of a § 4241(d)(2) order.” United States v.
Magassouba, 544 F.3d 387, 418 n.27 (2d Cir. 2008). Section
4241(d), however, is a commitment statute, not an involuntary
medication statute, and a § 4241(d)(2) extension of commit-
ment for purposes of competency restoration does not alter
the legitimacy of the decision to medicate involuntarily
Loughner under Harper. The court must therefore consider
only whether his ongoing treatment is likely to restore compe-
tency, not whether it is medically appropriate. The medical
appropriateness of Loughner’s treatment was addressed in his
Harper hearing, and we have approved that treatment. See
supra Part III.
In any event, the district court heard “what medications the
defendant is receiving, what dosages of those medications he
is receiving, and when during the day he is receiving those
dosages.” Order Den. Stay 4-5. Although the district court
assumed that the “present medication regimen will continue
with only minor modifications,” id. at 5, the district court
heard testimony that Loughner’s medication regimen has
changed in the months that he has been committed to FMC-
Springfield, and his treating psychologist, Dr. Pietz, testified
that his medication might continue to change. Dr. Ballenger
testified that the medication currently administered to Lough-
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ner was “highly appropriate” but that if Loughner does not
fully respond to the medication, it would be “a very appropri-
ate strategy” to increase the dosages, even doubling some. But
the administration of antipsychotic drugs is a fluid process
and must be adjusted depending on how the patient reacts and
why, if any, side effects are experienced. See APA Br. at 26
(“[T]he choice whether and how to medicate an inmate is not
a one-time decision; it involves a process of monitoring and,
for many patients, adjustments in medication and dosage.”);
see also Indiana v. Edwards, 554 U.S. 164, 176 (2008)
(“Mental illness itself is not a unitary concept. It varies in
degree. It can vary over time. It interferes with an individual’s
functioning at different times in different ways.”). Requiring
FMC-Springfield to submit with particularity the exact course
of treatment over several months is impractical and unneces-
sary, and would ignore the concerns expressed in Harper that
medical decisions should not be made by judges. See Harper,
494 U.S. at 232 (“’The mode and procedure of medical diag-
nostic procedures is not the business of judges . . . .’ ” (quot-
ing Parham, 442 U.S. at 607)); id. at 231 n.12 (stating that
deference should be given to medical professionals in making
medication decisions because courts do not have the neces-
sary knowledge or expertise).18
[22] The district court found that Loughner was being law-
fully medicated pursuant to Harper and that there was a sub-
stantial probability that his existing treatment will restore him
to competency to stand trial. In the process, the court consid-
ered Loughner’s existing regimen but did not undertake to
micromanage his treatment or otherwise limit his course of
treatment. See Harper, 494 U.S. at 231 n.12; Hernandez-
18The district court noted that there was no “evidence that the FMC[-
Springfield] staff is medicating the defendant under Harper just to avoid
a more stringent Sell hearing . . . . The FMC[-Springfield] staff has no
obligation to restore the defendant to competency, and indeed, the staff is
free to report to the Court that the defendant cannot be restored or has not
been restored within the time allowed.” Order on Sell Hr’g 6 n.3, Oct. 27,
2011.
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Vasquez, 513 F.3d at 916-17. The Due Process Clause does
not demand more.
B. Side Effects and Fair Trial Rights
Loughner argues that when forced medication is the means
employed by BOP to seek restoration of competency, the dis-
trict court must engage in a predictive analysis of whether
side effects are substantially unlikely to render a trial unfair
before the defendant can be committed under § 4241(d)(2).
Specifically, Loughner argues that the district court must pre-
dict whether the antipsychotic medication is substantially
unlikely to alter his demeanor in a manner that will prejudice
his reactions and presentation in the courtroom, and render
him unable or unwilling to assist counsel. Loughner’s con-
cerns are well-taken, but premature. As the district court rec-
ognized, Loughner will have a full and fair opportunity to
raise his concerns before he goes to trial. See Order on Sell
Hr’g 8. To demand that the district court answer such ques-
tions at this juncture blurs the distinction between a defendant
who is being medicated under Harper and one the govern-
ment seeks to medicate under Sell.
Before a defendant can be committed for evaluation of his
competence, the district court must find that the defendant “is
unable to understand the nature and consequences of the pro-
ceedings against him or to assist properly in his defense.” 18
U.S.C. § 4241(d). The premise for granting the government’s
motion for a competency examination of Loughner at FMC-
Springfield in March 2011 was “reasonable cause to believe”
that he was not competent to understand trial procedures or to
assist in his defense. Id. § 4241(a). That belief was confirmed
shortly after Loughner was committed. Before granting an
extension of commitment for the purpose of restoration, the
district court must find that there is a substantial probability
that the pretrial detainee “will attain the capacity to permit the
proceedings to go forward.” Id. § 4241(d)(2). Once these find-
ings are made, the court must then commit the defendant for
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a reasonable period of time until trial may proceed. Id. The
statute itself therefore contemplates that the “capacity” that
the district court is required to predict is the ability to under-
stand the nature and consequences of the proceedings and to
assist in his defense—in other words, competency. See United
States v. Marks, 530 F.3d 799, 814 (9th Cir. 2008) (“The sub-
stantive standard for determining competence to stand trial is
whether the defendant had sufficient present ability to consult
with his lawyer with a reasonable degree of rational under-
standing, and a rational as well as factual understanding of the
proceedings against him.” (internal quotation marks omit-
ted)); see also Edwards, 554 U.S. at 174 (explaining that the
Supreme Court’s “mental competency” cases have defined
“competency” in terms of “the capacity to understand the
nature and object of the proceedings against him, to consult
with counsel, and to assist in preparing his defense” (empha-
sis omitted) (quoting Drope v. Missouri, 420 U.S. 162, 171
(1975)); Order Extending Restoration Commitment 2 n.1
(finding that competency and capacity are equivalent).
Sell requires, among other things, that the government dem-
onstrate not only that involuntary medication is “likely to ren-
der the defendant competent to stand trial,” but that
“administration of the drugs is substantially unlikely to have
side effects that will interfere significantly with the defen-
dant’s ability to assist counsel in conducting a trial defense.”
Sell, 539 U.S. at 181; see also id. at 185 (“Whether a particu-
lar drug will tend to sedate a defendant, interfere with com-
munication with counsel, prevent rapid reaction to trial
developments, or diminish the ability to express emotions are
matters important in determining the permissibility of medica-
tion to restore competence . . . .”). That predictive judgment
is required where the government seeks to medicate the
defendant for no reason other than to render him competent.
As we have pointed out, Loughner is being medicated invol-
untarily because he is a danger to himself or others, irrespec-
tive of whether the medications may cause side effects that
interfere with his ability to assist counsel in his defense. A
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district court’s judgement on side effects is both premature
and irrelevant at this stage. See Order Den. Stay 3 (“It was
obviously premature at this stage of the competency restora-
tion process for the Court to determine whether there are side
effects of the defendant’s medication that will prevent the
Court from making a finding of competency in the future.”).
[23] Because Loughner remains under medical treatment
for his mental illness, the district court properly focused on
whether his treatment might also restore him to competency.
The district court acknowledged that Loughner’s concerns
“will be fully addressed if there is a future competency hear-
ing.” Order on Sell Hr’g 8. We agree that such concerns are
important and that Loughner should have an opportunity to
raise these issues. We also agree that the district court need
not address Loughner’s concerns before deciding to extend
his commitment to determine whether he can be restored to
competency.
C. Substantial Probability of Restoration of Competency
Loughner contends that the district court applied the wrong
legal standard in granting the extension of commitment, argu-
ing that the “substantial probability” of restoration must be
proven by clear and convincing evidence. First, we agree with
the district court that a second layer of proof is not required
and that the statute itself provides the requisite burden of
proof—the government must prove there is a “substantial
probability” that Loughner will regain competency. See 18
U.S.C. § 4241(d)(2)(A).
[24] Next, in defining that standard, the district court noted
that “a ‘substantial’ probability is any probability worth tak-
ing seriously.” Order Extending Restoration Commitment 3.
To demonstrate this proposition, the court used an analogy:
“For example, a 40 percent chance of rain is enough of a rea-
son to leave the house with a raincoat, or cancel plans to
spend a day outside; it wouldn’t be unreasonable to label that
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chance ‘a substantial probability,’ even if rain is not substan-
tially probable.” Id. The district court then looked to Ninth
Circuit precedent, finding that “ ‘courts have generally con-
strued § 4241(d)(2) to allow extensions for a reasonable
period of time only when the individual is likely to attain
competency within a reasonable time.’ ” Id. at 4 (emphasis
added) (quoting Rivera-Guerrero, 426 F.3d at 1143) (some
internal quotation marks omitted). The district court’s deter-
mination that “substantial probability” means “likely” (and
not necessarily “more likely than not”) was based on both a
fair reading of the statute and the guidance of our precedent
and, therefore, we agree.
[25] Loughner further challenges the district court’s find-
ing that there was a “substantial probability” that Loughner
can be restored to competency as clear error. He raises three
objections to the district court’s § 4241(d)(2) finding: (1) that
his past improvement does not support an inference that his
condition will continue to improve to the point of compe-
tency, (2) that expert opinion regarding the amount of time
required for restoration was unsupported by any specific data
and impermissibly relied on generalities, and (3) that the dis-
trict court improperly relied on Dr. Ballenger’s testimony
because it equated functional competency with trial compe-
tency. After reviewing the evidence, we are not “left with the
definite and firm conviction that a mistake has been commit-
ted.” Ruiz-Gaxiola, 623 F.3d at 693 (citations omitted) (inter-
nal quotation marks omitted).
1. Past Improvement
Loughner argues that because a response to medication will
eventually plateau, some additional indication beyond past
improvement is required to establish a probability that his
condition will continue to improve to the point of compe-
tency. In concluding that Loughner was likely to continue
improving, however, the district court did not rely solely on
Loughner’s past improvement. The court based its finding on
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Loughner’s positive response to the antipsychotic drugs,
including the lack of significant side effects; Dr. Pietz’s testi-
mony regarding Loughner’s progress and potential for further
progress; the experience of Dr. Ballenger, corroborating the
“optimistic viewpoint and prognosis” of Dr. Pietz; and his
own observations of Loughner’s improvement. Regardless,
past experience is often the best predication of future perfor-
mance, and the district court did not clearly err in basing its
determination of the likelihood of competency restoration on
readily available evidence of Loughner’s reaction to antipsy-
chotic medication already administered, and the views of the
medical experts who testified.
2. Time Required for Restoration to Competency
Loughner next disputes the district court’s finding that res-
toration would be accomplished in four months, and the basis
for Dr. Pietz’s opinion that Loughner could be restored to
competency within eight months.
In her progress report on September 7, 2011, Dr. Pietz
opined that Loughner remained incompetent to stand trial.
She requested an extension of his commitment because she
believed that Loughner would improve and reach competency
to stand trial. Dr. Pietz could not predict how much additional
time was required, but she noted that “[h]istorically, most
defendants reach competency within 8 months of their com-
mitment,” and recommended that Loughner’s commitment be
extended for four months. At the extension hearing, Dr. Pietz
clarified that “the eight months goes to when we start to medi-
cate [him].” In coming to the eight-month figure, Dr. Pietz
relied on her experience restoring defendants to competency
over twenty-one years, her colleagues’ experience, a book,
and several articles that were presented to the district court.
She did not have, however, any formal data from which she
based her figure of eight months. Dr. Pietz further explained
that she recommended an extension of commitment for four
months because, based on her understanding of the statute and
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her experience, extensions are granted in four-month incre-
ments, with the possibility of a second extension if necessary.
See 18 U.S.C. § 4241(d). Based on the testimony that he
heard from Dr. Pietz, a review of the records in this case, and
his own experience, Dr. Ballenger confirmed that it is “highly
likely” that Loughner will get clinically better in “two to six,
eight more months.”
The district court found that Dr. Pietz is credible, experi-
enced, and qualified to make the judgments required of her
during the commitment hearing. The court further credited Dr.
Pietz’s day-to-day personal contact with Loughner, as well as
her “barometer on whether he’s made progress [and] whether
he’ll continue to make marked progress.” Status Hr’g Tr. 275.
Additionally, Dr. Pietz’s opinion was supported by the testi-
mony of Dr. Ballenger, an “experienced and well-credentialed
psychiatrist.”
The district court did not rely exclusively on the experts. At
the hearing, the district judge found that “measurable progress
toward restoration has been made,” id., and offered his own
observation of Loughner’s progress:
I watched Mr. Loughner today as I have in the other
proceedings. His demeanor, while all the character-
izations are correct about flat affect and all, has been
distinctly different than in other proceedings. . . .
The smirk, what we referred to as affect, is gone.
He’s appeared to pay attention to the proceedings
today. In earlier proceedings, the court notes that he
wasn’t particularly paying attention. He was looking
down, looking away, didn’t seem connected at all.
Today, in my lay view, he does appear to be more
connected to the proceedings, appears to be paying
attention to what’s going on.
Id. at 276-77. After admitting that he is “not a physician,” the
district court judge concluded that “everything I observe
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about [Loughner] seems to connect with the expert testimony
that I’ve heard; that there is reason to be optimistic, that he
will recover and be able to assist his lawyers in defending him
against this case.” Id. at 277.
Next, the district court determined the appropriate length of
the commitment extension. The court considered Dr. Pietz’s
request for an additional eight months, as modified from her
original request for four months, based on her prior under-
standing of the statute and case law. Recognizing that “[i]t’s
for me to determine what is a reasonable period of time,” the
district judge explained that he could not “at this point [pre-
dict] that it would be four months or eight months.” Id. at 278.
The court also noted that it was established that if Dr. Pietz
or the physicians at FMC-Springfield determined that Lough-
ner was restored to competency before the end of the four-
month extension, the court would be notified. Thus, following
another district court decision, the district court set a four-
month period, with the possibility of granting another exten-
sion if necessary. See United States v. Rodriguez-Lopez, No.
CR 08-2447, 2010 WL 4339282, at *8 (D.N.M. Sept. 22,
2010) (“Section 4241 provides insight into the measure of a
reasonable ‘additional period of time’ by establishing that an
initial reasonable period is ‘not to exceed four months.’ The
statute appears to contemplate one four-month term followed
by another four-month term.” (citation omitted)).
The district court based its § 4241(d)(2) determination on
the credible testimony of both Dr. Pietz and Dr. Ballenger; a
reading of all the evidence in the record, including contrary
evidence presented by Loughner; and the district judge’s own
observations. Loughner did not offer any evidence that he
could not be restored to competency within four months. We
find that the district court considered proper evidence before
it and did not clearly err in determining that there was a sub-
stantial probability that Loughner would be restored to com-
petency within four months.
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3. Trial Competency and Clinical Competency
Loughner finally argues that the district court erred in
accepting Dr. Ballenger’s testimony as a proxy for compe-
tency restoration. See Riggins, 504 U.S. at 141 (Kennedy, J.,
concurring) (“The avowed purpose of the [involuntary] medi-
cation is not functional competence, but competence to stand
trial.”). In the oral ruling on September 28, the district court
acknowledged that clinical competence
is a proxy, that is a parallel of what’s going on here.
Restoration in the case of someone in a clinical set-
ting, for all intents and purposes, is the same goal
that we have in this case, which is to get somebody
functioning again as a human being who under-
stands, appreciates, and assists in the context of the
criminal case with the defense of his case.
Status Hr’g Tr. 276.
Although restoration in the clinical setting may not be “the
same goal” as restoration for trial competency, Dr Ballenger’s
testimony was certainly relevant for determining the likeli-
hood of restoration, generally, of signs of an improvement in
mental disease (and thus whether Loughner’s condition has
improved thus far), and the likelihood of restoration given
Loughner’s current treatment regimen. Thus, the district court
did not clearly err in relying on Dr. Ballenger’s testimony to
support a finding that there was a substantial probability that
Loughner would attain the capacity to permit the proceedings
to go forward.
* * * * *
[26] The district court did not commit legal error in its
commitment rulings, and its finding that there is a substantial
probability that Loughner will be restored to competency in
the foreseeable future is supported by the evidence and not
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clearly erroneous. Loughner may be committed pursuant to
the district court’s order and subject to its supervision.
V. CONCLUSION
The judgment in No. 11-10504 is AFFIRMED. Because the
Harper III hearing supercedes the prior Harper hearings and
the emergency medication order, appeals No. 11-10339 and
No. 11-10432 are DISMISSED as moot.
WALLACE, Senior Circuit Judge, concurring in all but Part
III.B.3.d. of Judge Bybee’s opinion and concurring in the
judgment:
I concur in the opinion and judgment and I join the excel-
lent analysis in all sections except Part III.B.3.d. I do not join
in the negative speculation that Loughner’s staff representa-
tive, John Getchell, was unqualified or that Getchell’s perfor-
mance was procedurally defective.
Judge Bybee suggests that Getchell, a Licensed Clinical
Social Worker, might not “understand[ ] the psychiatric issues
involved” in medicating Loughner sufficiently to satisfy
Washington v. Harper, 494 U.S. 210, 236 (1990) and qualify
as a staff representative under 28 C.F.R. § 549.46(a)(3). See
Opinion at 2406. This suggestion is made with nothing in the
record to support it.
But a more basic question is why is this suggestion in the
opinion at all? The sufficiency of Getchell’s understanding
was never raised by Loughner. See Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not
raised by a party in its opening brief are deemed waived”).
Furthermore, I do not join in viewing the dearth of record
on Getchell’s qualifications to support the possibility of send-
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ing this case back to the district court. Instead, I would view
it as a reason to affirm because it means that Loughner has not
met his burden to show the arbitrariness of the Bureau of Pris-
on’s decision. See Part III.B.3 (describing standard of review).
Judge Bybee also suggests that Getchell’s representation
might have been procedurally defective because he did not
present affirmative evidence or question any of the evidence
in support of involuntary medication. See Opinion at 2409-10.
This suggestion that Getchell’s performance was flawed for
not acting more like an advocate follows from Judge Bybee’s
labeling a Harper hearing as “adversarial.” See Opinion at
2408-09. I disagree with his analysis on this issue because,
whatever label is given to Harper hearings, Harper itself
requires no more than “the provision of an independent lay
adviser who understands the psychiatric issues involved.” 494
U.S. at 236. There is no record evidence this standard was not
met. There is nothing in Harper giving the adviser a duty to
act as an advocate in the traditional adversarial sense. Nor
does 28 C.F.R. § 549.46 require the staff representative to
seek affirmatively to develop evidence in the inmate’s favor.
See 28 C.F.R. § 549.46(a)(3) (inmate may “request that wit-
nesses be questioned by the staff representative”) (emphasis
added). The standard for this administrative hearing has been
set by Congress. Supreme Court cases have not expanded this
standard. Why should this court tamper with it?
The basis of the tampering is questionable. I disagree with
Judge Bybee’s categorization of a Harper hearing as “adver-
sarial” rather than “inquisitorial” to the extent the categoriza-
tion is used to support a due process requirement for a staff
representative to act as an adversarial advocate. As he recog-
nized, “[w]hat makes a system adversarial rather than inquisi-
torial is not the presence of counsel . . . but rather, the
presence of a judge who does not (as an inquisitor does) con-
duct the factual and legal investigation himself, but instead
decides on the basis of facts and arguments pro and con
adduced by the parties.” McNeil v. Wisconsin, 501 U.S. 171,
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181, n.2 (1991). In Loughner’s Harper hearings, the presiding
psychiatrist, Dr. Tomelleri, acted as an inquisitor. Dr. Tomel-
leri interviewed and observed Loughner and used the inter-
views as a basis for his decisions. Loughner could have
requested that any other witnesses be questioned by the Dr.
Tomelleri. See 28 C.F.R. § 549.46(a)(3).
That a Harper hearing involves overcoming a person’s
desires with respect to a significant liberty interest does not
require that the proceeding be an adversarial hearing with an
advocate-representative. In Wolff v. McDonnell, the Supreme
Court did not impose a right to counsel in connection with
prison disciplinary proceedings, even where good time credits
are at stake, because “[t]he insertion of counsel into the disci-
plinary process would inevitably give the proceedings a more
adversary cast and tend to reduce their utility as a means to
further correctional goals.” 418 U.S. 539, 570 (1974). In
Parham v. J.R., the Supreme Court did not require a hearing
when a staff physician determines whether a child may be
voluntarily committed to a state mental institution by his par-
ents. 442 U.S. 584 (1979). The Court permitted the use of “in-
formal traditional medical investigative techniques,” in part,
because “[w]hat is best for a child is an individual medical
decision that must be left to the judgment of physicians in
each case.” Id. at 607-08. The Court was also concerned that
an adversarial hearing might pose a danger “for significant
intrusion into the parent-child relationship” and might “exac-
erbate whatever tensions already exist between the child and
the parents” to the detriment of “the successful long-range
treatment of the patient.” Id. at 610. Similar concerns are
present in this case: a Harper hearing is aimed at reaching a
medical judgment, see Part III.B.2.c., and to require the hear-
ing to become more adversarial might well intrude into the
doctor-patient relationship to the detriment of Loughner’s
long-range treatment.
The basis for recasting the role of the staff representative
into an attorney-like advocate appears to come from a “home-
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town” preference or, as Judge Bybee puts it: “[w]ithin our tra-
ditions.” Opinion at 2409. There are two problems with this
approach. First, the vast majority of countries use the “inquis-
itorial” or “civil” trial practices to ascertain truth. We are used
to our hometown process, but that does not make the vast
majority of court systems wrong or inadequate.
Second, there is no argument in Judge Bybee’s opinion that
the inquisitorial method is unconventional. Indeed, he identi-
fies areas of significant importance where the inquisitorial or
civil method is effectively used in our country. See Opinion
at 2407.
In any event, this case does not give us free rein to design
from scratch whatever procedures we think would be best for
the Bureau of Prisons to follow. Instead, we are required to
give substantial deference to the penological regulations
already in existence. See Bell v. Wolfish, 441 U.S. 520, 547
(1979) (“Prison administrators . . . should be accorded wide-
ranging deference in the adoption and execution of policies
and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security”). Judge Berzon’s dissent never acknowledges this
principle, and none of the cases she relies on actually hold
that due process requires more than compliance with existing
regulations. See United States v. Morgan, 193 F.3d 252, 253
(4th Cir. 1999) (remanding for factual findings as to whether
the staff representative had the education and experience
required by regulation); United States v. Humphreys, 148 F.
Supp. 2d 949, 953 (D.S.D. 2001) (requiring a representative
“that will more fully comply with the due process require-
ments of section 549.43”); United States v. Weston, 55 F.
Supp. 2d 23, 26-27 (D.D.C. 1999) (remanding to Bureau of
Prisons because of non-compliance with a court order and
prison regulations). There is no reason to depart from the reg-
ulations and impose additional requirements on the conduct of
a staff representative.
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Here, the standards of Harper and 28 C.F.R. § 549.46 have
been met. Getchell explained Loughner’s rights to him and
presented him the opportunity to answer any questions about
the process; Getchell was present at the Harper hearings; Get-
chell encouraged Loughner to participate despite his initial
reluctance; and twice Getchell appealed on Loughner’s
behalf. There is no evidence that Getchell was unable or
unwilling to provide any assistance requested by Loughner or
his attorneys at the time of the Harper III hearing. Not one
piece of evidence is before this court that Getchell was
unqualified to perform the task identified in the governing
statute. No wonder Loughner did not raise that issue on
appeal.
I need not get to the harmless error analysis, but I agree that
any imagined error would be harmless. Thus, I join in that
holding. My division from Judge Bybee is that no error was
shown and any consideration of an imagined error would be
inappropriate. Because Harper and 28 C.F.R. § 549.46 do not
provide a right for the type of advocate-representative that
Loughner now seeks, there was no Constitutional deficiency
in Getchell’s performance.
BERZON, Circuit Judge, dissenting:
Viewed realistically, what the majority holds is that the dis-
trict court correctly abdicated to Loughner’s prison physicians
the responsibility to determine whether he is to be restored to
trial competency through involuntary medication. The form of
the majority opinion obscures that holding, as it addresses
first the quite separate question of the standards and proce-
dures applicable to the mid-commitment decision to medicate
a pretrial detainee for reasons of dangerousness. But that is
not where we are now in this case. Instead, we are, princi-
pally, reviewing the district court’s decision as to whether
Loughner is to be committed to a federal medical facility for
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purposes of restoration of competency to stand trial, a goal
that, all agree, could be accomplished only through psy-
chotropic medication, which Loughner refuses to take volun-
tarily. As I cannot agree that Loughner may be so committed
without a judicial determination as to the propriety of invol-
untary medication and because, even on the majority’s
approach, I see several deficiencies in the administrative pro-
ceedings conducted by the medical center’s physicians — I
respectfully dissent.
I. Background
I begin by highlighting certain aspects of the relevant pro-
ceedings crucial to the resolution of this case.
A. The first Harper proceeding
As the nation is well aware, Jared Loughner, a seriously
disturbed young man, shot at Congresswoman Gabrielle Gif-
fords and her entourage outside a Tucson supermarket on Jan-
uary 8, 2011, profoundly injuring her and killing Federal
District Judge John Roll and five others. He was indicted for
numerous criminal offenses relating to the shooting. Finding
that Loughner presented a danger to the community, the dis-
trict court ordered him committed to the federal government’s
custody for confinement at a corrections facility pending trial.
Two months later, the district court granted the government’s
motion for a competency examination and, pursuant to 18
U.S.C. § 4247, committed Loughner to the United States
Medical Center for Federal Prisoners in Springfield, Missouri
(FMC-Springfield) for evaluation. There, a Bureau of Prisons
staff psychologist, Dr. Christina Pietz, and an independent
psychiatrist, Dr. Matthew Carroll, examined Loughner and
issued forensic reports to the district court. Doctor Pietz
observed in her report that Loughner “was polite, cooperative,
and forthcoming” during their initial interview and that he
was, “[f]or the most part . . . cooperative with correctional
staff” during the examination period. Both Dr. Pietz and Dr.
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Carroll diagnosed Loughner with schizophrenia and con-
cluded that he was, at that time, incompetent to stand trial.1
The district court agreed and ordered Loughner committed to
the Attorney General’s custody for a four-month period of
hospitalization at FMC-Springfield, to “to determine whether
there is a substantial probability that in the foreseeable future
he will attain the capacity to permit the proceedings to go for-
ward.” 18 U.S.C. § 4241(d)(1).
At FMC-Springfield, Loughner’s physicians prescribed
psychotropic medication, but Loughner refused to take it. The
facility therefore decided to conduct an administrative pro-
ceeding to determine whether Loughner should be involuntar-
ily medicated. On June 2, Dr. Pietz, now Loughner’s treating
psychologist, provided Loughner a Notice of Medication
Hearing and Advisement of Rights form. The form explained
that Loughner was diagnosed with “undifferentiated schizo-
phrenia” and that the proposed treatment was “anti-psychotic
medication.” Under the heading “Reason for Treatment,” the
form stated: “Mr. Loughner suffers from a mental illness and
refused to take the medication prescribed to him. He was
referred to this facility to restore competency.”
On June 14, the prison conducted an administrative invol-
untary medication hearing (“Harper I”), pursuant to the pro-
cedures outlined in the then-current federal regulation, 28
C.F.R. § 549.43, and Washington v. Harper, 494 U.S. 210
(1990). Doctor Carlos Tomelleri, a prison psychiatrist not
involved in Loughner’s diagnosis and treatment, presided
over the proceedings. The hearing’s other participants
included Loughner, his staff representative John Getchell (a
prison employee who is a licensed social worker), Dr. Robert
1Doctor Pietz noted that “medication is the only option for restoring Mr.
Loughner to competency” and recommended that Loughner “should be
returned to [FMC-Springfield], pursuant to Title 18, Section 4241d for res-
toration to competency.”
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Sarrazin (chief of psychiatry at FMC-Springfield and Lough-
ner’s treating psychiatrist), and Dr. Pietz.2
The hearing did not go well. Loughner barricaded himself
behind his bed and refused to participate in the proceeding.
There is no evidence in the record to suggest that Getchell
made any statements or inquiries on Loughner’s behalf at the
hearing.
In his post-hearing involuntary medication report, Dr.
Tomelleri concluded that the involuntary administration of
psychotropic medication was justified on the ground that
Loughner was dangerous to others. Doctor Tomelleri noted
that Loughner had several times thrown plastic chairs against
a metal grill, behind which was Dr. Pietz, and at a wall; had
tried to throw toilet paper at a camera; had spat and “lunged”
at one of his attorneys (a characterization the defense dis-
putes); continued to suffer from auditory hallucinations;
laughed inappropriately; made poor eye contact; and repeat-
edly yelled the word “No!” Comparing the relative merits of
psychotropic medication and other, less intrusive treatment
options, Dr. Tomelleri wrote:
Treatment with psychotropic medication is univer-
sally accepted as the choice for conditions such as
Mr. Loughner’s. Other measures, such as psycho-
therapy, are not practicable and do not address the
fundamental problem. Minor tranquilizers (ben-
zodiazepines) are useful in reducing agitation, but
have no direct effect on the core manifestations of
the mental disease. Seclusion and restraints are
merely temporary protective measures with no direct
effect on mental disease.
2Before the hearing began, Getchell asked Loughner if he desired any
witnesses present for the hearing. Loughner responded, “Just my attor-
ney.” Getchell interpreted this statement as a request for legal representa-
tion at the hearing, and so informed the doctors conducting the
administrative hearing. Loughner’s attorneys were not contacted.
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Dr. Tomelleri concluded that involuntary medication was jus-
tified but neither identified the proposed medication regimen
nor established any limits on what medication might be
administered.
Loughner appealed the authorization of involuntary medi-
cation. On the appeal form, he wrote: “You can’t make me
take any drug! I know it’s cruel punishment,” and added pro-
fane comments. Getchell confirmed that Loughner wished to
appeal the decision of the hearing psychiatrist and that he
desired to submit the incoherent, profanity-laced statement;
Getchell made no effort to develop actual arguments in sup-
port of the appeal.
The prison’s Associate Warden for Health Services (“the
warden”) upheld Dr. Tomelleri’s authorization of involuntary
medication. The warden concluded that Loughner was dan-
gerous to others because he “engag[ed] in conduct, like
throwing chairs, that is either intended or reasonably likely to
cause physical harm to another or cause significant property
damage.” He further informed Loughner that “medication is
the best treatment for your symptoms,” and that “[m]inor tran-
quilizers, seclusion or restraints are only temporary in nature
and have no direct effect on your symptoms or illness.”
On June 21, Dr. Sarrazin filled out an administrative note
indicating that Loughner was to be treated twice daily, for 30
days, with 0.5 mg oral solutions of Risperidone.3 That same
day, defense counsel first became aware of the involuntary
medication decision. Soon thereafter, defense counsel filed a
motion in the district court seeking to enjoin Loughner’s
involuntary medication. Proffering testimony from a former
Bureau Of Prisons official and a forensic psychiatrist with a
background in prison administration and involuntary medica-
3If Loughner refused the oral solution, he would instead be treated twice
daily with 5 mg intramuscular injections of Haloperidol Lactate and 1 mg
intramuscular injections of Benztropine.
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tion decisions, defense counsel argued that Loughner’s status
as a pretrial detainee entitled him to an evidentiary hearing
before the court as a prerequisite to involuntary medication,
and that the prison had not sufficiently justified the need for
psychotropic drugs over less-intrusive alternatives.
The district court held that Loughner was entitled neither to
a judicial evidentiary hearing on the involuntary medication
issue nor to the heightened substantive standards advocated
by the defense. Instead, the court adopted the approach of
United States v. Morgan, 193 F.3d 252, 262-63 (4th Cir.
1999), and reviewed the prison’s Harper I determination for
arbitrariness. Finding “no evidence that the FMC staff is in
any way an ally of the Government prosecution team,” and
pointedly noting that 18 U.S.C. § 4241(d) did not charge
FMC-Springfield’s staff “with the obligation to restore
[Loughner] to competency,” the court concluded that “the
procedures followed by the FMC staff at the § 549.43 hearing,
and the finding of the presiding independent psychiatrist,
were not arbitrary.” The court further concluded that the pro-
cedural protections afforded Loughner satisfied Harper’s due
process requirements.
B. The Emergency Medication Proceeding
On July 1, a motions panel of this Court granted Lough-
ner’s motion for a temporary stay of involuntary medication
pending appeal. On July 12, the panel continued the stay, with
the clarification that it applied specifically to psychotropic
medication and that other measures (such as involuntarily
administered tranquilizers) remained available. In response to
this Court’s stay orders, FMC-Springfield immediately
stopped administering Loughner’s psychotropic medication.
Loughner’s condition deteriorated significantly after the
sudden withdrawal of medication. On July 8, FMC-
Springfield placed him on suicide watch. Ten days later,
FMC-Springfield doctors determined that he was a severe
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danger to himself and authorized psychotropic medication on
an emergency basis, a decision this Court was also asked to
stay but did not. On August 11, the defense filed a motion
seeking to enjoin the emergency administration of psy-
chotropic medication, which the district court denied.
C. The Second Harper Proceeding
On August 25, FMC-Springfield conducted a second Har-
per hearing (“Harper II”), pursuant to 28 C.F.R. § 549.46, the
newly promulgated replacement for 28 U.S.C. § 549.43. See
76 Fed. Reg. 40229-02, 2011 WL 2648228 (Aug. 12, 2011).
Doctor Tomelleri again concluded that involuntary psy-
chotropic medication was justified, this time based on the
threat Loughner’s behavior posed to his own safety. On
administrative appeal from the Harper II involuntary medica-
tion order, the warden determined that the Harper II proceed-
ing was invalid because the administrative hearing officer had
failed to obtain a pre-hearing witness statement from Lough-
ner’s requested witness (defense counsel Anne Chapman).4
D. The Third Harper Proceeding
On September 15, 2011, FMC-Springfield conducted its
third Harper hearing (“Harper III”). Doctor Tomelleri, again
presiding, concluded that involuntary psychotropic medica-
tion was justified on the basis of the danger Loughner posed
to himself. In reaching this result, Dr. Tomelleri noted that
Loughner’s condition deteriorated significantly after involun-
tary medication was discontinued in July, and observed that,
although many of Loughner’s psychotic symptoms had abated
after medication resumed, he continued to exhibit signs of
restlessness, guilt, and suicidal ideation.
4Getchell’s appeal form failed to specify any grounds for reversal. The
procedural defect in the Harper II proceeding may have been brought to
the warden’s attention through complaints raised earlier in the district
court by Loughner’s attorneys.
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Doctor Tomelleri determined that psychotropic medication
was justified because “[d]iscontinuation . . . is virtually cer-
tain to result in an exacerbation of Mr. Loughner’s illness as
it did when medication was discontinued in July.” Echoing,
nearly verbatim, the justification asserted in the Harper I and
Harper II proceedings, he added that “[p]sychotropic medica-
tion is the treatment of choice for conditions such as Mr.
Loughner is experiencing,” and rejected “[o]ther measures,
such as psychotherapy, [because they] do not address the fun-
damental problem.” He further noted that “[s]eclusion and
restraints are merely protective temporary measures with no
direct effect on the core manifestations of the mental illness.”
As in the Harper I proceeding, Dr. Tomelleri did not specify
any limits on the types or dosages medications that might be
involuntarily administered or describe the proposed future
treatment plan. He did, however, list Loughner’s current med-
ication regimen, and indicated that a treatment plan could be
found on Loughner’s chart. On appeal, the warden determined
that Loughner had been afforded his due process rights and,
rejecting alternatives because they would “not impact the
underlying cause or relieve the symptoms of [Loughner’s]
mental illness,” upheld Dr. Tomelleri’s involuntary medica-
tion order.
After his administrative appeal was denied, Loughner filed
an emergency motion in the district court to enjoin his invol-
untary medication under the Harper III order. In addition to
reiterating his previous arguments, Loughner argued that his
staff representative had provided inadequate representation
and that the Bureau of Prisons had not established that antip-
sychotic medication was needed to treat his dangerousness to
self. The district court briefly addressed Loughner’s motion at
the § 4241(d)(2)(A) commitment hearing conducted on Sep-
tember 28, 2011, and in the ensuing written opinion.
E. Request for Commitment Pursuant to 18 U.S.C.
§ 4241(d)(2)(A)
In her August 22 and September 7 progress reports to the
district court, Dr. Pietz summarized Loughner’s hospital
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course, described his current mental status and psychiatric
treatment, and provided her opinions as to the probability that
he could be restored to competency for trial and as to the
likely length of treatment toward that end. Doctor Pietz con-
cluded that Loughner would likely be restored to competency
“in the near future.” The government accordingly asked the
district court to commit Loughner for the purpose of restoring
his trial competency, pursuant to 18 U.S.C. § 4241(d)(2)(A).
Loughner filed a motion objecting to commitment under
§ 4241(d)(2) and asking the court to “engage in a predictive
analysis not unlike that developed in Sell [v. United States,
539 U.S. 166 (2003)] and its progeny, in which the court must
not only assess the substantial likelihood of competency resto-
ration but also consider the potential side effects caused by
the drugs used to restore competency.”
F. The September 28 Hearing
On September 1, the district court issued an order schedul-
ing Loughner’s § 4241(d)(2)(A) commitment hearing. The
order stated that “the scope of the hearing will be limited to
the question of whether an additional period of time should be
granted to actually restore the defendant to competency.” The
court also conducted a telephonic status conference in
advance of the commitment hearing. During the telephonic
conference, Dr. Pietz informed the court that Loughner
wished to attend the commitment hearing. The court con-
cluded that Loughner had a right to attend the hearing, pursu-
ant to 18 U.S.C. § 4247(d), and accordingly “require[d] that
[Loughner] be present for the extension hearing.”
On September 28, the district court conducted the
§ 4241(d)(2)(A) commitment hearing. In addition to the dis-
trict judge and counsel for both parties, Loughner, Dr. Pietz,
and Dr. Ballenger (a clinical psychiatrist and expert witness
for the government) convened at the Tucson courthouse for
the proceedings. At the outset, the court reiterated its intention
to restrict the evidentiary aspect of the hearing to the commit-
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ment issue, even though other matters — specifically, the
defenses’s recently submitted motion to stay Loughner’s
involuntary medication under the Harper III order — were
pending.
As the majority describes in fuller detail, Dr. Pietz and Dr.
Ballenger testified at length about Loughner’s progress and
his prospects for restoration through involuntary medication.
During the hearing, the court persistently emphasized that
“[t]he limited focus here is whether an extension is likely —
substantially probable to restore him.” So stating, the court
repeatedly prevented defense counsel from cross-examining
Doctors Pietz and Ballenger regarding Loughner’s diagnosis
and the propriety of the drugs prescribed for treating his dan-
gerousness. Although defense counsel argued that “[t]he res-
toration depends upon the treatment that’s going to be given,”
the court reiterated that “[t]he question here is whether he’s
likely to be restored with an extended commitment to Spring-
field.”
At the conclusion of the hearing, the district court deter-
mined that Loughner was likely to be restored to competency
within a reasonable period of time, assuming he continued to
receive involuntary medication. It accordingly held that
Loughner’s commitment should be extended by four months,
pursuant to 18 U.S.C. § 4241(d)(2). The court emphasized
that it was recommitting Loughner for the express purpose of
restoration: “I’m now committing him for the purpose of res-
toration. No more evaluation. It changes today with this rul-
ing. He’s being committed for another four months for the
purpose of restoration.” It also expressed a concern that the
procedural and substantive standards applicable under Sell
when the government seeks to medicate involuntarily a pre-
trial detainee for purposes of restoration to competency were
implicated by the court’s decision to extend Loughner’s com-
mitment for the express purpose of restoration. “I’m commit-
ting him at a time that I know that they’re continuing to treat
him with medication that he declines to take,” the court stated,
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“I think this is a very different situation from what has existed
to this point. I’m now telling them to continue to restore him.
I think we’re right up against Sell.” The court concluded that
a Sell judicial hearing, or at least some acknowledgment of
the Sell issue, needed to take place, but stated that it was post-
poning the matter to a later date.
Before the hearing adjourned, defense counsel reminded
the court of its pending motion to stay Loughner’s involuntary
medication. The court emphasized that it was “not being stub-
born,” but stated that it continued to believe that the Bureau
of Prisons should determine the propriety of Loughner’s
involuntary medication so long as the purpose of medication
related to his dangerousness, even if it was an essential predi-
cate for the court’s commitment decision. Reaffirming its reli-
ance on Morgan, the court stated it would review the prison’s
Harper III determination only for arbitrariness and for com-
pliance with 28 C.F.R. § 549.46 and Harper. The court con-
cluded that there was “no arbitrariness in the third Harper
hearing and that the medication going forward, at least of
today, is authorized pursuant to the Harper case.” Loughner
appealed.
While Loughner’s appeal was pending, the district court
issued an order holding that Loughner is not entitled to a judi-
cial Sell hearing regarding the propriety of pretrial involuntary
medication where the ultimate goal is restoration of compe-
tency. The court acknowledged that it was “shifting the aim
of [Loughner’s] commitment from evaluation to restoration,”
but reasoned that “the Supreme Court, in Sell, contemplated
that a pretrial detainee could be incidentally restored to trial
competency by being medicated on dangerousness grounds
under Harper.” The court accordingly concluded that Lough-
ner was not entitled to further procedural protections, because
the prison “doctors have made a medical determination in this
case justifying the need for medicating Mr. Loughner under
Harper, which the Court has reviewed and has concluded was
not arbitrary.”
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II. The Commitment Decision
The majority first labors to determine whether this case is
governed by Harper or by Sell, and settles on the former with
regard to the pretrial-medication-for-dangerousness question.
The majority then proceeds to treat that prior medication deci-
sion as a background event that the district court did not need
to revisit itself when deciding whether to commit Loughner to
FMC-Springfield for restoration of competency. But the
majority’s analysis goes off course proceeding in this fashion,
in two ways: The majority addresses the questions before us
in the wrong order, as the commitment decision is the cur-
rently operative one. And it seeks to sort the issues we face
into a preexisting “box” — that is, either Harper or Sell —
when, in fact, this case presents us with somewhat novel ques-
tions.
Specifically, we must decide whether a district court may
rely on a prior administrative authorization to medicate invol-
untarily a pretrial detainee based on dangerousness to self,
issued while the detainee was under an earlier commitment
order, to justify a new commitment for the express purpose of
restoration of competency pursuant to 18 U.S.C.
§ 4241(d)(2)(A). The question is a difficult one, for it requires
us to weigh the interests and values at stake in two separate,
but related, proceedings, conducted for different reasons.
Reviewing those interests, together with the principles
gleaned from Sell and our post-Sell cases, I conclude that a
court may not commit a pretrial detainee for the purpose of
restoring his trial competency through involuntary medication
without itself deciding that involuntary medication is both jus-
tified on some properly applicable ground and unlikely to
infringe the detainee’s fair trial rights.
Because of the way it structures its opinion, however, the
majority does not squarely confront the now-dispositive ques-
tion. Instead, the majority cleaves the issue of Loughner’s
involuntary medication from the question of his commitment
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for restoration, even though the commitment decision was
entirely dependent on continuing the involuntary medication
during the entirety of Loughner’s treatment for restoration of
competency at FMC-Springfield. In other words, the majority
holds that it was proper to commit Loughner to FMC-
Springfield for restoration of competency because, if so com-
mitted, the earlier administrative decision to medicate him for
dangerousness to himself could be relied upon, and if thus
medicated, Loughner would likely become competent to stand
trial. The logical flaw here is obvious: One cannot decide
whether Loughner should be committed to restore compe-
tency by assuming an administrative medication decision that
rested on the premise that he is already an inmate of the insti-
tution and needs to be medicated while there.5
Further, to justify its analysis, the majority holds that when-
ever dangerousness is the ground for involuntary medication
— whether pre- or post-trial, and whether with the ultimate
aim of restoration to competency or not — Harper governs
entirely as to both the substantive and procedural safeguards.
Why that should be so, we are not told. In particular, we are
not told why the question of the propriety of involuntary med-
ication on dangerousness grounds can be relegated to an
administrative proceeding when: (1) it is the court that must
decide whether Loughner is to be medically treated so as to
5The majority styles the district court’s decision to commit Loughner
pursuant to 18 U.S.C. § 4241(d)(2)(A) as an “extension” of his previous
commitment under § 4241(d)(1). That is not precisely so. Section
4241(d)(1) authorizes the district court to “commit the defendant” for the
purpose of evaluating “whether there is a substantial probability that in the
foreseeable future he will attain the capacity to permit the proceedings to
go forward.” 18 U.S.C. § 4241(d)(1). Section 4241(d)(2)(A) authorizes the
court to commit the defendant “for an additional reasonable period of time
until his mental condition is so improved that trial may proceed, if the
court finds that there is a substantial probability that within such additional
period of time he will attain the capacity to permit the proceedings to go
forward.” 18 U.S.C. § 4241(d)(2)(A). So, the purposes of the two periods
of commitment are different, and the judicial findings required to trigger
them are concomitantly different.
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be restored to competency; and (2) its decision in that regard
depends on the availability of involuntary medication.
A. Sell and its Progeny
To my mind, Sell goes almost all of the way toward estab-
lishing that where, as here, the involuntary medication deci-
sion is embedded in a pretrial judicial decision concerning
restoration of competency, the court must decide whether the
defendant is to be involuntarily medicated. Sell does not
address the precise situation here, in which there was a previ-
ous mid-commitment administrative involuntary medication
decision.6 But it does establish the proposition that a court
must itself address the involuntary medication issue when, as
here, the government’s ultimate aim is restoration of compe-
tency, and the court is deciding the propriety of treatment
toward that end. Because the relevant passage from Sell is sin-
6Sell concerned the involuntary medication of a pretrial detainee on trial
competency grounds. 539 U.S. 166. After finding Sell incompetent to
stand trial for various criminal charges, a magistrate judge ordered him
committed to FMC-Springfield for the purpose of evaluating whether he
would attain the capacity to allow his trial to proceed. Id. at 171. FMC-
Springfield’s medical staff administratively authorized Sell’s involuntary
medication on both trial competency and dangerousness grounds. Id. at
171-72. When Sell filed a motion challenging his involuntary medication,
the magistrate who had committed Sell held an evidentiary hearing and
also issued an order authorizing Sell’s involuntary medication on both trial
competency and dangerousness grounds. Id. at 172-73. On review of the
magistrate’s decision, the district court held that the magistrate’s danger-
ousness finding was clearly erroneous, but further held that involuntary
medication was justified on trial competency grounds. Id. at 173-74. The
Eighth Circuit affirmed. Id. at 174. The Supreme Court assumed that Sell
was not dangerous, because the government did not contest the dangerous-
ness issue. Id. at 184. Focusing on the trial competence justification, the
Court developed a four-pronged standard for determining whether invol-
untary medication is justified on trial competency grounds. Id. at 180-82.
It further held, however, that courts should determine whether involuntary
medication can be justified on “alternative, Harper-type grounds,” such as
dangerousness, before attempting to determine whether involuntary medi-
cation is necessary to restore a detainee’s trial competency. Id. at 182-83.
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gularly important to the correct disposition of this case, and
is brushed aside by the majority, I quote it at length:
We emphasize that the court applying these stan-
dards is seeking to determine whether involuntary
administration of drugs is necessary significantly to
further a particular governmental interest, namely,
the interest in rendering the defendant competent to
stand trial. A court need not consider whether to
allow forced medication for that kind of purpose, if
forced medication is warranted for a different pur-
pose, such as the purposes set out in Harper related
to the individual’s dangerousness, or purposes
related to the individual’s own interests where
refusal to take drugs puts his health gravely at risk.
There are often strong reasons for a court to deter-
mine whether forced administration of drugs can be
justified on these alternative grounds before turning
to the trial competence question.
. . .
[C]ourts typically address involuntary medical treat-
ment as a civil matter, and justify it on these alterna-
tive, Harper-type grounds. Every State provides
avenues through which, for example, a doctor or
institution can seek appointment of a guardian with
the power to make a decision authorizing medication
— when in the best interests of a patient who lacks
the mental competence to make such a decision. And
courts, in civil proceedings, may authorize involun-
tary medication where the patient’s failure to accept
treatment threatens injury to the patient or others.
If a court authorizes medication on these alternative
grounds, the need to consider authorization on trial
competence grounds will likely disappear. Even if a
court decides medication cannot be authorized on
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the alternative grounds, the findings underlying such
a decision will help to inform expert opinion and
judicial decisionmaking in respect to a request to
administer drugs for trial competence purposes.
Sell, 539 U.S. at 181-83 (emphases added) (citations omitted).
The rhythmically insistent pulse of Sell’s refrain — “A
court need not consider . . . . There are often strong reasons
for a court to determine . . . . [C]ourts typically address . . . .
If a court authorizes . . . . Even if a court decides . . . .” —
repeatedly reinforces the command that a court, “asked to
approve forced administration of drugs for purposes of ren-
dering a defendant competent to stand trial,” should itself
begin by determining whether the drugs may be justified on
alternative, Harper-type substantive grounds. See id. at 183.
In other words, Sell recognized that the substantive reasons
for an involuntary medication order and the applicable proce-
dural protections are not necessarily tied together in discrete
packages. Instead, where an ultimate judicial decision con-
cerning medical treatment toward restoration of competency
turns on involuntary medication, the court can vary the sub-
stantive ground for ordering involuntary medication, but must
itself determine whether involuntary medication is appropriate
on some proper basis.
Sell does not stand alone in this regard. Its predecessor,
Riggins v. Nevada, 504 U.S. 127 (1992), stated that the gov-
ernment “certainly would have satisfied due process if the
prosecution had demonstrated, and the District Court had
found, that treatment with antipsychotic medication was medi-
cally appropriate and, considering less intrusive alternatives,
essential for the sake of Riggins’ own safety or the safety of
others.” Id. at 135 (emphasis added) (citations omitted).
Although this sentence from Riggins does not, as Loughner
maintains, adopt as a holding the requirement of a no-less-
intrusive-alternative finding, it does presage Sell’s insistence
that, whatever the substantive standard is, the pertinent find-
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ing, even as to medication for dangerousness, be made by a
court, where that finding is an alternative to medication for
trial competency purposes and restoration is the likely result.
Justice Kennedy’s concurrence in Riggins reinforces this
point, explicitly rejecting the analytical bifurcation of invol-
untary medication and trial-related proceedings. “I cannot
accept the premise . . . that the involuntary medication order
comprises some separate procedure, unrelated to the trial and
foreclosed from inquiry or review in the criminal proceeding
itself,” Justice Kennedy wrote, “To the contrary, the allega-
tions pertain to the State’s interference with the trial.” Rig-
gins, 504 U.S. at 139 (Kennedy, J., concurring in the
judgment). Similarly, I cannot, especially in light of Sell,
accept the proposition that the involuntary medication order
can be a separate, administrative procedure, even though the
judicial commitment proceeding is part of the overall criminal
prosecution and concerns whether Loughner can be restored
to competency to stand trial through involuntary medication.
Our own cases similarly suggest that a court, asked to
authorize restoration of a pretrial detainee to trial competency
through mandatory administration of drugs, must itself deter-
mine whether medication can be justified on dangerousness
grounds. In United States v. Hernandez-Vasquez, 513 F.3d
908 (9th Cir. 2008), we stated that “the district court, in an
ordinary case, should refrain from proceeding with the Sell
inquiry before examining dangerousness and other bases to
administer medication forcibly,” and added that the court
should state its reasons for not proceeding under Harper if it
chose to advance directly to the Sell analysis. Id. at 914
(emphasis added). Moreover, we cautioned that, “[o]n
remand, the district court . . . . should take care to separate the
Sell inquiry from the Harper dangerousness inquiry and not
allow the inquiries to collapse into each other”— an instruc-
tion that would have made little sense if we had expected the
prison to conduct the Harper hearing. Id. at 919; see also
United States v. Rivera-Guerrero, 426 F.3d 1130, 1138 n.4
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(9th Cir. 2005) (stating that “the district court should have
conducted a Harper dangerousness hearing instead of pro-
ceeding under Sell”) (emphasis added).7
Thus, where the government has asked the district court to
authorize the detainee’s restoration through involuntary medi-
cation, Selll and its progeny require the court to determine
whether a pretrial detainee may be involuntarily drugged on
dangerousness grounds, if that appears to be a feasible alter-
native to involuntary medication on restoration grounds alone.
That is, of course, precisely what has happened here.
B. The Interwoven Medication and Commitment
Decisions
Apart from brushing aside Sell and our related cases with
regard to the need for a judicial decision whenever the ulti-
mate aim is restoration of competency, the majority attempts
to distinguish this case from Sell by separating the involuntary
medication decision from the decision that Loughner could be
restored to competency within a reasonable period of time if
committed for treatment at FMC-Springfield. But the two
issues cannot be disentangled in this manner.
18 U.S.C. § 4241(d)(2)(A) focuses the commitment for
treatment inquiry on the likelihood of the detainee’s restora-
tion after the treatment. Obviously, a judge cannot meaning-
fully decide whether restoration to trial competency as a result
of treatment is likely without knowing what treatment is con-
7The majority notes that our decision in United States v. Ruiz-Gaxiola,
623 F.3d 684 (9th Cir. 2010), references the district court’s decision
“order[ing] the government to conduct an administrative hearing pursuant
to Harper, in order to evaluate whether involuntarily medicating Ruiz was
justified on the alternative basis that his mental illness rendered him
gravely disabled or dangerous to himself or others.” Majority Op. at 2385
(citing Ruiz-Gaxiola, 623 F.3d at 689). The quoted language, however,
comes from the court’s factual recitation, and therefore does not even con-
stitute dicta.
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templated. And equally obviously, where the treatment con-
templated is the administration of involuntary psychotropic
medication, the detainee’s prospects for restoration depend on
the propriety of an order authorizing involuntary medication.
Thus, as the majority acknowledges, the “involuntary medica-
tion decision is important to the overall outcome of the
§ 4241(d)(2) proceeding because it ‘likely affect[s] both the
scope and term of a § 4241(d)(2) order.’ ” Majority Op. at
2415 (quoting United States v. Magassouba, 544 F.3d 387,
418 n.27 (2d Cir. 2008)).
What the majority does not acknowledge, however, is that
the involuntary medication order itself depends on the detain-
ee’s commitment. Certainly, a defendant would not be subject
to involuntary medication were he released from government
custody. Were he instead simply transferred from a mental
health treatment facility to an ordinary pretrial detention cen-
ter, changes to the circumstances of his confinement would
necessitate a new involuntary medication proceeding to deter-
mine whether the inmate poses a danger to himself or others
in the context of his new confinement.8 Thus, the district
court’s decision to extend Loughner’s commitment for the
purpose of effecting his restoration both required and enabled
the administration of involuntary medication. Under these cir-
cumstances, the prior administrative involuntary medication
decision, made while Loughner was already committed to
FMC-Springfield for a limited period and for a different pur-
pose than is now at issue, cannot simply be assumed valid and
8An inmate may, for example, prove significantly more dangerous in
prison than he would in a properly equipped mental ward. In United States
v. Weston, 206 F.3d 9 (D.C. Cir. 2000) (per curiam), for example, the D.C.
Circuit overruled the district court’s finding of dangerousness, on the basis
of expert testimony that the facilities at FMC-Butner were sufficient to
prevent the detainee from harming himself or others. Id. at 13. Conversely,
a detainee might present a greater danger in the hospitalization context
than in pretrial detention, because the therapeutic needs of a facility com-
mitted to the inmate’s restoration may dictate a lower degree of isolation
than he would receive in the penal context.
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treated as a background condition of the commitment deci-
sion.
C. The Reasons for Requiring Judicial Authorization of
Involuntary Medication
I would therefore view the § 4241(d)(2)(A) commitment
proceeding as functionally indistinguishable from the involun-
tary medication decision in Sell. And, as I have shown, Sell
and our later cases could not be more clear in directing that,
where restoration of trial competency is the ultimate goal, any
decision to medicate involuntarily a pretrial detainee, even on
dangerousness grounds, must be made in a judicial proceed-
ing. As Sell does not elaborate on why that is so in any detail,
I do so now, with particular attention to the circumstances we
face. I conclude that, at the point at which a decision must be
made concerning the detainee’s commitment for restoration of
competency to stand trial, the relative advantages of judicial
involvement in the involuntary medication decision and con-
cern for the impact psychotropic medication may have on the
detainee’s fair trial rights both counsel in favor of requiring
the district court itself to resolve the involuntary medication
issue, whether on dangerousness or other grounds. I review
each of these considerations in turn.
i. The Benefits and Costs of Judicial Involvement
In deciding that a convicted, incarcerated prisoner is not
entitled to a judicial hearing regarding the involuntary medi-
cation decision, Harper expressed significant concern over
“the fact that requiring judicial hearings will divert scarce
prison resources, both money and the staff’s time, from the
care and treatment of mentally ill inmates.” Harper, 494 U.S.
at 232. The Court also reasoned that these additional costs
were not justified, given the specifically medical nature of the
inquiry and the absence of any reason to doubt the administra-
tive decisionmaker’s impartiality. See id. at 233-35 & n.13. In
the quite different context of a judicial decision concerning
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pretrial treatment for restoration of competency, focused on
the detainee’s prospects for restoration of capacity to stand
trial, there are several important purposes served by, and few
reasons for avoiding, judicial resolution of the involuntary
medication for dangerousness issue.
First, unlike the Harper context, in which the inmate has
been convicted and is incarcerated for the term of his sen-
tence, the marginal costs of judicial inquiry into the involun-
tary medication issue are minimal. A judicial hearing is
required anyway for purposes of determining the propriety of
treatment for restoration of competency.
Here, for example, the district judge, counsel for both par-
ties, Loughner’s treating psychologist (Dr. Pietz), a govern-
ment expert witness with a background in clinical psychiatry
(Dr. Ballenger), and Loughner himself were all present in the
courtroom for the district court’s September 28 commitment
hearing. Concomitantly, the issues pertaining to Loughner’s
commitment for restoration (e.g., his likely reaction to psy-
chotropic drugs, the need to continue medication throughout
the extended commitment period, and so on) are closely
related to the issues pertaining to whether he may be medi-
cated involuntarily for dangerousness to self or others.
If Loughner’s attorneys had been permitted to inquire at the
September 28 hearing into the propriety of forced medication
on dangerousness grounds, they could conceivably have
established that such medication was not justified, and so
treatment on that ground would not be the basis for any con-
clusion that Loughner could, if committed, be restored to
competency in a reasonable period of time. The marginal dif-
ficulty of requiring the court to explore whether Loughner’s
involuntary medication is justified on dangerousness grounds,
in addition to determining whether that medication, if admin-
istered, will likely restore his trial competency, would be
immeasurably less than for a convicted prisoner, as to whom
no legal proceedings at all are ongoing, much less proceed-
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ings focused on matters closely related to, and dependent
upon, the involuntary medication determination.
Nor would requiring judicial determination in the present
context encroach on the prerogative of the prison’s medical
staff. Like the criminal defendant in Riggins and the pretrial
detainee in Sell, Loughner was already in the midst of
government-initiated judicial proceedings that dealt explicitly
with legal issues relating to his involuntary medication (i.e.,
whether the medication is likely to restore him to the capacity
to permit the proceedings to go forward). See Sell, 539 U.S.
at 175; Riggins, 504 U.S. at 139 (Kennedy, J., concurring in
the judgment). Because the government has itself opened the
door to judicial proceedings relating to involuntary medica-
tion, its professed concerns about judicial encroachment on
matters of prison administration carry significantly less
weight.
Moreover, where, as for the commitment decision, the
question of the propriety of medication for dangerousness is
embedded in an inquiry into the likelihood of restoration of
competency, the district court is no worse placed, and in some
respects better placed, than the prison’s medical staff to ren-
der an objective and impartial decision. For one thing, FMC-
Springfield’s physicians are, like most physicians, profession-
ally disposed to favor medical treatment. The district court
recognized as much when it acknowledged that Loughner’s
physicians may be overly optimistic in forecasting his pros-
pects for restoration through involuntary medication.
“They’re doctors,” the court observed, “They want to help
and heal people.”
Doctor Tomelleri’s involuntary medication orders bear out
the district court’s observation. The Harper I, Harper II, and
Harper III orders repeatedly rejected less-intrusive measures,
such as seclusion and physical restraints, because they have
“no direct effect on mental illness,” and justified the use of
psychotropic medication on the grounds that only the psy-
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chotropic drugs “address the fundamental problem.” Doctor
Tomelleri’s preoccupation with treating Loughner’s underly-
ing mental illness, although professionally appropriate, could
have significantly clouded his judgment as to whether the
drastic measure of involuntary psychotropic medication was
justified under the temporary detention circumstances.
This skew may well have influenced the original involun-
tary medication decision, which was premised on dangerous-
ness to others. At that point, Loughner’s manifestations of
dangerousness consisted of throwing some plastic chairs
against a metal grill and a wall, throwing some toilet paper at
a camera, and spitting and “lunging” at his attorneys (a char-
acterization the attorneys dispute, but as to which there has
been no evidentiary hearing). Although very likely manifesta-
tions of serious mental illness, these incidents do not appear
to have endangered anyone and would be most unlikely, I
would think, to have triggered involuntary psychotropic medi-
cation — as opposed to physical security measures — in most
incarceration contexts. See Weston, 206 F.3d at 13.
Further, Loughner’s FMC- Springfield physicians in partic-
ular are, unlike physicians in other jail and prison settings,
charged with additional duties that could color their medica-
tion for dangerousness decision. FMC-Springfield was previ-
ously charged with treating Loughner as necessary “to
determine whether there is a substantial probability” that he
can be restored to competency, 18 U.S.C. § 4241(d)(1), and
is now charged with treating Loughner for the express pur-
pose of restoring him to competency. See 18 U.S.C.
§ 4241(d)(2)(A). Where, as here, the detention facility’s med-
ical staff perceive involuntary medication as “the only option
for restoring [the detainee] to competency,” the institutional
responsibility to restore competency if possible is likely to
color the medical staff’s deliberations regarding involuntary
medication on any grounds.
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Indeed, there is some indication that this confusion of roles
occurred with respect to FMC-Springfield’s involuntary medi-
cation decisions in this case. For example, Loughner’s Notice
of Medication Hearing and Advisement of Rights form, filled
out by Dr. Pietz, stated: “Reason for Treatment: Mr. Loughner
suffers from a mental illness and refused to take the medica-
tion prescribed to him. He was referred to this facility to
restore competency.” Contrary to the district court’s observa-
tion that Loughner’s prison physicians “remain free to find
that he cannot be, or has not been restored,” the language of
Loughner’s notice form suggests Dr. Pietz believed that
Loughner was sent to FMC-Springfield “to restore competen-
cy” (which was not true; the commitment was for evaluation,
see 18 U.S.C. § 4241(d)(1)) and that the purpose of involun-
tary medication was to restore Loughner’s competency for
trial, not to treat dangerousness.9 Such instances support the
conclusion that the district court may be better placed than the
prison’s administrative decisionmakers to render an objective
decision on the involuntary medication of a pretrial detainee
for purposes of dangerousness to self.
Although the majority suggests otherwise, Majority Op. at
2395 (citing Harper, 494 U.S. at 233-34), this particular
structural conflict theory did not come into play in Harper. In
the postconviction context, the prison’s administrative deci-
sionmakers did not confront any statutory restoration obliga-
tions that could potentially interfere with the “necessary
independence to provide an inmate with a full and fair hear-
ing.” See Harper, 494 U.S. at 233.
9Nor is this a one-time problem. The district court’s opinion in Sell,
which expressed concern that the government’s “claim of dangerousness
may . . . be a post hoc justification,” noted that Sell’s Notice of Medication
Hearing and Advisement of Rights form stated “that the reason for [Sell’s]
treatment [with antipsychotic medication] was to ‘Restore competency to
stand trial.’ ” United States v. Sell, No. 4:97-cr-290, 2001 WL 35838455,
at *5 (E.D. Mo. April 4, 2001).
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The majority also suggests that the courts are ill-suited for
making medical judgments about a detainee’s medication
treatment and should avoid doing so wherever possible.
Majority Op. at 2394-95. Courts are not institutionally dis-
abled from deciding such questions. As Sell recognized, they
“typically address involuntary medical treatment as a civil
matter, and justify it on these alternative, Harper-type
grounds.” Sell, 539 U.S. at 182; see also, e.g., Kulas v.
Valdez, 159 F.3d 453, 455-56 (9th Cir. 1998). For example,
the criteria courts must apply in determining whether a federal
criminal defendant may be civilly committed strongly resem-
ble the criteria applied by the Bureau of Prisons’ administra-
tive decisionmakers in Harper proceedings. Compare 18
U.S.C. § 4246(d) with 28 C.F.R. 549.46(a)(7). Indeed, the dis-
trict court’s decision to extend Loughner’s commitment itself
involved a medical judgment as to the likelihood that Lough-
ner’s current regimen of psychotropic medication will suc-
cessfully induce his restoration within the authorized period.
If we can trust the court’s acumen to determine, after an evi-
dentiary hearing at which experts appear, that a certain medi-
cation regimen is likely to restore Loughner’s capacity to
stand trial, there is no reason simultaneously to distrust that
same court’s ability to ascertain whether that same medication
is needed to make him less dangerous to himself or others.
ii. The Concern for Fair Trial Rights
Central to the holding in Sell was the understanding that the
side-effects associated with psychotropic medication may
severely prejudice a defendant’s right to receive a fair trial.
Here, for example, Dr. Pietz testified that Loughner has devel-
oped a flat, emotionless aspect since resuming psychotropic
medication. The district court further observed that Loughner
“did appear to be tired” at the commitment proceeding and
“did appear to close his eyes from time to time today and
maybe a little sleepy or nod off.” This “sedation-like effect”
may result in “serious prejudice” during trial proceedings “if
medication inhibits [Loughner’s] capacity to react and
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respond to the proceedings and to demonstrate remorse or
compassion.” Riggins, 504 U.S. at 143-44 (Kennedy, J., con-
curring in the judgment). “The tendency of psychotropic med-
ication to flatten or deaden emotional responses” could prove
particularly damaging if the government seeks the death pen-
alty, as it very well might in this case, because “the jury
would then be especially sensitive to [Loughner’s] character
and any demonstrations of remorse (or lack thereof).” Weston,
206 F.3d at 20 (Tatel, J., concurring).
Even the intended effects of psychotropic drugs may
infringe Loughner’s fair trial rights. Assuming Loughner will
put on an insanity defense, manifestations in court of how his
mind works may well be his own best evidence. Because psy-
chotropic medication chemically alters the brain, it “deprives
the jury of the opportunity to observe the defendant in the
delusional state he was in at the time of the crime.” Id. at 21
(Tatel, J., concurring). The government’s decision to restore
Loughner’s trial competency may therefore prevent him from
putting on his chosen defense, by altering the material evi-
dence for that defense. See Riggins, 504 U.S. at 139, 142
(Kennedy, J., concurring in the judgment).10 Thus, both the
intended and unintended effects of psychotropic medication
can conceivably deprive a criminal defendant of his right to
a fair trial.
There is no point in restoring a defendant’s trial compe-
tency, through commitment to a medical facility and involun-
tary administration of psychotropic medication, if the means
necessary to effect restoration will so infringe the defendant’s
fair trial rights as to render the trial itself unconstitutional.
10The fair trial concerns associated with government-ordered,
pharmacologically-induced sanity may be mitigated by the availability of
other evidence pertaining to the insanity defense. See Weston, 206 F.3d at
22 (Tatel, J., concurring) (suggesting that, on remand, the district court
should determine whether the combination of psychiatric testimony and
video recordings of the defendant in his delusional state would enable
defense counsel to mount an effective insanity defense).
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That is why Sell requires a court to find, before ordering
involuntary medication on trial competency grounds, that the
involuntary medication to be administered is both substan-
tially likely to render the defendant competent to stand trial
and substantially unlikely to create side-effects that would
render his trial unfair. See Sell, 539 U.S. at 181 (citing Rig-
gins, 504 U.S. at 142-45 (Kennedy, J., concurring in the judg-
ment)). Only then, the Court observed, will the medication
sufficiently advance the trial-related interests put forward to
justify depriving the defendant of his liberty to reject medical
treatment. See id. And, although the Court did not expressly
so state, the possible impact of involuntary medication on the
ultimate trial explains Sell’s repeated insistence on the need
for a court to determine the need for involuntary medication
on grounds of dangerousness where restoration of trial com-
petency is the government’s ultimate goal. See id. at 181-83.
Given the particular circumstances of this case — namely,
a commitment proceeding governed by 18 U.S.C.
§ 4241(d)(2)(A) — there is the same need for a judicial deter-
mination as to how the psychotropic drugs will likely impact
Loughner’s fair trial rights, even though dangerousness to self
is the immediate reason for his involuntary medication. To
commit Loughner for the purpose of restoration, the court
must conclude that there is a “substantial probability” that he
“will attain the capacity to permit the proceedings to go for-
ward” during the commitment period. See 18 U.S.C.
§ 4241(d)(2)(A). Thus, § 4241 requires the court to focus on
whether Loughner’s commitment is likely to advance the
prosecution’s trial-related interests. Pretrial commitment for
restoration of competency will likely not “permit the [trial]
proceedings to go forward” if Loughner can only be restored
through means likely to render any resulting trial unfair. So
the district court may only commit Loughner for restoration
of trial competency if it concludes that the psychotropic
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means through which his restoration is to be accomplished are
substantially unlikely to infringe his fair trial rights.11
Of course, at the time of the § 4241(d)(2)(A) commitment
hearing, there may not be sufficient evidence to support the
conclusion that involuntary psychotropic medication will ren-
der the trial unfair. But that should not excuse the district
court from its responsibility to evaluate the evidence that is
available according to its own best lights, providing “both the
defendant, whose right to present a defense may be infringed
by involuntary medication, and the government, whose even-
tual prosecution of the defendant may be foreclosed because
of the infringement,” with the best available “pre-medication
resolution of the Sixth Amendment issue.” Weston, 206 F.3d
at 14. If the district court concludes that there is insufficient
evidence to reach a final conclusion on the impact involuntary
medication will have on the defendant’s fair trial rights, it
could simply defer the issue until some later, pre-trial date.
See id. at 21 (Tatel, J., concurring). The government would
then, however, bear the risk that the court might bar criminal
prosecution if it subsequently concludes that the drugs have
infringed the defendant’s fair trial rights. Regardless of
whether the court had sufficient evidence to resolve Lough-
ner’s fair trial rights concerns at the time of the commitment
hearing, however, the inquiry is not, as the majority asserts,
“premature and irrelevant at this stage.” Majority Op. at 2419.
11Insisting that § 4241(d)(2)(A) obligates the courts to determine only
whether the defendant will become competent to stand trial, the majority
holds that the district court was not required to determine prospectively
whether the pharmacological means used to effect Loughner’s restoration
will infringe his right to a fair trial. Majority Op. at 2417-19. But nothing
in § 4241(d)(2)(A) supports such a restrictive reading. Congress could
have used the word “competency” if it so desired, but instead it chose a
more inclusive, functionally-focused phrase — “the capacity to permit the
proceedings to go forward” — which, in plain terms, encompasses any
psychological condition that might prevent a trial from ensuing.
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D. Conclusion
In short, I would hold that a district court asked to commit
a pretrial detainee for the purpose of restoring his trial compe-
tency through involuntary medication must itself determine
whether involuntary medication is justified. In doing so, it
should first consider, as in Sell, whether the medication is jus-
tified on grounds of dangerousness to self or others. If the
court concludes that involuntary medication is justified, it
may then proceed to determine whether involuntary medica-
tion is likely to restore the detainee’s capacity to such a point
that trial may proceed. But I would require the court to deter-
mine, as part of that inquiry, whether the contemplated treat-
ment is substantially unlikely to infringe the detainee’s fair
trial rights. I cannot agree with the majority’s conclusion that
the district court could authorize Loughner’s commitment
under § 4241(d)(2)(A) on the bare determination that the
medication he is currently receiving is likely to restore his
purely cognitive trial competency, meaning the ability to
appreciate the course of the proceedings and confer with
counsel, with no consideration of either the medication’s pro-
priety or its potential effect on his fair trial rights.
III. The Involuntary Medication Order
Because I conclude that the district court was obligated
itself to decide anew the involuntary medication issue in con-
junction with its § 4241(d)(2)(A) commitment determination,
I consider the propriety of the prison’s Harper III involuntary
medication order moot in all relevant respects. I nevertheless
proceed to review the deficiencies I see in those proceedings,
for two reasons.
First, in reviewing the administrative involuntary medica-
tion order, I wish to clarify the substantive standards and
associated requirements I believe must be applied by the dis-
trict court in deciding whether involuntary medication is justi-
fied on dangerousness grounds.
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Second, I disagree with the majority’s conclusion that the
Harper III involuntary medication order otherwise satisfies
the demands of substantive and procedural due process. Set-
ting aside my conviction that the procedural posture of this
case requires a court to adjudicate the merits of Loughner’s
involuntary medication, I agree that a mid-commitment medi-
cation decision on dangerousness grounds need not be made
by a judge. Where an otherwise proper judicial commitment
decision has already been made, either for a certain period or
indefinitely, it is appropriate to regard direct judicial interven-
tion, even pretrial, as both unnecessary and burdensome.
Moreover, in that circumstance, the penological and liberty
interests are similar, in many respects, to those that pertain
post-conviction. But despite that basic procedural agreement,
I would hold that the Harper III involuntary medication order
cannot stand, given its substantive and procedural shortcom-
ings.
A. Substantive Due Process
i. Modifications to the Harper Standard
I agree with the majority’s conclusion that involuntary
medication may be justified even if it is not necessarily the
least restrictive alternative. The so-called “Riggins standard,”
put forth by Loughner to justify the least restrictive alternative
requirement, simply does not exist; Riggins rejected the
opportunity to “finally prescribe such substantive standards.”
504 U.S. at 136. In light of Sell’s command to determine
whether medication is justified on Harper-type grounds prior
to deciding whether medication is justified to restore compe-
tency, 539 U.S. at 183, I do not dispute the application of
Harper’s substantive standard, broadly construed, to the deci-
sion to medicate a pretrial detainee for dangerousness to self
or others.
Harper’s substantive due process standard was, however,
expressly predicated on the particular circumstances of a con-
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victed prisoner’s confinement. See Harper, 494 U.S. at 222.
It must therefore be modified to accommodate the pretrial
context of Loughner’s confinement.
Harper identified three general factors as particularly
important to assessing the constitutional validity of a prison
regulation authorizing the use of involuntary medication: (1)
the existence of a valid, rational connection between the
prison regulation and the legitimate governmental interest put
forward to justify it; (2) the impact accommodation of the
asserted constitutional right would have on guards and other
inmates, and on the allocation of prison resources generally;
and (3) the availability of “ready” alternatives. 494 U.S. at
224-25. The pretrial context of Loughner’s confinement sig-
nificantly affects our application of these factors, in at least
two respects.
First, Loughner’s status as a pretrial detainee narrows the
scope of the government’s legitimate interests in restricting
his constitutional rights. Where the government seeks to med-
icate involuntarily a convicted prisoner, its legitimate long-
term correctional interests countervail, to a degree, the prison-
er’s liberty interest in avoiding the intended, mind-altering
effects of psychotropic medication. The federal sentencing
standards, for example, recognize that “correctional treat-
ment,” including appropriate medical care, can be legitimately
imposed on a convicted defendant. See 18 U.S.C.
§ 3553(a)(2)(D); 18 U.S.C. § 3563(b)(9). When the govern-
ment seeks to medicate a convicted prisoner on dangerousness
grounds, these treatment interests provide a modicum of justi-
fication for preferring long-term, systemic correction, through
involuntary psychotropic medication, of the mental illness
causing the convict’s dangerousness, over temporary inter-
ventions that will not alleviate the condition causing the dan-
gerousness. See Harper, 494 U.S. at 225.
The government may not, however, assert such correctional
interests as a justification for restricting the constitutional
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rights of a pretrial detainee. We have recognized that “[a]ll
legitimate intrusive prison practices have basically three pur-
poses: the preservation of internal order and discipline, the
maintenance of institutional security against escape or unau-
thorized entry, and the rehabilitation of the prisoners.” United
States v. Hearst, 563 F.2d 1331, 1345 n.11 (9th Cir. 1977)
(per curiam) (internal quotation marks omitted). The first two
interests, which are regulatory in nature, may be asserted as
legitimate justifications for restricting the constitutional rights
of pretrial detainees, but the government’s correctional inter-
est in punishment or rehabilitation may not. Id.; see, e.g., Bell
v. Wolfish, 441 U.S. 520, 537 (1979); Mauro v. Arpaio, 188
F.3d 1054, 1065 (9th Cir. 1999). Instead, “the Due Process
Clause requires conditions of pretrial confinement to be ana-
lyzed according to whether they are appropriate to ensure the
detainees’ presence at trial and to maintain the security and
order of the detention facility.” Halvorsen v. Baird, 146 F.3d
680, 689 (9th Cir. 1998). As Halvorsen observed, these prin-
ciples are of ancient vintage. See id. Blackstone, for example,
wrote that pretrial detention “is only for safe custody, and not
for punishment: therefore, in this dubious interval between the
commitment and trial, a prisoner ought to be used with the
utmost humanity; and neither be loaded with needless fetters,
or subjected to other hardships than such as are absolutely
requisite for the purpose of confinement only.” IV William
Blackstone, Commentaries on the Laws of England 297
(1769) (quoted by Halvorsen, 146 F.3d at 689).
Second, the temporary context of Loughner’s pretrial con-
finement means that inquiry into the effectiveness and cost-
efficiency of involuntary medication as compared to alterna-
tives must be limited to the relative short-term. Some alterna-
tives may be more appropriate than involuntary psychotropic
medication if they are equally effective and cost-efficient over
that short-term, even if they will not affect the detainee’s
long-term dangerousness. So, while Harper rejected physical
restraints as an acceptable substitute for involuntary medica-
tion in part because “[p]hysical restraints are effective only in
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the short term,” 494 U.S. at 226, that rejection might not carry
over in some pretrial contexts. Involuntary medication may
therefore be appropriate as a long-term solution for a danger-
ous, mentally-ill convicted prisoner and yet inappropriate as
a short-term solution for a dangerous, mentally-ill pretrial
detainee.
In light of these adjustments of perspective appropriate to
the pretrial context, I am skeptical that the prison’s asserted
justification for involuntary medication could carry the day on
the present record.12 Doctor Tomelleri concluded that psy-
chotropic medication is justified because it “is the treatment
of choice for conditions such as Mr. Loughner is experienc-
ing,” and rejected various alternatives because they are
“merely protective temporary measures with no direct effect
on the core manifestations of the mental illness.” But, in the
pretrial context, “protective temporary measures” may be pre-
cisely what is called for, and there may therefore be no cogni-
zable governmental interest in addressing “the core
manifestations of the mental illness.” Doctor Tomelleri’s jus-
tifications thus demonstrate a misapprehension of the appro-
priate inquiry in the pretrial context.13
12Of course, on my analysis, the present record would not be the perti-
nent one with respect to the commitment determination. Instead, the dis-
trict court would hold a hearing at which both sides would present
witnesses addressing the availability of approaches other than medication
to alleviate dangerousness.
13I do not mean to suggest that an involuntary medication order must
disregard any consideration of a pretrial detainee’s long-term reaction to
psychotropic medication. Indeed, we have held that involuntary psy-
chotropic medication may only be considered medically appropriate where
the “likelihood and value of the long-term benefits outweigh the likelihood
and severity of the long-term harms.” Ruiz-Gaxiola, 623 F.3d at 706. The
medical appropriateness inquiry, however, is only triggered after medica-
tion is justified for some legitimate governmental purpose (e.g., restoration
to trial competency, dangerousness to self or others, etc.). See id. at 703.
Unlike the medical appropriateness inquiry, the determination of whether
or not medication is justified must be focused on the specific context of
confinement — and it is at this stage of the analysis that the short-term
nature of a pretrial detainee’s confinement becomes salient. Doctor
Tomelleri failed to acknowledge this vital distinction.
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This criticism is not meant to presage that the outcome of
the medication for dangerousness-to-self inquiry in the pre-
trial context is foreordained. Instead, it is to say that attention
to the particular circumstances of a specific pretrial detainee
is essential in determining whether there are ready alternatives
to medication. In Loughner’s case, those circumstances might
include the likely significant length of the pretrial period, as
well as the needs and capabilities of the mental health facility
to which he is committed.
ii. Specificity of Proposed Treatment
Harper instructed that a decision to medicate involuntarily
must be medically appropriate. See Harper, 494 U.S. at 227.
Sell, which incorporated Harper’s medical appropriateness
requirement, observed that “[d]ifferent kinds of antipsychotic
drugs may produce different side effects and enjoy different
levels of success.” Sell, 539 U.S. at 181. Interpreting the med-
ical appropriateness requirement in United States v.
Hernandez-Vasquez, we observed that “Sell’s discussion of
specificity would have little meaning if a district court were
required to consider specific drugs at a Sell hearing but then
could grant the Bureau of Prisons unfettered discretion in its
medication of a defendant.” 513 F.3d at 916. We therefore
held that, to satisfy the medical appropriateness requirement,
“the district court’s order must identify: (1) the specific medi-
cation or range of medications that the treating physicians are
permitted to use in their treatment of the defendant, (2) the
maximum dosages that may be administered, and (3) the dura-
tion of time that involuntary treatment of the defendant may
continue before the treating physicians are required to report
back to the court on the defendant’s mental condition and
progress.” Id. at 916-17.
We have never identified the government’s purpose in
seeking involuntary medication, whether dangerousness or
trial competency, as a relevant factor in applying the medical
appropriateness requirement. Instead, we have assumed that
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the same requirement for a specific treatment plan applies in
both contexts. In United States v. Williams, 356 F.3d 1045
(9th Cir. 2004), for example, we applied the medical appropri-
ateness requirement, under the Harper standard, to a super-
vised release condition that required the convict to take
antipsychotic medication under threat of reincarceration. Id. at
1056-57. And in Rivera-Guerrero, we held that Williams’s
interpretation of the medical appropriateness requirement
applies to the medical appropriateness inquiry under Sell. See
426 F.3d at 1137 (citing Williams, 356 F.3d at 1056).
Hernandez-Vasquez should therefore apply with equal force
in all involuntary medication contexts.
Moreover, the reasons supporting a specification require-
ment in the Sell context apply with equal force where medica-
tion is justified on dangerousness grounds. Sell proceeded
from that premise, stating that “[t]he specific kinds of drugs
at issue may matter here as elsewhere.” Sell, 539 U.S. at 181
(emphasis added). With no specific limits — or at least pre-
scribed ranges or categories — covering the types, dosages,
and duration of a patient’s involuntary medication, Dr.
Tomelleri could not meaningfully evaluate the medication
proposal, as compared to alternatives (including an alternative
medication regime). This particularized focus, for reasons
already noted, is of special importance with regard to pretrial
medication for dangerousness. In this context, the governmen-
tal interest in long-term correction evaporates: Drugs with
serious side effects, though appropriate where ultimate cure is
the goal, may not be medically indicated (or may be indicated
in lower doses) for elimination of symptoms alone.
The majority maintains that cabining the discretion of
Loughner’s treating physicians in this way would prevent
them from adjusting his medication regimen to changing cir-
cumstances. This concern was addressed by Hernandez-
Vasquez. In that case, we held that the specifications in the
involuntary medication order “should be broad enough to give
physicians a reasonable degree of flexibility in responding to
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changes in the defendant’s condition,” and noted that the gov-
ernment or the defendant “may move to alter the court’s order
as the circumstances change and more becomes known about
the defendant’s response to the medication.” 513 F.3d at 917.14
I would therefore hold that an involuntary medication order
premised on dangerousness to self or others, like an order
premised on restoration to competency, must identify the
types, maximum dosages, and estimated duration of an
inmate’s involuntary medication. In the procedural regime I
favor for this case, in which the involuntary medication deci-
sion would be made as part of the proceedings concerning
commitment for restoration of competency, the order could
provide substantial medical flexibility; in the administrative
regime the majority presupposes, the order can be more
focused, as adjustments can be accomplished on site and
through the facility’s independent hearing officer(s). The pol-
icy approved in Harper operated in just this way, providing
regular review by the administrative hearing committee as to
both the type and dosage of the drugs to be administered. See
Harper, 494 U.S. at 216, 232-33.
Because Dr. Tomelleri did not tailor his analysis to the tem-
porary, nonconviction, pretrial context, and did not provide
specific directions to Loughner’s treating physicians regard-
ing the types of drugs, the maximum dosages to be adminis-
tered, or the estimated duration of involuntary medication, I
would hold that FMC-Springfield did not properly determine
whether involuntary medication was medically appropriate,
even for the period of Loughner’s prior commitment.
14The majority, of course, holds that no judicial hearing was necessary.
All the more reason to require that the involuntary medication order
include a fairly specific treatment plan, as a treating physician could, with
minimal effort, seek modification of an administrative involuntary medi-
cation order issued by a member of the same prison medical staff.
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B. Procedural Due Process
i. Periodic Review
Both the predecessor to the currently operative regulation
and the state policy at issue in Harper contained provisions
requiring periodic administrative review of an inmate’s invol-
untary medication. See 57 Fed. Reg. 53820-01, 1992 WL
329581 (Nov. 12, 1992); Harper, 494 U.S. at 216, 232-33.
The present regulation, 28 C.F.R. § 549.46, does not include
such a periodic review requirement. The majority, concluding
that periodic review is not constitutionally required, holds that
its absence does not render 28 C.F.R. § 549.46 constitution-
ally infirm. Majority Op. at 2392-93.
I disagree. Harper concluded that a judicial hearing might
“not be as effective, as continuous, or as probing as adminis-
trative review using [the prison’s] medical decisionmakers,”
in part because the state policy at issue required the adminis-
trative hearing committee to “review[ ] on a regular basis the
staff’s choice of both the type and dosage of drug to be
administered.” See id. at 232-33 (emphasis added). Such con-
tinuity is especially important because involuntary medication
is, as the majority notes, “a fluid process” that “must be
adjusted depending on how the patient reacts and why [sic],
if any, side effects are experienced.” Majority Op. at 2416.
Under such circumstances, periodic review is necessary to
ensure the continued accountability of the inmate’s treating
physicians.
The majority maintains that the short-term context of a pre-
trial detainee’s confinement alleviates the need for periodic
review. Majority Op. at 2392. Not so, or at least, not necessar-
ily. Pretrial confinement, although inherently temporary, is
not inherently brief. In Rivera-Guerrero, for example, we
observed that the defendant had been committed at FMC-
Springfield for nearly two years and had been involuntarily
treated with antipsychotic medication for approximately one
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year. 426 F.3d at 1143. In United States v. Weston, 326 F.
Supp. 2d 64 (D.D.C. 2004), the district court authorized an
additional six-month commitment, even though defendant had
already been committed for roughly five years and had been
treated with involuntary medication for two and one half
years. See id. at 67. I cannot reconcile the concept of due pro-
cess with the conclusion that a pretrial detainee may be invol-
untarily treated with psychotropic medication for several
years on the basis of a single administrative hearing.15
In this case, I am concerned that Loughner’s deterioration
after the discontinuation of medication in July will be used to
justify involuntary medication for years on end. I find this
possibility deeply troubling both because the absence of peri-
odic review deprives Loughner of the opportunity to demon-
strate that he no longer needs medication, or as much
medication, and because the true causes of Loughner’s psy-
chological deterioration remain murky. The particular symp-
toms provoking particular concern for Loughner’s own safety
were not observed before his medication was suddenly with-
drawn. On the record made available to us, it is impossible to
ascertain whether the rapid deterioration Loughner experi-
enced in July was caused by the emergence of his underlying
mental illness, by the jarring manner in which his medication
was discontinued, or, perhaps, by the imposition of the rigors
of a suicide watch. Periodic administrative review could per-
haps (although not necessarily) mitigate some of these causa-
tion concerns by providing for routine reevaluation of the
need for involuntary psychotropic medication, as well as the
type and amount of medication prescribed.
15Under my preferred approach, on the other hand, the district court
would be required to review the justification for involuntary medication at
each commitment hearing. Because pretrial detainees may only be com-
mitted for a “reasonable period of time,” to be ascertained in advance by
the district court, see 18 U.S.C. § 4241, the provision of regularly recur-
ring commitment proceedings would satisfy the need for periodic review.
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ii. Right to Counsel
On my preferred approach, the involuntary medication
determination in this case would have been made in court, and
Loughner’s ordinary right to full representation by counsel
would pertain. But even for mid-commitment dangerousness
determinations made pretrial, I disagree with the majority’s
conclusion that Loughner is not entitled to the assistance of
counsel, to a limited extent, in connection with the adminis-
trative involuntary medication hearing. Majority Op. at 2397.
As the majority points out, Harper held (in the post-
conviction context) that lawyers are not necessary participants
is an administrative involuntary medication determination,
because their legal expertise bears no relation to the relevant
medical judgment. See Harper, 494 U.S. at 236. In the pretrial
context, however, there is, as pointed out earlier, heightened
potential for legal confusion among the detention facility’s
physicians as to both their statutory responsibilities and the
proper purpose of an administrative involuntary medication
order. Here, for example, Loughner’s treating psychologist
initially viewed competency restoration as the primary pur-
pose of Loughner’s involuntary medication, and the involun-
tary medication decisions seems focused on long-term cure
rather than short-term safety. See supra Section II(C)(i).
Staff representatives are insufficient protection against such
confusion. They lack the requisite legal expertise and, as here,
often do not assert themselves in the medication hearing. See
Morgan, 193 F.3d at 266; United States v. Humphreys, 148 F.
Supp. 2d 949, 953 (D.S.D. 2001); United States v. Weston, 55
F. Supp. 2d 23, 26-27 (D.D.C. 1999). Moreover, and criti-
cally, lawyers for pretrial detainees are in the process of pre-
paring and implementing an overall defense strategy. As that
strategy will often be influenced by the events during, and
results of, a medication hearing, excluding lawyers from any
involvement in that hearing constitutes an impediment to the
right to counsel with regard to the impending prosecution. A
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misstep at the administrative medication hearing could well
impact the ultimate likelihood of conviction in a manner that
could be foreseen by the defendant’s lawyer but not by the
defendant — a lay person who is, by definition, incompetent
— or the lay staff representative. Thus, pretrial detainees have
a significantly greater interest in the right to counsel than con-
victed prisoners.
Conversely, the government’s interest in excluding counsel
from the administrative hearing is weaker with regard to a
pretrial detainee than with respect to a convicted prisoner. In
the pretrial context, there is no punitive or rehabilitative inter-
est in isolating the inmate from society generally. That is why,
in the pretrial context, “part of the process due to a person if
his liberty is taken is the opportunity to communicate with
someone outside the institution where he is held, at a time and
in a manner consistent with practical management of booking
and confinement procedures and institutional security and
order.” Halvorsen, 146 F.3d at 689.
Given the different balance of interests in the context of
pretrial confinement for restoration, I would hold that a pre-
trial detainee has a limited right to the participation of counsel
in connection with the administrative involuntary medication
hearing. Briefly sketching the contours of this right, I would
hold that the prison must: (1) notify the pretrial detainee’s
counsel of its intention to conduct an involuntary medication
hearing, as well as the types, maximum dosages, and expected
duration of the proposed involuntary medication; (2) provide
the detainee’s counsel an opportunity to confer with the staff
representative prior to the involuntary medication hearing;
and (3) allow the detainee’s counsel to observe the involun-
tary medication hearing or, if there is a good reason to
exclude the attorney from the proceedings, provide an audio-
visual recording of the hearing.
Providing the detainee’s counsel with notice of the involun-
tary medication hearing and an opportunity to confer with the
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staff representative would allow counsel to apprise the staff
representative of relevant legal issues, including: the impor-
tance of identifying a valid purpose for an administrative
medication decision and of establishing the requisite specific-
ity in the medical record; proper consideration of available
alternatives; and the detainee’s various procedural rights in
connection with the administrative hearing. Recognizing these
benefits, courts have often ordered detention facilities to
inform counsel of any proposed involuntary medication hear-
ings and to provide an opportunity for counsel to engage in
pre-hearing conference with the detainee’s staff representa-
tive. See Humphreys, 148 F. Supp. 2d at 953; Weston, 55 F.
Supp. 2d at 26.
Furthermore, just as a public trial “remind[s] the prosecutor
and judge of their responsibility to the accused and the impor-
tance of their functions,” United States v. Waters, 627 F.3d
345, 360 (9th Cir. 2010), allowing counsel to witness the
administrative hearing would remind the hearing’s partici-
pants of the important legal rights affected by an involuntary
medication determination. And counsel’s observation of the
administrative hearing would expedite judicial review of any
resulting involuntary medication order, because counsel
would not need to resort to discovery to familiarize itself with
the administrative proceedings. These benefits more than jus-
tify the limited right to counsel sketched above.
As to whether the lawyer must be permitted to participate
in the hearing, I would leave that question to be decided on
a case-by-case basis. With notice, the attorney will have the
opportunity to seek full representation rights from the court
on a showing that, in the particular circumstances, there is a
need for direct representation so as to preserve the defen-
dant’s rights as to ultimate conviction.
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iii. Adequacy of Loughner’s Staff Representative
Quite aside from the exclusion of counsel, the staff repre-
sentation in this case was a charade, and violated even the
majority’s lax due process standards.16 Throughout the succes-
sive administrative involuntary medication hearings, Lough-
ner’s staff representative consistently failed to seek out or
present any witnesses, cross-examine or challenge the pris-
on’s witnesses, or advocate in any other meaningful way
against forced medication. What he did was sit in the room
and, after the hearing concluded, see that Loughner’s appeal
form was filed. No more. Such anemic “representation” falls
well below the standard demanded by due process and 28
C.F.R. § 549.46(a)(3). See Morgan, 193 F.3d at 266; Hum-
phreys, 148 F. Supp. 2d at 953; Weston, 55 F. Supp. 2d at
26-27.
Judge Bybee (but not Judge Wallace) recognizes the trou-
bling deficiencies in the representation afforded by Lough-
ner’s staff representative. But he regards them as effectively
harmless because, he insists, the district court’s September 28
commitment hearing provided Loughner sufficient opportu-
nity to challenge the prison’s involuntary medication decision.
Majority Op. at 2410-12.
Not so, as review of the district court’s orders and state-
ments surrounding the September 28 hearing demonstrates.
The district court reiterated, in its September 30 order, the
position it had taken consistently theretofore — that its only
role with respect to the institution’s medication for dangerous-
ness decisions was to review for adequacy of procedures, not
to entertain evidence or arguments substantively challenging
the determination. The evidentiary aspect of the September 28
hearing was therefore restricted to the specific question
16Of course, under my approach, the district court would have deter-
mined the propriety of involuntary medication at the commitment hearing
and Loughner would have been entitled to representation by counsel.
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whether Loughner’s prior treatment — that is, involuntary
medication — would, if continued, likely result in his timely
restoration to competency, not whether that treatment was
needed to mitigate Loughner’s dangerousness to himself or
medically appropriate for that purpose.
Judge Bybee’s suggestion to the contrary has no basis in
the sequence of events leading up to the September 28 hearing
or in the record of that hearing. First, in its July 1 order
reviewing the prison’s Harper I determination, the district
court held that Loughner was not entitled to an evidentiary
hearing to contest the administrative determination of danger-
ousness. Instead, the court adopted the holding of Morgan,
193 F.3d at 262-63, and reviewed the prison’s Harper I deter-
mination for arbitrariness and compliance with 28 C.F.R.
§ 549.46. The district court then consistently reaffirmed this
holding, stating in its August 30 order that “[t]he defense’s
motion for a post-deprivation [judicial] hearing is denied.”
Consistent with the district court’s settled view of its
extremely limited role as to the involuntary medication deci-
sion, its September 1 order scheduling Loughner’s
§ 4241(d)(2)(A) commitment hearing gave no indication that
the court intended to reverse its prior practice and hold an evi-
dentiary hearing on the involuntary medication issue. Instead,
the court stated quite clearly that “the scope of the [commit-
ment] hearing will be limited to the question of whether an
additional period of time should be granted to actually restore
the defendant to competency.” Although the court also sug-
gested that the parties should be prepared to state their posi-
tions regarding the necessity of scheduling a Sell involuntary
medication hearing at some later point, the court never sug-
gested allowing an evidentiary hearing on the prison’s invol-
untary medication for dangerousness determination as part of
its commitment hearing.
During the pre-hearing telephonic conference, the district
court further explicated its concern that a Sell hearing may be
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required where a court orders a pretrial detainee recommitted
for restoration through the involuntary administration of psy-
chotropic medication. “I think it is a game changer and a sig-
nificant event that I — if I do extend him, the purpose for the
extension is for restoration,” the court stated, “Knowing that
he is being involuntarily medicated, I think it is incumbent
upon the court at that point to conduct a Sell hearing.” The
court, however, reiterated its decision to focus on the commit-
ment decision and leave the involuntary medication issue for
another day, stating: “As I forecast, I think [the necessity of
a Sell hearing is] an issue that is timely now and that we have
to get to. But the immediate issue is whether there is enough
evidence to support an extension on the substantial probability
that [Loughner] can be restored. How they restore him and
what due process rights he has during that period is a second-
ary issue. It’s one I intend to get to ultimately. But the imme-
diate issue is just this question of whether an extension is
warranted.”
At the September 28 hearing, the district court repeatedly
declared its intention to restrict the evidentiary hearing to the
commitment issue. Doctor Pietz provided detailed testimony
concerning Loughner’s condition and his prospects for resto-
ration. When defense counsel attempted to cross-examine Dr.
Pietz regarding Dr. Sarrazin’s diagnosis and its relation to the
prescribed antibiotics, however, the government objected on
relevance grounds and the court sustained the objection,
reminding the defense that “the limited focus here is whether
an extension is likely — substantially probable to restore
[Loughner].” The court further stated: “I’m well familiar with
all of the background reports. I’ve read them myself. You’ll
have the opportunity, obviously, at some point when that’s
relevant to go over those. But the questions should focus on
going forward.”
Doctor Ballenger provided generalized testimony about the
likelihood and duration of psychiatric restoration through
involuntary medication, gave an opinion as to Loughner’s
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prospects for restoration based on his medical history and
medication regimen, and passed on the propriety of Lough-
ner’s current medication. But when defense counsel attempted
to cross-examine Dr. Ballenger regarding the medical appro-
priateness of Loughner’s involuntary medication regimen, the
court chided the digression. “[T]he appropriateness of the
treatment is a matter for a Sell hearing or some later hearing,”
the court said, “It’s not the subject of this hearing.” Defense
counsel responded that “[t]he restoration depends upon the
treatment that’s going to be given.” The court, however, per-
sisted in its refusal to expand the scope of the evidentiary
hearing, stating that “[t]he question here is whether he’s likely
to be restored with an extended commitment to Springfield.
I’d like both sides to keep focused on that . . . . I want to focus
on the issue of the day, which is whether he’s to be extended
and whether the standard of proof is met by the evidence.”
Then, in response to defense counsel’s request for a ruling
on its motion to stay Loughner’s involuntary medication, the
court responded that its “view continues to be . . . that because
[the involuntary medication order is] predicated on the ground
of dangerousness and really has nothing to do with [Lough-
ner’s] competency to stand trial, that that’s an issue with the
Bureau of Prisons and the physicians there, and for good rea-
son.” Following the approach adopted in its July 1 order, the
court applied Morgan’s arbitrariness standard and concluded
that “there’s no arbitrariness in the third Harper hearing and
that the medication going forward, at least of today, is autho-
rized pursuant to the Harper case.” The Court reaffirmed this
holding in its written order, which appropriately characterized
its review of the administrative Harper III determination as
“minimal.”
In short, the district court’s pre-hearing orders, the state-
ments it made during the September 28 hearing itself, and its
written post-hearing order, all demonstrate, without doubt,
that the evidentiary aspect of the hearing was restricted to a
specific question — whether Loughner’s current treatment
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will likely result in his timely restoration, assuming the con-
tinuation of involuntary medication. No evidentiary challenge
to that treatment was permitted. Instead, following the
approach outlined in its July 1 Order, the court conducted a
“minimal review” of the prison’s Harper III determination
and concluded that the decision was not arbitrary. Nowhere
did the court contemplate or suggest a reversal of its previous
holdings that Loughner is not entitled to an evidentiary hear-
ing on the issue of his involuntary medication for dangerous-
ness. Indeed, when defense counsel argued that the district
court had simply deferred to the Bureau of Prisons on the
Harper determination, the district court responded: “What
I’ve said is that there is another basis for him being medicated
that has nothing to do with me. It has to do with dangerous-
ness.”
In light of the district court’s strict limitations on the scope
of its evidentiary hearing and the extraordinary deference it
accorded the prison’s involuntary medication decisions, the
majority’s conclusion that the September 28 hearing provided
Loughner an adequate opportunity to challenge his involun-
tary medication rests on air, nothing more.
IV. Conclusion
For the foregoing reasons, I would reverse the district
court’s order approving Loughner’s commitment for restora-
tion of competency. And although on my view there would be
no reason independently to consider the propriety of the Sep-
tember 15 involuntary medication for dangerousness decision
at this juncture, were I to do so I would conclude that it was
invalid for failure to provide Loughner with the due process
and right to counsel protections appropriate to the circum-
stances. I therefore respectfully dissent.
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