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United States of America v. Jared Lee Loughner

March 5, 2012


Appeal from the United States District Court for the District of Arizona Larry A. Burns, District Judge, Presiding D.C. No. 4:11-cr-00187- LAB-1

The opinion of the court was delivered by: Bybee, Circuit Judge:



San Francisco, California*fn1

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


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 concluded 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 decision 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- 10432. The district court likewise denied Loughner's emergency 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.


On March 3, 2011, a federal grand jury indicted Jared Lee Loughner for multiple criminal offenses arising from a January 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 Congresswoman Gabrielle D. Giffords, the murder of Federal Judge John M. Roll, the murder and attempted murder of other federal 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 community and should be federally detained pending trial. Magistrate Judge Lawrence O. Anderson found that there was no condition 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 confinement 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 Springfield, Missouri ("FMC-Springfield"), by BOP medical personnel, pursuant to 18 U.S.C. § 4247. BOP psychologist Dr. Christina Pietz and court-appointed psychiatrist Dr. Matthew Carroll determined that Loughner was not, at that time, competent 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 hospitalization 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 psychotropic medication voluntarily, but Loughner consistently declined to engage in such treatment.

1. Harper I

On June 14, FMC-Springfield staff conducted an administrative hearing, pursuant to the procedures outlined in 28 C.F.R. § 549.43*fn2 and Harper, 494 U.S. 210, to determine whether Loughner should be forcibly medicated on dangerousness grounds ("Harper I hearing"). Dr. Carlos Tomelleri, an independent psychiatrist not involved in Loughner's diagnosis or treatment, presided over the Harper I hearing, and Dr. Pietz and Dr. Robert Sarrazin, Loughner's treating psychiatrist, also participated. John Getchell, a licensed clinical social worker ("LCSW"), was appointed by FMC-Springfield to serve as Loughner's staff representative in the administrative hearing process. According to Getchell, he met with Loughner the day before the hearing to explain his (Getchell'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- 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 authorized involuntary medication after finding that Loughner's mental disease made him a danger to others. In the Justification section of the report, Dr. Tomelleri explained that Loughner 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 characterized by indications that he was experiencing auditory hallucinations, including inappropriate laughter, poor eye contact, yelling "No!" repeatedly, and covering his ears.

Noting that Loughner had been diagnosed with schizophrenia, 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, minor tranquilizers, seclusion and restraints), because they "are not practicable," "do not address the fundamental problem," "have no direct effect on the core manifestations of the mental disease," or "are merely temporary protective measures 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 others 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 intrusive methods to ameliorate his dangerousness; failed to consider 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 evidentiary hearing and the opportunity to present testimony from a 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 standards described in the Supreme Court's decisions in "Harper, and not Riggins*fn3 or Sell,*fn4 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 FMCSpringfield'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 findings 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- 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 involuntary administration of all psychotropic medication until resolution 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 medication on an emergency basis, pursuant to 28 C.F.R. § 549.43(b).*fn5

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 Emergency 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).

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 representative, 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 witness, Ms. Chapman, should have been obtained before, and not after, the hearing. The appeal was therefore granted, pending 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 permitted to submit a written statement, which contained legal objections to the continuing involuntary medication. According 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 Loughner's condition after psychotropic medication was discontinued in July. The report indicates that many of Loughner's most serious symptoms had receded since involuntary medication 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 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 regimen: 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 treatment 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 medications is virtually certain to result in an exacerbation of Mr. Loughner's illness as it did when medication was discontinued 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 medication authorized by the Harper III hearing. Loughner reiterated arguments raised in his prior involuntary medication challenges and, particular to this hearing, argued that BOP failed to find that the medication was necessary to treat his dangerousness and that his staff representative had provided inadequate 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 competency," and thus, those with medical training and experience "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 prevent 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 medicate 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 commitment 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 district 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- ing Loughner to competency.*fn6 Loughner objected to the extension of his commitment under 18 U.S.C. § 4241(d)(2).

On September 28, the district court conducted an evidentiary hearing to determine whether there was a substantial probability that Loughner could be restored to trial competency in a reasonable period of time. The government submitted exhibits and presented testimony from Dr. Pietz and Dr. James Ballenger, 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 medication. She acknowledged, however, that the medication may be contributing to the flat, expressionless affect Loughner displayed when medication resumed. Dr. Pietz noted that Loughner 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 Loughner 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- generation antipsychotic drugs. He testified that, in his experience, a very high percentage of people in Loughner's condition 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 opinion, 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 reasonable time. Relying on reports submitted by Dr. Pietz before the hearing, and the testimony of Dr. Pietz and Dr. Ballenger at the hearing, the district court found that the evidence established that it is likely that Loughner will become competent to stand trial in this case and extended Loughner's commitment under § 4241(d)(2) for four months. Loughner appealed the district court decision, and that appeal is before us now (No. 11-10504).*fn7


Before turning to the merits, we first address our jurisdiction 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 September 15 decision authorizing involuntary medication.*fn8 The district 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- 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 involuntarily Weston); Morgan, 193 F.3d at 257-59 (reviewing district 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 commitment 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) conclusively 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 quotation 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.*fn9 First, the order conclu- sively determined the disputed question-whether there is any legal basis to medicate Loughner forcibly and whether Loughner 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 medication 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. Friedman, 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 freedom. 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 at 239). Therefore, we have appellate jurisdiction to review the district court's commitment order as well.


Loughner raises both substantive and procedural due process 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 competing 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 non-judicial process used to determine the facts was sufficient. See id.*fn10

The determination of the appropriate constitutional standard that governs a particular inquiry is a question of law subject 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 procedures afforded by 28 C.F.R. § 549.46.

A. Substantive Due Process Standard

The parties dispute the proper substantive due process standard 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 medication 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 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, uncontrollable movements of various muscles, especially around the face").*fn11 Id. at 229-30.

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. Specifically, 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 alternatives 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 constitutional 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 illness." 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 "duty to take reasonable measures for the prisoners' own safety." 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 effectiveness or their toll on limited prison resources." Id. at 226-27. Accordingly, the Court held that "given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's 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, arguing 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 evidentiary 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 medicated 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 Harper, forcing antipsychotic drugs on a convicted prisoner is impermissible absent a finding of overriding justification and a determination of medical appropriateness." Id. at 135. Noting that the "Fourteenth Amendment affords at least as much protection to persons the State detains for trial," the Court 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 constitutional 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 demonstrated, 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 reasonable 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 substance 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 administer 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 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 interests, without causing side effects that will interfere significantly with the defendant's fair trial rights; that the medication is necessary to further the government's interests, taking into account less intrusive alternatives; and that the administration of the antipsychotic drugs is medically appropriate, i.e., in the defendant's best medical interest. 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 heightened 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 render an individual nondangerous is usually more 'objective and manageable' than the inquiry into whether medication is permissible 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 alternative grounds, "the need to consider authorization on trial competence 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- sel, prevent rapid reaction to trial developments, or diminish the ability to express emotions are matters important in determining the permissibility of medication to restore competence, but not necessarily relevant 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 process standard must the government satisfy to medicate involuntarily 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 demonstrate that a pretrial detainee's "treatment with antipsychotic 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 statements in Riggins. First, the Court was careful to acknowledge that Harper involved a convicted prisoner: "Under Harper, forcing antipsychotic drugs on a convicted prisoner is impermissible 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 observation:

Although we have not had occasion to develop substantive 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 dangerousness," then the district court need not conduct a Sell hearing 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,*fn12 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 re-entry. See id. at 1134. After he was found incompetent to stand trial, FMC-Springfield requested an order allowing 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 medication 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 identical 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 RiveraGuerrero'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 district court to order FMC-Springfield to report on RiveraGuerrero's medical status. "If the FMC reports that RiveraGuerrero 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.

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 re-entry. 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 dangerousness 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 dangerousness 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 pursuant 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' ").

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 determining 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 reasonably 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 heightened standard announced in Sell applies. See Sell, 539 U.S. at 183. When dangerousness is a basis for the involuntary medication, 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; Baldovinos, 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 determination 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 convicted detainees), those differences largely disappear when the context is the administration of a prison or detention facility. 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 prisoners.

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 practices 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 dangerousness to himself or to others may be judged by the same standard 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.").

Finally, we observe that, post-Sell,*fn13 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 involuntarily 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 standard 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- 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 medicating him was (1) medically appropriate and, (2) "considering less intrusive alternatives, essential for the sake of [Loughner]'s own safety or the safety of others." Riggins, 504 U.S. at 135.

[7] For the reasons we have explained, the Riggins standard does not govern. We are satisfied that FMC-Springfield used the proper standard from Harper. At the Harper III hearing, Dr. Tomelleri heard the evidence from Loughner's treating 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- 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 manifestations of the mental illness." Antipsychotics are "one of the most effective means of treating and controlling a mental illness likely to cause violent behavior"; the fact that there might be alternative means for rendering Loughner temporarily 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 standard.

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 provide voluntary written informed consent for recommended psychiatric medication, the inmate will be scheduled for an administrative hearing." 28 C.F.R. § 549.46(a). The regulation 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 representative. 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 medication 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 Washington procedures approved in Harper. See Harper, 494 U.S. 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. Additionally, 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 competency, 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 diminishing 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 committee is constitutionally compelled. Indeed, the Court in Harper focused only on the fact that a second psychiatrist-as a member of the special committee-was reviewing the medications 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 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 ยง 549.46 generally and then to his particular challenges ...

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