UNITED STATES of America, Appellee, v. Russell Eugene WESTON, Jr., Appellant, 340 U.S. App. D.C. 336

Opinion for the court filed PER CURIAM. Circuit Judge KAREN LeCRAFT HENDERSON filed a separate concurring opinion. Circuit Judge ROGERS filed a separate concurring opinion. Circuit Judge TATEL filed a separate concurring opinion. PER CURIAM: Appellant Russell Eugene Weston Jr. appeals the district court’s order authorizing the Bureau of Prisons (Bureau) to forcibly medicate Weston with antipsychotic drugs based on the Bureau’s determination that the treatment is medically appropriate and essential for Weston’s safety and for the safety of others.

Because the district court’s order relied on testimony supporting forced medication for the purpose of making Weston competent to stand trial, an additional justification which the Bureau advanced but the district court found unnecessary to reach, we reverse the district court and remand for consideration of both of the Bureau’s justifications. On October 9, 1998 Weston, a diagnosed paranoid schizophrenic, was charged in a six count indictment with the July 24, 1998 murder of two United States Capitol Police officers and the attempted murder of a third.

On April 22, 1999 the district court found Weston, who is confined at the Federal Correctional Institution in Butner, North Carolina (Butner), incompetent to stand trial and committed him for treatment to restore his competency pursuant to 18 U.S.C. § 4241(d). The incompetency order provided that, should medical personnel conclude antipsychotic injections were warranted, the Bureau could seek involuntary medication authorization in accordance with “the administrative procedures under 28 C.F.R. § 543 [sic], provided that counsel for Mr.

Weston receive reasonable notice before a hearing commences.” Appendix vol. i (App. i) 47. The order further directed: “No administration of psychotropic medications to defendant against his will shall occur without the prior approval of this Court in a written Order;.... ” Id. On May 13, 1999 the Bureau conducted an involuntary medication hearing without notifying Weston’s counsel. Weston was represented at the hearing by Ray Pitcairn, the Day Watch Nursing Supervisor at Butner.

Following the presentation of evidence the hearing officer, Bryon Herbel, M.D., a psychiatrist, determined Weston should be forcibly medicated. Butner’s warden affirmed the determination. The district court held a hearing on May 28, 1999 to review the Bureau’s decision and in an order dated June 18, 1999 remanded the matter to the Bureau because Weston’s counsel had not been notified of the hearing in accordance with the April 22, 1999 incompetency order and because the Bureau had neither sought nor presented at the hearing evidence favorable to Weston. The Bureau conducted a second hearing before Dr.

Herbel on July 8, 1999. Weston was again represented by Pitcairn who presented the written report of Weston’s expert witness, Raquel E. Gur, M.D., also a psychiatrist. In addition, Pitcairn offered arguments suggested to him by Weston’s counsel, who were not themselves permitted to attend the hearing. The government offered the expert testimony of Sally C. Johnson, M.D., Associate Warden for Health Services at Butner and Weston’s treating psychiatrist. At the conclusion Dr.

Herbel determined Weston “sufferfs] from a mental illness, and that medication is an appropriate treatment for [his] illness, and that [he] can be treated against [his] will.” App. ii 90-91. He explained his decision to Weston as follows: The reason is that you are gravely disabled, you pose a risk of dangerousness to others and to yourself without treatment, and that you need to become competent to stand trial, and that no other inter — less intrusive intervention will be successful for them. Id. at 91.

Weston appealed to the warden who again affirmed the hearing officer, stating: Medical staff have diagnosed you with Schizophrenia, Paranoid Type, Chronic. The record indicates that you experience a variety of grandiose and paranoid delusions including a belief that you are able to reverse time, and that people who are killed are not really dead. Such delusions have caused you to be dangerous to others, and potentially to yourself, gravely disabled, and incompetent for trial. This conclusion is supported by the record.

Mental Health staff have determined that you suffer from a mental disease which may be treated with psychotropic medication, and restore your competency for trial. Therefore, your appeal is denied and staff may proceed accordingly. App. ii. 3. On August 20, 1999 the district court held a second judicial review hearing.

In a decision dated September 9, 1999 the court upheld the Bureau’s decision to medicate Weston on the ground that “the proposed medication is medically appropriate and that, considering less intrusive alternatives, it is essential for the defendant’s own safety or the safety of others.” United States v. Weston, 69 F.Supp.2d 99, 118 (D.D.C.1999). The court declined to review the Bureau’s additional justification, that medication was necessary to render Weston competent for trial, or to address Weston’s claim that forced medication would infringe his Sixth Amendment right to a fair trial.

These two issues, the court found, were not then ripe “where the defendant has not yet been arraigned and where there is no record evidence to suggest that the government’s medical reasons are pretextual.” Id. at 107. In the court’s opinion the issues could adequately be addressed later “[in] the event that medication successfully renders the defendant competent to stand trial.” Id. Weston contends the Bureau’s decision is unsupported by the record and that the Sixth Amendment argument is now ripe for resolution. We agree on both points.

As an initial matter, Weston asserts the district court applied the wrong standards in reviewing the Bureau’s determination “that antipsychotic medication is medically appropriate and that, considering less intrusive alternatives, it is essential for the defendant’s own safety or the safety of others.” 69 F.Supp.2d at 118. Following the Supreme Court’s opinion in Washington v.

Harper, 494 U.S. 210, 223, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), the district court reviewed the Bureau’s medical/safety justification substantively under a “reasonableness” standard, see 69 F.Supp.2d at 116-18, and procedurally under the Administrative Procedure Act’s “arbitrary and capricious” test, see 69 F.Supp.2d at 107 (citing 5 U.S.C. § 706(2)(A)). Weston maintains that the Supreme Court’s decision in Riggins v.

Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), in which the court considered forced medication of a detainee, as here, rather than of a convicted inmate, as in Harper, requires instead review under the “strict scrutiny” and “de novo” standards. It is true the Riggins Court recognized that decisions affecting a detainee’s trial rights may warrant closer scrutiny than those made for inmates who have already been tried and convicted.

See 504 U.S. at 135, 112 S.Ct. 1810. (“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.”) (emphasis added; citations omitted). The Court, however, declined to clarify the standards of review for detainees. . The opinion makes no mention of the applicable procedural standard and the Court found “no occasion to finally prescribe ... substantive standards.” Id. at 136, 112 S.Ct. 1810.

We likewise need not decide the issue at this point, given the lack of support for the district court’s medical/safety determination, preferring instead to await the district court’s findings on remand using the guidance that Rig-gins provides. In Riggins the Supreme Court overturned the Nevada state court conviction of a defendant who had been involuntarily medicated during trial.

The Court acknowledged, as did the district court below, that involuntary medication may be justified by medical/safety concerns and might be justified by the need to render a defendant competent for trial: 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. See Harper, supra, 494 U.S., at 225-226, 110 S.Ct., at 1039; cf. Addington v.

Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (Due Process Clause allows civil commitment of individuals shown by clear and convincing evidence to be mentally ill and dangerous). Similarly, the State might have been able to justify medically appropriate, involuntary treatment with the drug by establishing that it could not obtain an adjudication of Riggins’ guilt or innocence by using less intrusive means. See Illinois v.

Allen, 397 U.S. 337, 347, 90 S.Ct. 1057, 1063, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring) (“Constitutional power to bring an accused to trial is fundamental to a scheme of ‘ordered liberty’ and prerequisite to social justice and peace”). 504 U.S. at 135-36, 112 S.Ct. 1810.

Nevertheless, the Court overturned the state court medication order for inadequate factual findings, in part because it “did not adopt the State’s view, which was that continued administration of Mellaril was required to ensure that the defendant could be tried” and did not “indicate a finding that safety considerations or other compelling concerns outweighed Riggins’ interest in freedom from unwanted anti-psychotic drugs.” Id. at 136, 112 S.Ct. 1810. The district court’s determination below suffers from similar defects.

First, although the district court, unlike the state court in Riggins, made a finding that antipsychotic medication is not only medically appropriate but also essential to safety, the finding is not supported by the record. The evidence below focused on the feasibility and desirability of restoring Weston’s competency. Thus, while the record focused on whether the administration of antipsychotic drugs was “medically appropriate” to make him competent to stand trial, there is comparatively little evidence on the safety issue.

Further, what evidence there is indicates that in his current circumstances Weston poses no significant danger to himself or to others. Dr. Johnson herself testified at the August 20, 1999 hearing that, given Weston’s “immediate containment situation,” she felt confident the Butner staff “can prevent him from harming himself or others under his immediate parameters of incarceration where he is in an individual room with limited access to anything that he could harm himself with or anyone else with, and he remains under constant observation.” JA ii 121.

In her view, “those precautions are adequate to prevent risk— to prevent episodes of harm to himself or to others.” Id. In light of this testimony, we cannot sustain the district court’s determination that involuntary medication is “essential for the defendant’s own safety or the safety of others.” 69 F.Supp.2d at 118. If the government advances the medical/safety justification on remand, it will need to present additional evidence showing that either Weston’s condition or his confinement situation has changed since the hearing so as to render him dangerous.

Second, the district court here (like the state court in Riggins) failed to address the government’s theory that medication is necessary to render Weston competent for trial, describing the trial competency issue as “collateral” and not yet “ripe.” We disagree with this characterization. Involuntary antipsychotic medication has the potential to adversely affect the defendant’s ability to obtain a fair trial as guaranteed under the Sixth Amendment. See United States v. Brandon, 158 F.3d 947, 954 (6th Cir.1998) (concluding forced medication may implicate Sixth Amendment right); United States v.

Morgan, 193 F.3d 252, 264-65 (4th Cir.1999) (acknowledging same). Weston’s challenge here, based on this potential, is ripe for two reasons. First, as noted above, the evidence, including Dr. Johnson’s testimony and the determinations of both the hearing officer and the warden, see swpra pp. 338-39, focused on the need to restore Weston’s competency, placing the issue squarely before the district court.

Second, and more important, because antipsychotic medication may affect the defendant’s ability to assist in his defense, see Riggins, 504 U.S. at 137, 112 S.Ct. 1810; id. at 143, 112 S.Ct. 1810 (Kennedy, J., concurring); Brandon, 158 F.3d at 954, post-medication review may come too late to prevent impairment of his Sixth Amendment right.

Accordingly, both the defendant, whose right to present a defense may be infringed by involuntary medication, and the government, whose eventual prosecution of the defendant may be foreclosed because of the infringement, are entitled to premedication resolution of the Sixth Amendment issue. For the foregoing reasons, we reverse the district court’s September 9, 1999 memorandum opinion and order and remand for the court to assess each of the Bureau’s justifications and to consider the potential impact of compelled medication on Weston’s Sixth Amendment fair trial right.

Because the trial competency and Sixth Amendment issues are legal rather than medical or penological issues, on remand the district court should retain jurisdiction to decide them itself. See Brandon, 158 F.3d at 960 (“district court [must] make the legal determination of whether [defendant] if forcibly medicated, would be competent to participate in a trial that is fair to both parties,” which “is distinct from the medical determination that the medical experts [ ] discuss”) (emphasis original). So ordered. .

The indictment charged two counts of murder of a federal officer while engaged in his official duties in violation of 18 U.S.C. §§ 1113 and 1111; one count of attempted murder of a federal officer while engaged in his official duties in violation of 18 U.S.C. §§ 1114 and 1113; one count of carrying and using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); and 2 counts of carrying and using a firearm during and in relation to a crime of violence and causing a death thereby in violation of 18 U.S.C. § 924(

c) and 924(j)(l). . Bureau regulation 549.43 requires that, before a patient’s involuntary medication, a hearing be conducted by a psychiatrist, with 24-hour notice to the patient, at which he has the right to appear, to have a staff representative, to present evidence and to request that witnesses be questioned by his staff representative or by the hearing officer. The hearing officer’s determination regarding medication may be appealed to the institution's mental health division administrator. . The court should also consider whether there is any merit to Weston's contention that medical ethics preclude ordering a patient medicated in a potential capital case.