Case o' The Week: Quicks Sticks in Time Not Saved in Nine - Onuoha and Sell Involuntary Medication
Here’s an efficient idea: why not involuntary medicate our clients with six times the recommended dose of psychotropic drugs? Easier for BOP staff, and a quicker hustle to restored competency.
(The Ninth, thankfully, doesn't buy it either).
United States v. Onuoha, 2015 WL 1579952(9th Cir. April 20, 2016), decision available here.
Players: Decision by Judge Gould, joined by Judge Berzon and District Judge Steeh. Important win for CD Cal AFPD Briana Fuller Mircheff.
Facts: Onuoha, a mentally ill man and former TSA screener, is charged under 18 USC §§ 844(e) and 1038(a)(1) for allegedly making threatening calls to LAX and telling them to clear the airport. Id. at *1. The defense noticed a diminished capacity defense before trial, and the district court then granted the government’s motion for a competency evaluation. Id. at *2.
After the BOP found Onuoha incompetent the government sought forced medication to restore competency under Sell v. United States, 539 U.S. 166 (2003). Id. at *2.
Over defense objection, the district court ordered involuntary medication. Id. at *2. Onuoha filed an interlocutory appeal. Id.
Issue(s): “On this appeal Onuoha challenges only the district court’s conclusions on the first and fourth [Sell] factors, and so we limit our discussion, first, to whether important government interests are at stake in prosecuting Onuoha and, second, to whether administration of the prescribed drugs is medically appropriate, i.e., in the patient's best medical interests in light of his medical condition.” Id. at *3.
Held: “We conclude that the first factor is met but that the fourth factor is not: there is an important governmental interest in prosecuting Onuoha, but the proposed treatment is not in his best medical interests.” Id.
Of Note: Onuoha’s Guideline range is only at 27-33 months. Id. at *4. When the Ninth upheld the “important governmental interest” in this case (the first Sell factor), Onuoha becomes the lowest guideline range to satisfy the “important governmental interest” test. Id. The Ninth adds many caveats, however, that make this a one-off case for this factor. Onuoha was a former TSA screener who allegedly made threatening calls to LAX on the eve of 9-11, who left notes leading law enforcement to believe he was an active shooter, and generally caused much havoc. Id. at *5. Moreover, the Ninth rejects the district court’s reliance on “future dangerousness” as a basis for the “governmental interest” inquiry. Id.
Don’t let an AUSA get away with a casual cite to this low range for this factor – this is a nuanced and fact-bound analysis of “governmental interest,” and is readily distinguishable in most low-guideline range cases.
How to Use: The BOP’s Dr. Lucking recommended forced injections of Haldol, at doses higher than the BOP’s own own recommendations. Id. at *7. Dr. Lucking recommended this high dose – up to six times higher than the BOP’s guidelines– “so that treatment moves on in a more rapid manner.” Id. at *8. The Ninth is appropriately unimpressed: “restoring competency quickly is not a controlling concern under the fourth Sell factor – only the best medical interests are considered.” Id.
Not that Judge Gould refuses to demure to the BOP’s doc’s “expertise:” “a physician's word is not absolute, not even the word of a reputable and experienced doctor. Although Dr. Lucking has administered involuntary medication hundreds of times, his recommendations are still subject to Sell’s rigorous analysis.” Id. at *9.
Onuoha illustrates why the defense really has to tear apart any BOP forced-med recommendation: it is a defendant-centered (actually, patient-centered, id. at *9) opinion that rightly puts our client’s health front and center.
A new leading opinion on Sell litigation, and a must-read for any forced-med case.
For Further Reading: Nna Alpha Onuoha is a former U.S. Army vet, and a former TSA worker, who allegedly made the threats to LAX the day after he resigned. For a news account of this sad and troubled man, see Former SoCal TSA Employee Arrested After Threats to LAX, available here.
Images of the Honorable Judges Gould and Berzon from http://www.advocate.com/sites/advocate.com/files/2014/09/03/3judgesx400.jpg
Steven Kalar, Federal Public Defender, ND Cal FPD. Website at www.ndcalfpd.org