Sunday, October 23, 2005

Case o' The Week: Involuntary Meds a hard "Sell" for Ninth, Rivera-Guerrero

Jack didn't like Nurse Ratchet's involuntary meds in One Flew Over the Cuckoo's Nest. The Ninth isn't too keen on them either. Judge Stephen Reinhardt writes a great opinion acknowledging the need for adequate time to prepare a defense -- and lambasting the involuntary medication of defendants -- in United States v. Rivera-Guerrero, __ F.3d __, 2005 WL 2658967 (Oct. 19, 2005), case available here.

Players: Judge Reinhardt, in fine fettle, writes for a unanimous panel.

Facts: Rivera-Guerrero was a mentally ill § 1326 defendant. Id. at *1. The government moved to involuntarily medicate him, and the magistrate applied Sell v. United States, 539 U.S. 166 (2004). Id. at *2. The government’s expert argued for the involuntary meds, but gave little or no support for his claims of their efficacy. Id. Defense counsel requested a continuance so that she could research the medications and present her own expert; her request was denied. Id. The defense appealed the magistrate court’s order for involuntary meds to the Ninth. Id. at *3. The Ninth remanded because the district court, and not the magistrate, should decide these issues. Id. While that was on-going, the BOP administered involuntary meds anyway, in an “emergency procedure.” On remand, the district court adopted the magistrate’s recommendations - almost verbatim - and denied a stay because the defendant had already been medicated. Id. The defense appealed again.

Issue(s): 1. Continuance: “The dispositive question on this appeal is whether the district court abused its discretion in denying the defendant’s request for a continuance.” Id. at *5. 2. Sell Hearing: Can the United States government casually involuntarily medicate defendants? Id. at *3.

Held: 1. Core Issue - Continuance: “[W]e hold that the district court a used its discretion in denying the defendant’s request [for a continuance].” Id. at *5. There is a four-part test: i. the extent of appellant’s diligence ii. how likely the need for the continuance could have been met if it was granted iii. the extent the continuance would inconvenience the government and opposing party, and iv. the extent the appellant would have suffered harm as a result of the district court’s denial. Id. at *6. Here, the continuance met all four factors and should have been granted. 2. Sell Hearing: Involuntarily medication is disfavored, and there is much evidence that the procedures to be used by the BOP wouldn’t work. Id. at *5. Reinhardt cites several compelling articles questioning the efficacy of involuntary medication.

Of Note: One of Judge Reinhardt’s most-famous opinions is the right-to-die case, Compassion in Dying v. State of Washington, 79 F.3d 790 (1996), overruled by Washington v. Glucksburg, 521 U.S. 702 (1997). In Compassion in Dying, Reinhardt defends an individual’s right to choose the needle, and a dignified death. In Rivera-Guerrero, Reinhardt defends an individual’s choice to reject the needle . . . and demands a high showing when the government wants to inject dangerous drugs of uncertain efficacy into an unwilling defendant. Both opinions demonstrate a high regard for individual rights, and a great distrust of government intervention. Weren’t those once considered to be core conservative values?

How to Use: Use the case to stave off district court judges jamming us under the Speedy Trial Act – it is one of the best opinions written on the need for defense continuances. Of broader importance, Rivera-Guerrero should be cited heavily in every defense fight against involuntary medication. The opinion has broad language disfavoring forced medication, and cites favorably medical authority questioning the efficacy of the procedure.

For Further Reading: Someone should bring a § 1983 claim against the BOP shrinks. Of late we have seen the BOP blow every court-ordered deadline for evaluation, and simply warehouse a Spanish-speaking defendant referred for restoration of competency (there are apparently no Spanish-speaking therapists in FMC Butner.) One BOP doc recently explained in a Sell hearing that he would involuntary medicate our client with a certain anti-psychotic drug. He neglected to mention that the client was allergic to that drug, as was clearly reflected in the medical history. For the regulations controlling forced medication in prison, see the link here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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