concurring:
I write separately on two points: the findings necessary for forcible administration of medication in a pretrial context, and the determination of dangerousness to support such governmental intrusion.
First, following the instruction in Rig-gins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), the court applies a “form of heightened scrutiny,” Opinion at 880, in considering a number of factors for balancing the interests of the government and the defendant. Succinctly put, to medicate Weston against his will, “the government must prove that restoring his competence to stand trial is necessary to accomplish an essential state policy.” Opinion at 880. The substantive analysis that the court employs encompasses, however, at least three distinct determinations. To allow the government forcibly to medicate a defendant prior to trial with antipsychotic drugs, the district court must find that: (1) an “essential state policy” is at issue, Riggins, 504 U.S. at 138, 112 S.Ct. 1810; (2) “treatment with antipsychotic medication [is] medically appropriate and, considering less intrusive alternatives, essential for the sake of [the defendant’s] own safety or the safety of others,” or essential to enable an adjudication of the defendant’s guilt or innocence, id. at 135, 112 S.Ct. 1810; and (3) the defendant’s due process rights are protected. See id. at 137-38,112 S.Ct. 1810.
The district court on remand made these three determinations. See United States v. Weston, 134 F.Supp.2d 115, 138 (D.D.C. 2001) (Weston III). On appeal, this court addresses the first determination under the heading “The Essential State Policy in Adjudicating Criminality.” Opinion at 880. It addresses the second and third determinations under the heading of “Involuntary Medication is Necessary and there are no Less Intrusive Means.” Id. at 882-83. The court provides a separate analysis of each determination. Id. at 883-87.
Keeping these determinations separate is important because the Supreme Court has acknowledged that a defendant’s liberty interests may outweigh the State’s interest. Although indicating that even “a substantial probability of trial prejudice” can be justified if “administration of anti-psychotic medication [is] necessary to accomplish an essential state policy,” Rig-*889gins, 504 U.S. at 138, 112 S.Ct. 1810, the Court has suggested that the defendant’s liberty interests would prevail where, for example, the antipsychotic medication impairs the defendant’s “ability to follow the proceedings” or to present a defense. Id. at 137, 112 S.Ct. 1810; see also Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). In such circumstances, the government would have the option of seeking civil commitment of the defendant. See Riggins, 504 U.S. at 145, 112 S.Ct. 1810 (Kennedy, J., concurring in the judgment); see generally 18 U.S.C. §§ 4241-4247; D.C.Code 1981 §§ 21-541 to 21-551. For the reasons set forth by the court, the due process concerns relating to evidence of Weston’s mental state and to his competency to stand trial are attenuated. See Opinion at 883-87.
Second, the court eschews review of the district court’s determination on remand that forced medication was justified because of Weston’s dangerousness to himself or others. The court views our decision in United States v. Weston, 206 F.3d 9 (D.C.Cir.2000) (per curiam) ('Weston II) to have “likely precluded” a finding of dangerousness in the absence of evidence that “Weston’s condition now exceeds the institution’s ability to contain [his dangerousness] through his present state of confinement.” Opinion at 879. To suggest that Weston II created a “standard” other than the traditional dangerousness standard applicable to pretrial detainees is to misread Weston II. See Concurring Opinion at 887-88; see also Opinion at 879; 18 U.S.C. § 4246(d)(2); 28 C.F.R. § 549.43.
The court in Weston II did not “put[] the government in an unnecessary quandary.” Concurring opinion at 887. The court’s language must be read in context. In stating that “[i]f 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,” Weston II, 206 F.3d at 13, the court was addressing the insufficient evidence of dangerousness in the record before it to support a finding that involuntary medication was “essential” for Weston’s safety or the safety of others. See id. That evidence showed that as then confined in isolation by the government, Weston did not, in the opinion of the government’s treating psychiatrist, pose a significant danger to himself or others. See id. What was missing from the district court record was a “searching inquiry into whether less intrusive alternatives [to forced medication] would have been sufficient to control any potential danger posed by Weston to himself and to others.” Id. at 18 (Rogers, J., concurring in the judgment). The court forewarned, however, that to rely on dangerousness as a basis for forced medication, the government on remand would need to present evidence that showed more than that when confined Weston did not pose a significant danger to himself or others. See id. at 13. The government thus remained free to present evidence about the risks of danger that would be created if Weston was not confined in isolation and that less intrusive alternatives to forced medication would be ineffective to control his dangerousness.
The record on remand indicates that the parties and the district court understood what “additional evidence” of dangerousness was required by Weston II; none has suggested that the government confronted a “quandary.” See Br. for Appellee at 28, 38, 41-42; see also Opinion at 879. Expert medical testimony was offered on Weston’s dangerousness in and out of seclusion, distinguishing between Weston’s state of mind and his ability to act on his delusions. See, e.g., Test, of Dr. Daniel, 4 *890JA at 27-73. To the point, the government now argues in its brief that Weston’s “seclusion from the general population is not an ‘alternative’ to involuntary medication because it has done nothing to quell [his] dangerous behavior,” Br. for Appellee at 42, and that “ ‘prolonged use’ of seclusion ‘brings risk of detrimental effects to the psychological well-being of the patient,’ and is ‘inherently aversive.’ ” Id. at 43 (quoting expert medical testimony presented on remand). Hence, the government’s “quandary” is a creation of the concurrence.