United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 16, 2001 Decided July 27, 2001
No. 01-3027
United States of America,
Appellee
v.
Russell Eugene Weston, Jr.,
Appellant
Appeal from the United States District Court
for the District of Columbia
(98cr00357-01)
Gregory L. Poe, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney at the time the brief was filed, John R.
Fisher and Ronald L. Walutes, Jr., Assistant U.S. Attorneys.
Before: Sentelle, Randolph, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Concurring opinion filed by Circuit Judge Randolph, with
whom Circuit Judge Sentelle joins.
Concurring opinion filed by Circuit Judge Rogers.
Randolph, Circuit Judge: Under the Fifth Amendment's
Due Process Clause there is a "significant liberty interest in
avoiding the unwanted administration of antipsychotic drugs."
Washington v. Harper, 494 U.S. 210, 221 (1990). This appeal
requires us to decide whether the government may adminis-
ter such drugs to a pretrial detainee against his will in order
to render him competent to stand trial.
I.
On July 24, 1998, an assailant armed with a .38 caliber
revolver forced his way past security checkpoints at the
United States Capitol. He shot and killed Jacob Chestnut
and John Gibson, both officers of the United States Capitol
Police. He shot and seriously wounded Douglas McMillan,
also an officer of the United States Capitol Police. Russell
Eugene Weston, himself seriously wounded by gunfire, was
arrested at the scene. The federal government indicted
Weston on two counts of murdering a federal law enforce-
ment officer, one count of attempting to murder a federal law
enforcement officer, and three counts of using a firearm in a
crime of violence.
The government wants to try Weston for these crimes but
is presently unable to do so because the district court found
him incompetent to stand trial. See United States v. Weston,
134 F. Supp. 2d 115, 117 (D.D.C. 2001); 1 Joint Appendix 45-
46 (competency order). The district court accepted the con-
clusion of a court-appointed forensic psychiatrist that Weston
suffers from paranoid schizophrenia, and that the severity of
his symptoms renders him incapable of understanding the
proceedings against him and assisting in his defense, as
required to bring a defendant to trial. See 18 U.S.C.
s 4241(a) (statutory competence requirement); see also Godi-
nez v. Moran, 509 U.S. 389, 396 (1993) (constitutional compe-
tence requirement). The court committed Weston to the
custody of the Attorney General "for treatment in a suitable
facility for a reasonable period of time." 1 Joint Appendix 46;
see also 18 U.S.C. s 4241(d).
Weston is currently incarcerated "for treatment" at the
Federal Correctional Institute in Butner, North Carolina.
He is not being treated. Rather, he was placed in solitary
confinement under constant observation when he arrived at
FCI Butner and remains there today. The Bureau of Prisons
apparently placed him in seclusion to "mitigate [his] danger-
ousness." Weston, 134 F. Supp. 2d at 130. As an Assistant
Director of the Bureau explained, Weston's "mental health
seclusion status" is "for very vulnerable inmates, and [is]
typically ... reserved for those who present a substantial
danger to themselves or somebody else...." 7/24/00 a.m. Tr.
at 59. The district court characterized Weston's confinement
situation as "simply the warehousing of Weston in a psychotic
state. It is not treatment; at best it contains dangerous-
ness." 134 F. Supp. 2d at 130-31; see also 4 Joint Appendix
103 (Report of court-appointed expert that "the field places
severe limitations on the use of seclusion in clinical psychiatry
because [it] is considered to be inherently aversive when used
for prolonged periods of time.").
There is treatment available for Weston's illness and its
symptoms in the form of antipsychotic medication. The
parties agree that such medication is likely the only treat-
ment that can mitigate his schizophrenia and attendant delu-
sions, and thus restore his competence to stand trial. See
Brief for Appellant at 5; Brief for Appellee at 12-13. Weston
is not currently receiving any such medication because, at a
time when he was considered medically competent to make a
determination, he refused them. The district court prohibit-
ed the Bureau of Prisons from forcibly medicating Weston
without a court order.
After two administrative hearings and two district court
hearings, the government obtained an order authorizing it to
administer antipsychotic medication against Weston's will.
See United States v. Weston, 69 F. Supp. 2d 99 (D.D.C. 1999).
The district court held that forcible medication was "medical-
ly appropriate" and "essential for [Weston's] own safety or
the safety of others." Id. at 118. It also found that "the
government has a fundamental interest in bringing the defen-
dant to trial," but determined that the dangerousness holding
made it unnecessary to decide whether that interest out-
weighed Weston's right to refuse antipsychotic medication.
See id. at 118-19. The court declined to consider Weston's
claim that forced medication would interfere with his right to
a fair trial, holding it was not ripe. See id. at 107.
A panel of this court reversed and remanded the case to
the district court, holding that the district court's dangerous-
ness finding was not supported by the record. See United
States v. Weston, 206 F.3d 9 (D.C. Cir. 2000) (per curiam).
The panel also reversed the district court's determination that
Weston's Sixth Amendment right to a fair trial claim was not
ripe, holding that "because antipsychotic medication may
affect the defendant's ability to assist in his defense, post-
medication review may come too late to prevent impairment
of his Sixth Amendment right." Id. at 14 (citations omitted).
The panel also directed the district court to consider Weston's
argument that medical ethics preclude forcibly medicating a
defendant to make him competent for trial in a case that
might carry the death penalty. See id. at 14 n.3.
On remand, the district court again held that the Bureau of
Prisons could forcibly medicate Weston. It concluded that
antipsychotic medication was medically appropriate and "es-
sential to control and treat Weston's dangerousness to oth-
ers." Weston, 134 F. Supp. 2d at 127, 131. The district court
also held that the "government has an essential interest in
bringing Weston to trial" given "the serious and violent
nature of the charges, that the immediate victims were feder-
al law enforcement officers performing their official duties,
and that the killings took place inside the U.S. Capitol amid a
crowd of innocent bystanders." Id. at 132. The court con-
cluded that forcible medication would not interfere with Wes-
ton's right to a fair trial, and could in some respects enhance
his ability to exercise that right by improving his mental
function. See id. at 132-38.
In this appeal, Weston claims that administering antipsy-
chotic drugs against his will violates his Fifth Amendment
due process liberty interest "in avoiding unwanted bodily
intrusion" and implicates his right to a fair trial. See Brief
for Appellant at 37-38. In earlier stages of this case, Weston
asserted a First Amendment right to freedom from compulso-
ry medication and challenged the Bureau of Prisons' adminis-
trative procedures under the Fifth Amendment's Due Process
Clause.1 He has not raised either issue here so we do not
consider them. We affirm the district court's conclusion that
the government's interest in administering antipsychotic
drugs to make Weston competent for trial overrides his
liberty interest, and that restoring his competence in such
manner does not necessarily violate his right to a fair trial.
II.
The due process liberty interest in avoiding unwanted
antipsychotic medication may be "significant," but it is not
absolute. See Kansas v. Hendricks, 521 U.S. 346, 356 (1997);
United States v. Salerno, 481 U.S. 739, 750-51 (1987); Young-
berg v. Romeo, 457 U.S. 307, 320 (1982). In Washington v.
Harper and later in Riggins v. Nevada, the Supreme Court
recognized that the government may, under certain circum-
stances, forcibly administer antipsychotic medication to a
prisoner or criminal defendant despite his liberty interest,
provided such medication is "medically appropriate." See
Riggins v. Nevada, 504 U.S. 127, 135 (1992); Washington v.
Harper, 494 U.S. 210, 220, 222-23 & n.8, 226-27 (1990). With
respect to Weston, there is no doubt that this latter condition
has been met.
__________
1 Weston refers in footnote 9 of his brief to the First Amendment,
the Fourth Amendment, and "privacy interests" not attributed to
any particular part of the Constitution. He has supplied no sup-
porting arguments and we therefore will disregard his references.
See, e.g., Washington Legal Clinic for the Homeless v. Barry, 107
F.3d 32, 39 (D.C. Cir. 1997).
Whether a proposed course of action is "medically appro-
priate" obviously depends on the judgment of medical profes-
sionals. See Harper, 494 U.S. at 231, 233-34; Youngberg, 457
U.S. at 322-23; Vitek v. Jones, 445 U.S. 480, 495 (1980);
Parham v. J.R., 442 U.S. 584, 606-07, 609 (1979); Addington
v. Texas, 441 U.S. 418, 429 (1979). The district court relied
on several experts in concluding that "[a]ntipsychotic medi-
cation is the medically acceptable and indicated treatment for
Weston's illness." Weston, 134 F. Supp. 2d at 122.
The district court measured the medical appropriateness of
antipsychotic medication by examining the capacity of anti-
psychotic drugs to alleviate Weston's schizophrenia (the medi-
cal benefits) against their capacity to produce harm (the
medical costs, or side effects). See id. at 123. Numerous
experts testified that antipsychotic medication is the medical-
ly appropriate treatment for Weston's illness.2 While there
are potential side effects,3 the professional judgment of the
__________
2 See, e.g., 8/20/99 a.m. Tr. at 59 (Dr. Johnson testifying that the
standard of care for treating schizophrenia is antipsychotic medi-
cation); 4 Joint Appendix 103 (Report of Dr. Daniel stating that
"[a]ntipsychotic medication is essential to the treatment of psychotic
disorders such as schizophrenia. Psychotherapy without antipsy-
chotic medication is not considered to be an effective treatment for
schizophrenia."); 7/25/00 p.m. Tr. at 11 (Dr. Deprato's testimony
that "[t]he diagnosis of paranoid schizophrenia is appropriately
treated with antipsychotic medication"); 7/26/00 a.m. Tr. at 64 (Dr.
Zonona's testimony: Question: "To your knowledge is there any
hospital in this country that would not attempt to treat this patient
with antipsychotic medication to address the illness as you under-
stand it based on the materials that you've had an opportunity to sit
in and review?" Answer: "Well, I think that is the standard
treatment of choice these days [and] if you don't offer and try to use
medication in a situation like this, it is negligent.").
3 There are two types of antipsychotic medication--the "typicals"
and the "atypicals." The government proposed to use typicals,
which are an older generation of antipsychotics. The district court
found:
Typical antipsychotics can produce the following side effects:
(1) dystonic or acute dystonic reactions, which involve a stiffen-
medical experts was that "each of these potential side effects
is generally manageable." Id. at 123, 125. The short of the
matter is that the record leaves no basis for doubting the
district court's conclusion that antipsychotic medication is the
medically appropriate treatment for Weston's condition.
Weston claims that the ethical obligations a doctor owes a
patient preclude forcible medication in these circumstances.
As he sees it, "the question whether the administration of
antipsychotic medication is medically appropriate is different
from the question whether treatment is therapeutically ap-
propriate." Brief for Appellant at 18. Thus, "[t]he context in
which the forced medication issue arises and the state pur-
pose are relevant considerations for the physician to decide
whether it is ethical to force-medicate." Id. If the state's
purpose is to make one competent for trial, Weston argues,
then a doctor must consider alternatives such as civil commit-
ment. See id. These ethical norms purportedly derive from
the Hippocratic Oath and the 1982 United Nations Principles
of Medical Ethics Relevant to the Role of Health Personnel,
Particularly Physicians, in the Protection of Prisoners and
Detainees against Torture, and Other Cruel, Inhuman or
__________
ing of muscles; (2) acuesthesia, which is restlessness or an
inability to sit still; (3) Parkinsonian side effects, which can
slow an individual; (4) tardive dyskinesia, which causes repeti-
tive, involuntary tic-like movements of the face, eyelids, and
mouth; (5) neuroleptic malignant syndrome ("NMS"), which
causes temperature control problems and stiffness; and (6)
perioral tremor, referred to as rabbit syndrome because of the
mouth movements associated with it.
134 F. Supp. 2d at 123. The atypicals, which the government has
not ruled out, are newer and "have a more favorable side effect
profile." See id. at 124. The court found that side effects from
atypicals include: (1) Agranulocytosis, which could result in death
but for which "there is a highly effective monitoring system to
prevent this result"; (2) sedation; (3) weight gain; (4) seizures;
and (5) problems with lipid metabolism. See id. It appears that
antipsychotic medications could also alter Weston's demeanor, emo-
tional affect, and cognitive function. See 7/24/00 p.m. Tr. at 49-50;
7/25/00 a.m. Tr. at 22-24; 7/26/00 a.m. Tr. at 62-63.
Degrading Treatment or Punishment. See Brief for Appel-
lant at 19.
No source of legal authority--neither Bureau of Prisons
regulations, nor the statute governing treatment of incompe-
tent pretrial detainees, nor the Constitution--makes medical
ethics relevant to the determination whether the government
can forcibly medicate Weston. Even if a particular doctor
had ethical objections to administering antipsychotic drugs to
a non-consenting patient, this would not undercut the consen-
sus in the medical profession that antipsychotic medication is
the medically appropriate response to Weston's condition.4
A. Mitigating Dangerousness
A pretrial detainee's liberty interest in avoiding unwanted
antipsychotic medication gives way when the medication is
essential to mitigate the detainee's dangerousness: "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 appro-
priate 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 district
court applied this standard to Weston's situation and twice
found antipsychotic medication medically appropriate and es-
sential for his safety or the safety of those around him. See
Weston, 134 F. Supp. 2d at 121-32; Weston, 69 F. Supp. 2d at
107-10.
__________
4 Defense counsel also claims that Weston's decision while he was
medically competent not to take antipsychotic medication makes
such medication medically inappropriate. See Brief for Appellant at
45. We shall assume arguendo that Weston's previous decision
reflects his current informed judgment (which of course is unknow-
able). Nonetheless, withholding of consent does not make a treat-
ment medically inappropriate. In Harper, for instance, the inmate
reportedly said he "would rather die than take medication," 494
U.S. at 239 (Stevens, J., separate opinion), but the Court approved
the treatment as in the inmate's medical interest.
On appeal of the district court's first decision, a panel of
this court found the record insufficient to support application
of the Riggins standard. Much of the evidence focused on
the government's competency-for-trial justification--which
the district court did not adopt--and the limited evidence
supporting the dangerousness justification "indicates that in
his current circumstances Weston poses no significant danger
to himself or to others." Weston, 206 F.3d at 13. The panel
relied on the testimony of a Public Health Service physician
assigned to FCI Butner that "[g]iven [Weston's] immediate
containment situation, I feel confident that we 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 harm anyone else with, and he remains under con-
stant observation." 2 Joint Appendix 121; Weston, 206 F.3d
at 13. The panel concluded that involuntary medication was
not "essential" for safety and instructed the district court that
"[i]f the government advances the medical/safety justification
on remand, it will need to present additional evidence show-
ing that either Weston's condition or his confinement situa-
tion has changed since the hearing so as to render him
dangerous." Id.
On remand, the district court received additional evidence
showing that Weston's condition had deteriorated. In view of
this evidence, the court once again found that Weston posed
such a danger that medicating him was warranted. We think
the previous panel's decision likely precluded that finding.
That panel held that Weston's situation in confinement--total
seclusion and constant observation--obviated any significant
danger he might pose to himself or others. There appears no
basis to believe that Weston's worsening condition renders
him more dangerous given his near-total incapacitation.
Weston remains in seclusion under constant observation. Ab-
sent a showing that Weston's condition now exceeds the
institution's ability to contain it through his present state of
confinement, the prior decision appears to preclude a finding
of dangerousness. See LaShawn A. v. Barry, 87 F.3d 1389,
1393, 1395 (D.C. Cir. 1996) (en banc) (law-of-the-case and law-
of-the-circuit doctrines). We need not determine whether our
concurring colleague's different interpretation of the previous
panel's decision is correct in view of our affirmance of the
district court's competency-for-trial ground of decision. See
Concurring Op. of Rogers, J., at 2-4.
B. Restoring Competence to Stand Trial
In Riggins, the Court prescribed the conditions sufficient
for a dangerousness justification, but explicitly declined to
"prescribe ... substantive standards" for determining when
other government interests override a pretrial detainee's
liberty interest in refusing antipsychotic medication. See
Riggins, 504 U.S. at 136; see also Weston, 206 F.3d at 12-13
(also declining to prescribe substantive standards). The
Court did, however, suggest that the governmental interest in
restoring a pretrial detainee's competence to stand trial could
override his liberty interest: "the State might have been able
to justify medically appropriate, involuntary treatment with
[antipsychotic medication] by establishing that it could not
obtain an adjudication of [the pretrial detainee's] guilt or
innocence by using less intrusive means." Riggins, 504 U.S.
at 135.
"The substantive issue involves a definition of the protected
constitutional interest, as well as identification of the condi-
tions under which competing state interests might outweigh
it." Harper, 494 U.S. at 220 (quoting Mills v. Rogers, 457
U.S. 291, 299 (1982)) (internal brackets omitted); see also
Foucha v. Louisiana, 504 U.S. 71, 116 (1992) (Thomas, J.,
dissenting) ("The standard of review determines when the
Due Process Clause ... will override a State's substantive
policy choices, as reflected in its laws."). Weston argues that
the appropriate substantive standard is strict scrutiny and
that involuntary medication must be "narrowly tailored to
achieve a compelling government interest." See Brief for
Appellant at 36-37; accord United States v. Brandon, 158
F.3d 947, 957 (6th Cir. 1998) (strict scrutiny applies to
determination whether governmental interest in medicating
nondangerous pretrial detainee to make him competent for
trial outweighs liberty interest); Bee v. Greaves, 744 F.2d
1387, 1396 (10th Cir. 1984) (requiring use of "less restrictive
alternatives"); see also Kulas v. Valdez, 159 F.3d 453, 455
(9th Cir. 1998) (using heightened scrutiny under Riggins);
United States v. Sanchez-Hurtado, 90 F. Supp. 2d 1049, 1055
(S.D. Cal. 1999) (same); Khiem v. United States, 612 A.2d
160, 165-66 (D.C. 1992) (as amended on rehearing) (applying
Riggins and requiring "a showing of overriding justification
and medical appropriateness"). The government argues for
an arbitrary and capricious standard like that employed to
review administrative agency action. See Brief for Appellee
at 22-27; accord Harper, 494 U.S. at 223 (applying reason-
ableness standard to forcible medication of prisoners to miti-
gate dangerousness); Weston, 206 F.3d at 14-15 (Henderson,
J., concurring); United States v. Charters, 863 F.2d 302, 306
(4th Cir. 1988) (en banc) (liberty interest "is protected against
arbitrary and capricious actions by government officials");
United States v. Morgan, 193 F.3d 252, 262 (4th Cir. 1999)
("under Charters, the determination of whether to forcibly
medicate a pretrial detainee ... rests upon the professional
judgment of institutional medical personnel, subject only to
judicial review for arbitrariness"); United States v. Keeven,
115 F. Supp. 2d 1132, 1137 (E.D. Mo. 2000) (following Mor-
gan); cf. Jurasek v. Utah State Hosp., 158 F.3d 506, 511 (10th
Cir. 1998) (applying Harper's reasonableness standard to
civilly committed patient); see also Charters, 863 F.2d at 312-
13 (professional judgment standard from Youngberg v. Ro-
meo); Morgan v. Rabun, 128 F.3d 694, 697 (8th Cir. 1997)
(same).
The Supreme Court denied that it had adopted a strict
scrutiny standard in Riggins. See Riggins, 504 U.S. at 136.
It also appeared not to apply a reasonableness test or its
various analogues: arbitrary and capricious, rational basis, or
exercise of professional judgment. Rather, the opinion's lan-
guage suggests some form of heightened scrutiny: the em-
phasis on the severity of infringement antipsychotic drugs
impose on an individual's liberty interest, see id. at 134; the
reasoning that "forcing antipsychotic drugs on a convicted
prisoner is impermissible absent a finding of overriding justi-
fication," id. at 135 (emphasis added); the statement that
medicating to mitigate dangerousness must be "essential" and
that the trial court must consider "less intrusive alternatives,"
id.; and the criticism of the district court's failure to find that
"safety considerations or other compelling concerns out-
weighed Riggins' [liberty] interest," id. at 136.
We think the appropriate standard is the one the Court set
forth in the penultimate paragraph where it noted the lack of
a "finding that might support a conclusion that administration
of antipsychotic medication was necessary to accomplish an
essential state policy...." Id. at 138. Although that para-
graph addressed trial prejudice, it outlines the standard the
state failed to meet in ascertaining whether a governmental
interest outweighs a right to avoid antipsychotic medication.
Accordingly, to medicate Weston, the government must prove
that restoring his competence to stand trial is necessary to
accomplish an essential state policy.5
1. The Essential State Policy in
Adjudicating Criminality
Preventing and punishing criminality are essential govern-
mental policies. The Supreme Court has recognized that
preventing crime is a compelling governmental interest. See
Schall v. Martin, 467 U.S. 253, 264 (1984); United States v.
Salerno, 481 U.S. 739, 749-50 (1987). This interest lies not
just in incapacitating dangerous criminals, but also in demon-
strating that transgressions of society's prohibitions will be
met with an appropriate response by punishing offenders.
See Kansas v. Hendricks, 521 U.S. 346, 361-62 (1997); Fou-
cha v. Louisiana, 504 U.S. 71, 80 (1992). The Court has
repeatedly adverted to the government's "compelling interest
in finding, convicting, and punishing those who violate the
law." Moran v. Burbine, 475 U.S. 412, 426 (1986); accord
Texas v. Cobb, 121 S. Ct. 1335, 1343 (2001); Gray v. Mary-
__________
5 The district court held the government to a clear-and-
convincing-evidence burden of proof. See 134 F. Supp. 2d at 121 &
n.12. Neither party challenges this determination.
land, 523 U.S. 185, 202 (1998) (Scalia, J., dissenting); McNeil
v. Wisconsin, 501 U.S. 171, 181 (1991); Richardson v. Marsh,
481 U.S. 200, 210 (1987); Garrett v. United States, 471 U.S.
773, 796 (1985) (O'Connor, J., concurring).
The Court in Riggins recognized the strength of the gov-
ernment's policy in adjudicating criminality when it stated
that the government "might" be able to involuntarily medi-
cate a defendant if "it could not obtain an adjudication of [his]
guilt or innocence by using less intrusive means," 504 U.S. at
135, and when it cited Justice Brennan's statement that
"Constitutional power to bring an accused to trial is funda-
mental to a scheme of 'ordered liberty' and prerequisite to
social justice and peace," id. at 135-36 (quoting Illinois v.
Allen, 397 U.S. 337, 347 (1970) (Brennan, J., concurring)).
We do not believe the Court's use of "might" reflects any
tentativeness about whether the government could ever justi-
fy medicating to restore competence to stand trial. If that
were what the Court had in mind we doubt that it would have
included the statement. We read "might," rather, as indicat-
ing that the interest in adjudicating criminality is not neces-
sarily an essential state policy under all circumstances. Cf.
Brandon, 158 F.3d at 960-61 (no compelling interest in trying
man accused of sending a threatening letter; factors relevant
to this determination include seriousness of the offense,
whether the pretrial detainee is dangerous, and whether the
detainee will be released if not tried); Khiem, 612 A.2d at 176
& n.1 (Ferren, J., dissenting from denial of rehearing en
banc) ("Whereas the District may have a compelling state
interest in force-medicating Khiem [to try him for murder],
the District will not necessarily have such an interest in force-
medicating pretrial detainees charged with lesser crimes.").
We need not decide under what circumstances trying and
punishing offenders is not "essential." The government's
interest in finding, convicting, and punishing criminals reach-
es its zenith when the crime is the murder of federal police
officers in a place crowded with bystanders where a branch of
government conducts its business. The Court made the point
in Salerno: "While the Government's general interest in
preventing crime is compelling, even this interest is height-
ened when the Government musters convincing proof that the
arrestee, already indicted or held to answer for a serious
crime, presents a demonstrable danger to the community.
Under these narrow circumstances, society's interest in crime
prevention is at its greatest." 481 U.S. at 750; see also
Khiem, 612 A.2d at 167; but see Bee v. Greaves, 744 F.2d
1387, 1395 (10th Cir. 1984). The statutory sentences for the
crimes Weston is accused of committing--life in prison and
death--reflect the intensity of the government's interest in
bringing those suspected of such crimes to trial. See 18
U.S.C. ss 1111, 1114.
Weston concedes that in "the ordinary case, the strength of
the government's interest in trying a defendant accused of
first degree murder is undisputed," but argues that when
"the government seeks to forcibly medicate a defendant in
order to try him, however, the case is no longer ordinary,
because presumptions against forced medication have deep
roots in the law." Brief for Appellant at 43. This argument
is a reprise of the medical ethics point we considered and
rejected in determining whether antipsychotic medication is
medically appropriate. It has no more purchase here. The
"presumption" against forced medication goes to the impor-
tance of Weston's constitutional right to refuse antipsychotic
drugs (which we agree is substantial), not to the nature of the
government's countervailing interest.
We also do not believe that the "governmental interest in
medicating a defendant in order to try him is diminished ...
by the option of civil commitment." Note, Riggins v. Neva-
da: Toward a Standard for Medicating the Incompetent
Defendant to Competence, 71 N.C. L. Rev. 1206, 1223 (1993).
The civil commitment argument assumes that the govern-
ment's essential penological interests lie only in incapacitating
dangerous offenders. It ignores the retributive, deterrent,
communicative, and investigative functions of the criminal
justice system, which serve to ensure that offenders receive
their just deserts, to make clear that offenses entail conse-
quences, and to discover what happened through the public
mechanism of trial. Civil commitment addresses none of
these interests. In Weston's case, civil commitment would be
based on his present mental condition, not on his culpability
for the crimes charged: "criminal responsibility at the time of
the alleged offenses ... is a distinct issue from his competen-
cy to stand trial." Jackson v. Indiana, 406 U.S. 715, 739
(1972); see also 18 U.S.C. s 4241(f) ("A finding by the court
that the defendant is mentally competent to stand trial shall
not prejudice the defendant in raising the issue of his insanity
as a defense to the offense charged, and shall not be admissi-
ble as evidence in a trial for the offense charged.").
2. Involuntary Medication is Necessary and
there are no Less Intrusive Means
The sole constitutional mechanism for the government to
accomplish its essential policy is to take Weston to trial. See
U.S. Const. amend. V (no deprivation of life, liberty, or
property without due process). Antipsychotic medication is
necessary because, as the district court found, "antipsychotic
medication is the only therapeutic intervention available that
could possibly improve Weston's symptom picture, lessen his
delusions, and make him competent to stand trial." Weston,
134 F. Supp. 2d at 132. The government cannot "obtain an
adjudication of [Weston's] guilt or innocence by using less
intrusive means." Riggins, 504 U.S. at 135.
Although Weston does not propose any alternative means,
he claims that the fit between involuntary medication and the
government's interest is not sufficiently tight in two respects.
First, he argues that the medication will not restore his
competence to stand trial because he is not likely to respond
to it. Second, he contends that the medication's mind-
altering properties and likely side effects will prejudice his
right to a fair trial such that the government could not
lawfully try him even if his competence were restored. Ei-
ther way, the argument goes, there is an insufficient probabil-
ity that forcible medication will satisfy the government's
interest.
We will treat what Weston styles the "narrow tailoring"
requirement of strict scrutiny as an attack on the "necessity"
of antipsychotic medication. In determining whether a gov-
ernmental interest overrides a constitutional right, courts
examine not only the nature of the right and the strength of
the countervailing interest, but also the fit between the
interest and the means chosen to accomplish it. This inquiry
entails a predictive judgment about the probable efficacy of
the means to satisfy the interest. In the terms of this case,
antipsychotic medication may not be "necessary" if its use will
not permit the government to try Weston.
That antipsychotic medication must be necessary to restore
Weston's competence to stand trial does not mean there must
be a 100% probability that it will produce this result. As the
Court has recognized, "necessity" may mean "absolute physi-
cal necessity or inevitability" or "that which is only conve-
nient, useful, appropriate, suitable, proper, or conducive to
the end sought." Webster v. Reproductive Health Servs., 492
U.S. 490, 515 n.13 (1989) (plurality opinion) (quoting Black's
Law Dictionary); see also Board of Trustees v. Fox, 492 U.S.
469, 476-77 (1989). Even narrow tailoring in strict scrutiny
analysis does not contemplate a perfect correspondence be-
tween the means chosen to accomplish a compelling govern-
mental interest. See Burson v. Freeman, 504 U.S. 191, 206-
10 (1992) (plurality opinion).
The government has established a sufficient likelihood that
antipsychotic medication will restore Weston's competence
while preserving his right to a fair trial. See Brandon, 158
F.3d at 960. The district court acknowledged that "it is not
certain that the medication will restore Weston's competen-
cy," but "credit[ed] the ... testimony of the mental health
experts that this outcome is likely." Weston, 134 F. Supp. 2d
at 132. The government presented evidence that antipsy-
chotic medication mitigated symptoms for at least 70 percent
of patients. See 7/24/00 p.m. Tr. at 108-09; 8/20/99 a.m. Tr.
at 56; 11/15/00 a.m. Tr. at 57. Dr. Johnson testified that the
response rate is probably higher with the atypicals. See
7/24/00 p.m. Tr. at 108-09. The government also provided
reason to believe that the probability of restoring competence
might be higher in Weston's case because of Weston's "rela-
tively little exposure to antipsychotic medication" and his
generally positive response to the limited medication he re-
ceived in 1996. See Weston, 134 F. Supp. 2d at 122; see also
8/20/99 a.m. Tr. at 56; 7/27/00 a.m. Tr. at 120-21; 4 Joint
Appendix 105 (Report of Dr. Daniel).
The small possibility that antipsychotic medication will not
make Weston competent for trial is certainly tolerable consid-
ering that antipsychotic medication is the sole means for the
government to satisfy its essential policy in adjudicating the
murder of federal officers. See Burson, 504 U.S. at 207-08
(emphasizing that the means chosen is the "only way" to
satisfy the state's compelling interest). The district court
made the most precise predictive judgment it could in this
context. See 8/20/99 a.m. Tr. at 56 (Dr. Johnson's testimony
that "you are unable to predict in the individual case whether
that individual will actually respond").
Weston points out that there is also a possibility that
antipsychotic medication could prejudice his right to a fair
trial by, for instance, altering his courtroom demeanor, inter-
fering with his recollection and ability to testify, and obstruct-
ing his right to present an insanity defense. We agree with
the district court that "[t]here is no reason to conclude, at this
time, that involuntary medication would preclude Weston
from receiving a fair trial." Weston, 134 F. Supp. 2d at 137.
The general right to a fair trial includes several specific
rights such as the right to be tried only while competent, that
is, while able to understand the proceedings, consult with
counsel, and assist in the defense. See Drope v. Missouri,
420 U.S. 162, 171-72 (1975). As we determined, there is a
sufficiently high probability that antipsychotic medication will
restore Weston's competence to stand trial. The district
court found and the evidence indicates that "a strong likeli-
hood exists that medication will enhance some of Weston's
trial rights, particularly his right to consult with counsel and
to assist in his defense." Weston, 134 F. Supp. 2d at 133.6
__________
6 See 7/24/00 p.m. Tr. at 8 (Dr. Johnson's testimony that "I would
really expect him, from a mental status standpoint, to be function-
ing in a much enhanced manner over his current psychotic state to
the point where I believe his competence could be restored"); id. at
9 (Dr. Johnson stating that "I actually firmly believe that treatment
Another aspect of the right to a fair trial is Weston's right
to testify and "to present his own version of events in his own
words." Rock v. Arkansas, 483 U.S. 44, 49, 52 (1987). The
defense is concerned that the medication might affect Wes-
ton's memory and his capacity to relate his delusions and
other aspects of his mental state at the time of the crime,
which in turn "may impair his ability to mount an effective
insanity defense." Weston, 206 F.3d at 21 (Tatel, J., concur-
ring); see also 18 U.S.C. s 17 (affirmative defense of insani-
ty). But the record contains no basis to suppose that anti-
psychotic drugs will prevent Weston from testifying in a
meaningful way. Rather, it indicates that medication will
more likely improve Weston's ability to relate his belief
system to the jury. See 7/24/00 p.m. Tr. at 49-51. The
benefits of antipsychotic medication in terms of Weston's
ability to understand the proceedings and communicate with
his attorneys presumably will also translate into an improved
capacity to communicate from the witness stand. And al-
though memory loss is a potential side effect, Dr. Johnson
testified that she thought "he'd be able to remember his
belief system." 7/24/00 p.m. Tr. at 50 (also stating that "I
don't think the treatment would impact his memory"); see
also 7/25/00 a.m. Tr. at 4-5 (Dr. Johnson's testimony that "I
don't expect him to lose the memory of his delusional beliefs
as a result of treatment").
There is a possibility that the medication could affect
Weston's behavior and demeanor on the witness stand such
that the jury might regard his "synthetically sane" testimony
as inconsistent with a claim of insanity. As Justice Kennedy
put it in Riggins, "[i]f the defendant takes the stand ... his
__________
with the medication will enhance his ability to follow the issues at
the trial"); 7/25/00 a.m. Tr. at 24 (Dr. Johnson's testimony that
"successful treatment would result in a decrease in his delusional
thinking, hopefully a resolution of that, an increase in his attention,
ability to concentrate, and a change in his affect, or the way his
mood appears to someone who is looking onto the situation. His
preoccupation with his delusional system has led me to believe at
various points that he has also experienced some hallucinatory
phenomena, and I would expect that to resolve.").
demeanor can have a great bearing on his credibility and
persuasiveness, and on the degree to which he evokes sympa-
thy." Riggins, 504 U.S. at 142 (Kennedy, J., concurring).
We recognize this small risk, but we see little basis to
suppose that the jury will take Weston's testimony (if he
decides to testify) as an indication that he must have been
sane at the time of the crime, or that he is making it up, or
that he deserves no sympathy. There is ample evidence of
Weston's history of mental illness and bizarre behavior; the
jury's overall impression of Weston will depend as much on
this evidence as his testimony.
The district court also correctly held that a defendant does
not have an absolute right to replicate on the witness stand
his mental state at the time of the crime. See Weston, 134
F. Supp. 2d at 134. A defendant asserting a heat-of-passion
defense to a charge of first degree murder does not have the
right to whip up a frenzy in court to show his capacity for
rage, nor does a defendant claiming intoxication have the
right to testify under the influence. See Weston, 206 F.3d at
15 (Henderson, J., concurring). There is little meaningful
distinction between these cases and medication-induced com-
petence to stand trial. Either way, the defendant's mental
state on the stand is different from the mental state he claims
to have operated under at the time of the crime. The
tolerable level of difference no doubt increases in a case like
this where there is substantial evidence of mental state other
than the defendant's present appearance.
Weston will not have to rely solely on his own testimony to
show his state of mind on July 24, 1998. Involuntary medi-
cation therefore stands little chance of impairing his right to
present an insanity defense. There is extensive documenta-
tion and testimony concerning Weston's delusional system,
his history of mental illness, and his "behavior, appearance,
speech, actions, and extraordinary or bizarre acts ... over a
significant period." Weston, 134 F. Supp. 2d at 135-36.
Multiple experts have examined Weston and presumably may
testify. Many of these examinations no doubt related to his
trial competence, but "[t]he tapes and psychiatric reports ...
document Weston's delusional state over several years." Id.
at 135. There is also a taped interview in which Weston
discussed his delusional beliefs with the Central Intelligence
Agency. See id. at 135 n.22. Given the wealth of expert and
lay testimony and other documentation the district court
described, see id. at 135-36, Weston's insanity defense does
not stand or fall on his testimony alone.
A third trial right that could be implicated by antipsychotic
medication is Weston's right to be present at trial in a state
that does not prejudice the factfinder against him. See
Estelle v. Williams, 425 U.S. 501, 503-04 (1976); Illinois v.
Allen, 397 U.S. 337, 338, 344 (1970). To the extent the
medication alters Weston's demeanor, courtroom behavior, or
reactions to events in the courtroom, it may cause the jury to
see Weston in a state that might seem inconsistent with a
claim of insanity. It could also produce a flattened emotional
affect that could convey to the jury a lack of remorse, a
critical consideration if this case proceeded to sentencing.
Here again the record indicates that medication will likely
enhance rather than impair Weston's right to a fair trial. Dr.
Johnson stated that medication "will alter [Weston's demean-
or] to the extent that it will be more a return to his baseline
non-psychotic state. I would anticipate he would have less
blunting or flattening of his affect. He would be able to
respond more appropriately from an emotional standpoint
with his facial expression than he is now." 7/24/00 p.m. Tr. at
8; see also 7/25/00 a.m. Tr. at 22-24 (Dr. Johnson agreeing
with the proposition that, with medication, Weston's "expres-
sions potentially could be more appropriate to the context of
what's occurring in the courtroom"; also, her testimony that
"[i]t is the patient who is over-medicated or whose side effects
are not managed who would demonstrate an increased lack of
responsiveness").
The possibility of side effects from antipsychotic medication
is undeniable, but the ability of Weston's treating physicians
and the district court to respond to them substantially re-
duces the risk they pose to trial fairness. The district court
found that Weston's doctors can manage side effects in a
number of ways: "the Court credits the testimony of the
government experts and Dr. Daniel, the independent expert,
that the side effects of medication are manageable through
adjustments in the timing and amount of the doses, and
through supplementary medications." Weston, 134 F. Supp.
2d at 137; see also 11/15/00 a.m. Tr. at 125 (Dr. Daniel's
testimony that antipsychotic medications have side effects but
"[g]enerally they can be treated or an adjustment made in the
medication, or the medication replaced with a different one.
There's generally a way to deal with the side effects."); 4
Joint Appendix 102 (Statement in Dr. Daniel's report to the
district court that "the side effects can most often be man-
aged or an alternative course of treatment provided to the
benefit of the patient. General experience with antipsychot-
ics, particularly the newer medications, indicates that given
their benefits they are reasonably safe and well-tolerated.").
As the Court wrote in Harper, the "risks associated with
antipsychotic drugs are for the most part medical ones, best
assessed by medical professionals." 494 U.S. at 233.7
__________
7 Antipsychotic drugs have progressed since Justice Kennedy
discussed their side effects in Riggins. There is a new generation
of medications having better side effect profiles. See Weston, 134
F. Supp. 2d at 134 (citing Justice Kennedy's concurrence and
writing that "[a]dvances in the primary antipsychotic medications
and adjunct therapies make such side effects less likely"); Paul A.
Nidich & Jacqueline Collins, Involuntary Administration of Psy-
chotropic Medication: A Federal Court Update, 11 No. 4 Health
Lawyer 12, 13 (May 1999) ("[I]n light of the progress made in the
development of new antipsychotic medications since the Supreme
Court's Riggins decision in 1992, the courts should revisit this issue
with an open mind.... [Because of new atypicals,] the fear of side
effects should not weigh heavily in the decision whether to treat
pretrial detainees or civilly committed persons with antipsychotic
medication against their will when that treatment is medically
appropriate."). Although the government presently plans to medi-
cate Weston with the older generation of typicals, it could switch to
the newer atypicals if side effects from the typicals threaten to
impair his right to a fair trial. The district court analyzed the side
effects of both. See Weston, 134 F. Supp. 2d at 123-25. Dr.
Johnson testified that Weston cannot be treated with atypicals
unless he agrees to take them orally. See 7/24/00 a.m. Tr. at 108-
The district court also has measures at its disposal: "If
Weston is medicated and his competency is restored, the
Court is willing to take whatever reasonable measures are
necessary to ensure that his rights are protected. This may
include informing the jurors that Weston is being adminis-
tered mind-altering medication, that his behavior in their
presence is conditioned on drugs being administered to him at
the request of the government, and allowing experts and
others to testify regarding Weston's unmedicated condition,
the effects of the medication on Weston, and the necessity of
medication to render Weston competent to stand trial." Wes-
ton, 134 F. Supp. 2d at 137. Weston is free to propose other
options.
There is a very high probability that involuntary medi-
cation will serve the government's essential interest in ren-
dering Weston "competent to stand trial in a proceeding that
is fair to both parties." Brandon, 158 F.3d at 954.8 Given
__________
09. The parties dispute whether Weston would so agree. When
Weston originally withheld consent to antipsychotic medication, he
indicated that he would comply with court-ordered medication. See
5/28/99 a.m. Tr. at 3.
8 Although the bulk of Weston's fair trial argument relates to the
narrow tailoring aspect of his Fifth Amendment substantive due
process argument, he makes a fleeting reference to an independent
right to a fair trial in arguing for strict scrutiny: "Weston's Fifth
and Sixth Amendment rights to a fair trial are also at stake because
the forced administration of antipsychotic medication may 'have a
prejudicial effect on [Weston's] physical appearance at trial' and
have an adverse effect on his 'ability to participate in his own
defense.' " Brief for Appellant at 37. To the extent this cursory
reference suffices to raise this claim, this is not the occasion to
evaluate it. Whether antipsychotic medication will impair Weston's
right to a fair trial is best determined when the actual effects of the
medication are known, that is, after he is medicated. (This is in
contrast to the narrow tailoring component of Weston's bodily
integrity claim, which requires a predictive judgment now.) As
Judge Tatel stated in the previous panel opinion, "the difficulty
inherent in predicting how a particular drug will affect a particular
individual may well lead the district court to conclude that it cannot
the lack of alternative means for the government to satisfy its
essential policy, we cannot demand more.
III. Guardian ad Litem
Weston also appeals the district court's refusal to appoint a
guardian ad litem. The district court concluded that it lacked
authority to appoint a guardian and expressed uncertainty
about what function a guardian would perform if appointed.
See 7/24/00 a.m. Tr. at 2-3.
We need not decide whether the court had discretion to
appoint a guardian and, if so, whether it abused that discre-
tion in declining to exercise it. The issue is not relevant to
the outcome of this case. If the guardian consented on
Weston's behalf, the government presumably may medicate
him. See Reply Brief for Appellant at 24-25 (stating that a
guardian "would effectively stand in Weston's shoes" and that
"Weston's counsel also explained at a hearing that a guardian
could take the position that the guardian should do as the
guardian saw fit with Weston--which would include allowing
medication"); see also 7/27/00 a.m. Tr. at 108-09. If the
guardian withheld consent, we are in the same position as
without a guardian: the government's interest in restoring
Weston's competence to stand trial outweighs his liberty
interest. If the guardian issue is otherwise relevant, Weston
has failed to show it.
* * *
Because antipsychotic medication is medically appropriate
and is necessary to accomplish an essential state policy, the
__________
make this determination about Weston without first medicating him.
In that event, I see no reason why the potential for side effects
would preclude the district court from ordering medication, provid-
ed that, should Weston become competent to stand trial, the district
court conducts a second hearing to determine the extent to which
any side effects Weston is actually experiencing might affect his
fair trial rights." Weston, 206 F.3d at 21 (Tatel, J., concurring).
The district court stated that it "will conduct subsequent evidentia-
ry hearings" on this point. Weston, 134 F. Supp. 2d at 138; see
also United States v. Morgan, 193 F.3d 252, 264-65 (4th Cir. 1999).
district court's order permitting the government to forcibly
medicate Weston is
Affirmed.
Randolph, Circuit Judge, with whom Circuit Judge
Sentelle joins, concurring: I write separately because I
believe United States v. Weston, 206 F.3d 9 (D.C. Cir. 2000),
our first decision in this case, may have embodied a serious
error.
Concluding that Weston was not sufficiently dangerous to
warrant forcibly medicating him, the panel wrote that "in his
current circumstances Weston poses no significant danger to
himself or to others." Weston, 206 F.3d. at 13. This was so
because Weston was confined to a room, under constant
observation and had no access to anything he could use to
harm himself or others. See id. The upshot, the panel
concluded, was that "[i]f the government advances the medi-
cal/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." Id.
This standard puts the government in an unnecessary
quandary. If Weston were no longer confined to a room and
under constant surveillance, he would be dangerous and,
presumably, could be medicated. However, because the gov-
ernment cannot medicate him while he is carefully confined--
and therefore, not dangerous--it cannot release him into the
general pre-trial detention population without incurring sub-
stantial risks. The result: the government is all but forced to
keep Weston in isolation, a condition almost everyone agrees
is detrimental to Weston's long-term mental health.
The statutes--18 U.S.C. ss 4241-4247--provide a far dif-
ferent standard for dangerousness than the prior panel's
decision, and represent not only the good judgment of Con-
gress and the President, but also the Judicial Conference of
the United States which "after long study by a conspicuously
able committee, followed by consultation with federal district
and circuit judges," proposed the legislation. Greenwood v.
United States, 350 U.S. 366, 373 (1956). Under s 4246, a
person is to be held and treated if "his release would cause a
substantial risk of bodily injury to another person or serious
damage to property of another." 18 U.S.C. s 4246(d) (italics
added). Thus, the question on Weston's first appeal should
not have been whether he was dangerous given the manner in
which he was confined, but whether he was dangerous as a
general matter, that is, if he were released from strict
confinement and observation.
Our concurring colleague proposes a different reading of
the prior panel's decision. Because of the problems just
discussed, I hope her view eventually prevails even though
the language of that opinion, quoted above, does not seem to
support her.
Rogers, Circuit Judge, 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 Riggins v. Nevada, 504
U.S. 127 (1992), the court applies a "form of heightened
scrutiny," Opinion at 11, in considering a number of factors
for balancing the interests of the government and the defen-
dant. 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 12. The substantive analysis that the
court employs encompasses, however, at least three distinct
determinations. To allow the government forcibly to medi-
cate 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; (2) "treatment with
antipsychotic medication [is] medically appropriate and, con-
sidering 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; and (3) the defendant's due process
rights are protected. See id. at 137-38.
The district court on remand made these three determina-
tions. 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 12. It
addresses the second and third determinations under the
heading of "Involuntary Medication is Necessary and there
are no Less Intrusive Means." Id. at 15. The court provides
a separate analysis of each determination. Id. at 15-17; 17-
23.
Keeping these determinations separate is important be-
cause the Supreme Court has acknowledged that a defen-
dant'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 antipsy-
chotic medication [is] necessary to accomplish an essential
state policy," Riggins, 504 U.S. at 138, the Court has suggest-
ed that the defendant's liberty interests would prevail where,
for example, the antipsychotic medication impairs the defen-
dant's "ability to follow the proceedings" or to present a
defense. Id. at 137; see also Drope v. Missouri, 420 U.S.
162, 171-72 (1975); Pate v. Robinson, 383 U.S. 375, 378
(1966). In such circumstances, the government would have
the option of seeking civil commitment of the defendant. See
Riggins, 504 U.S. at 145 (Kennedy, J., concurring in the
judgment); see generally 18 U.S.C. ss 4241-4247; D.C. Code
1981 ss 21-541 to 21-551. For the reasons set forth by the
court, the due process concerns relating to evidence of Wes-
ton's mental state and to his competency to stand trial are
attenuated. See Opinion at 17-23.
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 institu-
tion's ability to contain [his dangerousness] through his pres-
ent state of confinement." Opinion at 9. 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 1; see also
Opinion at 12-13; 18 U.S.C. s 4246(d)(2); 28 C.F.R. s 549.43.
The court in Weston II did not "put[ ] the government in an
unnecessary quandary." Concurring opinion at 1. 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 danger-
ous," 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 "essen-
tial" 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 govern-
ment'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, howev-
er, 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 evi-
dence 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 dan-
gerousness 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 9. 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 JA 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 behav-
ior," Br. for Appellee at 42, and that " 'prolonged use' of
seclusion 'brings risk of detrimental effects to the psychologi-
cal 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.