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Tucson shooting suspect can refuse anti-psychotic drugs, court rules

July 12, 2011 |  3:45 pm

http://opinion.latimes.com/.a/6a00d8341c7de353ef0147e2124fda970b-300wi Tucson shooting suspect Jared Lee Loughner has the constitutional right to refuse anti-psychotic medication while he appeals the treatment prescribed by prison mental health authorities, a federal appeals court ruled Tuesday.

The government has important interests in seeing Loughner healed of his schizophrenia and brought to trial for the Jan. 8 shooting rampage that killed six and injured 13 others, including U.S. Rep. Gabrielle Giffords, the three-judge panel of the U.S. 9th Circuit Court of Appeals noted. But Loughner’s right to be free from unwanted drugs that could harm or kill him trumps those considerations, the court said in extending its July 1 temporary order against forcible medical treatment.

“Because Loughner has not been convicted of a crime, he is presumptively innocent and is therefore entitled to greater constitutional rights than a convicted inmate,” said the appeals panel headed by Chief Judge Alex Kozinski.

The panel said the injunction against involuntary treatment with psychotropic drugs would remain in force until the 22-year-old’s appeal of the prison medical team’s treatment plan is decided. The next hearing in that appeal was set for Aug. 29 in San Francisco.

Loughner’s attorneys had argued that prison officials sought to medicate him against his will to render him competent to stand trial, something courts have allowed only under restrictive circumstances and when the medical benefits of the treatment outweigh the risks of violating a pretrial prisoner’s constitutional rights. In its written and oral arguments to the appeals panel, the defense team headed by San Diego lawyer Judy Clarke said the government was claiming that Loughner needed antipsychotic drugs to prevent him from being a danger to himself or others when in fact the aim was to get him in condition to stand trial.

U.S. District Judge Larry A. Burns ruled on May 25 that Loughner was incompetent to stand trial after reviewing mental health reports from the federal prison medical center in Missouri that said Loughner suffers from schizophrenia. Loughner has been in detention at the Springfield, Mo., mental hospital since Burns’ order that he be treated with the aim of rendering him able to eventually participate in his own defense.

The Federal Bureau of Prisons conducted an administrative hearing last month at which it decided Loughner needed the antipsychotic drugs for safety reasons. U.S. Supreme Court rulings have upheld prison authorities’ rights to forcibly medicate a dangerous prisoner, but also said that overriding the detainee’s will is allowed only to achieve security objectives.

The 9th Circuit decision to leave in place the order against forcible medication noted that prison authorities had managed to keep Loughner in custody for more than six months without injury to anyone interacting with him and that “the record shows that Loughner is not a danger to himself.”

In her brief to the 9th Circuit panel, Clarke took exception with the prison’s claims that Loughner was dangerous and that less intrusive means of mitigating the dangers to prison staff would be ineffective. Clarke also argued that Loughner’s rights were violated when his request to have his attorney present for the administrative hearing was ignored.

Her exclusion from the proceeding was particularly puzzling, she added, because one of the incidents on which prison authorities based their determination involved Loughner spitting on her, for which she said she could have provided important context. Other outbursts mentioned in the prison’s decision include Loughner throwing a chair against the back wall of his cell on several occasions, swearing at prison staff and tossing a sodden roll of toilet paper at a doctor who was trying to evaluate him.

Loughner’s attorneys on June 24 petitioned Burns to halt the forced medication, saying that it violated his due process rights and that less intrusive means of controlling his behavior were available, such as restraints and isolation. Burns denied the motion to have the involuntary medication stopped, citing a Supreme Court ruling in 2003 that deemed the need to control a violent inmate a valid reason for overriding his objections to medication.

The government told the appeals court in its filing that prison medical professionals had determined that although minor tranquilizers could be useful in reducing Loughner’s agitation, they “have no direct effect on the mental disease, and seclusion and restraints are merely temporary protective measures with no direct effect on mental disease.”

The brief filed by Arizona’s U.S. Atty. Dennis K. Burke and Assistant U.S. Atty. Christina M. Cabanillas focused on the legal procedural points that govern when a prisoner can get a court to stop his forced medication, one of which considers whether the inmate has good prospects of winning on his appeal of Burns’ decision against intervening.

The 9th Circuit panel included Kozinski, who was named to the court by President Reagan, and Judges Kim McLane Wardlaw and Richard A. Paez, both appointees of President Clinton.


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Photo: Jared Lee Loughner. Credit: Associated Press