United States v. Joseph Brooks , 750 F.3d 1090 ( 2014 )


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  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,              No. 12-30264
    Plaintiff-Appellee,
    D.C. No.
    v.                   3:11-cr-00074-HA-1
    JOSEPH HARVEY BROOKS,
    Defendant-Appellant.            OPINION
    Appeal from the United States District Court
    for the District of Oregon
    Ancer L. Haggerty, Senior District Judge, Presiding
    Argued and Submitted
    February 5, 2014—Seattle, Washington
    Filed May 7, 2014
    Before: Raymond C. Fisher, Ronald M. Gould,
    and Morgan Christen, Circuit Judges.
    Opinion by Judge Christen
    2                  UNITED STATES V. BROOKS
    SUMMARY*
    Criminal Law
    The panel vacated the district court’s order authorizing
    involuntary medication in order to render the defendant
    competent to stand trial, in a case in which the parties agree
    that remand is necessary so that specific time limitations may
    be added to the involuntary-medication order.
    The panel held that the district court did not clearly err in
    determining that the defendant suffered from a mental illness.
    Because over a year has passed since the district court’s
    order was entered, the panel believed that a new inquiry
    pursuant to Sell v. United States is required, and took the
    opportunity to provide additional guidance concerning the
    procedures to be followed on remand. The panel instructed
    the district court to make a specific determination that no
    other basis for forcibly administering medication is
    reasonably available before conducting a new Sell analysis.
    Regarding the Sell requirement that important
    governmental interests must be at stake, the panel wrote that
    the district court must consider, on the one hand, the potential
    for and anticipated length of future civil commitment in the
    event the defendant is not medicated and the amount of time
    the defendant has already been confined, versus the period of
    confinement that could reasonably be expected if the
    defendant were restored to competency and convicted of the
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. BROOKS                     3
    charged offense. The panel wrote that the district court
    should also consider any other significant factors that could
    strengthen or weaken the governmental interests in
    prosecuting the defendant, including the extent to which
    delaying the prosecution could jeopardize the government’s
    position at trial.
    COUNSEL
    C. Renée Manes (argued), Assistant Federal Public Defender,
    Office of the Federal Public Defender, Portland, Oregon, for
    Defendant-Appellant.
    Stephen F. Peifer (argued), Assistant United States Attorney,
    S. Amanda Marshall, United States Attorney, Kelly A.
    Zusman, Appellate Chief, Office of the United States
    Attorney, Portland, Oregon, for Plaintiff-Appellee.
    OPINION
    CHRISTEN, Circuit Judge:
    Among the most weighty decisions our society can make
    is to subject someone to a powerful medication against his or
    her will. The government must meet the demanding standard
    set by the Supreme Court in Sell v. United States, 
    539 U.S. 166
    (2003), before involuntary medication may be
    administered in an effort to restore a defendant’s competency
    to stand trial. This case requires that we consider whether the
    district court appropriately authorized involuntary medication
    in order to render Joseph Brooks competent to stand trial for
    arson. Brooks and the government agree that remand is
    4                  UNITED STATES V. BROOKS
    necessary so that specific time limitations may be added to
    the district court’s order authorizing involuntary medication.
    Because over a year has passed since the district court’s order
    was entered, we believe a new Sell inquiry is required, and
    we take this opportunity to provide additional guidance
    concerning the procedures to be followed on remand.
    BACKGROUND
    Joseph Harvey Brooks, age 53, has a lengthy history of
    mental health issues including paranoid schizophrenia. This
    is not the first time a government entity has sought to
    medicate Brooks against his will. After he was charged with
    assault in 2004, Brooks underwent several forensic
    evaluations of his mental health. In 2004 and 2005, he was
    hospitalized to restore his competency to stand trial for
    assault. During this period, a Washington state court
    authorized a hospital to treat Brooks with antipsychotic
    medications if necessary, and he received such medications.
    The current appeal relates to a different incident. The
    government alleges that Brooks attempted to set fire to cables
    connecting a radio antenna on a roof at Oregon Health
    Sciences University. Brooks was indicted for arson in federal
    district court in 2011. After reviewing Brooks’s forensic
    mental health evaluations, the district court found Brooks
    mentally incompetent to stand trial and ordered his
    hospitalization pursuant to 18 U.S.C. § 4241(d)(1).1 On
    1
    Under 18 U.S.C. § 4241(d)(1), a federal court may hospitalize a
    mentally incompetent defendant “for such a reasonable period of time, not
    to exceed four months, as is necessary to determine whether there is a
    substantial probability that in the foreseeable future he will attain the
    capacity to permit the proceedings to go forward.”
    UNITED STATES V. BROOKS                              5
    December 16, 2011, Brooks was admitted to the U.S. Medical
    Center for Federal Prisoners in Springfield, Missouri.
    An internal administrative hearing pursuant to 28 C.F.R.
    § 549.43 was held on March 5, 2012 at the federal medical
    facility to determine if Brooks met the criteria for involuntary
    administration of antipsychotic medication for reasons such
    as grave disability or because he posed a danger to himself or
    to others at the facility.2 This proceeding is referred to as a
    Harper hearing.3 See Washington v. Harper, 
    494 U.S. 210
    (1990). The hearing officer determined that Brooks did not
    meet the Harper criteria, and he was not involuntarily
    medicated.
    The government then filed a motion seeking court
    approval to medicate Brooks with antipsychotic drugs against
    his will so that he would regain competency to stand trial,
    pursuant to the Supreme Court’s decision in 
    Sell. 539 U.S. at 177
    –83. In Sell, the Court reaffirmed that “an individual has
    a significant constitutionally protected liberty interest in
    avoiding the unwanted administration of antipsychotic
    drugs.” 
    Id. at 178
    (citation and internal quotation marks
    omitted). Sell also held that “the Constitution permits the
    Government involuntarily to administer antipsychotic drugs
    to a mentally ill defendant facing serious criminal charges in
    order to render that defendant competent to stand trial,” but
    only if a court determines that four conditions are met. 
    Id. at 179.
    These conditions, which we refer to as the “Sell
    2
    The procedures that must be followed before medication may be
    involuntarily administered to an inmate are outlined in 28 C.F.R. § 549.46.
    3
    At oral argument for this appeal, the government agreed that the
    March 5, 2012 internal administrative hearing was a Harper hearing.
    6                   UNITED STATES V. BROOKS
    factors,” are that: (1) there are “important governmental
    interests” at stake; (2) “involuntary medication will
    significantly further those concomitant state interests;”
    (3) “involuntary medication is necessary to further those
    interests;” and (4) “administration of the drugs is medically
    appropriate, i.e., in the patient’s best medical interest in light
    of his medical condition.” 
    Id. at 179–81.
    Under Sell, before a court orders involuntary medication
    for purposes of restoring competency to stand trial, the court
    must determine “whether the Government seeks, or has first
    sought, permission for forced administration of drugs on . . .
    other, Harper-type grounds; and, if not, why not.” 
    Id. at 183.4
    The Sell standard for involuntary medication is “more
    demanding” than the Harper standard.5 United States v.
    Loughner, 
    672 F.3d 731
    , 747 (9th Cir. 2012). Sell inquiries
    are “disfavored,” United States v. Rivera-Guerrero, 
    426 F.3d 1130
    , 1137 (9th Cir. 2005), in part because they are less
    “objective and manageable” than Harper inquiries, 
    id. (quoting Sell,
    539 U.S. at 182). We have explained that,
    4
    Accordingly, our court has held that “prior to undertaking the Sell
    inquiry, a district court should make a specific determination on the record
    that no other basis for forcibly administering medication is reasonably
    available,” and that “[i]f a district court does not conduct a dangerousness
    inquiry under Harper, it should state for the record why it is not doing so.”
    United States v. Hernandez-Vasquez, 
    513 F.3d 908
    , 914 (9th Cir. 2007).
    5
    Harper held that “the Due Process Clause permits the State to treat a
    prison inmate who has a serious mental illness with antipsychotic drugs
    against his will, if the inmate is dangerous to himself or others and the
    treatment is in the inmate’s medical 
    interest.” 494 U.S. at 227
    ; see 
    Sell, 539 U.S. at 178
    .
    UNITED STATES V. BROOKS                      7
    under Harper, “an inmate . . . is being treated for reasons that
    are in his and the institution’s best interests,” while under
    Sell, “the inmate is being treated because of the government’s
    trial interests, not the prison’s interests or the inmate’s
    medical interests.” 
    Loughner, 672 F.3d at 758
    –59. Put
    another way, the Harper inquiry determines whether
    medication may be involuntarily administered “to render an
    individual nondangerous” during confinement, while a Sell
    inquiry asks whether medication is necessary to allow the
    government to prosecute the individual. 
    Id. at 747.
    In this case, on August 7, 2012, the district court held a
    Sell hearing on the government’s motion for involuntary
    medication. Brooks testified that a “Ku Klux Klan Mafia
    mob organization” was trying to murder him, as foretold in
    the Biblical Book of Revelations. He claimed that a contract
    to kill him had been put out by the “kingpin” of the Ku Klux
    Klan—allegedly “the owner manager of the Riverside Motel
    in Vancouver, Washington.” He stated “I am not a violent
    person,” and “I’m not psychotic or delusional.” In response
    to the court’s questioning, he indicated his willingness to take
    medications “as a last resort . . . until I get some appropriate
    help from law enforcement” in fighting the Ku Klux Klan
    mafia. But later in the hearing, referring to the Ku Klux Klan
    or mafia conspiracy against him, he stated: “I don’t need no
    medication to stop something that ain’t gonna be stopped by
    medication.”
    The court also heard testimony from Dr. Robert Sarrazin,
    Brooks’s treating physician and the chief of psychiatry at the
    Federal Medical Center in Springfield, Missouri. Dr.
    Sarrazin testified that he had been involved in over fifty Sell
    hearings. He stated that Brooks had been diagnosed with
    paranoid schizophrenia, was “clearly . . . delusional” as
    8                UNITED STATES V. BROOKS
    evidenced by his false beliefs regarding the mafia, and that
    absent treatment with antipsychotic medications he “will not
    become competent in the foreseeable future.” At the time of
    the Sell hearing, Dr. Sarrazin testified that Brooks’s mental
    illness had been ongoing for more than a year. In fact, from
    medical records it appears that he has been mentally ill for
    around a decade or longer.
    Dr. Sarrazin opined that it was “substantially likely that
    Mr. Brooks will be restored to competency in the foreseeable
    future with treatment with antipsychotic medications.” Dr.
    Sarrazin testified that similarly situated prisoners have been
    “restored to competency over 70 percent of the time.”
    Because Brooks “ha[d] no insight into his illness” and “was
    quite insistent that he has no mental illness and needs no
    treatment,” Dr. Sarrazin indicated that there was no reason to
    believe he would consent to voluntary medication.
    According to Dr. Sarrazin, medication was a “necessary
    treatment” and the least intrusive treatment likely to achieve
    success. He also concluded that there was nothing about
    Brooks’s physical condition that would render medication
    inappropriate.
    Based on its consideration of the sealed record and the
    evidence presented at the Sell hearing held on August 7,
    2012, the district court granted the government’s motion for
    authorization to medicate Brooks involuntarily. The court
    found that each of the Sell requirements was met. Its written
    order did not expressly explain how the government had
    established the first prong of the Sell test, that important
    governmental interests are at stake. At the hearing, however,
    the court told Brooks: “For the record, I will find that the
    governmental interests in this case are high from the
    standpoint that if, in fact, you were not in custody, there’s a
    UNITED STATES V. BROOKS                               9
    likelihood that you would, in fact, cause harm to the members
    of the public or property.” The written Sell order authorized
    the Federal Bureau of Prisons to administer one or more
    antipsychotic medications at specified dosages but did not
    include a time limitation. The court authorized Brooks’s
    continued commitment pursuant to 18 U.S.C.
    § 4241(d)(2)(A)6 “until further order of the court to set
    another hearing to assess the status of defendant’s treatment
    and to determine whether defendant may be returned to the
    District of Oregon to participate in further proceedings.”
    Brooks appealed to this court. The district court stayed
    the involuntary medication order pending this appeal.
    DISCUSSION
    “Ordinarily, an appellate court may hear appeals only
    from a district court’s final decision.” 
    Loughner, 672 F.3d at 742
    (citing 28 U.S.C. § 1291). Here, we have jurisdiction to
    review the district court’s involuntary medication order under
    the collateral order doctrine. 
    Id. at 743;
    see also 
    Sell, 539 U.S. at 177
    (holding that district court’s involuntary
    medication order was an appealable collateral order). This
    court has held “that the first Sell factor . . . is a legal question
    subject to de novo review, and that the remaining Sell factors
    are factual questions . . . reviewed for clear error.”
    
    Hernandez-Vasquez, 513 F.3d at 915
    –16.
    6
    This provision authorizes the Attorney General to hospitalize a
    defendant for treatment in a suitable facility for a reasonable period of
    time “if the court finds that there is a substantial probability that within
    such . . . period of time he will attain the capacity to permit the
    proceedings to go forward.” 18 U.S.C. § 4241(d)(2).
    10              UNITED STATES V. BROOKS
    I. The Defendant’s Mental Incompetency
    Brooks argues there is no need for involuntary medication
    to restore him to competency because he is not mentally ill.
    Brooks’s mental condition is a factual question, and the
    district court’s determination that Brooks is mentally ill is
    reviewed for clear error. 
    Id. Brooks’s statements
    at the hearing, the testimony of Dr.
    Sarrazin, and the sealed forensic reports and evaluations
    included in the record provide ample support for the district
    court’s finding that Brooks suffered from a mental illness at
    the time of the hearing. In particular, multiple psychiatrists
    diagnosed Brooks with delusions and paranoid schizophrenia,
    and Brooks’s statements at the hearing regarding the Ku Klux
    Klan and the mafia were consistent with these diagnoses.
    The district court did not clearly err in determining that
    Brooks suffered from a mental illness.
    II. Consideration of Alternative Grounds for Involuntary
    Medication
    It appears that the district court reasonably concluded
    there was no other basis for forcibly administering
    medication because of the outcome of the March 5, 2012
    Harper hearing; neither party contends otherwise. Given the
    amount of time that has passed since the district court’s Sell
    order, on remand the district court should make a specific
    determination that no other basis for forcibly administering
    medication is reasonably available before conducting a new
    Sell analysis. The district court is not required to order or
    conduct a new Harper hearing if one is not otherwise
    indicated, but if the court does not conduct a dangerousness
    UNITED STATES V. BROOKS                       11
    inquiry, “it should state for the record why it is not doing so.”
    
    Id. at 914.
    III.    Governmental Interests in Involuntary Medication
    Of the four Sell factors, Brooks only specifically
    challenges the district court’s determination of the first factor,
    the requirement that important governmental interests must
    be at stake. Our review of this legal question is de novo. 
    Id. at 915–16.
    Brooks argues that the government’s interest is in
    public safety and that involuntary medication is unnecessary
    to serve this interest because, absent medication, he will
    remain confined pursuant to 18 U.S.C. § 4246. This
    provision states that a district court may order the continued
    hospitalization of:
    a person in the custody of the Bureau of
    Prisons . . . who has been committed to the
    custody of the Attorney General pursuant to
    section 4241(d), or against whom all criminal
    charges have been dismissed solely for
    reasons related to the mental condition of the
    person [if the person] is presently suffering
    from a mental disease or defect as a result of
    which his release would create a substantial
    risk of bodily injury to another person or
    serious damage to property of another.
    18 U.S.C. § 4246(a).
    Brooks claims that if he were restored to competency, “he
    would present the defense that he was not guilty by reason of
    insanity.” His argument, in essence, is that he was so clearly
    incompetent at the time of the underlying offense that the
    12              UNITED STATES V. BROOKS
    government has no independent interest in prosecution except
    to keep him confined, which will be accomplished whether or
    not he is prosecuted and convicted. See Clark v. Arizona,
    
    548 U.S. 735
    , 768–69 (2006) (“‘A central significance of the
    insanity defense . . . is the separation of nonblameworthy
    from blameworthy offenders.’” (quoting D. Hermann, The
    Insanity Defense: Philosophical, Historical and Legal
    Perspectives 4 (1983))). Brooks argues that the government’s
    interest in public safety may be adequately served by civil
    commitment under 18 U.S.C. § 4246(a), which allows the
    government to involuntarily hospitalize him so long as he
    remains “a substantial risk of bodily injury to another person
    or serious damage to property of another.”
    As a threshold matter, we reject Brooks’s premise that the
    district court is required to speculate about whether Brooks
    would be found not guilty by reason of insanity if he pursued
    that defense. We also decline to analyze the first Sell factor
    as applied to Brooks’s case. Brooks’s contention that the
    district court did not adequately address this factor is well-
    taken. But this is a fact-intensive analysis that the district
    court is better suited to conduct in the first instance,
    especially where, as here, the relevant considerations may
    have changed with the passage of time. Instead, we
    summarize below the Supreme Court and circuit authority
    addressing the first Sell factor, and remand to the district
    court to address Brooks’s argument when it conducts a new
    Sell inquiry. Given that more than a year has passed since the
    district court’s initial Sell hearing, the court should also
    ascertain whether there have been significant changes in
    Brooks’s mental and medical condition or in the relevant
    standard of care for treatment aimed at restoring competency.
    UNITED STATES V. BROOKS                     13
    To evaluate the first Sell factor, the district court should
    begin by considering “the seriousness of the underlying
    crime.” 
    Hernandez-Vasquez, 513 F.3d at 915
    ; see United
    States v. Gillenwater, No. 12-30379, 
    2014 WL 1394960
    , at
    *4 (9th Cir. Apr. 11, 2014). Hernandez-Vasquez provides
    guidance on how to analyze this 
    question. 513 F.3d at 917
    –19. There, we held that the penalty for which the
    defendant could be liable if convicted is a relevant factor, and
    therefore “the likely guideline range is the appropriate
    starting point for the analysis of a crime’s seriousness.” 
    Id. at 919.
    But the guideline range is the beginning of the
    analysis, not the end. The Supreme Court has directed that
    “courts must consider the facts of individual cases in
    evaluating the government’s interest in prosecution.” 
    Id. at 918;
    see also 
    Sell, 539 U.S. at 180
    ; Gillenwater, 
    2014 WL 1394960
    , at *4. “Such relevant circumstances include the
    time a defendant has served while awaiting trial and the
    possibility of future civil confinement.” 
    Hernandez-Vasquez, 513 F.3d at 918
    (citing 
    Sell, 539 U.S. at 180
    ).
    In Sell, the Supreme Court acknowledged that “[s]pecial
    circumstances may lessen the importance” of the
    governmental interests in prosecution. 
    Sell, 539 U.S. at 180
    .
    In particular, “[t]he defendant’s failure to take drugs
    voluntarily, for example, may mean lengthy confinement in
    an institution for the mentally ill—and that would diminish
    the risks that ordinarily attach to freeing without punishment
    one who has committed a serious crime.” 
    Id. The Court
    went
    on:
    We do not mean to suggest that civil
    commitment is a substitute for a criminal trial.
    The Government has a substantial interest in
    timely prosecution. And it may be difficult or
    14                   UNITED STATES V. BROOKS
    impossible to try a defendant who regains
    competence after years of commitment during
    which memories may fade and evidence may
    be lost. The potential for future confinement
    affects, but does not totally undermine, the
    strength of the need for prosecution. The
    same is true of the possibility that the
    defendant has already been confined for a
    significant amount of time (for which he
    would receive credit toward any sentence
    ultimately imposed, see 18 U.S.C. § 3585(b)).
    Moreover, the Government has a concomitant,
    constitutionally essential interest in assuring
    that the defendant’s trial is a fair one.
    Id.7
    From this discussion of the first factor in Sell, we glean
    the principle that the district court must consider, on the one
    hand, the potential for and anticipated length of future civil
    commitment in the event the defendant is not medicated and
    the amount of time the defendant has already been confined,
    versus the period of confinement that could reasonably be
    expected if the defendant were restored to competency and
    convicted of the charged offense. The district court should
    also consider any other significant factors that could
    7
    The governmental interest in a fair trial is implicated by both the first
    and second Sell factors. Under the second Sell factor, a court “must find
    that administration of the drugs is substantially unlikely to have side
    effects that will interfere significantly with the defendant’s ability to assist
    counsel in conducting a trial defense, thereby rendering the trial unfair.”
    
    Sell, 539 U.S. at 181
    . An individual defendant’s past responses to
    antipsychotic medications, if any, will bear upon the likelihood and
    severity of side effects.
    UNITED STATES V. BROOKS                       15
    strengthen or weaken the governmental interests in
    prosecuting Brooks, including the extent to which delaying
    the prosecution could jeopardize the government’s position
    at trial. It is not clear from the record that the district court
    conducted this inquiry. Where the district court has yet to
    explore all the facts relevant to the first Sell factor, we decline
    to create additional rules or guidance beyond what has been
    expressed through binding authority. We have confidence in
    the district court’s ability to weigh these considerations in the
    first instance, and we believe it is in the best position to do so.
    IV.     Time Limitations on Involuntary Medication
    A Sell order must identify “the duration of time that
    involuntary treatment of the defendant may continue before
    the treating physicians are required to report back to the court
    on the defendant’s mental condition and progress.”
    
    Hernandez-Vasquez, 513 F.3d at 917
    . The parties agree that
    the district court’s order did not specify the time limitation.
    Remand is necessary on this issue.
    CONCLUSION
    Given that remand is necessary, a new Sell inquiry is
    required because of the amount of time that has passed since
    the district court’s order was entered. If the district court
    determines on remand that no alternative basis for forcibly
    medicating Brooks is indicated, it should proceed to consider
    all four Sell factors anew.
    VACATED AND REMANDED.
    

Document Info

Docket Number: 12-30264

Citation Numbers: 750 F.3d 1090

Judges: Christen, Fisher, Gould, Morgan, Raymond, Ronald

Filed Date: 5/7/2014

Precedential Status: Precedential

Modified Date: 8/31/2023