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Posted Jul 12, 2011, 3:16 pm
A federal appeals court ruled Tuesday that prison officials can't force accused Jan. 8 shooter Jared Loughner to take psychotropic drugs until the court hears further arguments.
The ruling by the Ninth Circuit Court of Appeals maintains an earlier order that temporarily halted the forced medication of Loughner.
The court said that because Loughner has not been convicted, he is entitled to greater constitutional protections than a convicted inmate. The order, by a three-judge panel, rejected claims by the government that Loughner is a danger to himself.
Loughner is being held at a Missouri prison hospital, where authorities are trying to restore his competency to stand trial.
Prosecutors and prison officials have claimed that Loughner was a danger to himself and others, leading to a determination to force psych meds on him at a June 14 administrative hearing. His attorneys were not involved in that hearing, although he did have a "staff representative," authorities said.
Loughner's attorney's asked U.S. District Judge Larry Burns to halt the medication, a move he rejected.
They then appealed to the Ninth Circuit, which ordered federal prison officials to halt forcing Loughner to take psychotropic medication on July 1. Loughner was first forced to take psych meds on June 22, the defendant's lawyers told the court. He refused to voluntarily take drugs meant to restore him to competency to stand trial.
Tuesday's order keeps the Ninth Circuit's earlier order in place, but it is not a final decision.
"The only question before us is whether the district court abused its discretion by denying Loughner’s emergency motion for a preliminary injunction," the judges said. "We conclude that it did."
"Because Loughner has not been convicted of a crime, he is presumptively innocent and is therefore entitled to greater constitutional protections than a convicted inmate," the court said.
"This order does not preclude the prison authorities from taking other measures to maintain the safety of prison personnel, other inmates and Loughner himself, including forced administration of tranquilizers," the court said.
The court said it will hear further arguments from prosecutors and defense attorneys the week of Aug. 29.
From the order:
The Supreme Court has reasoned that "forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty."
Being forced to take medication carrying the risk of irreversible, possibly fatal side effects, no doubt amounts to irreparable harm.
He has a strong personal interest in not being forced to suffer the indignity and risk of bodily injury that results from the administration of powerful drugs. The government's interest is no less serious: It seeks both to protect Loughner and those around him from any danger he might represent, and to evaluate whether he can be restored to competency. The government's interest is, however, less immediate. It has managed to keep Loughner in custody for over six months without injury to anyone. We are confident it can continue to do so for the short period it will take to resolve this appeal on the merits. And the record shows that Loughner is not a danger to himself.
Finally, there is a strong public interest in preserving the safety and bodily integrity of individuals who are detained prior to trial and thus innocent in the eyes of the law. There is also a public interest in protecting the welfare of those who interact with Loughner while he is in pre-trial detention and in determining whether Loughner can be restored to mental health so he can stand trial for his alleged crimes. While both interests are significant, we conclude that preserving the dignity and bodily integrity of an individual who has not been convicted of a crime is the stronger interest, especially when the government has demonstrated that it is able to prevent that individual from harming himself or others.
Gov't claimed Loughner dangerous
In an emergency hearing held in San Diego late last month, U.S. District Judge Larry Burns said he did not want to second guess doctors at the federal prison hospital in Springfield, Mo., where Loughner is being held.
"I have no reason to disagree with the doctors here," Burns said June 29. "They labor in this vineyard every day."
Loughner's attorneys filed a motion last month asking the court to overrule the prison administration's decision to force Loughner to take anti-psychotic medication.
Loughner was first forced to take psych meds on June 22, the defendant's lawyers told the court. He refused to voluntarily take drugs meant to restore him to competency to stand trial.
Prosecutors said at the hearing that Loughner was determined to be a danger to himself and others by prison officials.
"This is a person who is a ticking time bomb," prosecutor Wallace Kleindienst told Burns.
Progress notes written by prison officials said that Loughner remains a danger, and that he does not accept that U.S. Rep. Gabrielle Giffords survived the Jan. 8 shooting.
Prison officials decided to forcibly medicate Loughner at a June 14 administrative hearing. His attorneys were not involved in that hearing, although he did have a "staff representative," authorities said.
Loughner did not participate in that hearing, instead barricading himself behind his bed in his cell, where the hearing wasa held, according to court documents.
Prosecutors pointed to several incidents that they said justified drugging Loughner by force. On April 4, he spit and lunged at his own attorney, Judy Clarke; on March 14 he said "Fuck you" and threw a plastic chair four times, hitting a screen behind which a mental health expert sat; threw sodden toilet paper at a camera; and threw chairs in his cell on May 28.
In a June 24 motion, lead defense attorney Clarke argued that the prison could use milder methods than anti-psychotic medication to control Loughner's alleged dangerous behavior. She also argued that the government's use of an administrative hearing was an "end run" to avoid court review of forced medication.
The move was "an end run around the right to a judicial determination of whether an incompetent defendant can be involuntarily and forcibly medicated to restore competency to stand trial," Loughner's attorneys said.
Defense lawyers have argued in court papers that psychotropic drugs can affect a defendant's judgment and testimony.
The judge had twice before blocked defense motions that they be notified before Loughner is given medications.
Defendants who refuse to voluntarily take medication while authorities try to restore them to competency can be forced to do so after a court hearing, a 2003 Supreme Court decision said.
In Loughner's case, that court hearing was not held. Instead, prison officials held an administrative hearing, without Loughner's lawyers, and determined that he is a danger to himself and others. That route to forced drugging is valid according to a different court case.
Burns ruled last month that the second procedure for determining forced medication doesn't afford a defendant the right to a court hearing or legal representation.
Although they have not said they will present an insanity defense, Loughner's attorneys have indicated that his mental state will figure into their case. They have called their client "gravely mentally ill" in court documents.
6 killed, 13 wounded
Loughner, 22, is accused of killing six, including a nine-year-old girl, and shooting U.S. Rep. Gabrielle Giffords in the head in what authorities charge was an assassination attempt.
He also is charged with wounding 12 others at the "Congress On Your Corner" meet and greet with constituents at a Northwest Side grocery store on the morning of Jan. 8.
He was found incompetent to stand trial in May, and was sent to a federal facility in Missouri for treatment to restore his ability to understand the charges against him and participate in his defense.
In March, Loughner was charged with 49 federal counts in the attack. Not guilty pleas were entered on his behalf by the court.
Fourteen of the charges Loughner faces could result in the death penalty, if the prosecution seeks it. No decision of whether to ask for capital punishment has been made, authorities have said.
Loughner likely will face local charges in the shooting incident, authorities have said, but only after the federal case is resolved.
Giffords made a surprise public appearance at a NASA event last month, where her husband, Navy Capt. Mark Kelly, was being honored. The astronaut has announced that he would retire from the military, and that he isn't interested in running for the seat held by retiring U.S. Sen. Jon Kyl. The couple have a book deal in the works, he said.
The congresswoman made a weekend trip back to Tucson for Father's Day. She has not made an official public appearance, spoken to constituents, or released a statement in her own name since the shooting.
Nearly six months after she was shot through the brain, Giffords struggles to communicate, an aide told a columnist for the Arizona Republic.
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Giffords searches for words and has trouble putting sentences together, said the congresswoman's chief of staff, Pia Carusone, in a piece by E.J. Montini earlier this month.
Speaking directly about Giffords' condition and when she might make a public appearance for the first time since the Jan. 8 shooting that claimed the lives of six others, Carusone said Giffords' "communication skills have been impacted the most."
"If you think of it as someone who is able to communicate with you clearly, it is easy to test them. You can ask them a series of questions and you can get clear answers back. Where as with Gabby what we've been able to infer and what we believe is that her comprehension is very good. I don't know about percentage-wise or not, but it's close to normal if not normal."
Giffords is relying on expressions and gestures, rather than speaking, to completely convey her thoughts, Carusone said.
"She is borrowing upon other ways of communicating. Her words are back more and more now, but she's still using facial expressions as a way to express. Pointing. Gesturing. Add it all together and she's able to express the basics of what she wants or needs. But when it comes to a bigger and more complex thought that requires words, that's where she's had the trouble."
After an operation on her skull last month, Carusone told reporters that Giffords' speech was improving, and that she understood abstract concepts.
Giffords "understands, if not everything, close to everything" when presented with complex concepts, Carusone said in May. Giffords is "absolutely curious" about current events, she said.
"She understands sarcastic humor," she said. "Her voice sounds very normal, it sounds as it did before the shooting," she said.
"She's able to fluctuate her volume level" and express being light-hearted or serious with the quality of her voice, Carusone said.
"Her speech is getting better with the constant therapy she's doing."
Giffords was shot through the left side of her brain, which controls speech and language, at a "Congress On Your Corner" meet-and-greet with constituents.
Continuing in office
As I reported on her birthday, Giffords' staffers have been relunctant to comment on her plans to continue in office, or run again. Carusone didn't stray much beyond the party line.
"The only firm timetable is the timetable and that is May of 2012, when petitions are due for reelection," Carusone told the Republic. "That's a firm timetable."
"Short of that, we'd love to know today what her life will be, what her quality of life will be, which will determine whether she'll be able to run for office and all sorts of other things involving her life. But we just don't know yet…We're about halfway through the process that is the most important time for recovery. Patients recover for the rest of their lives but it's the first 12 to 14 months that you make the biggest jumps… In the doctors minds it's not even close to when you begin to make the final prognosis for the quality of her life."
While doctors have called Giffords' recovery "miraculous," Carusone said she has a long way to go.
"She's living. She's alive. But if she were to plateau today, and this was as far as she gets, it would not be nearly the quality of life she had before. There's no comparison. All that we can hope for is that she won't plateau today and that she'll keep going and that when she does plateau it will be at a place far away from here."
While some have called upon Giffords to resign her seat, there's been little indication that she will do so any time soon.
Beginning just days after the shooting, others have explored declaring her seat vacant. A state law on vacant offices doesn't apply to federal representatives, and an online petition asking Gov. Jan Brewer to declare a special election has attracted few signatures.
According to the Constitution, members of the House of Representatives can only be forced out of office by a vote by the House. Federal courts have found that states are powerless to set limits on those serving in federal office above those found in the Constitution and federal law.