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Date: 04-23-2019
Case Style:
United States of America v. Joan Osborn
Case Number: 18-4009
Judge: Carson
Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Utah (Salt Lake County)
Plaintiff's Attorney: Syrena C. Hargrove, Assistant United States Attorney (Bart M. Davis, United States
Attorney, with her on the brief), United States Attorney’s Office, District of Idaho, Boise, Idaho, for Plaintiff-Appellee.
Defendant's Attorney: Amy B. Cleary, Assistant Federal Public Defender (Rene L. Valladares, Federal Public Defender, and Cristen C. Thayer, Assistant Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Las Vegas, Nevada, for Defendant-Appellant.
Description:
In Sell v. United States, 539 U.S. 166, 169, 180–81 (2003), the Supreme Court
outlined a demanding four-part test that, if satisfied, allows the government to
forcibly medicate a mentally ill but nonviolent criminal defendant “to render that
defendant competent to stand trial.” That test is as follows:
First, a court must find that important governmental interests are
at stake. . . .
. . . .
Second, the court must conclude that involuntary medication will
significantly further those concomitant state interests. . . .
Third, the court must conclude that involuntary medication is
necessary to further those interests. . . .
Fourth, . . . the court must conclude that administration of the drugs
is medically appropriate, i.e., in the patient’s best medical interest in light
of his medical condition.
Sell, 539 U.S. at 180–81 (emphases in original).
But the Supreme Court cautioned that lower courts “need not consider whether
to allow forced medication for that kind of purpose, if forced medication is warranted
for a different purpose.” Id. at 181–82 (emphasis in original). Specifically, courts
“ordinarily” must first consider whether forced medication is in the defendant’s
medical interest because it safeguards him from himself or others, a circumstance
which the Supreme Court previously addressed in Washington v. Harper, 494 U.S.
210, 227 (1990). Sell, 539 U.S. at 183. The Supreme Court reasoned that the Harper
standard is “usually more ‘objective and manageable’ than the inquiry into whether
medication is permissible to render a defendant competent,” so addressing it first can
potentially eliminate—or, at the very least, better inform—a Sell inquiry. Id. at 182–
83 (quoting Riggins v. Nevada, 504 U.S. 127, 140 (1992) (Kennedy, J., concurring)).
But what happens when changed circumstances necessitate that a defendant be
forcibly medicated under Harper after the district court has already authorized forced
3
medication under Sell? Does the Sell order stand, or should the court vacate the Sell
order and start again on a clean slate? For the reasons we describe in more detail
below, we hold that courts generally should vacate the Sell order and begin anew
armed with the findings of the intervening Harper proceedings.
I.
Defendant Joan Osborn is one of the many individuals worldwide who must
wake up each day and battle a severe and debilitating mental illness. A sixty-oneyear-
old woman, she has been diagnosed at different times with schizophrenia,
possible depression, and possible post-traumatic stress disorder. She has thus spent a
large portion of her life—on and off since 1982—in hospitals and mental health
facilities for treatment. Most of her stays were not voluntary. Courts generally either
civilly committed her to these institutions or placed her therein during pending
criminal proceedings.
One of those alleged crimes leads us to where we are today. In mid-October
2014, Defendant allegedly called a United States district court judge and left a
voicemail conveying a variety of brutal and obscene threats. A grand jury
subsequently indicted Defendant for threatening to assault and murder a United
States judge in violation of 18 U.S.C. § 115(a)(1)(B). A forensic psychologist, Dr.
Lesli Johnson, later evaluated Defendant, concluded that she suffered from a
delusional disorder, and opined that her disorder would interfere with her ability to
assist in her own defense. After reviewing Dr. Johnson’s report, the district court
found Defendant incompetent to stand trial under 18 U.S.C. § 4241(d). It thus
4
committed her to the custody of the Attorney General for hospitalization to gauge
whether she could be restored to competency.
The district court stayed its order of commitment so Defendant could appeal
its competency determination to this Court. While that appeal was pending, the
United States Marshals Service held Defendant at the Salt Lake County Jail in Utah.
And while at the Salt Lake County Jail, jail employees forcibly injected Defendant
with the antipsychotic Prolixin Decanoate (“Prolixin”) against her will from
approximately June 2016 to October 2016 without notifying her attorney. The
district court initially ordered the jail to stop this practice after Defendant’s attorney
brought an emergency motion to halt it. But after a hearing, the district court allowed
the jail to continue its forcible medication of Defendant on Harper grounds “after
finding [that] her mental state had deteriorated so severely to the point where she
presented a significant danger to herself and to other inmates and officers.”
On November 15, 2016—just two weeks after we affirmed the district court’s
determination that Defendant was incompetent to stand trial, United States v. Osborn,
664 F. App’x 708 (10th Cir. 2016) (unpublished)—the district court ordered the
United States Marshals Service to transfer Defendant from the Salt Lake County Jail
to the Federal Medical Center in Carswell, Texas (“FMC Carswell”). There—and in
accordance with the district court’s previous order—forensic psychologist Dr. Diana
Schoeller Hamilton and staff psychiatrist Dr. Jose R. Silvas, M.D. evaluated
Defendant to determine whether she could be restored to competency.
5
Neither Dr. Hamilton nor Dr. Silvas agreed with Dr. Johnson’s earlier
conclusion that Defendant suffered from a delusional disorder. Instead, both
concluded—Dr. Hamilton first, and Dr. Silvas second after relying in part on Dr.
Hamilton’s findings—that Defendant suffered from schizophrenia. For her part, Dr.
Hamilton opined that Defendant was unlikely to regain competence to stand trial
“without psychotropic medication.” Dr. Silvas went a step further: he noted that
“[t]reatment with antipsychotic medication for [schizophrenia] is the established
community standard” and that such treatment had a “substantial probability” of
restoring Defendant’s competence.
Dr. Hamilton’s and Dr. Silvas’s observations resulted in two Sell hearings—
the first on July 13, 2017, the second on September 27, 2017—to determine whether
the government could forcibly medicate Defendant to restore her competency.
Several months later in early January 2018, and largely based on the testimonies of
Dr. Hamilton and Dr. Silvas at the Sell hearings, the district court issued a thoughtful
opinion authorizing the government to forcibly medicate Defendant under Sell.
In its opinion, the district court noted that “the parties do not dispute[] that
Defendant is not currently dangerous to herself or to others.” So although just a little
over a year prior the district court had allowed Salt Lake County Jail officials to
forcibly medicate Defendant under Harper because she was a danger, the district
court concluded that “involuntary commitment pursuant to Harper is unwarranted.”
After determining that the government had met each of Sell’s stringent requirements,
the district court thus permitted the government to medicate Defendant with
6
Risperdal Contra (“Risperdal”), another antipsychotic medication, every two weeks
for six months. The district court authorized an initial dose of 12.5 milligrams but
permitted a maximum dose of 50 milligrams.
Utilizing the collateral order exception to the final order rule of 28 U.S.C.
§ 1291, Defendant now appeals the district court’s order allowing officials to forcibly
medicate her under Sell.1 Sell, 539 U.S. at 176–77; see also United States v.
Chavez, 734 F.3d 1247, 1249 (10th Cir. 2013). But after we heard oral arguments on
the merits of that order, the government informed us of a development of which both
it and Defendant’s counsel only recently had learned: officials at FMC Carswell had
subjected Defendant to another Harper proceeding in July 2018 and have been
forcibly medicating her with antipsychotic medication since that time.2 The officials
initially injected Defendant with 25-milligram doses of Risperdal—the same
medication, but double the starting dosage, the district court had authorized in its Sell
order. They later increased Defendant’s dosage to 50 milligrams, which corresponds
to the Sell order’s maximum authorized dosage.
1 We stayed the district court’s Sell order pending resolution of this appeal.
2 FMC Carswell officials conducted this second Harper proceeding because
they considered Defendant to be “gravely disabled.” Under our precedent, “a finding
that a patient is ‘gravely disabled’ includes a determination that the patient is
‘dangerous to [herself].’” Jurasek v. Utah State Hosp., 158 F.3d 506, 512 n.2 (10th
Cir. 1998) (emphasis in original) (quoting Harper, 494 U.S. at 1040). The officials
were thus permitted to seek a Harper proceeding on that basis. See id.
Further, when describing the second Harper proceeding throughout the course
of this opinion, we use all-encompassing terms like “dangerousness” for the sake of
simplicity and consistency.
7
In light of these changed circumstances, we asked the parties to submit
supplemental briefing addressing whether Defendant’s appeal is now moot. We also
asked the parties to address whether we should nonetheless vacate the district court’s
Sell order even if it is not moot given the “general rule” that Harper proceedings
should precede Sell proceedings. United States v. Morrison, 415 F.3d 1180, 1186
(10th Cir. 2005).3 We address both questions in turn.
II.
Although officials at FMC Carswell are now forcibly medicating Defendant
with Risperdal in dosages identical to those authorized under the Sell order, neither
Defendant nor the government believes this case is moot. We agree.
The mootness doctrine ensures that federal courts decide only actual cases or
controversies. Brown v. Buhman, 822 F.3d 1151, 1163–64 (10th Cir. 2016); see also
U.S. Const. art. III, § 2 (limiting the judicial power to “Cases” and “Controversies”).
Specifically, it “provides that although there may be an actual and justiciable
controversy at the time the litigation is commenced, once that controversy ceases to
exist, the federal court must dismiss the action for want of jurisdiction.” Jordan v.
Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (quoting 15 James W. Moore & Martin
H. Redish, Moore’s Federal Practice § 101.90, at 101–237 (3d ed. 2010) (italicization
3 We also asked the government whether it would relinquish its reliance on the
district court’s Sell order given that, after the most recent Harper proceedings,
Defendant has already been forcibly medicated with Risperdal. The government
responded that it “does not wish to relinquish future reliance on the Sell order”
because “[t]he existence of a valid Sell order will allow for Defendant’s continued
medication if and when she no longer satisfies the Harper criteria.”
8
omitted)); see also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d
1096, 1109 (10th Cir. 2010) (“We have no subject-matter jurisdiction if a case is
moot.”). A claim is thus moot “when a plaintiff”—or, for our purposes, a criminal
defendant—“loses a personal stake in the outcome because of some intervening
event.” EEOC v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1173 (10th Cir.
2017).
We evaluate mootness by considering “whether a favorable judicial decision
would have some effect in the real world.” Id. That mandate seemingly sounds the
death knell for Defendant’s appeal. For even if we vacate the Sell order, FMC
Carswell officials will still forcibly medicate Defendant with Risperdal under the
most recent Harper proceedings. So at first glance, vacating the Sell order will not
have any real-world effect, and Defendant seemingly has no personal stake in the
outcome of her appeal.
But the mootness doctrine contains an exception for “disputes that are capable
of repetition, yet evading review.” Brown, 822 F.3d at 1166 (internal quotation
marks omitted). That exception “applies where (1) the challenged action is in its
duration too short to be fully litigated prior to cessation or expiration, and (2) there is
a reasonable expectation that the same complaining party will be subject to the same
action again.” Id. (quoting Fed. Election Comm’n v. Wis. Right to Life, Inc., 551
U.S. 449, 462 (2007)).
Defendant’s appeal meets these two requirements. First, the Sell order was in
place for only a few months before officials at FMC Carswell began forcibly
9
medicating Defendant with Risperdal under Harper. That short time frame did not
give Defendant an adequate opportunity to challenge the Sell order before it became
excessive and redundant.
Second, if we dismiss this case as moot, officials at FMC Carswell may very
well attempt to medicate Defendant under the Sell order again in the future. Indeed,
their right to medicate Defendant with Risperdal under Harper lasts only as long as
she remains a danger to herself or others. But once she is no longer a threat—a
possibility that her medical history suggests—those officials cannot continue
administering Risperdal on that basis. Rather, they will need to take an entirely
different avenue if they wish to continue forcibly medicating her. And thus the
parties will end up back at square one: the government will use the Sell order to
forcibly medicate Defendant to render her competent to stand trial; Defendant will
likely appeal that order; and a panel of this Court will again dismiss that appeal as
moot if Defendant again becomes dangerous to herself or others and thus needs to be
medicated under Harper. This pattern could feasibly repeat in perpetuity. It
therefore “fit[s] comfortably” within the mootness exception for disputes that are
capable of repetition yet evading review. Wis. Right to Life, 551 U.S. at 462; cf.
United States v. Grape, 549 F.3d 591, 597–98 (3d. Cir. 2008) (holding that
intervening Harper proceedings did not moot the defendant’s appeal of a Sell order
because the appeal met the requirements of the “voluntary cessation” exception to
mootness).
10
Accordingly, Defendant’s appeal is not moot, and we retain subject matter
jurisdiction over her appeal.
III.
Turning to the merits, we hold that courts generally should vacate a Sell order
and begin anew when a defendant is forcibly medicated at a later date under Harper.
The primary reason stems from the Supreme Court’s rationale in Sell—
namely, that Harper proceedings are generally more “objective and manageable” than
Sell proceedings and can thus “help to inform expert opinion and judicial
decisionmaking in respect to a request to administer drugs for trial competence
purposes.” Sell, 539 U.S. at 182–83; see also United States v. White, 431 F.3d 431,
435 (5th Cir. 2005) (“[M]edicating an inmate to alleviate dangerousness will, in most
cases, obviate the need to do so to restore his competency . . . .”). Although the
Supreme Court made this observation when advising courts to engage in Harper
proceedings before entering a Sell order, see Sell, 539 U.S. at 181–83, we believe
this logic applies with equal force once the court has already entered a Sell order.
After all, no matter the posture of the case, providing “an informed opinion about
whether . . . particular drugs are medically appropriate and necessary to control a
patient’s potentially dangerous behavior (or to avoid serious harm to the patient
himself)” will generally be “easier” for a medical expert “than to try to balance harms
and benefits related to the more quintessentially legal questions of trial fairness and
competence.” Id. at 182. And that inherent objectivity still has great value even
once a court has already entered a Sell order. For instance, medical experts could
11
forcibly medicate a defendant under Harper with the same or similar medication that
a court had earlier authorized but not yet executed under a Sell order. In that
scenario, those experts would have the benefit of seeing the defendant’s response to
that medication for purposes of dangerousness and whether that response suggested
the defendant was likely to be restored to competency once forcible medication began
under Sell.
Consider, for example, the facts of this case. The stayed Sell order authorized
FMC Carswell officials to forcibly medicate Defendant with Risperdal, which they
later used to alleviate Defendant’s dangerousness under Harper. The officials,
therefore, have now had the opportunity to gauge Defendant’s response to Risperdal
for several months and can thus more accurately opine whether Risperdal may restore
Defendant’s competency. Granted, FMC Carswell officials have not primarily been
concerned with competency restoration while forcibly medicating Defendant under
Harper. They nonetheless possess evidence relevant to determining whether
Risperdal will restore Defendant to competency by the very nature of the more
“objective and manageable” Harper criteria. See, e.g., Sell, 539 U.S. at 183
(observing that the “findings underlying” Harper proceedings “will help to inform”
Sell proceedings).
Our holding today also reinforces the idea that Sell orders are strong medicines
that courts should not lightly dispense. As the Supreme Court itself pointed out, the
government should only forcibly medicate defendants to restore their competency for
trial in “rare” and “limited circumstances.” United States v. Valenzuela-Puentes, 479
12
F.3d 1220, 1224 (10th Cir. 2007) (quoting Sell, 539 U.S. at 169, 180). Vacating Sell
orders if and when intervening Harper proceedings occur helps to keep Sell orders in
their proper place as remedies of last resort.
Further, our holding today prevents the government from gaming the system.
When officials cannot immediately execute a Sell order, they may be tempted to
achieve a comparable result in the meantime by using Harper proceedings to forcibly
medicate the defendant with the same or similar medication that the Sell order
authorized. Vacating the underlying Sell order discourages that possibility—however
likely or unlikely it may be—because it prevents the government from keeping that
order in its back pocket once the intervening Harper proceedings end.
We are not implying that intervening Harper proceedings necessarily or even
usually suggest that the government has ill motives.4 To the contrary, we recognize
that mental illnesses wax and wane over time and that the government may often
have strong reasons for seeking forced medication under Harper to alleviate a
defendant’s dangerousness even after the entry of a Sell order. With that said, “the
vital constitutional liberty interest at stake” in Sell hearings, United States v. Bradley,
417 F.3d 1107, 1114 (10th Cir. 2005)— “avoiding the unwanted administration of
antipsychotic drugs,” Sell, 539 U.S. at 178 (quoting Harper, 494 U.S. at 221)—
weighs in favor of requiring the government to prove the continuing necessity of a
Sell order when the intervening Harper proceedings alone may be sufficient. The
4 Indeed, we do not suggest the government or FMC Carswell officials acted
with any ill motives in this case.
13
comparatively slight burden on the government in having to seek a new Sell order is
a small price to pay to ensure that it does not infringe on the defendant’s
constitutional liberty interest in an unnecessary or roundabout manner.
As a final note, we observe that “[t]here may be occasions when it is
appropriate” to keep a Sell order in place even though the government forcibly
medicates a defendant at a later date under Harper. Morrison, 415 F.3d at 1186.
“But it would be good practice to assume otherwise.” Id. Our holding today thus
establishes only a “general rule,” id., that courts should follow in the absence of any
extenuating circumstances.
IV.
FMC Carswell officials forcibly medicated Defendant under Harper after the
district court had already authorized forcible medication under Sell. In light of this
development, we vacate the underlying Sell order.
We discern no extenuating circumstances suggesting that the Sell order should
remain in place. In fact, the circumstances of this case suggest the opposite. As we
mentioned previously, because officials have forcibly medicated Defendant with
Risperdal for several months under Harper, they can now gauge the effect of that
treatment on Defendant. This will allow the officials to more accurately predict
whether antipsychotic medication could render Defendant competent.
This is especially true when viewed in tandem with Dr. Silvas’s testimony at
the Sell hearings. The psychiatrist testified repeatedly that it was important for him
to know whether Defendant had previously received antipsychotic medications and,
14
if so, whether they were effective. But he also testified repeatedly that he was
unfamiliar with those details of Defendant’s medical history. Because the district
court relied so heavily on Dr. Silvas’s recommendations when granting its initial Sell
order, these candid admissions under oath concern us. Dr. Silvas, however, can
supplement his previous testimony in this regard (if, of course, the government
chooses to pursue a new Sell order on remand) by reviewing the results of
Defendant’s forcible medication with Risperdal under Harper.
Outcome: We thus VACATE the district court’s Sell order and REMAND for further
proceedings consistent with this opinion.5,6
5 We pass no judgment today on whether the government maintains an
important interest in forcibly medicating Defendant to render her competent for
trial—i.e., the first of the four Sell factors. With that said, Defendant has now spent
over four years in pretrial detention. Thus, if the government chooses on remand to
continue its quest to forcibly medicate Defendant under Sell, we note that “[t]he
clock is ticking.” Valenzuela-Puentes, 479 F.3d at 1227.
6 We DENY AS MOOT Defendant’s Motion to Expedite her case. We
GRANT Defendant’s Motion to Seal the records attached to her Motion to Expedite.
Plaintiff's Experts:
Defendant's Experts:
Comments: