In re Johnny Taylor and Brandon Byrd ( 2020 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 17-CO-174 & 18-CO-334
IN RE JOHNNY TAYLOR
and
BRANDON BYRD,
APPELLANTS. *
Appeals from the Superior Court
of the District of Columbia
(CF3-9667-16 & CF1-12762-16)
(Hon. Danya A. Dayson and Hon. Jose M. Lopez, Trial Judges)
(Argued May 24, 2018 Decided April 9, 2020)
Chantal Jean-Baptiste for appellant Johnny Taylor.
Joshua Deahl, Public Defender Service at the time of argument, with whom
Samia Fam and Jaclyn Frankfurt, Public Defender Service, were on the brief, for
appellant Brandon Byrd and for Public Defender Service, amicus curiae, in support
of appellant Taylor.
*
This court consolidated these two appeals for purposes of argument and
decision. The proceedings below were in each appellant’s criminal cases, and the
appeals were captioned Taylor v. United States and Byrd v. United States. The
United States has not participated in these appeals, however. The actual appellee in
each case is the District of Columbia Department of Behavioral Health, which
intervened in the Superior Court to defend the orders challenged by appellants and
continues to defend those orders in this court. We therefore have recaptioned the
appeals as shown above.
2
Holly M. Johnson, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General,
and Stacy L. Anderson, Acting Deputy Solicitor General, were on the brief, for
appellee the District of Columbia Department of Behavioral Health.
Before GLICKMAN, THOMPSON, and EASTERLY, Associate Judges.
GLICKMAN, Associate Judge: After finding appellants Taylor and Byrd
incompetent to stand trial on criminal charges, the Superior Court committed them
to Saint Elizabeths Hospital for treatment to restore them to competency. During
their commitment, their treating psychiatrists requested the Hospital’s permission to
medicate them without their consent. The purpose of the proposed psychotropic
medication was not to render appellants competent, but to curb their violent and
dangerous behavior at the Hospital by ameliorating their mental illness. The
Hospital approved each appellant’s involuntary medication in an internal
administrative hearing process. This non-judicial process incorporated the
procedures for the involuntary medication of civilly committed mental health
patients required by D.C. Code § 7-1231.08 (2012 Repl.), a provision of the Mental
Health Consumers’ Rights Protection Act of 2001. The application of those non-
judicial procedures to mentally ill and violent criminal defendants undergoing
competency restoration treatment is authorized by D.C. Code § 24-531.09 (2012
Repl.). The procedures conform to the Supreme Court’s holding in Washington v.
3
Harper 1 that the Due Process Clause does not require a court hearing before the state
may treat a mentally ill prisoner with antipsychotic drugs against the prisoner’s will
after an administrative process in which it is medically determined that the treatment
is appropriate for the purpose of controlling the prisoner’s dangerousness.
The present appeals are from the Superior Court’s denials of motions filed by
appellants to enjoin their involuntary medication. In this court, appellants challenge
their medication orders on constitutional and statutory grounds. 2 Their claims raise
purely legal questions, as to which our review is de novo. 3
Appellants’ primary contention is that the Hospital’s administrative approval
process denied them due process of law. They argue that Harper’s holding applies
only to convicted prisoners, and that under the rationale of Sell v. United States, 4 a
1
494 U.S. 210, 227-28 (1990).
2
Although appellants argued in the proceedings below that the Hospital’s
administrative hearing process was deficient under Harper, they have abandoned
that claim on appeal.
3
See, e.g., Aboye v. United States, 121 A.3d 1245, 1249 (D.C. 2015) (“The
question being one of statutory interpretation, our review is de novo.”); Jones v.
United States, 779 A.2d 277, 281 (D.C. 2001) (en banc) (explaining that, where facts
are not in issue, “this court must determine the ultimate question of [constitutional]
law de novo” (internal quotation marks omitted)).
4
539 U.S. 166 (2003).
4
post-Harper decision of the Supreme Court, the Due Process Clause entitles pretrial
detainees like themselves to plenary judicial hearings and special judicial findings
before they may be administered antipsychotic drugs against their will, regardless of
the purpose of the medication. In line with other courts, we conclude otherwise. In
Sell the Supreme Court held that due process requires special judicial findings when
the sole purpose of the involuntary medication is to render the defendant competent
to be tried. But the Court confirmed the relevance of Harper to pretrial criminal
defendants as well as convicted prisoners when competency restoration is not the
sole purpose of the medication. Sell implied, and we hold, that “if forced medication
is warranted for a different purpose, such as the purposes set out in Harper related
to the individual’s dangerousness, or purposes related to the individual’s own
interests where refusal to take drugs puts his health gravely at risk,”5 due process is
satisfied by administrative procedures like those the Supreme Court approved of in
Harper. Sell’s requirements when competency restoration is the sole goal of the
medication are not applicable to appellants.
Appellants’ statutory claims concern the proper interpretation of D.C. Code
§§ 24-531.09 and 7-1231.08. Mr. Taylor reads § 24-531.09 as requiring judicial
5
Id. at 182.
5
authorization of his involuntary medication for dangerousness, while Mr. Byrd
argues he was not subject to § 7-1231.08’s non-judicial process because he had not
been civilly committed to Saint Elizabeths. We reject both arguments as inconsistent
with § 24-531.09’s explicit authorization of the involuntary administration of
medication to criminal defendants undergoing competency restoration “consistent
with § 7-1231.08.” 6
I. The Constitutional and Statutory Framework
A. The Requirements of Due Process
Washington v. Harper has been called “the seminal involuntary medication
case.” 7 Mr. Harper was medicated against his will with antipsychotic drugs while
he was imprisoned in a state correctional facility for convicted felons with serious
mental disorders. 8 The facility had established an administrative hearing process for
approving such medication to treat inmates whose mental disorders rendered them
6
D.C. Code § 24-531.09(a).
7
United States v. Loughner, 672 F.3d 731, 744 (9th Cir. 2012).
8
Harper, 494 U.S. at 214.
6
gravely disabled or seriously dangerous to themselves or others. This process
afforded inmates like Harper an evidentiary hearing before an independent medical
review committee and other procedural protections, with judicial review ultimately
available in state court. 9
Harper brought a civil rights action in which he challenged the administrative
process as violative of due process. The Washington Supreme Court agreed with
him, holding that the Due Process Clause entitled Harper to a judicial hearing with
the “full panoply of adversarial procedural protections,” at which the State would
have to prove not only that Harper was mentally ill and dangerous, but also that his
involuntary medication was “necessary and effective for furthering a compelling
state interest.” 10
The United States Supreme Court reversed. Acknowledging the “significant
liberty interest in avoiding the unwanted administration of antipsychotic drugs,” 11
9
Id. at 215-16.
10
Id. at 218.
11
Id. at 221-22; see also id. at 229 (“The forcible injection of medication into
a nonconsenting person’s body represents a substantial interference with that
person’s liberty. The purpose of the [antipsychotic] drugs is to alter the chemical
balance in a patient’s brain, leading to changes intended to be beneficial, in his or
her cognitive processes. While the therapeutic benefits of antipsychotic drugs are
7
the Court held that the state facility’s non-judicial procedures satisfied both the
substantive and the procedural requirements of due process.
On the substantive question, the Court explained that, in light of the state’s
important interests in prison safety and security, the constitutionality of prison
regulations must be “judged under a ‘reasonableness’ test less restrictive than that
ordinarily applied to alleged infringements of fundamental constitutional rights.” 12
The Court concluded that the state policy was “a rational means of furthering the
State’s legitimate objectives.” 13 “[G]iven the requirements of the prison
well documented, it is also true that the drugs can have serious, even fatal, side
effects.” (Internal citations omitted.)).
12
Id. at 224 (quoting O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)).
“[T]he proper standard for determining the validity of a prison regulation claimed to
infringe on an inmate’s constitutional rights is to ask whether the regulation is
reasonably related to legitimate penological interests.” Id. at 223 (internal quotation
marks omitted).
13
Id. at 226. In affirming the reasonableness of the policy at issue, the Court
cited (1) the state’s important prison safety concerns; (2) the policy’s “exclusive
application . . . to inmates who are mentally ill and who, as a result of their illness,
are gravely disabled or represent a significant danger to themselves or others”; (3)
the fact that “[t]he drugs may be administered for no purpose other than treatment
and only under the direction of a licensed psychiatrist”; and (4) the wide agreement
“in the psychiatric profession that proper use of the drugs is one of the most effective
means of treating and controlling a mental illness likely to cause violent behavior.”
Id. at 225-26.
8
environment,” the Court held, “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.” 14
The Court went on to hold that the administrative hearing procedures
comported with procedural due process. 15 Because the decision was essentially a
medical one, the Court concluded, “an inmate’s interests are adequately protected,
and perhaps better served, by allowing the decision to medicate to be made by
medical professionals rather than a judge.” 16 Under the state’s policy, the Court
explained,
the decisionmaker is asked to review a medical treatment
decision made by a medical professional. That review
requires two medical inquiries: first, whether the inmate
suffers from a “mental disorder”; and second, whether, as
a result of that disorder, he is dangerous to himself, others,
or their property. . . . The risks associated with
antipsychotic drugs are for the most part medical ones,
best assessed by medical professionals. A State may
conclude with good reason that a judicial hearing will not
14
Id. at 227.
15
Id. at 228.
16
Id. at 231.
9
be as effective, as continuous, or as probing as
administrative review using medical decisionmakers.[17]
The Court further held that the procedures adopted to implement the policy – which
included notice, the right to be present at an adversary hearing before an independent
decisionmaking body, the assistance of a lay advocate, and the right to present and
cross-examine witnesses – sufficed to meet the requirements of due process “in all
other respects.” 18
Thirteen years later, in Sell v. United States, 19 the Court considered the
involuntary antipsychotic medication of a mentally ill pretrial detainee who was held
for competency restoration at the United States Medical Center for Federal
Prisoners. Following an administrative process like that approved in Harper, the
Medical Center concluded that medication would be appropriate both to alleviate
Mr. Sell’s dangerousness and to help him attain competency. However, when Sell
appealed this decision, the federal district court and the court of appeals upheld it
17
Id. at 232-33.
18
Id. at 235. The Court rejected Harper’s contentions that due process
required a right to representation by legal counsel, a hearing conducted in
accordance with the rules of evidence, and proof by clear and convincing evidence.
Id. at 235-36.
19
539 U.S. 166 (2003).
10
only on the latter, competency restoration ground. The Supreme Court granted
certiorari to consider Sell’s argument that “allowing the government to administer
antipsychotic medication against his will solely to render him competent to stand
trial for non-violent offenses” violated his due process rights.20
In its decision, the Sell Court reiterated Harper’s holding that the
requirements of due process are satisfied where the government demonstrates
antipsychotic medication is “medically appropriate and, considering less intrusive
alternatives, essential for the sake of [the pretrial defendant’s] own safety or the
safety of others.” 21 But where the only asserted governmental interest is to bring a
defendant to trial, the Court held, the Constitution requires other conditions to be
met before the government may override the defendant’s liberty interest in refusing
psychotropic medication. 22 Specifically, the Court stated,
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 the
treatment is medically appropriate, is substantially
20
Id. at 175.
21
539 U.S. at 179 (quoting Riggins v. Nevada, 504 U.S. 127, 135 (1992);
emphasis added in Sell; internal quotation marks omitted).
22
Id. at 169.
11
unlikely to have side effects that may undermine the
fairness of the trial, and, taking account of less intrusive
alternatives, is necessary significantly to further important
governmental trial-related interests.[23]
The Court strongly implied, if it did not explicitly hold, that such “trial-related”
determinations must be made by a court. 24
B. District of Columbia Statutory Provisions
D.C. Code § 24-531.09 governs the involuntary medication of defendants in
the District of Columbia who have been ordered held for competency restoration
treatment. Following Sell and Harper, the statute provides for different standards
and procedures to be followed depending on the purpose for which the involuntary
medication is sought. Subsection (a) provides that if “the sole purpose” is to render
the defendant competent, the involuntary administration of medication is prohibited
“[e]xcept as set forth in subsection (b),” which requires a court to make specific
findings that the governmental interest in bringing the defendant to competency
23
Id. at 179.
24
See id. at 180-81.
12
outweighs the defendant’s interest in refusing the medication. 25 The Judiciary
Committee report on the statute explains that, “[t]his requirement is based on the
Supreme Court’s decision in Sell. . . . Subsection (b) lists the factors enumerated in
Sell that the court should find in weighing the two interests.” 26
Subsection (a) of § 24-531.09 goes on to state that “[f]or any other purpose,
the defendant may be administered medication without his or her consent consistent
with [D.C. Code] § 7-1231.08, and the regulations promulgated thereunder.” 27
25
Specifically, subsection (b) states that the court may order the involuntary
administration of medication for the sole purpose of rendering the defendant
competent only if it “determines that the government’s interest in bringing the
defendant to trial or proceeding with sentencing, probation revocation, or transfer
outweighs the defendant’s interest in refusing medication to render him or her
competent.” § 24-531.09(b)(1)(B). In order to make that determination, the court
“must find” that (1) the defendant has been charged with a dangerous crime or a
crime of violence as defined elsewhere in the Code; (2) the medication is
substantially likely to render the defendant competent; (3) the medication is
substantially unlikely to have side effects that will significantly interfere with the
defendant’s ability to assist counsel in conducting a defense; (4) involuntary
medication is necessary to further the government’s interest because any less
intrusive treatment alternatives are unlikely to render the defendant competent; and
(5) the medication is medically appropriate. § 24-531.09(b)(2).
26
District of Columbia Council, Committee on the Judiciary, Report on Bill
15-967, the “Incompetent Defendants Criminal Commitment Act of 2004”
(“Judiciary Committee Report”) at 9 (November 17, 2004).
27
The regulations implementing § 7-1231.08 are codified at 22A DCMR
§ 104 (2020).
13
Section 7-1231.08 governs the administration of medication to all “consumers,” i.e.,
persons who seek or receive mental health services or supports in the District of
Columbia under Chapter 5 of Title 21 (“Hospitalization of Persons with Mental
Illness”), “without regard to [their] voluntary, non-protesting, or involuntary
status.” 28 The Judiciary Committee Report explains that, by its incorporation of §
7-1231.08, subsection (a) of § 24-531.09 “authorizes the involuntary administration
of medication for any other purposes [i.e., other than restoration of competency] as
long as the same procedures are followed for defendants as would be followed for
any other consumer of mental health services.” 29
Those procedures do not require judicial authorization. Rather, § 7-
1231.08(c) states that a provider of mental health services may administer
medication involuntarily to an incapacitated consumer “only after receiving
approval for such action through an administrative procedure established by” the
Department of Behavioral Health (DBH). The administrative procedure must
include, among other things,
28
See D.C. Code § 7-1231.02(4) (2018 Repl.) (defining the term “consumers”
for purposes of § 7-1231.08 and other sections of the Mental Health Consumers’
Rights Protection Act of 2001).
29
Judiciary Committee Report at 8.
14
notice to the consumer of available advocacy
services; . . . [t]he right to a meeting convened by a neutral
party . . . for the purpose of reviewing the necessity for
involuntary administration of medication; . . . [t]he right
of the consumer to be present and have representation
during any such meeting; . . . [t]he opportunity, at the
meeting, for the consumer . . . to present information and
discuss the necessity of medication with the physician
seeking to administer it; [and] [t]he right to appeal the
decision of the neutral party to an independent panel[.][30]
A decision to medicate without consent is valid for “no more than 30 days.” 31 The
parties before us agree that such a decision is subject to judicial review in an
appropriate equitable action in Superior Court. 32
30
D.C. Code § 7-1231.08(c); see also 22A DCMR § 104.9 et seq. A formal
policy adopted by Saint Elizabeths and DBH implements this process for pretrial
detainees. It requires a detainee’s treating psychiatrist to document (1) that due to a
diagnosed mental illness, the detainee is “gravely disabled or poses a likelihood of
serious harm or dangerousness to self, others, or property without the medication,”
and (2) “after considering less restrictive intervention, that psychotropic medication
is appropriate.” The request for medication must be approved, after a hearing (at
which the detainee has a right to representation), by a neutral Medication Review
Officer, and the detainee may appeal to a three-member Medication Review Panel.
31
D.C. Code § 7-1231.08(c)(6); 22A DCMR § 104.11. The Saint Elizabeths
policy specifies that “[i]f the prescribing physician seeks to continue the involuntary
administration of medication for an additional 30 days, the procedures set forth
herein shall be repeated.”
32
See District of Columbia v. Sierra Club, 670 A.2d 354, 358 (D.C. 1996);
Capitol Hill Restoration Soc’y Inc. v. Moore, 410 A.2d 184, 188 (D.C. 1979). We
refrain from attempting to delineate the precise scope of such review in this opinion,
beyond noting that the parties before us agree it is not de novo, because that question
is not directly presented in these appeals. Cf. United States v. Morgan, 193 F.3d
15The administrative process envisioned by § 7-1231.08(c) is not materially
different from the administrative process upheld in Harper. 33 Thus, § 24-531.09(a)
provides that defendants undergoing competency restoration may be approved for
non-emergency involuntary medication through a Harper-compliant administrative
process rather than by a court as long as the sole purpose of the medication is not to
make the defendants competent. This non-judicial process is commonly referred to
as a “Harper hearing.”
II. The Present Appeals
A. Johnny Taylor
Mr. Taylor, who has been diagnosed with schizophrenia, was arrested in June
2016 and charged with assaulting three people with a knife. After finding him
incompetent to stand trial, the court committed him to Saint Elizabeths Hospital for
252, 262-63 (4th Cir. 1999) (holding that an institution’s decision in accordance with
Harper to forcibly medicate a pretrial detainee is “subject only to judicial review for
arbitrariness”). We also note that this court has not previously addressed whether
an administrative involuntary medication decision must by law meet the
requirements of a contested case, in which case judicial review would be in this
court.
33
Compare § 7-1231.08(c) with Harper, 494 U.S. at 215-16.
16
competency restoration treatment. 34 Following his admission, Mr. Taylor continued
to experience delusions, agitation, and paranoia, and to engage in a pattern of
threatening and violent behavior toward other patients and Hospital personnel.
Several of his altercations led to his involuntary emergency medication. On
December 30, 2016, his prescribing psychiatrist applied for permission to initiate
non-emergency involuntary psychotropic medication to treat Mr. Taylor and
alleviate his dangerousness. The psychiatrist stated that he did not propose
involuntary medication for the purpose of restoring Mr. Taylor to competence. A
Medication Review Officer approved the request, and the Medication Review Panel,
to which Mr. Taylor appealed, unanimously upheld the decision.35
34
See D.C. Code § 24-531.05 (2012 Repl.).
35
In its written report, the Panel concluded as follows:
It is the opinion of the panel that Mr. Taylor suffers from
a mental illness which interferes with his ability to make
informed decisions about his mental health treatment. As
a result of his mental illness, he is gravely disabled (in
danger of serious physical harm due to his inability to
provide for any of his basic needs for nourishment, or
essential medical care, or shelter, or safety) or poses a
likelihood of serious harm or dangerousness to self, others,
or property without the medication. After considering less
restrictive interventions, the panel opines that
psychotropic medication is appropriate. Mr. Taylor has
refused to take psychotropic medication, but given his
symptoms as described above, it is the treatment of choice
as recommended by the treatment team. He currently
17
After the Panel’s decision, Mr. Taylor moved in his pending criminal case to
enjoin Saint Elizabeths from medicating him without his consent. He argued that
because he was detained only for purposes of competency restoration, District law
and due process required his involuntary medication to be authorized by court order.
In addition, Mr. Taylor argued that he did not meet the substantive legal
requirements for medicating him against his will. DBH, which defended the
medication order, agreed to refrain from administering medication to Mr. Taylor
while his motion was pending.
The court denied the motion. It held that Saint Elizabeths lawfully could
administer involuntary medication to Mr. Taylor without a court order because it had
followed the constitutionally adequate procedures set forth in D.C. Code § 7-
1231.08; it was not the sole purpose of the medication to restore Mr. Taylor to
competency; and DBH had shown a compelling need to medicate Mr. Taylor for his
safety and that of Hospital staff and patients.
lacks the capacity to give informed consent and without
medication, he is at risk for continued serious mental
illness and a reduced quality of life. The benefits of
medication outweigh the risk of medication-associated
side effects. Therefore, the panel is in unanimous
agreement that Mr. Taylor should be medicated
involuntarily.
18
Although the court stayed its order to allow Mr. Taylor time to request this
court for a stay pending appeal, the Superior Court stay expired before this court
received a motion for a stay. As a result, Saint Elizabeths commenced Mr. Taylor’s
involuntary medication. On March 22, 2017, the Superior Court found that Mr.
Taylor was competent. A week later he entered into a plea agreement and pleaded
guilty. He was sentenced on June 9, 2017, and we are informed that he is now in the
custody of the United States Bureau of Prisons.
B. Brandon Byrd
Brandon Byrd was charged in August 2016 with the first-degree murder of his
father. The Superior Court found him incompetent to stand trial and committed him
to Saint Elizabeths Hospital for competency restoration treatment. While he was
there, the United States moved the Superior Court to order his involuntary
medication for the purpose of rendering him competent. In March 2018, the Superior
Court granted the motion, but the medication order was stayed pending appeal and
thereafter, at the behest of the United States, this court vacated the order and
remanded the matter for further factual development of the record.
In the meantime, efforts were under way at Saint Elizabeths to provide for Mr.
Byrd’s medication for safety reasons. Mr. Byrd was diagnosed with paranoid
19
schizophrenia. Over time, his agitation, auditory hallucinations, and other
psychiatric symptoms worsened, and he became seriously aggressive and
threatening to others at the Hospital. He was medicated on an emergency basis after
he threatened to jump into the nursing station and assault the staff. By February
2018, Mr. Byrd’s severe aggressive outbursts and angry, psychotic behavior led his
treating psychiatrist to propose his involuntary medication for the purposes of
reducing the danger he posed to himself and others. A Medication Review Officer
approved the request, as did a unanimous Medication Review Panel, which found
Mr. Byrd to be “gravely disabled” and, without medications, “a safety risk to self
[and] others especially given his ongoing psychosis and recent escalation of his
agitation [and] aggressive behaviors.”
Mr. Byrd moved in his Superior Court criminal case for reversal of the Panel’s
decision. He argued that the Hospital’s administrative determination violated his
due process rights because it did not satisfy the heightened procedural and
substantive requirements that Sell held applicable when involuntary medication is
for the purpose of rendering a pretrial detainee competent to stand trial. Those
requirements, Mr. Byrd contended, governed any non-emergency involuntary
medication of pretrial criminal defendants held for competency restoration at Saint
Elizabeths, regardless of the purpose. Mr. Byrd also argued that the involuntary
20
medication procedures of D.C. Code § 7-1231.08 could not be used in his case
because he had not been committed to Saint Elizabeths under the District of
Columbia Hospitalization of the Mentally Ill Act. 36
The Superior Court denied Mr. Byrd’s motion but temporarily stayed his
involuntary medication to allow him to seek a stay in this court pending his appeal.
This court granted that stay.
Our stay order instructed Mr. Byrd to update this court regarding the still-
pending proceedings on remand over his involuntary medication for the purpose of
rendering him competent to stand trial. On November 15, 2019, the Superior Court
ruled that the government had met its burden under Sell and could medicate Mr.
Byrd without his consent to restore him to competence. Mr. Byrd’s counsel
promptly informed us of this ruling and of Mr. Byrd’s decision not to take an
immediate appeal from it. 37
36
Mr. Byrd presented additional arguments that he has not pursued on appeal.
37
Counsel represented that Mr. Byrd intended to preserve his objections to
the Sell ruling for a potential future appeal.
21
III. Appellate Jurisdiction and Mootness
No question has been raised about this court’s jurisdiction to entertain the
present appeals. Although the denials of the motions to enjoin involuntary
medication did not finally conclude the criminal proceedings, they were immediately
appealable under the collateral order doctrine. As the Supreme Court held in Sell,
the rulings satisfy the three requirements of that doctrine: they (1) conclusively
determine the question in dispute, (2) resolve an important issue that is completely
separate from the merits of the actions (which concern each defendant’s guilt or
innocence), and (3) are effectively unappealable from a final judgment in that
action. 38 We conclude that we have jurisdiction over these interlocutory appeals.
It is a separate question whether these appeals are moot. “A case is moot
when the legal issues presented are no longer ‘live’ or when the parties lack a legally
cognizable interest in the outcome.” 39 The question of mootness arises, though DBH
has not raised it, because D.C. Code § 7-1231.08(c)(6) provides that administrative
decisions approving involuntary medication are valid for no more than thirty days.
This means the orders authorizing the involuntary medication of Mr. Byrd and Mr.
38
See Sell, 539 U.S. at 175-77; see also, e.g., Loughner, 672 F.3d at 743.
39
Cropp v. Williams, 841 A.2d 328, 330 (D.C. 2004).
22
Taylor have long since expired. To avoid dismissal of their appeals on mootness
grounds, appellants must continue to have a “personal stake” in the outcomes despite
the expirations. 40
We conclude that neither appeal is moot, though for a different reason in each
case. Mr. Byrd has the necessary continuing personal stake because his claim falls
within the “exception” (as it has been called) to the mootness doctrine for
controversies that are “capable of repetition, yet evading review.” This exception
applies where “(1) the challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there was a reasonable
expectation that the same complaining party would be subjected to the same action
again.” 41 Mr. Byrd satisfies the first prong because a challenge to involuntary
medication is not amenable to full litigation and resolution within the brief period
before the order expires. He satisfies the second prong because, given the serious
40
See, e.g., Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 71-72 (2013)
(“[A] plaintiff must demonstrate that he possesses a legally cognizable interest, or
‘personal stake,’ in the outcome of the action. . . . If an intervening circumstance
deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point
during litigation, the action can no longer proceed and must be dismissed as moot.”
(Citations omitted.)).
41
In re Barlow, 634 A.2d 1246, 1249 (D.C. 1993) (quoting Weinstein v.
Bradford, 423 U.S. 147, 149 (1975)).
23
nature of his mental illness and his anticipated on-going dangerousness if he is not
medicated, it is reasonable to expect he will be subjected to future thirty-day
administrative involuntary medication orders during his ongoing pretrial detention. 42
It makes no difference in this case that the Superior Court recently approved Mr.
Byrd’s involuntary medication for the purpose of rendering him competent. Like
the Tenth Circuit, “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.” 43
42
See Harper, 494 U.S. at 218-19 (holding that cessation of a schizophrenic
prisoner’s involuntary antipsychotic medication did not moot his challenge, given
the likelihood that officials would seek to resume the medication); see also, e.g.,
Honig v. Doe, 484 U.S. 305, 318-23 (1988) (holding that a handicapped student’s
suit challenging his suspension from school for disability-related misconduct was
not moot where there was a reasonable likelihood, in view of his disability, that he
would be subjected to the same school action again).
43
United States v. Osborn, 921 F.3d 975, 982 (10th Cir. 2019); see also id.
at 980-81 (appeal of Sell order allowing forcible medication to render a defendant
competent to stand trial held not moot despite an intervening Harper decision to
administer the same medication to address the defendant’s dangerousness, because
officials “may very well” attempt to medicate the defendant under Sell again after
she no longer poses a danger to herself or others).
24
The “capable of repetition, yet evading review” doctrine does not apply to Mr.
Taylor because, unlike Mr. Byrd, he is no longer a pretrial detainee at Saint
Elizabeths or subject to involuntary medication under D.C. Code § 7-1231.08. 44
Upon learning that Mr. Taylor had been sentenced and been transferred to the
custody of the United States Bureau of Prisons, this court sua sponte requested
supplemental briefing on whether his appeal had become moot. Both he and DBH
agree it is not, mainly on the ground that Mr. Taylor may suffer collateral
consequences from the Superior Court’s order upholding his involuntary
medication. As they argue, this court has recognized that involuntary civil
commitments based on findings of mental illness and dangerousness “can have
continuing collateral consequences for the affected individual that should be
dispelled if the commitment was unlawful” even if the commitment order has
expired and been superseded by a subsequent commitment. 45 According to the
44
See Honig, 484 U.S. at 318.
45
In re Edmonds, 96 A.3d 683, 687 n.11 (D.C. 2014); see also In re Amey,
40 A.3d 902, 909 (D.C. 2012) (holding that appeal of expired one-year involuntary
civil commitment is not moot in light of “significant and continuing collateral
consequences on the patient” from the adjudication of mental illness); In re Morris,
482 A.2d 369, 371-72 (D.C. 1984) (holding that patient’s discharge does not moot
challenge to involuntary emergency hospitalization on grounds of mental illness and
dangerousness, in part because of the continuing collateral consequences of such
hospitalization). Cf. In re Smith, 880 A.2d 269, 275-76 (D.C. 2005) (holding that
“once a new order determining the status of a committed mental health patient is in
effect, it supersedes any prior order on the same matter and renders moot an appeal
25
parties, the court order upholding Mr. Taylor’s involuntary medication (which was
based, in part, on the court’s deference to the Hospital physicians’ determinations of
his mental illness and dangerousness) is analogous to a civil commitment order and
may have similar collateral consequences. Mr. Taylor claims he already has begun
to confront those consequences, in that the Federal Medical Center psychologist
evaluating his dangerousness pursuant to 18 U.S.C. § 4246 has consulted or sought
his Saint Elizabeths records and DBH reports. Especially given the government’s
agreement that the Superior Court’s affirmance of his forcible psychotropic
medication may have adverse collateral consequences for Mr. Taylor, we are not
prepared to conclude he no longer has a personal stake in the outcome of this appeal.
IV. Appellants’ Constitutional and Statutory Claims
A. Due Process
Appellants’ main claim is that the administrative authorization of their
involuntary medication did not afford them substantive or procedural due process.
They argue that although Harper upheld the constitutionality of administrative
from the prior order, unless there are collateral effects from the prior order resulting
in prejudice to the patient.”).
26
authorization for convicted prisoners, the Due Process Clause requires the judicial
trial-related findings mandated in Sell before pretrial detainees may be medicated
involuntarily with antipsychotic drugs, regardless of the purpose of the medication,
because the unwanted side effects of such medication may result in undermining the
detainees’ rights to a fair trial. For the following reasons, this contention does not
persuade us, and we conclude that when the purpose of involuntary medication is to
reduce a pretrial detainee’s dangerousness or suffering, the detainee’s liberty
interests are sufficiently protected by an administrative, medical determination that
is subject to judicial review and that meets the standards of Harper.
First, the Sell Court explicitly envisioned that pretrial detainees could be
medicated involuntarily based on Harper findings alone for reasons other than
rendering them competent. The Court stated, for example, that “a court, asked to
approve forced administration of drugs for purposes of rendering a defendant
competent to stand trial, should ordinarily determine whether the Government seeks,
or has first sought, permission for forced administration of drugs for these other
Harper-type grounds; and, if not, why not.” 46
46
Sell, 539 U.S. at 183; see also id. at 181-82 (stating courts should “not
consider whether to allow forced medication for [the purpose of rendering a
defendant competent to stand trial] if forced medication is warranted for a different
purpose, such as the purposes set out in Harper related to the individual’s
27
Second, in so endorsing Harper hearings for pretrial detainees, the Sell Court
did not question the applicability of Harper’s main procedural due process holding
that those hearings may be administrative rather than judicial. In the very case before
it, the original decision to medicate Mr. Sell to control his dangerousness was a
Harper administrative determination by the Medical Center for Federal Prisoners,
where Mr. Sell was detained pretrial. In concluding that the government could go
back and “pursue its request for [Sell’s] forced medication on . . . grounds related to
the danger Sell poses to himself or others,” 47 the Court presumably could anticipate
that the Medical Center would follow the same process again absent any guidance
to the contrary. If the Court thought nonjudicial Harper determinations to be
unconstitutional for pretrial detainees like Sell, it doubtless would have said so. It
did not. In short, “[w]hen read in connection with the analysis in Harper, Sell
provides that a [] court may authorize involuntary medication on dangerousness
grounds, using the substantive standards outlined in Harper, not that the [] court
must make this determination.” 48
dangerousness, or purposes related to the individual’s own interests where refusal to
take drugs puts his health gravely at risk” (emphasis in Sell)).
47
Id. at 186.
48
Loughner, 672 F.3d at 755.
28
Third, the rationale of Sell’s holding is generally applicable only to
involuntary medication for the sole purpose of competency restoration, and not to
involuntary medication for other purposes. It makes sense not to forcibly medicate
defendants for the purpose of bringing them to trial if the medication itself would
render a fair trial impossible (or if the harm inflicted by the medication would
outweigh the governmental interest in a trial). But if involuntary administration of
antipsychotic medication is necessary to protect defendants or others from serious
danger, it may be appropriate regardless of potential adverse effects of the
medication on the defendants’ fair trial rights or the government’s interest in holding
a trial. 49 Put another way, we recognize that whether a fair trial can be held is a
downstream decision that may be secondary to the immediate demands of keeping
the defendant or others safe.
Fourth, the reasons supporting Harper’s substantive and procedural due
process holdings – reasons that are based on the penological interests at stake and
the medical nature of the involuntary medication determination rather than on trial
49
Cf. Sell, 539 U.S. at 185 (“Whether a particular drug will tend to sedate a
defendant, interfere with communication with counsel, prevent rapid reaction to trial
developments, or diminish the ability to express emotions are matters important in
determining the permissibility of medication to restore competence, but not
necessarily relevant when dangerousness is primarily at issue.” (internal citation
omitted)).
29
concerns – apply with equal force to convicted prisoners and pretrial detainees alike.
The needs of prison administration on which Harper relied are no less important
when the prisoners are pretrial detainees; as the Court said in Bell v. Wolfish,
“maintaining institutional security and preserving internal order and discipline are
essential goals that may require limitation or retraction of the retained constitutional
rights of both convicted prisoners and pretrial detainees.” 50 Harper similarly stated
that its due process test of a reasonable relationship to legitimate penological
interests “applies to all circumstances in which the needs of prison administration
implicate constitutional rights,” and it cited Bell – a pretrial detainee case – in
support of that proposition.51
An inmate’s pretrial or convicted status likewise has no bearing on whether
antipsychotic medication is necessary to mitigate the inmate’s dangerous or harmful
behavior. In either case, the decision is primarily a medical (and penological) one
50
Bell v. Wolfish, 441 U.S. 520, 546 (1979). Pretrial detainees who have not
been convicted of any crime may not be subjected to punitive restrictions, but that is
not the issue here.
51
Harper, 494 U.S. at 224 (emphasis added); see also Loughner, 672 F.3d at
751 (holding that Harper applies to pretrial detainees as well as to convicted
prisoners; “although we recognize that in certain contexts there are important
differences – differences of constitutional magnitude – between pretrial detainees
and convicted detainees, those differences largely disappear when the context is the
administration of a prison or detention facility” (internal citations omitted)).
30
that is reasonably committed initially to a nonjudicial administrative process relying
on medical expertise (especially with judicial review available to assure against
arbitrariness or other material defects). Indeed, echoing Harper, the Sell Court
agreed that “the inquiry into whether medication is permissible, say, to render an
individual nondangerous is usually more ‘objective and manageable’ than the
inquiry into whether medication is permissible to render a defendant competent,”
and that “medical experts may find it easier to provide an informed opinion about
whether, given the risk of side effects, particular drugs are medically appropriate and
necessary to control a patient’s potentially dangerous behavior (or to avoid serious
harm to the patient himself) than to try to balance harms and benefits related to the
more quintessentially legal questions of trial fairness and competence.” 52 When
those “more quintessentially legal questions” are not relevant, there is no
constitutional reason the initial Harper hearing must be held before a court merely
because it concerns a pretrial detainee rather than a convicted prisoner.
Fifth, other courts uniformly have agreed that the substantive and procedural
due process holdings of Harper, not the particular trial-related requirements of Sell,
52
Sell, 539 U.S. at 182 (internal citation omitted).
31
apply to the involuntary medication of pretrial defendants for the purpose of
mitigating their dangerousness to themselves or others. 53
Appellants argue that a pretrial detainee deserves greater due process
protections than Harper provides because the potential adverse impact of
antipsychotic medication on a defendant’s trial rights will be the same whether the
government seeks to medicate for dangerousness or for competency restoration. We
do not disagree. It is true that unwanted side effects of antipsychotic medication
“can compromise the right of a medicated criminal defendant to receive a fair
53
See, e.g., Loughner, 672 F.3d at 752 (“[W]e now hold that when the
government seeks to medicate a detainee—whether pretrial or post-conviction—on
the grounds that he is a danger to himself or others, the government must satisfy the
standard set forth in Harper.”); id. at 755-56 (“[T]he decision to medicate
involuntarily a pretrial detainee based on dangerousness grounds is a penological
and medical decision that should be made by the medical staff. . . . [T]he Due
Process Clause does not require a judicial determination or a judicial hearing before
a facility authorizes involuntary medication.”); United States v. Grape, 549 F.3d
591, 599 (3d Cir. 2008) (“We do not reach consideration of the four-factor Sell test
unless an inmate does not qualify for forcible medication under Harper, as
determined at a Harper hearing generally held within the inmate’s medical center.”);
United States v. Green, 532 F.3d 538, 545 n.5 (6th Cir. 2008) (“The Sell standard
applies when the forced medication is requested to restore competency to a pretrial
detainee and the pretrial detainee is not a danger to himself or others. When the
pretrial detainee is a potential danger to himself or others, the Harper standard is
used.”); United States v. Baldovinos, 434 F.3d 233, 240 (4th Cir. 2006) (“[T]he
determination of which principles to apply—those of Harper or those of Sell—
depends on the purpose for which the Government seeks to medicate the
defendant.”).
32
trial.” 54 And it is clear the Due Process Clause may be violated by trying an
involuntarily medicated defendant if side effects of the medication adversely affect
the defense. 55
But that does not mean the defendant’s constitutional rights to a fair trial must
or normally should be considered at the time of a Harper hearing. As we have seen,
when the sole purpose of involuntary medication is to render a defendant capable of
being tried, it makes sense to determine then and there whether that purpose would
be nullified because the proposed medication would likely render a fair trial
impossible. But when a defendant, while detained for competency restoration, is to
54
Riggins v. Nevada, 504 U.S. 127, 142 (1992) (Kennedy, J., concurring).
Justice Kennedy observed that the side effects of antipsychotic “drugs can prejudice
the accused in two principal ways: (1) by altering his demeanor in a manner that
will prejudice his reactions and presentation in the courtroom, and (2) by rendering
him unable or unwilling to assist counsel.” Id. Without minimizing such concerns,
we note that they may “have been lessened to some extent by significant
pharmacological advances” in recent years. Loughner, 672 F.3d at 745 n.10
(explaining that “second-generation” antipsychotic drugs have a lower risk of
serious adverse side effects).
55
Thus, in Riggins, the Court reversed a defendant’s conviction because the
trial court had refused to suspend his psychotropic medication during his trial
without “any determination” that the medication was justified (under Harper or
otherwise), and its side effects “may well have impaired” the defendant’s
constitutionally protected trial rights and his defense by affecting “not just [his]
outward appearance, but also the content of his testimony on direct or cross
examination, his ability to follow the proceedings, or the substance of his
communication with counsel.” 504 U.S. at 136-37 (emphasis in Riggins).
33
be forcibly medicated for compelling safety reasons irrespective of whether the
treatment will restore the defendant to competency, there likely will be no immediate
need for a court to predict whether side effects of the beneficial medication will
interfere with the defendant’s future ability to assist counsel in conducting a defense
or otherwise impair the defendant’s right to a fair trial. Those intertwined medical
and legal questions ordinarily can and should be deferred and dealt with, by a court,
in the event the defendant is restored to competency, trial is in the offing, and the
defendant is still being medicated at that time. Inquiry at that later time will be far
more informed – the court will not have to predict how the medication will affect
the defendant because its actual side effects will have become known (and possibly
mitigated). And the defendant still will enjoy “a full and fair opportunity to raise his
concerns before he goes to trial.” 56
The point was made persuasively by the Fourth Circuit in United States v.
Morgan, 57 one of the many cases holding Harper applicable to pretrial detainees.
The Fourth Circuit “realize[d] that forcibly medicating a pretrial detainee on the
basis that such treatment is necessary because he is dangerous to himself or to others
56
Loughner, 672 F.3d at 768.
57
193 F.3d 252 (4th Cir. 1999).
34
in the institutional setting might have the incidental effect of rendering him
competent to stand trial.” 58 But if that occurred, the court pointed out, the defendant
“would not simply be thrust into the courtroom for trial without additional
procedural protections.” 59 He would be entitled to a hearing and he “could be
brought to trial only if the government proved [that he] was able to understand the
nature and consequences of the proceedings against him and to assist properly in his
defense.” 60 The court could ensure, for example, that the medication “posed no
significant risk of altering or impairing [the defendant’s] demeanor in a manner that
would prejudice his capacity or willingness to either react to testimony at trial or to
assist his counsel.” 61 In short, “the government would be precluded from bringing
[the defendant] to trial in a medicated state unless the constitutional implications of
doing so were thoroughly considered in an appropriate judicial forum.” 62
58
Id. at 264.
59
Id.60
Id.61
Id. at 264.
62
Id. at 265 (citing Riggins, 504 U.S. at 135).
35
We conclude that Harper’s substantive and procedural due process holdings
apply to pretrial detainees as well as to convicted prisoners. Appellants therefore
were not deprived of the due process to which they were entitled.
B. Statutory Claims
Albeit for different reasons, both appellants argue that D.C. Code §§ 24-
531.09 and 7-1231.08 should not be read to permit their forcible medication without
court authorization.
Mr. Taylor contends that, by its terms, § 24-531.09 does not permit
involuntary medication of a criminal defendant without a court order for any
purpose. He interprets the statute as allowing a court (and not a nonjudicial body)
to order involuntary medication (1) for competency restoration only if the criteria in
subsection (b) are met, and (2) for any other purpose only if the medication would
be consistent with § 7-1231.08. We consider this an untenable reading of § 24-
531.09, however. On its face, that statute allows a defendant to be administered
medication involuntarily pursuant to two different procedures: a judicial proceeding
subject to enumerated criteria if the sole purpose of the medication is to render the
defendant competent to stand trial, and a non-judicial administrative process – the
process specified in § 7-1231.08 – if the purpose is otherwise. Section 24-531.09
36
makes no mention whatsoever of court involvement in the latter process. Nor does
anything in the legislative history of § 24-531.09 support Mr. Taylor’s assertion. On
the contrary, as previously mentioned, the Judiciary Committee Report states
unequivocally that the statute authorizes the involuntary administration of
medication for purposes other than competency restoration “as long as the same
procedures are followed for defendants as would be followed for any other consumer
of mental health services.” 63 Those procedures are administrative, not judicial. 64
Mr. Byrd argues that his involuntary medication would not be “consistent
with” § 7-1231.08 because he is not a “consumer” within the meaning of that section.
This argument misapprehends the “consistency” requirement in § 24-531.09. It is
true that Mr. Byrd is not a “consumer,” i.e., someone who sought or received mental
health services or support at Saint Elizabeths pursuant to Chapter 5 of Title 21; he
was not committed to the Hospital pursuant to D.C. Code § 21-545(b)(2) after a
judicial hearing and determination that he was mentally ill and likely, because of
that illness, to injure himself or others if he were not committed. But as explained
above, the cross-reference to § 7-1231.08 in § 24-531.09(a) authorizes the
63
Judiciary Committee Report at 8 (emphasis added).
64
See D.C. Code § 7-1231.08(c) (detailing the requirements of the
“administrative procedure established by the Department”) (emphasis added).
37
involuntary medication of defendants like Mr. Byrd under the same procedure that
would be followed if they were “consumers.” That authorization would be
superfluous if it were limited to defendants who, as chance would have it, just
happened to be “consumers” (civilly committed or otherwise) and therefore already
were subject to involuntary medication pursuant to § 7-1231.08.
V. Conclusion
For the foregoing reasons, we hold that Saint Elizabeths Hospital’s
administrative process for authorizing the involuntary antipsychotic medication of
Mr. Taylor and Mr. Byrd to treat their dangerousness satisfied the requirements of
the Due Process Clause and District of Columbia law. The Superior Court did not
err in denying appellants’ motions to enjoin their medication. The orders on appeal
are affirmed.
So Ordered.