Loughner

dissenting:

Viewed realistically, what the majority holds is that the district court correctly abdicated to Loughner’s prison physicians the responsibility to determine whether he is to be restored to trial competency through involuntary medication. The form of the majority opinion obscures that holding, as it addresses first the quite separate question of the standards and procedures applicable to the mid-commitment decision to medicate a pretrial detainee for reasons of dangerousness. But that is not where we are now in this case. Instead, we are, principally, reviewing the district court’s decision as to whether Loughner is to be committed to a federal medical facility for purposes of restoration of competency to stand trial, a goal that, all agree, could be accomplished only through psychotropic medication, which Loughner refuses to take voluntarily. As I cannot agree that Loughner may be so committed without a judicial determination as to the propriety of involuntary medication and because, even on the majority’s approach, I see several deficiencies in the administrative proceedings conducted by the medical center’s physicians — I respectfully dissent.

I. Background

I…

Opinion by Judge BYBEE; Concurrence by Judge WALLACE; Dissent by Judge BERZON.

OPINION

San Francisco, California *

Jared Lee Loughner stands accused of the January 2011 murder of six people, including U.S. District Judge John Roll, and the attempted murder of thirteen others, including U.S. Representative Gabrielle Giffords. Loughner was committed to a Bureau of Prisons (“BOP”) medical facility to determine if he was competent to stand trial. After the medical staff concluded that he was not competent, the district court ordered him committed for a period of four months to determine if he could be restored to competency. While he was in custody, the facility determined that Loughner was a danger to himself or others and conducted hearings pursuant to 28 C.F.R. § 549.46 (a), referred to as Harper hearings, to determine if he could be involuntarily medicated. See Washington v. Harper, 494 U.S. 210 , 110 S.Ct. 1028 , 108 L.Ed.2d 178 (1990). The district court denied Loughner’s emergency motion to enjoin the involuntary medication decision of June 14, 2011. The appeal from that order is before us as No. 11-10339. In the interim, Loughner was involuntarily medicated on an emergency…

concurring in all but Part III.B.3.d. of Judge BYBEE’s opinion and concurring in the judgment:

I concur in the opinion and judgment and I join the excellent analysis in all sections except Part III.B.3.d. I do not join in the negative speculation that Loughner’s staff representative, John Getehell, was unqualified or that Getchell’s performance was procedurally defective.

Judge Bybee suggests that Getehell, a Licensed Clinical Social Worker, might not “understand[ ] the psychiatric issues involved” in medicating Loughner sufficiently to satisfy Washington v. Harper, 494 U.S. 210, 236 , 110 S.Ct. 1028 , 108 L.Ed.2d 178 (1990) and qualify as a staff representative under 28 C.F.R. § 549.46 (a)(3). See *773 Opinion at 762. This suggestion is made with nothing in the record to support it.

But a more basic question is why is this suggestion in the opinion at all? The sufficiency of Getchell’s understanding was never raised by Loughner. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (“[0]n appeal, arguments not raised by a party in its opening brief are deemed waived”).

Furthermore, I do not join in viewing the dearth of record on Getchell’s qualifications to support the…

Judy Clarke, Clark & Rice, APC; Mark Fleming, Law Office of Mark Fleming; Reuben Camper Cahn, Ellis M. Johnston III, Janet Tung, Federal Defenders of San Diego, Inc., San Diego, CA, for the appellant.

Ann Birmingham Scheel, Acting United States Attorney, Dennis K. Burke, United States Attorney, Christina M. Cabanillas, Appellate Chief, Bruce M. Ferg, Assistant United States Attorney, United States Department of Justice, Tucson, AZ, for the appellee.

Aaron M. Panner, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, D.C., for Amici American Psychiatric Association and the American Academy of Psychiatry and the Law.

Before: J. CLIFFORD WALLACE, MARSHA S. BERZON, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge BYBEE; Concurrence by Judge WALLACE; Dissent by Judge BERZON.

BYBEE, Circuit Judge:

San Francisco, California [*]

Jared Lee Loughner stands accused of the January 2011 murder of six people, including U.S. District Judge John Roll, and the attempted murder of thirteen others, including U.S. Representative Gabrielle Giffords. Loughner was committed to a Bureau of Prisons ("BOP") medical facility to determine if he was competent to stand trial. After the…