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Lawyers argue about forced medication for Jared Loughner

By Michael Martinez, CNN
Lawyers representing Jared Loughner contend that forcing him to take drugs against his will violates his rights.
Lawyers representing Jared Loughner contend that forcing him to take drugs against his will violates his rights.
STORY HIGHLIGHTS
  • Loughner has thrown a chair at doctor and spat at his lawyer, prosecutors say
  • The defendant has also been diagnosed as a schizophrenic, prosecutors say
  • Loughner's attorneys say forcing him to take strong drugs violates his rights

Pasadena, California (CNN) -- A three-judge federal appeals panel on Thursday heard longer-than-expected arguments by attorneys on the government's effort to force alleged Tucson gunman Jared Lee Loughner to take antipsychotic drugs for his behavior.

The three judges with the 9th U.S. Circuit Court of Appeals didn't specify when they would issue a ruling after the hearing lasted 90 minutes, an hour longer than scheduled.

Loughner is being held in a federal mental hospital after an earlier court ruling found him incompetent to stand trial, and the hospital's medical staff began forcing him to take psychotropic medication after it deemed him to be a danger to himself and others.

A federal judge upheld that decision, but Loughner's public defenders have appealed that decision, saying the forced medication violates his constitutional rights.

The federal appeals court this week temporarily halted the medication.

May: Loughner unfit to stand trial
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Loughner is charged with killing six people -- including the chief federal judge of Arizona, John Roll -- in a supermarket parking lot in Tucson, Arizona, on January 8. Among the 13 people wounded was U.S. Rep. Gabrielle Giffords, D-Arizona, who was shot in the head.

Loughner's attorney, Reuben Camper Cahn, a federal public defender, told the court that Loughner's alleged actions -- such as spitting and throwing chairs -- "are common behaviors at a mental hospital."

Cahn argued that the hospital staff was using those incidents as an excuse to forcibly medicate Loughner. Cahn said the issue of dangerousness amounted to "an end-run around" the law in order to make Loughner competent to stand trial -- which prosecutors cannot do without a judge's ruling.

Loughner "is taking the pills under the threat of being forcibly strapped down and injected," Cahn said.

Loughner has been prescribed Risperidone, and if he refuses to take that drug, a forcible injection of Haldol was prescribed as a backup, Cahn told the court.

Cahn said the drugs would cause irreparable harm to Loughner, but Judge Alex Kozinski, who's also chief judge of the 9th Circuit, said he was "highly skeptical" of that assertion.

Kozinski also questioned Assistant U.S. Attorney Christina Cabanillas on whether case law explicitly allowed the government to forcibly medicate a pre-trial detainee without a formal court hearing.

Cabanillas insisted that the case law allowed for such forcible medication, though she couldn't provide the exact page number in the case law that Kozinski repeatedly sought.

Added Judge Kim McLane Wardlaw: "Is the goal of rendering the defendant competent (to stand trial) different from medicating him for dangerousness?

"Are these different goals?" she continued. "How do you separate them out?"

Cabanillas said that if the medication has "an unintended effect" of making Loughner competent to stand trial, that doesn't undermine the need to medicate him for dangerousness.

After the hearing, Cabanillas commented about the lengthy proceeding: "The court is obviously interested, and I was glad to have the opportunity to talk to them."

In court papers, U.S. Attorney Dennis Burke of Arizona said Loughner uttered a profanity and threw a chair twice toward a doctor while in custody in March; spat on his attorney, lunged at her and had to be restrained by staff in April; and threw chairs in his cell in May.

Loughner has been diagnosed as a schizophrenic, Burke said.

"After seeing the defendant's aggressive conduct, and knowing that he has been charged with murder and violent offenses, prison officials had a 'duty to ensure the safety of prison staff and administrative personnel' who are interacting with the defendant...," Burke wrote in court papers.

Prison officials "properly determined that the defendant could be medicated involuntarily," Burke said in court documents.

Authorities at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri, where Loughner is being held, should have tried lesser restraints such as milder tranquilizers, argued Cahn, the public defender.

"Each additional day of involuntary medication not only intensifies the brain-altering changes Mr. Loughner does not desire, but also increases the risk that Mr. Loughner will develop serious, and sometimes irreversible, physiological side effects," Loughner's attorneys said in court documents.

The appeals judges will decide whether to issue a permanent order that would continue the ban of the forced medication, or allow the procedure to resume.

On May 25, a judge found Loughner incompetent to stand trial and committed him to federal custody for hospitalization at the Springfield, Missouri, facility, where the staff will determine whether Loughner will become competent in the foreseeable future and, if so, oversee his mental restoration.

In his July 1 ruling ordering that Loughner be forced to take medication, U.S. District Court Judge Larry Burns said that the U.S. Supreme Court has allowed for a detainee to be medicated involuntarily without a judicial hearing if there is an administrative finding that he poses a danger to himself or others.

"During his current stay at the FMC, he has been observed hallucinating, yelling for no apparent reason, and again throwing the chair in his cell. This conduct has come on suddenly and with no apparent provocation," the judge wrote.

On June 14, the hospital's medical staff held an administrative hearing and found that Loughner poses a danger to others, Burns wrote. That hearing was presided over by a psychiatrist who was not involved in Loughner's diagnosis or treatment, prosecutors said in court papers. That psychiatrist made the decision to medicate Loughner, prosecutors said.

One week later, Loughner began receiving antipsychotic medication, Burns said.

Federal public defender Judy Clarke argued in court papers that the hospital's administrative materials didn't set any limits on the type or quantity of psychotropic medication -- a violation of Loughner's constitutional rights.

Loughner will suffer irreparable harm from the strong drugs because they alter the chemical balance in the brain and can have serious, even fatal, side effects, Clarke argued in court papers.

CNN's Bill Mears contributed to this report.

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