good morning you may proceed like you can morning to roman night please the court counsel my name's angela pitts i'm here on behalf of our client james curtis we're here in a in a lock tory appeal involving challenging a district court order directing the bureau prison forcibly medicate our client in the attempt to restore his competency i just want to give a quick little background story about who mr curtis is simply because it's been a while since the valuations have been done and in the initial  brief mr curtis return in seventy five this year he's now been in custody at the end of this month will be two years he has been married for over fifty years which is a pretty remarkable accomplishment  d his life was gone on path that we all hope our lives go on for the first forty nine and so they had a you know a traumatic event in two thousand and nine when he fell off a ladder and suffered a head injury and based on his wife and daughters on report the change in him was immediate and stark and what you find is the very thing is that they comment on about him disappearing being angry and just a complete change in his personality you know his daughter comments i just don't have my dad anymore it is a lot that you find when we look at stories from veterans coming back from war who have suffered brain injuries so what we're looking at here is he's now been diagnosed with delusional disorder and the bureau of prison has taken a change in position as to even as recently in this court and the gang decision where they said the dr liking dr liking he's an m d so he's the prescription doctor not the psychologist and he has been with butler for quite some time i think he actually was if i'm correct the b o p expert and again case so he was at that time including all the way up to two thousand and eight of the mindset that this medication didn't work for delusional disorder cases that was not a that was not an overwhelming number when you talk in ten percent and so it was not prescribed you know again was a case that went on for quite some time coming back and forth i think in the end there was three appellate versions of his case and  the end on his own he volunteered to take medication and in the end he was later restored to competency and went on with this case and this particular case i think is remarkable when we look at you know the circuits now are a little divided in terms of is it appropriate to use an ice a cottage medication to treat people with this delusional disorders the ninth circuit in risk which is i dressed in both my briefs was not persuaded nor was the fourth circuit for example in evans and then later and white weitzman this doing this thing was quite often because it involved a female and there are differences in treatment for females and males was i understand the one difference in this case mr curtis actually was hospitalized to a while now probably four or five years ago and treated with anti psychotic medications that were successful i mean yeah a different different situation your honor he was hospitalized for nine days we don't know what point during that nine day period he actually took medication and it was voluntary was not a four scenario it his delusions or purse to tori and paranoid and that episode  twenty ten it could have been happenstance because when you actually look at the studies from when you use and i could psychotic medication you know they'll tell me best case scenario you might get a result within a couple of weeks usually you're looking at at least one hundred twenty days and they said even in this case they would want a minimum of four months and quite often even some to be a piece on studies they had clients were it took up to a year for the medication the work so it's not you can't say with absolute certainty that it was the medication that resulted in his change during that nine day visit did i have the morgue of the district court order for this purpose and just remind me did they put any limit on how long they could administer the medication they're done usually and same in this case in four months and permits and then a report is due after the four months and if there has not been any improvement then that's when the government in the be appeal will decide if they want to request an additional four months and we do it all over again so he's seventy five years old let's assume he's not medicated and what happens them to is you is he going just he probably will not be returned to competency going to iran or he just well he probably stay in a federal medical facility from the us was life as i would know that certainly would not be the outcome if he if he's not restored to competency because you would have to show that he's either a danger to himself or to others well you could probably do that in this case where there's certainly no report that at this point in time that that's the case or they would have asked for harper hearing and in fact all the reports show that he is not dangerous and he has not we've received  reports from the bureau p b o p statement that they've had any problems or issues certainly the incident that led to him being found incompetent is troubling but there is nothing that indicates in his history of the seventy five year old gentleman that he has been what i really want to point out and when we look at these cases when you look at the sister circuits and when you look at even the district court cases you know interesting gomez's a second circuit case where that court did find relying on b o p s studies that it was an appropriate thing to do but even district courts within the second circuit has rejected gomez and they said that the analysis was so we can go home as that they couldn't even to an hour's one of those cases lindauer excuse  me they said that the house was so weak that it was unclear if the court was only finding for and mr go mrs case or was it was like a cross the board decision that this was the appropriate protocol  not a case where he had a prior felony it's not that nine twenty i cited but i misspoke i know it was being a camera exactly but this person with a mental one of the things i really wanted to point out to the court and i don't think i hit it recommendation which is the one that deals with the medication issue not the first report which just deals with incompetency and then you look at the district court's order that adopts it there's not a separate discussion on the fourth factor and when you look at the report what you will see is there is a breakdown of the first factor which is thoroughly discussed there is a breakdown called medical appropriateness i believe it was the category and then the last one is the the third factor there's not a fourth factor discussed now they used the topic for the fourth factor to address the second factor and so it sounds like it's all encompassed in one but it's clear when you look at the second factor that the court is addressing that they're only dealing with  likelihood that this is the appropriate medication for the this illness and that there's an unlikely that it will harm him but here's the critical part and risk the knights are to point this out and the fourth factor it's the only one where they talk about mr curtis being a patient and what isn't his medical best interest and in so you have to establish mackey was not a delusional disorder case that's the other thing he was found to have a psychotic disorder not otherwise specified you see on one of the evaluations or like three one of the doctors said delusional disorder that was not the doctor that testified at the hearing and he said psychotic disorder not otherwise specified and i would also dispute makea simply again because we're dealing with delusional disorder specifically here and the literature  this state as a question i wrote down are there any studies that would support a finding by clear and convincing evidence that there be any that there's any drug available that would treat your client mr curtis's condition there is not your honor the only ones remotely close would be the studies done by the b o p and those are after the fact studies where they're like these are individuals that we treated they've been at least three now the most recent one was discussed in the dylan has been passing strange in this day in which wer flooded with different drugs on television never on house that there is not something that would help this person but medical literature does not support that i mean we can sit here and be that is od with all the drugs that we had that there is anything which goes back to one of your  continues to be in literature and i would you know the the b a p doctors try to say it's not as distinguishable as it used to be because there's that similar component of the delusion but that's just one component it does not make them the same is there any evidence on the record as to even taking the best case scenario for the government's position that this government this drug may be  just as to its effectiveness in the seventy five year old individual and also as to whether the likelihood of danger is higher i mean these are pretty powerful anti psychotic medications and i guess the age is something that kind of jumped out at me it's specially with it's been reported back to him by his family and so it's anecdotally that because he's so afraid of the doctors at the b o p he has stopped taking all medication he's not taking his thyroid medication because he to tampered with he's not taking his high blood pressure medication and he won't even take tylenol because and this is what one of the doctors talked about and i believe it was in rules is that the important thing actually with delusions the disorder patients is the connection with this case what what could be done for this person mr curtis i think actually what you found with mr curtis your honor was after that nine day incident in kentucky he didn't have another psychotic episode until this period now that led to him being charged in this case so he was in the hospital one other time but the but the medical expert at that point in time said he was in heaven he didn't have any psychotic episodes going on he didn't have to be medicated and he was released so there's no there's no reason to believe that at some point you know the thing with mr curtis is he one of the things that he's had an issue with since the fallen off the latter is he goes on these trips and he disappears but then he comes back home and he's back to being himself and so it can actually by happenstance on its own that with therapy to treatment without any medication and maybe even under therapeutic treatment that he would volunteer to take medication but in this particular environment he most certainly not addition to the government have with relationship charged with an offense who has a mental health and incident we just have to hit him with drugs and for the same reason that judge will i pointed out with his own personal health issues which was an address in considered by the magistrate judge or the district court judge because they didn't deal with the fourth factor it recognizes those but they said that they're all treated with medication if they if that there's an onset and i've witnessed i've i've had i've done but the death penalty cases and i've witnessed that personally it's a horrible horrible side effect again it seems it's not is this case unique because the condition that mr curtis suffers from is so rarely experience no effective treatment drug therapy has been developed those cases where we said it's it's contradictory to rule as an absence because they agreed with the b o p and ordered force medication but they relied on to be zero p reports and that was it and one of them is the news report in her bel is also involved in that one is the exact same doctors at the p o p that are writing these studies but i wanted to know that they had their own chart if you pull up the report itself and the chart they show that and delusional disorders it's it's less than half of those cases this is how split it is less than half of those cases has it been ordered that the person was forcibly medicated there are actually more cases where the courts said no we'll give you some time for rebuttal in light of our questions but you're out of here from the government mr hin develop this case that isn't here yet and why would we not send this back for that very analysis that really isn't present here well your honor you certainly could  there was a question i believe from judge woman with respect to what evidence was developed below with respect to whether just delusional disorder can be treated by risperidone the drug that has worked with mr curtis in the past that was developed in the hearing and it's page fourteen of the transcript before judge march cesky dr lucking mentioned and if it please the court i'll quote on page fourteen the transcript even the individual with delusional disorder which at one point in time was thought not to respond well to medication as you review the most recent literature there is an indication of substantial response for people with the legal disorder and then he follows up to mention again a very important piece of evidence that that is present with mr curtis that may not be present with your typical individual and it's the fact that this medication the doctor looking wants to administer to mr curtis has been given to him in the past four years ago and i understand judgment he's a seventy five year old gentleman but four years ago he was given this same exact medication in kentucky i believe and his medical record shows that he responded well to it so whether it was it wasn't that only over a nine day believe your honor what was developed below at least here before the magistrate judge factually and what the district court relied upon was the testimony of the medical expert and the individual who was on the ground there  that based on his experience and his review of this particular defend its medical history his opinion is that this medication has a substantial likelihood of rendering mr curtis competent to stand trial and again i think it's important just for a brief moment to what extent should we evaluate the medical literature as judge reinhart dad in effect almost ridiculing some of the studies or at least being highly critical of them  there is one study a norwegian study that the mr curtis of brief relates to a row talks about yes you are and i again to what extent judges do it all the time i guess drug as you want it to if i may be permitted to put it that way and they think that it works whereas some of the literature says it doesn't work i guess the best that i could say to respond to that  is occasionally differences of opinion within the medical community as with it with any other community of experts i guess i will say i would like a litter of outlets to i shouldn't interrupt you but i will this one more time back to this they seem to be highly is that lacking in this case no your honor and again i would just reiterate what the appropriate standard of review is in this case again for the first factor whether there's a substantial governmental inter to play that's something the court does it have no overview over but with respect to those other three factors the government has to show those each of those factors by clear and convincing evidence but as this court said i believe in either fazio the court reviews those findings for clear air so there is some deference to be given to the magistrate judge in the lower court when you can talk your review of whether the government met those three factors by clear and convincing evidence i don't this is more of a comment or a question but it just seems to me that looking at sal the supreme court started with the premise that these involuntary medication is something that's an extraordinary remedy and should be not whitely administered and it just seems to me that when you're saying well maybe it might do some good and there are some study i said ten years ago wouldn't but now there's a study i read someplace this says it might be do some good and couple that with the fact the guy seventy five years old i mean is that the me when i seems to me we've thrown cell completely out the window and we're just doing it every day i mean if you if you can do it in this case you can do it in any case you're always going to find a study someplace that's going to support about anything you want to say and as judge wallman says be opie's anambra with drugs and your office wants you to be an overstatement but well ok government or anyone representing representing the government is wanting to throw cell out the window and if i could i'll just respond to that concern by addressing briefly the facts as developed in this case that apply to the third and fourth prongs now that third prong even though the appellant hasn't chose to address it you've raised it in a way and it's not as though the facts show that the doctors just want to forcibly medicate mr curtis lucking stated at the hearing that mr curtis they've tried the lesser measures to try to get mr curtis competent he's been invited to participate in the competency restoration sessions he refused he told the doctors i don't need to do that there's nothing wrong with me they've asked him to voluntarily take his medication he's refused to do that so the doctors have and this is supported by his testimony and the reports that were considered below they have considered those less intrusive measures with him they have tried to get him to meet them halfway and he has refused on every occasion to do that so it's not as though they have in violation of that third prong jumped straight to a conclusion that they want to just to engage in some sort of experimental treatment with mr curtis that's not supported by this record and to respond to a believe a question i think judge malloy that you raised with respect to the fourth prong and it before my time runs out of fuel compelled to respond to the appellant's argument that there's nothing in the record on the fourth probably that that's just simply not the case either dr looking and this is on pages fifteen sixteen of the transcript was asked specifically about the fourth prong and the question of whether this treatment is medically appropriate he considered specifically whether risperidone with mr curtis would cause any of those negative side effects  put time into that he looked at it and he determined there would not be any negative side effects for mr curtis in taking or spirit on he also ran a drug interdiction profile to see if risperi would negatively interact with any of the other prescribed medications i believe mr curtis is on a some blood pressure medication and by stimulating hormone he looked at that doctor looking and found that there would be no negative reactions so he determined that based on that analysis and mr curtis his past medical history of responding appropriately to this this medication that he seeks to administer that that fourth factor w but that there is evidence in the record and if you look at the district court's order the district court did conduct the review that he was required to conduct in reviewing the magistrate's findings and if you look at the again page eight to nine of the government's brief and i'm not going to consult the court's intelligence by reading that but what the district court found was he believed that the thrust the primary thrust of the parents argument was just or the medical community might have an opinion that evolves over time and again the magistrate judge indicated you know there was a d s m one two three four and so forth and some things appear in the d s m and some things are removed in the r shows that just because the opinion of the medical community or doctor might change over time doesn't necessarily mean that that opinion is incorrect and so the district court did appropriately pay heed to all four cell factors and and this court has pointed out in fazio and in i believe your honour's that's it's near the end of the fazio opinion but i would respectfully invite the court's opinion to that analysis but basically said the same thing that the district court said here that that fazio's arguments in those cases basically went to still down to their essence was an argument that we just don't agree we don't agree with what the doctor said and that's not an  appropriate showing that the court below failed to properly consider the four cell factors or that the port below committed clear does does the force medication order the medication buddy because of his delusional disorder doesn't trust the doctors doesn't take a blood pressure medicine all of a sudden now is blood pressure goes sky high it does it all while i'm also then to forcibly administer blood pressure medication no you other patients and with this one he believes it's substantially likely to render mr curtis competent to stand trial your honor subject to any additional questions and believe that concludes you shouldn't even consider this but suppose we  dangerousness hearing at that point he would have to determine whether mr curtis is a danger to himself or others and then take appropriate steps for whether he should be hospitalized at that point or or released back in the public effect and they said that was for two thousand and three to two thousand and nine the delusional disorder cases there were forty four times where they wanted or requested the opportunity to forcibly medicate they were denied twenty nine times fifteen times they've got the approval from the district court to do so and they were excessive for that six year period eleven out of the fifteen in terms of the literature there's only three now that i'm aware of that shows that there's a seventy percent or greater success rate and use an anti psychotic medication all of those are studies done after the fact by b o p doctors and at least one doctor is consistently involved in all three studies and that by the southern district of new york judge and lindauer is that they speak very superficially and generically about the success right you know give you a success rate but they don't give you the details of the study so unfortunately just a court judge unless  to alert the district court judge to that that's not what those studies say and that there's a there's there's more behind those studies a lot of the studies cited two or schizophrenia cases relied on by dr lucking  started the stoush in courts what that rate were that we were where whether it was paranoid schizophrenia or other cases were suddenly seventy percent became the magic money number suddenly be opi had seventy percent or greater success rate and the reports are other thing that i think is concerning and alarming is there's a greater push in these delusional disorder cases to forcibly medicate them as opposed to therapeutic treatment simply because of the current climate that our nation's and all you  pick up the paper today for three days in a row and you read about a shooting and so i can understand the angsty of the government of law enforcement and even this court will get i don't think cell and the supreme court makes it really clear your honor we can't just be popping pills down people's throat and holding and this is violent what they do to these individuals and we can't just be doing that because what else do we do well not that's what else did we do where or how do we establish or we the government of society establishe therapeutic relationship for the mr curtis's of the world instead of building more prisons maybe we go on the preventive been and what counsel said is mr mr curtis isn't done he will have a civil commitment proceeding if this court sends it back this