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             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
                                          15

      The 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.
