255 F.3d 873 (D.C. Cir. 2001)
United States of America, Appelleev.Russell Eugene Weston, Jr., Appellant
No. 01-3027
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 16, 2001Decided July 27, 2001

Appeal from the United States District Court  for the District of Columbia (98cr00357-01)
Gregory L. Poe, Assistant Federal Public Defender, argued  the cause for appellant.  With him on the briefs was A. J.  Kramer, Federal Public Defender.
David B. Goodhand, Assistant U.S. Attorney, argued the  cause for appellee.  With him on the brief were Wilma A.  Lewis, U.S. Attorney at the time the brief was filed, John R.  Fisher and Ronald L. Walutes, Jr., Assistant U.S. Attorneys.
Before:  Sentelle, Randolph, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Concurring opinion filed by Circuit Judge Randolph, with  whom Circuit Judge Sentelle joins.
Concurring opinion filed by Circuit Judge Rogers.
Randolph, Circuit Judge:


1
Under the Fifth Amendment's  Due Process Clause there is a "significant liberty interest in  avoiding the unwanted administration of antipsychotic drugs." Washington v. Harper, 494 U.S. 210, 221 (1990).  This appeal  requires us to decide whether the government may administer such drugs to a pretrial detainee against his will in order  to render him competent to stand trial.

I.

2
On July 24, 1998, an assailant armed with a .38 caliber  revolver forced his way past security checkpoints at the  United States Capitol.  He shot and killed Jacob Chestnut  and John Gibson, both officers of the United States Capitol  Police.  He shot and seriously wounded Douglas McMillan,  also an officer of the United States Capitol Police.  Russell  Eugene Weston, himself seriously wounded by gunfire, was  arrested at the scene.  The federal government indicted  Weston on two counts of murdering a federal law enforcement officer, one count of attempting to murder a federal law  enforcement officer, and three counts of using a firearm in a  crime of violence.


3
The government wants to try Weston for these crimes but  is presently unable to do so because the district court found  him incompetent to stand trial.  See United States v. Weston,  134 F. Supp. 2d 115, 117 (D.D.C. 2001);  1 Joint Appendix 4546 (competency order).  The district court accepted the conclusion of a court-appointed forensic psychiatrist that Weston  suffers from paranoid schizophrenia, and that the severity of  his symptoms renders him incapable of understanding the  proceedings against him and assisting in his defense, as  required to bring a defendant to trial.  See 18 U.S.C. 4241(a) (statutory competence requirement);  see also Godinez v. Moran, 509 U.S. 389, 396 (1993) (constitutional competence requirement).  The court committed Weston to the  custody of the Attorney General "for treatment in a suitable  facility for a reasonable period of time."  1 Joint Appendix 46; see also 18 U.S.C. 4241(d).


4
Weston is currently incarcerated "for treatment" at the  Federal Correctional Institute in Butner, North Carolina. He is not being treated.  Rather, he was placed in solitary  confinement under constant observation when he arrived at  FCI Butner and remains there today.  The Bureau of Prisons  apparently placed him in seclusion to "mitigate [his] dangerousness."  Weston, 134 F. Supp. 2d at 130.  As an Assistant  Director of the Bureau explained, Weston's "mental health  seclusion status" is "for very vulnerable inmates, and typically ... reserved for those who present a substantial  danger to themselves or somebody else...."  7/24/00 a.m. Tr.  at 59.  The district court characterized Weston's confinement  situation as "simply the warehousing of Weston in a psychotic  state.  It is not treatment;  at best it contains dangerousness."  134 F. Supp. 2d at 130-31;  see also 4 Joint Appendix  103 (Report of court-appointed expert that "the field places  severe limitations on the use of seclusion in clinical psychiatry  because [it] is considered to be inherently aversive when used  for prolonged periods of time.").


5
There is treatment available for Weston's illness and its  symptoms in the form of antipsychotic medication.  The  parties agree that such medication is likely the only treatment that can mitigate his schizophrenia and attendant delusions, and thus restore his competence to stand trial.  See  Brief for Appellant at 5;  Brief for Appellee at 12-13.  Weston  is not currently receiving any such medication because, at a  time when he was considered medically competent to make a  determination, he refused them.  The district court prohibited the Bureau of Prisons from forcibly medicating Weston  without a court order.


6
After two administrative hearings and two district court  hearings, the government obtained an order authorizing it to administer antipsychotic medication against Weston's will. See United States v. Weston, 69 F. Supp. 2d 99 (D.D.C. 1999). The district court held that forcible medication was "medically appropriate" and "essential for [Weston's] own safety or  the safety of others."  Id. at 118.  It also found that "the  government has a fundamental interest in bringing the defendant to trial," but determined that the dangerousness holding  made it unnecessary to decide whether that interest outweighed Weston's right to refuse antipsychotic medication. See id. at 118-19. The court declined to consider Weston's  claim that forced medication would interfere with his right to  a fair trial, holding it was not ripe.  See id. at 107.


7
A panel of this court reversed and remanded the case to  the district court, holding that the district court's dangerousness finding was not supported by the record.  See United  States v. Weston, 206 F.3d 9 (D.C. Cir. 2000) (per curiam). The panel also reversed the district court's determination that  Weston's Sixth Amendment right to a fair trial claim was not  ripe, holding that "because antipsychotic medication may  affect the defendant's ability to assist in his defense, postmedication review may come too late to prevent impairment  of his Sixth Amendment right."  Id. at 14 (citations omitted). The panel also directed the district court to consider Weston's  argument that medical ethics preclude forcibly medicating a  defendant to make him competent for trial in a case that  might carry the death penalty.  See id. at 14 n.3.


8
On remand, the district court again held that the Bureau of  Prisons could forcibly medicate Weston.  It concluded that  antipsychotic medication was medically appropriate and "essential to control and treat Weston's dangerousness to others."  Weston, 134 F. Supp. 2d at 127, 131.  The district court  also held that the "government has an essential interest in  bringing Weston to trial" given "the serious and violent  nature of the charges, that the immediate victims were federal law enforcement officers performing their official duties,  and that the killings took place inside the U.S. Capitol amid a  crowd of innocent bystanders."  Id. at 132.  The court concluded that forcible medication would not interfere with Weston's right to a fair trial, and could in some respects enhance his ability to exercise that right by improving his mental  function.  See id. at 132-38.


9
In this appeal, Weston claims that administering antipsychotic drugs against his will violates his Fifth Amendment  due process liberty interest "in avoiding unwanted bodily  intrusion" and implicates his right to a fair trial.  See Brief  for Appellant at 37-38.  In earlier stages of this case, Weston  asserted a First Amendment right to freedom from compulsory medication and challenged the Bureau of Prisons' administrative procedures under the Fifth Amendment's Due Process  Clause.1  He has not raised either issue here so we do not  consider them.  We affirm the district court's conclusion that  the government's interest in administering antipsychotic  drugs to make Weston competent for trial overrides his  liberty interest, and that restoring his competence in such  manner does not necessarily violate his right to a fair trial.

II.

10
The due process liberty interest in avoiding unwanted  antipsychotic medication may be "significant," but it is not  absolute.  See Kansas v. Hendricks, 521 U.S. 346, 356 (1997); United States v. Salerno, 481 U.S. 739, 750-51 (1987);  Youngberg v. Romeo, 457 U.S. 307, 320 (1982).  In Washington v.  Harper and later in Riggins v. Nevada, the Supreme Court  recognized that the government may, under certain circumstances, forcibly administer antipsychotic medication to a  prisoner or criminal defendant despite his liberty interest,  provided such medication is "medically appropriate."  See  Riggins v. Nevada, 504 U.S. 127, 135 (1992);  Washington v.  Harper, 494 U.S. 210, 220, 222-23 & n.8, 226-27 (1990).  With  respect to Weston, there is no doubt that this latter condition  has been met.


11
Whether a proposed course of action is "medically appropriate" obviously depends on the judgment of medical professionals.  See Harper, 494 U.S. at 231, 233-34;  Youngberg, 457  U.S. at 322-23;  Vitek v. Jones, 445 U.S. 480, 495 (1980); Parham v. J.R., 442 U.S. 584, 606-07, 609 (1979);  Addington  v. Texas, 441 U.S. 418, 429 (1979).  The district court relied  on several experts in concluding that "[a]ntipsychotic medication is the medically acceptable and indicated treatment for  Weston's illness."  Weston, 134 F. Supp. 2d at 122.


12
The district court measured the medical appropriateness of  antipsychotic medication by examining the capacity of antipsychotic drugs to alleviate Weston's schizophrenia (the medical benefits) against their capacity to produce harm (the  medical costs, or side effects).  See id. at 123.  Numerous  experts testified that antipsychotic medication is the medically appropriate treatment for Weston's illness.2  While there  are potential side effects,3 the professional judgment of the medical experts was that "each of these potential side effects  is generally manageable."  Id. at 123, 125.  The short of the  matter is that the record leaves no basis for doubting the  district court's conclusion that antipsychotic medication is the  medically appropriate treatment for Weston's condition.


13
Weston claims that the ethical obligations a doctor owes a  patient preclude forcible medication in these circumstances. As he sees it, "the question whether the administration of  antipsychotic medication is medically appropriate is different  from the question whether treatment is therapeutically appropriate."  Brief for Appellant at 18.  Thus, "[t]he context in  which the forced medication issue arises and the state purpose are relevant considerations for the physician to decide  whether it is ethical to force-medicate."  Id.  If the state's  purpose is to make one competent for trial, Weston argues,  then a doctor must consider alternatives such as civil commitment.  See id.  These ethical norms purportedly derive from  the Hippocratic Oath and the 1982 United Nations Principles  of Medical Ethics Relevant to the Role of Health Personnel,  Particularly Physicians, in the Protection of Prisoners and  Detainees against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment.  See Brief for Appellant at 19.


14
No source of legal authority--neither Bureau of Prisons  regulations, nor the statute governing treatment of incompetent pretrial detainees, nor the Constitution -- makes medical  ethics relevant to the determination whether the government  can forcibly medicate Weston.  Even if a particular doctor  had ethical objections to administering antipsychotic drugs to  a non-consenting patient, this would not undercut the consensus in the medical profession that antipsychotic medication is  the medically appropriate response to Weston's condition.4

A. Mitigating Dangerousness

15
A pretrial detainee's liberty interest in avoiding unwanted  antipsychotic medication gives way when the medication is  essential to mitigate the detainee's dangerousness:  "Nevada  certainly would have satisfied due process if the prosecution  had demonstrated, and the District Court had found, that  treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential  for the sake of [the pretrial detainee's] own safety or the  safety of others."  Riggins, 504 U.S. at 135.  The district  court applied this standard to Weston's situation and twice  found antipsychotic medication medically appropriate and essential for his safety or the safety of those around him.  See  Weston, 134 F. Supp. 2d at 121-32;  Weston, 69 F. Supp. 2d at  107-10.


16
On appeal of the district court's first decision, a panel of  this court found the record insufficient to support application  of the Riggins standard.  Much of the evidence focused on  the government's competency-for-trial justification--which  the district court did not adopt--and the limited evidence  supporting the dangerousness justification "indicates that in  his current circumstances Weston poses no significant danger  to himself or to others."  Weston, 206 F.3d at 13.  The panel  relied on the testimony of a Public Health Service physician  assigned to FCI Butner that "[g]iven [Weston's] immediate  containment situation, I feel confident that we can prevent  him from harming himself or others under his immediate  parameters of incarceration where he is in an individual room  with limited access to anything that he could harm himself  with or harm anyone else with, and he remains under constant observation."  2 Joint Appendix 121;  Weston, 206 F.3d  at 13.  The panel concluded that involuntary medication was  not "essential" for safety and instructed the district court that  "[i]f the government advances the medical/safety justification  on remand, it will need to present additional evidence showing that either Weston's condition or his confinement situation has changed since the hearing so as to render him  dangerous."  Id.


17
On remand, the district court received additional evidence  showing that Weston's condition had deteriorated.  In view of  this evidence, the court once again found that Weston posed  such a danger that medicating him was warranted.  We think  the previous panel's decision likely precluded that finding. That panel held that Weston's situation in confinement--total  seclusion and constant observation--obviated any significant  danger he might pose to himself or others.  There appears no  basis to believe that Weston's worsening condition renders  him more dangerous given his near-total incapacitation. Weston remains in seclusion under constant observation.  Absent a showing that Weston's condition now exceeds the  institution's ability to contain it through his present state of  confinement, the prior decision appears to preclude a finding  of dangerousness.  See LaShawn A. v. Barry, 87 F.3d 1389,  1393, 1395 (D.C. Cir. 1996) (en banc) (law-of-the-case and lawof-the-circuit doctrines).  We need not determine whether our  concurring colleague's different interpretation of the previous  panel's decision is correct in view of our affirmance of the  district court's competency-for-trial ground of decision.  See  Concurring Op. of Rogers, J., at 889-90.

B. Restoring Competence to Stand Trial

18
In Riggins, the Court prescribed the conditions sufficient  for a dangerousness justification, but explicitly declined to  "prescribe ... substantive standards" for determining when  other government interests override a pretrial detainee's  liberty interest in refusing antipsychotic medication.  See  Riggins, 504 U.S. at 136;  see also Weston, 206 F.3d at 12-13  (also declining to prescribe substantive standards).  The  Court did, however, suggest that the governmental interest in  restoring a pretrial detainee's competence to stand trial could  override his liberty interest:  "the State might have been able  to justify medically appropriate, involuntary treatment with  [antipsychotic medication] by establishing that it could not  obtain an adjudication of [the pretrial detainee's] guilt or  innocence by using less intrusive means."  Riggins, 504 U.S.  at 135.


19
"The substantive issue involves a definition of the protected  constitutional interest, as well as identification of the conditions under which competing state interests might outweigh  it."  Harper, 494 U.S. at 220 (quoting Mills v. Rogers, 457  U.S. 291, 299 (1982)) (internal brackets omitted);  see also  Foucha v. Louisiana, 504 U.S. 71, 116 (1992) (Thomas, J.,  dissenting) ("The standard of review determines when the  Due Process Clause ... will override a State's substantive  policy choices, as reflected in its laws.").  Weston argues that  the appropriate substantive standard is strict scrutiny and  that involuntary medication must be "narrowly tailored to  achieve a compelling government interest."  See Brief for  Appellant at 36-37;  accord United States v. Brandon, 158  F.3d 947, 957 (6th Cir. 1998) (strict scrutiny applies to  determination whether governmental interest in medicating nondangerous pretrial detainee to make him competent for  trial outweighs liberty interest);  Bee v. Greaves, 744 F.2d  1387, 1396 (10th Cir. 1984) (requiring use of "less restrictive  alternatives");  see also Kulas v. Valdez, 159 F.3d 453, 455  (9th Cir. 1998) (using heightened scrutiny under Riggins); United States v. Sanchez-Hurtado, 90 F. Supp. 2d 1049, 1055  (S.D. Cal. 1999) (same);  Khiem v. United States, 612 A.2d  160, 165-66 (D.C. 1992) (as amended on rehearing) (applying  Riggins and requiring "a showing of overriding justification  and medical appropriateness").  The government argues for  an arbitrary and capricious standard like that employed to  review administrative agency action.  See Brief for Appellee  at 22-27;  accord Harper, 494 U.S. at 223 (applying reasonableness standard to forcible medication of prisoners to mitigate dangerousness);  Weston, 206 F.3d at 14-15 (Henderson,  J., concurring);  United States v. Charters, 863 F.2d 302, 306  (4th Cir. 1988) (en banc) (liberty interest "is protected against  arbitrary and capricious actions by government officials"); United States v. Morgan, 193 F.3d 252, 262 (4th Cir. 1999)  ("under Charters, the determination of whether to forcibly  medicate a pretrial detainee ... rests upon the professional  judgment of institutional medical personnel, subject only to  judicial review for arbitrariness");  United States v. Keeven,  115 F. Supp. 2d 1132, 1137 (E.D. Mo. 2000) (following Morgan);  cf. Jurasek v. Utah State Hosp., 158 F.3d 506, 511 (10th  Cir. 1998) (applying Harper's reasonableness standard to  civilly committed patient);  see also Charters, 863 F.2d at 31213 (professional judgment standard from Youngberg v. Romeo);  Morgan v. Rabun, 128 F.3d 694, 697 (8th Cir. 1997)  (same).


20
The Supreme Court denied that it had adopted a strict  scrutiny standard in Riggins.  See Riggins, 504 U.S. at 136. It also appeared not to apply a reasonableness test or its  various analogues:  arbitrary and capricious, rational basis, or  exercise of professional judgment.  Rather, the opinion's language suggests some form of heightened scrutiny:  the emphasis on the severity of infringement antipsychotic drugs  impose on an individual's liberty interest, see id. at 134;  the  reasoning that "forcing antipsychotic drugs on a convicted prisoner is impermissible absent a finding of overriding justification," id. at 135 (emphasis added);  the statement that  medicating to mitigate dangerousness must be "essential" and  that the trial court must consider "less intrusive alternatives,"  id.;  and the criticism of the district court's failure to find that  "safety considerations or other compelling concerns outweighed Riggins' [liberty] interest," id. at 136.


21
We think the appropriate standard is the one the Court set  forth in the penultimate paragraph where it noted the lack of  a "finding that might support a conclusion that administration  of antipsychotic medication was necessary to accomplish an  essential state policy...."  Id. at 138.  Although that paragraph addressed trial prejudice, it outlines the standard the  state failed to meet in ascertaining whether a governmental  interest outweighs a right to avoid antipsychotic medication. Accordingly, to medicate Weston, the government must prove  that restoring his competence to stand trial is necessary to  accomplish an essential state policy.5


22
1. The Essential State Policy in Adjudicating Criminality


23
Preventing and punishing criminality are essential governmental policies.  The Supreme Court has recognized that  preventing crime is a compelling governmental interest.  See  Schall v. Martin, 467 U.S. 253, 264 (1984);  United States v.  Salerno, 481 U.S. 739, 749-50 (1987).  This interest lies not  just in incapacitating dangerous criminals, but also in demonstrating that transgressions of society's prohibitions will be  met with an appropriate response by punishing offenders. See Kansas v. Hendricks, 521 U.S. 346, 361-62 (1997);  Foucha v. Louisiana, 504 U.S. 71, 80 (1992).  The Court has  repeatedly adverted to the government's "compelling interest  in finding, convicting, and punishing those who violate the  law."  Moran v. Burbine, 475 U.S. 412, 426 (1986);  accord  Texas v. Cobb, 121 S. Ct. 1335, 1343 (2001);  Gray v. Mary land, 523 U.S. 185, 202 (1998) (Scalia, J., dissenting);  McNeil  v. Wisconsin, 501 U.S. 171, 181 (1991);  Richardson v. Marsh,  481 U.S. 200, 210 (1987);  Garrett v. United States, 471 U.S.  773, 796 (1985) (O'Connor, J., concurring).


24
The Court in Riggins recognized the strength of the government's policy in adjudicating criminality when it stated  that the government "might" be able to involuntarily medicate a defendant if "it could not obtain an adjudication of guilt or innocence by using less intrusive means," 504 U.S. at  135, and when it cited Justice Brennan's statement that  "Constitutional power to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to  social justice and peace," id. at 135-36 (quoting Illinois v.  Allen, 397 U.S. 337, 347 (1970) (Brennan, J., concurring)). We do not believe the Court's use of "might" reflects any  tentativeness about whether the government could ever justify medicating to restore competence to stand trial.  If that  were what the Court had in mind we doubt that it would have  included the statement.  We read "might," rather, as indicating that the interest in adjudicating criminality is not necessarily an essential state policy under all circumstances.  Cf.  Brandon, 158 F.3d at 960-61 (no compelling interest in trying  man accused of sending a threatening letter;  factors relevant  to this determination include seriousness of the offense,  whether the pretrial detainee is dangerous, and whether the  detainee will be released if not tried);  Khiem, 612 A.2d at 176  & n.1 (Ferren, J., dissenting from denial of rehearing en  banc) ("Whereas the District may have a compelling state  interest in force-medicating Khiem [to try him for murder],  the District will not necessarily have such an interest in forcemedicating pretrial detainees charged with lesser crimes.").


25
We need not decide under what circumstances trying and  punishing offenders is not "essential."  The government's  interest in finding, convicting, and punishing criminals reaches its zenith when the crime is the murder of federal police  officers in a place crowded with bystanders where a branch of  government conducts its business.  The Court made the point  in Salerno:  "While the Government's general interest in  preventing crime is compelling, even this interest is heightened when the Government musters convincing proof that the  arrestee, already indicted or held to answer for a serious  crime, presents a demonstrable danger to the community. Under these narrow circumstances, society's interest in crime  prevention is at its greatest."  481 U.S. at 750;  see also  Khiem, 612 A.2d at 167;  but see Bee v. Greaves, 744 F.2d  1387, 1395 (10th Cir. 1984).  The statutory sentences for the  crimes Weston is accused of committing--life in prison and  death--reflect the intensity of the government's interest in  bringing those suspected of such crimes to trial.  See 18  U.S.C. §§ 1111, 1114.


26
Weston concedes that in "the ordinary case, the strength of  the government's interest in trying a defendant accused of  first degree murder is undisputed," but argues that when  "the government seeks to forcibly medicate a defendant in  order to try him, however, the case is no longer ordinary,  because presumptions against forced medication have deep  roots in the law."  Brief for Appellant at 43.  This argument  is a reprise of the medical ethics point we considered and  rejected in determining whether antipsychotic medication is  medically appropriate.  It has no more purchase here.  The  "presumption" against forced medication goes to the importance of Weston's constitutional right to refuse antipsychotic  drugs (which we agree is substantial), not to the nature of the  government's countervailing interest.


27
We also do not believe that the "governmental interest in  medicating a defendant in order to try him is diminished ...  by the option of civil commitment."  Note, Riggins v. Nevada:  Toward a Standard for Medicating the Incompetent  Defendant to Competence, 71 N.C. L. Rev. 1206, 1223 (1993). The civil commitment argument assumes that the government's essential penological interests lie only in incapacitating  dangerous offenders.  It ignores the retributive, deterrent,  communicative, and investigative functions of the criminal  justice system, which serve to ensure that offenders receive  their just deserts, to make clear that offenses entail consequences, and to discover what happened through the public  mechanism of trial.  Civil commitment addresses none of  these interests.  In Weston's case, civil commitment would be based on his present mental condition, not on his culpability  for the crimes charged:  "criminal responsibility at the time of  the alleged offenses ... is a distinct issue from his competency to stand trial."  Jackson v. Indiana, 406 U.S. 715, 739  (1972);  see also 18 U.S.C. 4241(f) ("A finding by the court  that the defendant is mentally competent to stand trial shall  not prejudice the defendant in raising the issue of his insanity  as a defense to the offense charged, and shall not be admissible as evidence in a trial for the offense charged.").


28
2. Involuntary Medication is Necessary and there are no Less Intrusive Means


29
The sole constitutional mechanism for the government to  accomplish its essential policy is to take Weston to trial.  See  U.S. Const. amend. V (no deprivation of life, liberty, or  property without due process).  Antipsychotic medication is  necessary because, as the district court found, "antipsychotic  medication is the only therapeutic intervention available that  could possibly improve Weston's symptom picture, lessen his  delusions, and make him competent to stand trial."  Weston,  134 F. Supp. 2d at 132.  The government cannot "obtain an  adjudication of [Weston's] guilt or innocence by using less  intrusive means."  Riggins, 504 U.S. at 135.


30
Although Weston does not propose any alternative means,  he claims that the fit between involuntary medication and the  government's interest is not sufficiently tight in two respects. First, he argues that the medication will not restore his  competence to stand trial because he is not likely to respond  to it.  Second, he contends that the medication's mindaltering properties and likely side effects will prejudice his  right to a fair trial such that the government could not  lawfully try him even if his competence were restored.  Either way, the argument goes, there is an insufficient probability that forcible medication will satisfy the government's  interest.


31
We will treat what Weston styles the "narrow tailoring"  requirement of strict scrutiny as an attack on the "necessity"  of antipsychotic medication.  In determining whether a governmental interest overrides a constitutional right, courts  examine not only the nature of the right and the strength of  the countervailing interest, but also the fit between the  interest and the means chosen to accomplish it.  This inquiry  entails a predictive judgment about the probable efficacy of  the means to satisfy the interest.  In the terms of this case,  antipsychotic medication may not be "necessary" if its use will  not permit the government to try Weston.


32
That antipsychotic medication must be necessary to restore  Weston's competence to stand trial does not mean there must  be a 100% probability that it will produce this result.  As the  Court has recognized, "necessity" may mean "absolute physical necessity or inevitability" or "that which is only convenient, useful, appropriate, suitable, proper, or conducive to  the end sought."  Webster v. Reproductive Health Servs., 492  U.S. 490, 515 n.13 (1989) (plurality opinion) (quoting Black's  Law Dictionary);  see also Board of Trustees v. Fox, 492 U.S.  469, 476-77 (1989).  Even narrow tailoring in strict scrutiny  analysis does not contemplate a perfect correspondence between the means chosen to accomplish a compelling governmental interest.  See Burson v. Freeman, 504 U.S. 191, 20610 (1992) (plurality opinion).


33
The government has established a sufficient likelihood that  antipsychotic medication will restore Weston's competence  while preserving his right to a fair trial.  See Brandon, 158  F.3d at 960.  The district court acknowledged that "it is not  certain that the medication will restore Weston's competency," but "credit[ed] the ... testimony of the mental health  experts that this outcome is likely."  Weston, 134 F. Supp. 2d  at 132.  The government presented evidence that antipsychotic medication mitigated symptoms for at least 70 percent  of patients.  See 7/24/00 p.m. Tr. at 108-09;  8/20/99 a.m. Tr.  at 56;  11/15/00 a.m. Tr. at 57.  Dr. Johnson testified that the  response rate is probably higher with the atypicals.  See  7/24/00 p.m. Tr. at 108-09.  The government also provided  reason to believe that the probability of restoring competence  might be higher in Weston's case because of Weston's "relatively little exposure to antipsychotic medication" and his  generally positive response to the limited medication he received in 1996.  See Weston, 134 F. Supp. 2d at 122;  see also  8/20/99 a.m. Tr. at 56;  7/27/00 a.m. Tr. at 120-21;  4 Joint  Appendix 105 (Report of Dr. Daniel).


34
The small possibility that antipsychotic medication will not  make Weston competent for trial is certainly tolerable considering that antipsychotic medication is the sole means for the  government to satisfy its essential policy in adjudicating the  murder of federal officers.  See Burson, 504 U.S. at 207-08  (emphasizing that the means chosen is the "only way" to  satisfy the state's compelling interest).  The district court  made the most precise predictive judgment it could in this  context.  See 8/20/99 a.m. Tr. at 56 (Dr. Johnson's testimony  that "you are unable to predict in the individual case whether  that individual will actually respond").


35
Weston points out that there is also a possibility that  antipsychotic medication could prejudice his right to a fair  trial by, for instance, altering his courtroom demeanor, interfering with his recollection and ability to testify, and obstructing his right to present an insanity defense.  We agree with  the district court that "[t]here is no reason to conclude, at this  time, that involuntary medication would preclude Weston  from receiving a fair trial."  Weston, 134 F. Supp. 2d at 137.


36
The general right to a fair trial includes several specific  rights such as the right to be tried only while competent, that  is, while able to understand the proceedings, consult with  counsel, and assist in the defense.  See Drope v. Missouri,  420 U.S. 162, 171-72 (1975).  As we determined, there is a  sufficiently high probability that antipsychotic medication will  restore Weston's competence to stand trial.  The district  court found and the evidence indicates that "a strong likelihood exists that medication will enhance some of Weston's  trial rights, particularly his right to consult with counsel and  to assist in his defense." Weston, 134 F. Supp. 2d at 133.6


37
Another aspect of the right to a fair trial is Weston's right  to testify and "to present his own version of events in his own  words."  Rock v. Arkansas, 483 U.S. 44, 49, 52 (1987).  The  defense is concerned that the medication might affect Weston's memory and his capacity to relate his delusions and  other aspects of his mental state at the time of the crime,  which in turn "may impair his ability to mount an effective  insanity defense."  Weston, 206 F.3d at 21 (Tatel, J., concurring);  see also 18 U.S.C. 17 (affirmative defense of insanity).  But the record contains no basis to suppose that antipsychotic drugs will prevent Weston from testifying in a  meaningful way.  Rather, it indicates that medication will  more likely improve Weston's ability to relate his belief  system to the jury.  See 7/24/00 p.m. Tr. at 49-51.  The  benefits of antipsychotic medication in terms of Weston's  ability to understand the proceedings and communicate with  his attorneys presumably will also translate into an improved  capacity to communicate from the witness stand.  And although memory loss is a potential side effect, Dr. Johnson  testified that she thought "he'd be able to remember his  belief system."  7/24/00 p.m. Tr. at 50 (also stating that "I  don't think the treatment would impact his memory");  see  also 7/25/00 a.m. Tr. at 4-5 (Dr. Johnson's testimony that "I  don't expect him to lose the memory of his delusional beliefs  as a result of treatment").


38
There is a possibility that the medication could affect  Weston's behavior and demeanor on the witness stand such  that the jury might regard his "synthetically sane" testimony  as inconsistent with a claim of insanity.  As Justice Kennedy  put it in Riggins, "[i]f the defendant takes the stand ... his demeanor can have a great bearing on his credibility and  persuasiveness, and on the degree to which he evokes sympathy."  Riggins, 504 U.S. at 142 (Kennedy, J., concurring). We recognize this small risk, but we see little basis to  suppose that the jury will take Weston's testimony (if he  decides to testify) as an indication that he must have been  sane at the time of the crime, or that he is making it up, or  that he deserves no sympathy.  There is ample evidence of  Weston's history of mental illness and bizarre behavior;  the  jury's overall impression of Weston will depend as much on  this evidence as his testimony.


39
The district court also correctly held that a defendant does  not have an absolute right to replicate on the witness stand  his mental state at the time of the crime.  See Weston, 134  F. Supp. 2d at 134.  A defendant asserting a heat-of-passion  defense to a charge of first degree murder does not have the  right to whip up a frenzy in court to show his capacity for  rage, nor does a defendant claiming intoxication have the  right to testify under the influence.  See Weston, 206 F.3d at  15 (Henderson, J., concurring).  There is little meaningful  distinction between these cases and medication-induced competence to stand trial.  Either way, the defendant's mental  state on the stand is different from the mental state he claims  to have operated under at the time of the crime.  The  tolerable level of difference no doubt increases in a case like  this where there is substantial evidence of mental state other  than the defendant's present appearance.


40
Weston will not have to rely solely on his own testimony to  show his state of mind on July 24, 1998.  Involuntary medication therefore stands little chance of impairing his right to  present an insanity defense.  There is extensive documentation and testimony concerning Weston's delusional system,  his history of mental illness, and his "behavior, appearance,  speech, actions, and extraordinary or bizarre acts ... over a  significant period."  Weston, 134 F. Supp. 2d at 135-36. Multiple experts have examined Weston and presumably may  testify.  Many of these examinations no doubt related to his  trial competence, but "[t]he tapes and psychiatric reports ...  document Weston's delusional state over several years."  Id. at 135.  There is also a taped interview in which Weston  discussed his delusional beliefs with the Central Intelligence  Agency.  See id. at 135 n.22.  Given the wealth of expert and  lay testimony and other documentation the district court  described, see id. at 135-36, Weston's insanity defense does  not stand or fall on his testimony alone.


41
A third trial right that could be implicated by antipsychotic  medication is Weston's right to be present at trial in a state  that does not prejudice the factfinder against him.  See  Estelle v. Williams, 425 U.S. 501, 503-04 (1976);  Illinois v.  Allen, 397 U.S. 337, 338, 344 (1970).  To the extent the  medication alters Weston's demeanor, courtroom behavior, or  reactions to events in the courtroom, it may cause the jury to  see Weston in a state that might seem inconsistent with a  claim of insanity. It could also produce a flattened emotional  affect that could convey to the jury a lack of remorse, a  critical consideration if this case proceeded to sentencing.


42
Here again the record indicates that medication will likely  enhance rather than impair Weston's right to a fair trial.  Dr.  Johnson stated that medication "will alter [Weston's demeanor] to the extent that it will be more a return to his baseline  non-psychotic state.  I would anticipate he would have less  blunting or flattening of his affect.  He would be able to  respond more appropriately from an emotional standpoint  with his facial expression than he is now."  7/24/00 p.m. Tr. at  8;  see also 7/25/00 a.m. Tr. at 22-24 (Dr. Johnson agreeing  with the proposition that, with medication, Weston's "expressions potentially could be more appropriate to the context of  what's occurring in the courtroom";  also, her testimony that  "[i]t is the patient who is over-medicated or whose side effects  are not managed who would demonstrate an increased lack of  responsiveness").


43
The possibility of side effects from antipsychotic medication  is undeniable, but the ability of Weston's treating physicians  and the district court to respond to them substantially reduces the risk they pose to trial fairness.  The district court  found that Weston's doctors can manage side effects in a  number of ways:  "the Court credits the testimony of the government experts and Dr. Daniel, the independent expert,  that the side effects of medication are manageable through  adjustments in the timing and amount of the doses, and  through supplementary medications."  Weston, 134 F. Supp.  2d at 137;  see also 11/15/00 a.m. Tr. at 125 (Dr. Daniel's  testimony that antipsychotic medications have side effects but  "[g]enerally they can be treated or an adjustment made in the  medication, or the medication replaced with a different one. There's generally a way to deal with the side effects.");  4  Joint Appendix 102 (Statement in Dr. Daniel's report to the  district court that "the side effects can most often be managed or an alternative course of treatment provided to the  benefit of the patient.  General experience with antipsychotics, particularly the newer medications, indicates that given  their benefits they are reasonably safe and well-tolerated."). As the Court wrote in Harper, the "risks associated with  antipsychotic drugs are for the most part medical ones, best  assessed by medical professionals."  494 U.S. at 233.7


44
The district court also has measures at its disposal:  "If  Weston is medicated and his competency is restored, the  Court is willing to take whatever reasonable measures are  necessary to ensure that his rights are protected.  This may  include informing the jurors that Weston is being administered mind-altering medication, that his behavior in their  presence is conditioned on drugs being administered to him at  the request of the government, and allowing experts and  others to testify regarding Weston's unmedicated condition,  the effects of the medication on Weston, and the necessity of  medication to render Weston competent to stand trial."  Weston, 134 F. Supp. 2d at 137.  Weston is free to propose other  options.


45
There is a very high probability that involuntary medication will serve the government's essential interest in rendering Weston "competent to stand trial in a proceeding that  is fair to both parties."  Brandon, 158 F.3d at 954.8  Given the lack of alternative means for the government to satisfy its  essential policy, we cannot demand more.

III. Guardian ad Litem

46
Weston also appeals the district court's refusal to appoint a  guardian ad litem.  The district court concluded that it lacked  authority to appoint a guardian and expressed uncertainty  about what function a guardian would perform if appointed. See 7/24/00 a.m. Tr. at 2-3.


47
We need not decide whether the court had discretion to  appoint a guardian and, if so, whether it abused that discretion in declining to exercise it.  The issue is not relevant to  the outcome of this case.  If the guardian consented on  Weston's behalf, the government presumably may medicate  him.  See Reply Brief for Appellant at 24-25 (stating that a  guardian "would effectively stand in Weston's shoes" and that  "Weston's counsel also explained at a hearing that a guardian  could take the position that the guardian should do as the  guardian saw fit with Weston--which would include allowing  medication");  see also 7/27/00 a.m. Tr. at 108-09.  If the  guardian withheld consent, we are in the same position as  without a guardian:  the government's interest in restoring  Weston's competence to stand trial outweighs his liberty  interest.  If the guardian issue is otherwise relevant, Weston  has failed to show it.


48
* * *


49
Because antipsychotic medication is medically appropriate  and is necessary to accomplish an essential state policy, the  district court's order permitting the government to forcibly  medicate Weston is


50
Affirmed.



Notes:


1
 Weston refers in footnote 9 of his brief to the First Amendment,  the Fourth Amendment, and "privacy interests" not attributed to  any particular part of the Constitution.  He has supplied no supporting arguments and we therefore will disregard his references. See, e.g., Washington Legal Clinic for the Homeless v. Barry, 107  F.3d 32, 39 (D.C. Cir. 1997).


2
 See, e.g., 8/20/99 a.m. Tr. at 59 (Dr. Johnson testifying that the  standard of care for treating schizophrenia is antipsychotic medication);  4 Joint Appendix 103 (Report of Dr. Daniel stating that  "[a]ntipsychotic medication is essential to the treatment of psychotic  disorders such as schizophrenia.  Psychotherapy without antipsychotic medication is not considered to be an effective treatment for  schizophrenia.");  7/25/00 p.m. Tr. at 11 (Dr. Deprato's testimony  that "[t]he diagnosis of paranoid schizophrenia is appropriately  treated with antipsychotic medication");  7/26/00 a.m. Tr. at 64 (Dr.  Zonona's testimony:  Question:  "To your knowledge is there any  hospital in this country that would not attempt to treat this patient  with antipsychotic medication to address the illness as you understand it based on the materials that you've had an opportunity to sit  in and review?"  Answer:  "Well, I think that is the standard  treatment of choice these days [and] if you don't offer and try to use  medication in a situation like this, it is negligent.").


3
 There are two types of antipsychotic medication--the "typicals"  and the "atypicals."  The government proposed to use typicals,  which are an older generation of antipsychotics.  The district court  found:
Typical antipsychotics can produce the following side effects: (1) dystonic or acute dystonic reactions, which involve a stiffening of muscles;  (2) acuesthesia, which is restlessness or an inability to sit still;  (3) Parkinsonian side effects, which can slow an individual;  (4) tardive dyskinesia, which causes repetitive, involuntary tic-like movements of the face, eyelids, and mouth;  (5) neuroleptic malignant syndrome ("NMS"), which causes temperature control problems and stiffness;  and (6) perioral tremor, referred to as rabbit syndrome because of the mouth movements associated with it.
134 F. Supp. 2d at 123.  The atypicals, which the government has  not ruled out, are newer and "have a more favorable side effect  profile."  See id. at 124.  The court found that side effects from  atypicals include:  (1) Agranulocytosis, which could result in death  but for which "there is a highly effective monitoring system to  prevent this result";  (2) sedation;  (3) weight gain;  (4) seizures; and (5) problems with lipid metabolism.  See id.  It appears that  antipsychotic medications could also alter Weston's demeanor, emotional affect, and cognitive function.  See 7/24/00 p.m. Tr. at 49-50; 7/25/00 a.m. Tr. at 22-24;  7/26/00 a.m. Tr. at 62-63.


4
 Defense counsel also claims that Weston's decision while he was  medically competent not to take antipsychotic medication makes  such medication medically inappropriate.  See Brief for Appellant at  45.  We shall assume arguendo that Weston's previous decision  reflects his current informed judgment (which of course is unknowable).  Nonetheless, withholding of consent does not make a treatment medically inappropriate.  In Harper, for instance, the inmate  reportedly said he "would rather die than take medication," 494  U.S. at 239 (Stevens, J., separate opinion), but the Court approved  the treatment as in the inmate's medical interest.


5
 The district court held the government to a clear-andconvincing-evidence burden of proof.  See 134 F. Supp. 2d at 121 &  n.12.  Neither party challenges this determination.


6
 See 7/24/00 p.m. Tr. at 8 (Dr. Johnson's testimony that "I would  really expect him, from a mental status standpoint, to be functioning in a much enhanced manner over his current psychotic state to  the point where I believe his competence could be restored");  id. at  9 (Dr. Johnson stating that "I actually firmly believe that treatment  with the medication will enhance his ability to follow the issues at  the trial");  7/25/00 a.m. Tr. at 24 (Dr. Johnson's testimony that  "successful treatment would result in a decrease in his delusional  thinking, hopefully a resolution of that, an increase in his attention,  ability to concentrate, and a change in his affect, or the way his  mood appears to someone who is looking onto the situation.  His  preoccupation with his delusional system has led me to believe at  various points that he has also experienced some hallucinatory  phenomena, and I would expect that to resolve.").


7
 Antipsychotic drugs have progressed since Justice Kennedy  discussed their side effects in Riggins.  There is a new generation  of medications having better side effect profiles.  See Weston, 134  F. Supp. 2d at 134 (citing Justice Kennedy's concurrence and  writing that "[a]dvances in the primary antipsychotic medications  and adjunct therapies make such side effects less likely");  Paul A.  Nidich & Jacqueline Collins, Involuntary Administration of Psychotropic Medication:  A Federal Court Update, 11 No. 4 Health  Lawyer 12, 13 (May 1999) ("[I]n light of the progress made in the  development of new antipsychotic medications since the Supreme  Court's Riggins decision in 1992, the courts should revisit this issue  with an open mind....  [Because of new atypicals,] the fear of side  effects should not weigh heavily in the decision whether to treat  pretrial detainees or civilly committed persons with antipsychotic  medication against their will when that treatment is medically  appropriate.").  Although the government presently plans to medicate Weston with the older generation of typicals, it could switch to  the newer atypicals if side effects from the typicals threaten to  impair his right to a fair trial.  The district court analyzed the side  effects of both.  See Weston, 134 F. Supp. 2d at 123-25.  Dr.  Johnson testified that Weston cannot be treated with atypicals  unless he agrees to take them orally.  See 7/24/00 a.m. Tr. at 10809.  The parties dispute whether Weston would so agree.  When  Weston originally withheld consent to antipsychotic medication, he  indicated that he would comply with court-ordered medication.  See  5/28/99 a.m. Tr. at 3.


8
 Although the bulk of Weston's fair trial argument relates to the  narrow tailoring aspect of his Fifth Amendment substantive due  process argument, he makes a fleeting reference to an independent  right to a fair trial in arguing for strict scrutiny:  "Weston's Fifth  and Sixth Amendment rights to a fair trial are also at stake because  the forced administration of antipsychotic medication may 'have a  prejudicial effect on [Weston's] physical appearance at trial' and  have an adverse effect on his 'ability to participate in his own  defense.' "  Brief for Appellant at 37.  To the extent this cursory  reference suffices to raise this claim, this is not the occasion to  evaluate it.  Whether antipsychotic medication will impair Weston's  right to a fair trial is best determined when the actual effects of the  medication are known, that is, after he is medicated.  (This is in  contrast to the narrow tailoring component of Weston's bodily  integrity claim, which requires a predictive judgment now.)  As  Judge Tatel stated in the previous panel opinion, "the difficulty  inherent in predicting how a particular drug will affect a particular  individual may well lead the district court to conclude that it cannot  make this determination about Weston without first medicating him. In that event, I see no reason why the potential for side effects  would preclude the district court from ordering medication, provided that, should Weston become competent to stand trial, the district  court conducts a second hearing to determine the extent to which  any side effects Weston is actually experiencing might affect his  fair trial rights."  Weston, 206 F.3d at 21 (Tatel, J., concurring). The district court stated that it "will conduct subsequent evidentiary hearings" on this point.  Weston, 134 F. Supp. 2d at 138;  see  also United States v. Morgan, 193 F.3d 252, 264-65 (4th Cir. 1999).



51
Randolph, Circuit Judge, with whom Circuit Judge  Sentelle joins, concurring:


52
I write separately because I  believe United States v. Weston, 206 F.3d 9 (D.C. Cir. 2000),  our first decision in this case, may have embodied a serious  error.


53
Concluding that Weston was not sufficiently dangerous to  warrant forcibly medicating him, the panel wrote that "in his  current circumstances Weston poses no significant danger to  himself or to others."  Weston, 206 F.3d. at 13.  This was so  because Weston was confined to a room, under constant  observation and had no access to anything he could use to  harm himself or others.  See id.  The upshot, the panel  concluded, was that "[i]f the government advances the medical/safety justification on remand, it will need to present  additional evidence showing that either Weston's condition or  his confinement situation has changed since the hearing so as  to render him dangerous."  Id.


54
This standard puts the government in an unnecessary  quandary.  If Weston were no longer confined to a room and  under constant surveillance, he would be dangerous and,  presumably, could be medicated.  However, because the government cannot medicate him while he is carefully confined-and therefore, not dangerous--it cannot release him into the  general pre-trial detention population without incurring substantial risks.  The result:  the government is all but forced to  keep Weston in isolation, a condition almost everyone agrees  is detrimental to Weston's long-term mental health.


55
The statutes--18 U.S.C. §§ 4241-4247--provide a far different standard for dangerousness than the prior panel's  decision, and represent not only the good judgment of Congress and the President, but also the Judicial Conference of  the United States which "after long study by a conspicuously  able committee, followed by consultation with federal district  and circuit judges," proposed the legislation.  Greenwood v.  United States, 350 U.S. 366, 373 (1956).  Under 4246, a  person is to be held and treated if "his release would cause a  substantial risk of bodily injury to another person or serious  damage to property of another."  18 U.S.C. 4246(d) (italics  added).  Thus, the question on Weston's first appeal should  not have been whether he was dangerous given the manner in which he was confined, but whether he was dangerous as a  general matter, that is, if he were released from strict  confinement and observation.


56
Our concurring colleague proposes a different reading of  the prior panel's decision.  Because of the problems just  discussed, I hope her view eventually prevails even though  the language of that opinion, quoted above, does not seem to  support her.

Rogers, Circuit Judge, concurring:

57
I write separately on  two points:  the findings necessary for forcible administration  of medication in a pretrial context, and the determination of  dangerousness to support such governmental intrusion.


58
First, following the instruction in Riggins v. Nevada, 504  U.S. 127 (1992), the court applies a "form of heightened  scrutiny," Opinion at 11, in considering a number of factors  for balancing the interests of the government and the defendant.  Succinctly put, to medicate Weston against his will,  "the government must prove that restoring his competence to  stand trial is necessary to accomplish an essential state  policy."  Opinion at 12.  The substantive analysis that the  court employs encompasses, however, at least three distinct  determinations.  To allow the government forcibly to medicate a defendant prior to trial with antipsychotic drugs, the  district court must find that:  (1) an "essential state policy" is  at issue, Riggins, 504 U.S. at 138;  (2) "treatment with  antipsychotic medication [is] medically appropriate and, considering less intrusive alternatives, essential for the sake of  [the defendant's] own safety or the safety of others," or  essential to enable an adjudication of the defendant's guilt or  innocence, id. at 135;  and (3) the defendant's due process  rights are protected.  See id. at 137-38.


59
The district court on remand made these three determinations.  See United States v. Weston, 134 F. Supp. 2d 115, 138  (D.D.C. 2001) (Weston III).  On appeal, this court addresses  the first determination under the heading "The Essential  State Policy in Adjudicating Criminality."  Opinion at 12.  It  addresses the second and third determinations under the  heading of "Involuntary Medication is Necessary and there  are no Less Intrusive Means."  Id. at 15.  The court provides  a separate analysis of each determination.  Id. at 883-87


60
Keeping these determinations separate is important because the Supreme Court has acknowledged that a defendant's liberty interests may outweigh the State's interest. Although indicating that even "a substantial probability of  trial prejudice" can be justified if "administration of antipsychotic medication [is] necessary to accomplish an essential state policy," Riggins, 504 U.S. at 138, the Court has suggested that the defendant's liberty interests would prevail where,  for example, the antipsychotic medication impairs the defendant's "ability to follow the proceedings" or to present a  defense.  Id. at 137;  see also Drope v. Missouri, 420 U.S.  162, 171-72 (1975);  Pate v. Robinson, 383 U.S. 375, 378  (1966).  In such circumstances, the government would have  the option of seeking civil commitment of the defendant.  See  Riggins, 504 U.S. at 145 (Kennedy, J., concurring in the  judgment);  see generally 18 U.S.C. §§ 4241-4247;  D.C. Code  1981 §§ 21-541 to 21-551.  For the reasons set forth by the  court, the due process concerns relating to evidence of Weston's mental state and to his competency to stand trial are  attenuated.  See Opinion at 883-87.


61
Second, the court eschews review of the district court's  determination on remand that forced medication was justified  because of Weston's dangerousness to himself or others.  The  court views our decision in United States v. Weston, 206 F.3d.  9 (D.C. Cir. 2000) (per curiam) (Weston II) to have "likely  precluded" a finding of dangerousness in the absence of  evidence that "Weston's condition now exceeds the institution's ability to contain [his dangerousness] through his present state of confinement."  Opinion at 9.  To suggest that  Weston II created a "standard" other than the traditional  dangerousness standard applicable to pretrial detainees is to  misread Weston II.  See Concurring Opinion at 1;  see also  Opinion at 12-13;  18 U.S.C. 4246(d)(2);  28 C.F.R. 549.43.


62
The court in Weston II did not "put[ ] the government in an  unnecessary quandary."  Concurring opinion at 1.  The  court's language must be read in context.  In stating that "[i]f  the government advances the medical/safety justification on  remand, it will need to present additional evidence showing  that either Weston's condition or his confinement situation  has changed since the hearing so as to render him dangerous," Weston II, 206 F.3d at 13, the court was addressing the  insufficient evidence of dangerousness in the record before it  to support a finding that involuntary medication was "essential" for Weston's safety or the safety of others.  See id. That evidence showed that as then confined in isolation by the  government, Weston did not, in the opinion of the government's treating psychiatrist, pose a significant danger to  himself or others.  See id.  What was missing from the  district court record was a "searching inquiry into whether  less intrusive alternatives [to forced medication] would have  been sufficient to control any potential danger posed by  Weston to himself and to others."  Id. at 18 (Rogers, J.,  concurring in the judgment).  The court forewarned, however, that to rely on dangerousness as a basis for forced  medication, the government on remand would need to present  evidence that showed more than that when confined Weston  did not pose a significant danger to himself or others.  See id.  at 13.  The government thus remained free to present evidence about the risks of danger that would be created if  Weston was not confined in isolation and that less intrusive  alternatives to forced medication would be ineffective to  control his dangerousness.


63
The record on remand indicates that the parties and the  district court understood what "additional evidence" of dangerousness was required by Weston II;  none has suggested  that the government confronted a "quandary."  See Br. for  Appellee at 28, 38, 41-42;  see also Opinion at 9.  Expert  medical testimony was offered on Weston's dangerousness in  and out of seclusion, distinguishing between Weston's state of  mind and his ability to act on his delusions.  See, e.g., Test. of  Dr. Daniel, 4 JA at 27-73.  To the point, the government now  argues in its brief that Weston's "seclusion from the general  population is not an 'alternative' to involuntary medication  because it has done nothing to quell [his] dangerous behavior," Br. for Appellee at 42, and that " 'prolonged use' of  seclusion 'brings risk of detrimental effects to the psychological well-being of the patient,' and is 'inherently aversive.' " Id. at 43 (quoting expert medical testimony presented on  remand).  Hence, the government's "quandary" is a creation  of the concurrence.

