(CN) – A hearing Wednesday in San Diego will determine whether prison doctors erred in forcing Jared Lee Loughner to take antipsychotic drugs since prosecutors say the suspected Tucson shooter is a clear danger to himself and others.
Loughner’s attorney filed an emergency motion on Friday to immediately enjoin forcible medication. But the government has defended the measure in a new filing, adding that Loughner has been taking medication orally and is “tolerating the medication well.”
In late March, while under competency review, Lougher said “fuck you” to an examining psychiatrist and twice threw a plastic chair at the doctor, according to the government’s response filed late Tuesday. He also “wet a roll of toilet paper attempting to throw it at the camera, and again threw the chair twice.”
U.S. District Judge Larry Burns held a hearing on the issue Wednesday afternoon in San Diego.
Since being declared incompetent to stand trial in late May, Loughner has several times thrown chairs around his cell, prosecutors say, noting that staff at the federal facility in Springfield, Mo., where Loughner is being treated described the 22-year-old suspect’s behavior as “escalating.”
Several months ago, Loughner spit on and lunged at his defense attorney and threw chairs during an interview, according to court filings.
In the motion for an injunction last week, Loughner’s attorney, Judy Clarke, emphasized the fact that this behavior occurred two months ago. The government balked at the attempt to play down the alleged seriousness of Loughner’s behavior.
“The defendant contends that his conduct – throwing chairs with doctors present, throwing chairs in his cell, spitting at his attorney, and lunging toward her to where he had to be restrained – is insufficient to show he is dangerous,” prosecutors wrote in their response. “Yet, this is precisely the kind of determination that the District Court in Morgan noted was ‘best left to the professional judgment of institutional medical personnel and subject to judicial review only for arbitrariness.’ It was not ‘arbitrary’ for the Bureau of Prisons to have determined that the defendant’s actions show he is ‘dangerous’ to others.”
Prosecutors claim that the defense “asks this court to substitute its judicial judgment for expert medical judgment.”
“In short, the defendant has failed to show that BOP’s Harper determination was ‘arbitrary’ and this court should decline the defendant’s invitation to substitute its judgment for that of the prison officials and medical personnel to whom deference is given,” the prosecution wrote.
Clarke decried the prison doctors’ decision to medicate as arbitrary. “The decision, made solely by the Bureau of Prisons, to involuntarily and forcibly medicate Mr. Loughner based on dangerousness is an end run around the right to a judicial determination of whether an incompetent defendant can be involuntarily and forcibly medicated to restore competency to stand trial,” Clarke wrote.
She also argued that Loughner did not have proper representation during a hearing to decide if he should be medicated, and that prison officials failed to give his lawyers prior notice. She claims that Loughner’s defense team is being kept in the dark about his status – including as to whether the medication regime has begun.
Prosecutors clarified that the Loughner is in fact being medicated in their recent filing.
Loughner is expected to remain at the Missouri facility for up to four months while undergoing treatment for schizophrenia. Prosecutors aim to try Loughner for the Jan. 8, 2011, shooting rampage that killed six people and injured 13, including Congresswoman Gabrielle Giffords. A 9-year-old girl, U.S. District Judge John Roll and Giffords’ aide Gabriel Zimmerman were among those fatally injured.