NO. 01-1862EMSL

Criminal

In The United States Court of Appeals

For The Eighth Circuit

UNITED STATES OF AMERICA,

Appellee

v.

DR. CHARLES THOMAS SELL, D.D.S

Appellant

Appeal from the United States District Court

for the Eastern District of Missouri

Motion for Leave to File Amicus Curiae Brief

Association of American Physicians & Surgeons, Inc.

Filed in Support of Appellant

Charles Thomas Sell

Supporting Reversal

Karen Tripp

Suite 2690

1100 Louisiana St.

Houston, TX 77002

(713) 658-9323

Attorney for Amicus Curiae

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

The Association of American Physicians & Surgeons, Inc. (“AAPS”) hereby moves, pursuant to Federal Rule of Appellate Procedure 29(e), to file the accompanying amicus curiae brief. Founded in 1943, AAPS is a national non-profit organization of thousands of physician members in every specialty. We are one of the largest physician associations that is entirely membership-funded, and we file amicus briefs in cases of paramount importance. We recently learned of the profound issue in this case, and its unfortunate similarity to tragic misuse of the medical profession by totalitarian regimes in the past. Upon review, we also noticed a medical error in the opinion below, and inadequate discussion by the parties of the impact of incarceration conditions and the passage of time on the central issue.

AAPS respectfully submits the accompanying brief in defense of the integrity of the medical profession, the patient-physician relationship, and the ethical principles of a civilized society. AAPS seeks to be heard here in the expectation that, if forcible, mind-altering drugs are ordered, then this case will likely be appealed to the Supreme Court based on its enormous significance and its tension with Riggins v. Nevada, 504 U.S. 127 (1992), and Washington v. Harper, 494 U.S. 210 (1990).

A civilized State does not forcibly drug its citizens, no matter how offensive. State use of the medical profession to force such drugs on its patients is improper and vulnerable to abuse. A precedent allowing forced drugging with mind-altering drugs could lead, one day, to atrocities analogous to those prohibited by the Nuremberg Code. Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Nuremberg, October 1946–April 1949 (Washington, D.C.: U.S. G.P.O, 1949–1953) (“The voluntary consent of the human subject is absolutely essential.”) (emphasis added). It is easy for a state to declare its adversaries to be insane; an expansive interpretation of the decision below would allow a state to forcibly drug its adversaries in the name of preparing for trial.

The court found Dr. Sell to be insane based largely on his harsh criticisms of government policies, not on danger to fellow citizens. Dr. Sell’s views were peaceful objections and conspiracy theories about government involvement in Waco and Bosnia. The court below held that Dr. Sell was “delusional” because he:

(i) thought there was a government plot to cover up illegal behavior by corrupt individuals to spread HIV worldwide;

(ii) thought there was a government effort to cover up defendant’s knowledge of the government’s culpability in the Waco deaths, where defendant was summoned to serve at that time as an Army Reservist; and

(iii) thought he should go to Bosnia, and that if he was prevented from going there then somebody wanted a lot of American boys dead.

Slip Op. at 8-9 (citing psychiatric and psychological reports).

The notion that government may forcibly inject a critic with mind-altering drugs, even a highly offensive critic, offends fundamental, well-established ethics of medical practice and a free society. Forcibly drugging enemies of government, a practice familiar in totalitarian countries, has no place in the United States of America. Here, the argument against forcible drugging is even more compelling because the drug at issue can permanently harm the patient.

On appeal, the Government relies heavily on highly offensive behavior by Dr. Sell, which included spitting in the face of the judge. Govt. Br. at 7. That episode does beg for sanction. But mind-altering drugs should never be ordered as the punishment, no matter how reprehensible the behavior. See Washington v. Harper, 494 U.S. at 241 (holding that “[f]orced administration of antipsychotic medication may not be used as a form of punishment”) (emphasis added). Nor does highly offensive behavior demonstrate insanity. Very few of those who engage in civil disobedience, even in violent ways, are actually clinically insane.

AAPS submits that the following principles require reversal of the decision of the court below:

(i) in the absence of danger, patients have the right to refuse mind-altering drugs, and no overriding State interest exists here;

(ii) State power to drug its non-violent enemies creates the appearance of the use of drugs as punishment, contrary to Supreme Court precedent;

(iii) a side effect of death is unacceptable for forced medication of a peaceful prisoner; and

(iv) forced drugging causes breach of medical ethics by physicians.

In addition, AAPS alerts this Court to an error in the decision below concerning the medical harm of the drug at issue, and the unacceptable passage of time since the evaluations. All these points, essential to this appeal, are discussed in the accompanying brief.

Supreme Court precedents militate for a reversal of the district court decision. In Washington v. Harper, supra, the Court emphasized that “[w]e have no doubt that … respondent possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” 494 U.S. at 222 (citing Youngberg v. Romeo, 457 U.S. 307, 316 (1982); Vitek v. Jones, 445 U.S. 480, 488-491 (1980); Parham v. J. R., 442 U.S. 584, 600-601 (1979); emphasis added). The Court further held that “[t]he drugs may be administered for no purpose other than treatment, and only under the direction of a licensed psychiatrist.” Harper, 494 U.S. at 226. These precedents preclude drugging a defendant, who wants to be tried without medication, in order to try him. The State cannot punish its enemies or critics, no matter how offensive, by forcibly drugging them.

The court below found that Dr. Sell is not dangerous, and thus Supreme Court precedent forecloses forcible drugging here. Under the low standard urged by the Government, many of our country’s founding activists could have been subjected to mind-altering drugging by a hostile imperial court. Samuel Adams, for example, encouraged people to dress up like Mohawk Indians, terrify bystanders, and dump someone else’s tea into Boston Harbor, apparently because he felt the British government was acting unfairly. His action might well have appeared offensive, delusional and crazy to an unsympathetic observer. Under the precedent of the court below, a hostile tribunal could conceivably force mind-altering drugs on a dissident like Samuel Adams in order to try him for his offense. Such drugging despite the strenuous objections of the subject is repugnant to a free society.

The court below recognizes a constitutional right by defendant not to be forcibly drugged, but then dismisses that right without a compelling reason. Slip Op. at 4 n.1 (arguing that defendant does have a substantive due process right not to be forcibly administered anti-psychotic drugs to render him competent for trial). The court properly rejected the argument that defendant presented a danger to others, and even acknowledged the possibility of permanent side effects from the drugs. Id. at 6, 11-12. But then the court concluded that “the government’s compelling interest in obtaining an adjudication of defendant’s guilt or innocence” justifies drugging him in a manner that may cause permanent damage. Id. at 17. This purpose is not adequate under the Supreme Court precedents quoted above, and at any rate is not justified based on the defendant’s criticisms of government policies concerning Waco and Bosnia.

AAPS has good cause for submitting this brief at this late stage. AAPS did not hear about this landmark case until recently, as it began to generate publicity. AAPS participation is necessary due to the lack of representation of physicians and patients at large, who could be adversely affected by this precedent. The error in the decision below concerning the medical side effects of the drug at issue, and the impact of the lengthy passage of time, requires correction by this Court. In light of the enormous significance of the issue at stake, and the tension between the decision below and Supreme Court precedents, AAPS respectfully seeks to provide this Court with the benefit of the points in the accompanying brief.

Conclusion

For the reasons stated herein, AAPS requests leave to file the accompanying amicus curiae brief in support of reversal of the decision below.

Respectfully submitted,

____________________

Karen Tripp

Suite 2690

1100 Louisiana St.

Houston, TX 77002

(713) 658-9323 phone

(713) 658-9410 fax

Counsel for AAPS

CERTIFICATE OF SERVICE

I hereby certify two copies of the foregoing document and one 3 ½ inch diskette that has been scanned for viruses and is virus free, were sent, by overnight delivery, this 4^th day of October, 2001, to each of the following attorneys of record:

Howard J. Marcus, Asst. U.S. Attorney

U.S. ATTORNEY'S OFFICE

111 S. 10th Street

Room 20.333

St. Louis, MO 63102

Barry A. Short

LEWIS & RICE

500 N. Broadway

Suite 2000

St. Louis, MO 63102-2147

Lee Lawless

FEDERAL PUBLIC DEFENDER'S OFFICE

1010 Market Street

Suite 200

St. Louis, MO 63101

Charles Thomas Sell

U.S. MEDICAL CENTER FOR FEDERAL

PRISONERS

P.O. Box 4000

Springfield, MO 65801-4000

___________________

Karen Tripp