Appellate Case: 22-1303 Document: 010111062552 Date Filed: 06/10/2024 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 10, 2024
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1303
ROBERT LEWIS DEAR, JR.,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:19-CR-00506-REB-1)
_________________________________
Jacob Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver,
Colorado, for Defendant-Appellant.
Marissa R. Miller, Assistant United States Attorney (Cole Finegan, United States
Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee.
_________________________________
Before BACHARACH, BRISCOE, and MORITZ, Circuit Judges.
_________________________________
MORITZ, Circuit Judge.
_________________________________
In the years since his November 2015 attack on a Planned Parenthood clinic in
Colorado Springs, Colorado, Robert Dear has repeatedly been found incompetent to
stand trial, including by the district court in the proceedings below. But on the
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government’s motion, the district court ordered Dear involuntarily medicated in an
attempt to restore his competency. We affirm that order, holding that the district
court made sufficiently detailed factual findings and that those findings—which
placed greater weight on the government’s experts because of their extensive
experience restoring competency and their personal experience observing and
interacting with Dear—are not clearly erroneous.
Background
According to the facts alleged in the indictment, Dear arrived at the Colorado
Springs Planned Parenthood clinic armed with six rifles, five handguns, a shotgun,
propane tanks, and over 500 rounds of ammunition. He immediately began shooting
at a car next to his in the parking lot, killing one individual. Dear then shot at others
outside the clinic, killing a second individual. From there, Dear forced his way into
the building, where he continued to shoot and injure employees, patients, and others
gathered in the clinic. Over the course of a five-hour stand-off with law enforcement,
Dear killed one officer and injured four others.
The State of Colorado arrested Dear and initially placed him on suicide watch
based on statements he made during his intake and because he refused to eat or drink.
Soon after, mental-health professionals diagnosed Dear with delusional disorder,
persecutory type, and the state court found Dear incompetent to stand trial. Dear
remained in state custody for about four years; upon periodic reexamination,
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psychiatrists continually found him incompetent to stand trial.1
In December 2019, the federal government indicted Dear on 68 counts. After
Dear expressed a desire to represent himself, the government moved for a
competency evaluation under 18 U.S.C. § 4241. To obtain this evaluation, Dear was
transferred to the United States Medical Center for Federal Prisoners in Springfield,
Missouri (Springfield). There, psychiatrist Lea Ann Preston Baecht evaluated Dear
and determined that although he remained incompetent due to his delusional disorder,
persecutory type, he was substantially likely to be restored to competency through
the administration of antipsychotics.
Based on this report, and because Dear refused to take antipsychotic
medication voluntarily, the government filed a motion to involuntarily medicate Dear
under Sell v. United States, 539 U.S. 166 (2003).2 Sell provides that a district court
may grant a motion for involuntary medication if the government shows that
(1) “important governmental interests are at stake”; (2) “involuntary medication will
significantly further those . . . interests” (meaning that medication “is substantially
1
In August 2017, the state court ordered Dear involuntarily medicated in an
attempt to restore him to competency. The Colorado Court of Appeals affirmed, but
by that point the involuntary-medication order had expired. The state court conducted
additional involuntary-medication hearings in December 2018 and February 2019,
but the state court ultimately determined that changes in Dear’s underlying physical
health rendered involuntary medication not in Dear’s best medical interests.
2
The government can also involuntarily medicate individuals who pose a risk
of harm to themselves or others under Washington v. Harper, 494 U.S. 210 (1990).
But there is no dispute here that Dear presents no such danger “[w]hen he is in
custody in a tightly regulated and highly structured prison-like environment.” R. vol.
1, 42.
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likely to render the defendant competent to stand trial” and “is substantially unlikely
to have side effects that will interfere significantly with the defendant’s ability to
assist counsel”); (3) “involuntary medication is necessary to further those interests”;
and (4) “administration of the drugs is medically appropriate.” Id. at 180–81
(emphases omitted). And because of “the vital constitutional liberty interest at stake,”
the government must prove these prongs “by clear and convincing evidence.” United
States v. Bradley,
417 F.3d 1107, 1113–14 (10th Cir. 2005); see also Sell,
539 U.S. at
178 (stating that “an individual has a ‘significant’ constitutionally protected ‘liberty
interest’ in ‘avoiding the unwanted administration of antipsychotic drugs’” (quoting
Washington,
494 U.S. at 221)). To prove a fact by clear and convincing evidence is a
heavy burden that equates to showing the fact is “highly probable.” Florida v.
Georgia,
592 U.S. 433, 438–39 (2021) (quoting Colorado v. New Mexico,
467 U.S.
310, 316 (1984)).
In August 2022, the district court conducted a three-day Sell hearing. Both
parties presented expert testimony, which we summarize here and discuss in more
detail in our analysis. The government called Preston Baecht, as well as Robert
Sarrazin, Springfield’s chief of psychiatry, who provided the treatment plan for
Dear.3 Both had worked at Springfield for over 20 years, and both testified to
successfully restoring the competency of over 70% of their patients suffering from
3
The government also called cardiologist Matthew Holland, who testified that
Dear had never had a heart attack and generally discussed the impacts of
antipsychotic medications on individuals with cardiovascular disease.
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delusional disorder. Both had also personally observed and interacted with Dear and
estimated a similar, over-70% chance that antipsychotics would restore him to
competency. In support, they noted that Dear did not appear to have a history of
failed treatment, had previously been functioning in society, and did not appear to
have any cognitive disabilities. They additionally determined that neither Dear’s
duration of untreated psychosis (DUP) of between 10 and 30 years nor Dear’s age (in
his 60s) meaningfully decreased the likelihood of Dear being restored to competency.
Additionally, both Preston Baecht and Sarrazin discussed the existing scientific
literature, explaining that despite its limitations, it supported their opinions.
The defense called forensic psychiatrist Richard Martinez; psychiatric
pharmacist William Morton Jr.; and neuropsychologist George Woods Jr. Of these
three experts, only Martinez had personally examined Dear, once in December 2015,
shortly after the alleged attack, and again in February 2016. Martinez and Morton
both testified that antipsychotics were unlikely to render Dear competent and
discounted the scientific literature discussed by the government’s experts. Woods
testified that certain facets of Dear’s mental illness, such as various negative
symptoms and his cognitive skills, indicated that involuntary medication was unlikely
to restore Dear to competency.
Two weeks after the Sell hearing, the district court granted the government’s
motion to involuntarily medicate Dear. It concluded that the government’s interest in
bringing Dear to trial satisfied the first Sell prong, particularly in light of the
seriousness of the charged crimes and underlying conduct, as well as the severity of
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the potential penalties. On the second prong, the district court found that involuntary
medication would significantly further the government’s interest because it was
both “substantially likely to render . . . Dear competent to stand trial” and
“substantially unlikely to have side effects that will interfere significantly with
[Dear’s] ability . . . to assist counsel in conducting a trial defense.” R. vol. 1, 50. In
making these factual findings, the district court placed greater weight on the
government’s experts, crediting their significant experience restoring competency to
individuals suffering from delusional disorder and their personal observations of and
interactions with Dear. On the third prong, the district court reasoned that involuntary
medication was necessary because Dear consistently refused medication to treat his
delusional disorder and “no alternative, less[-]intrusive treatments” existed that could
provide “any real chance of achieving a restoration of competency.” Id. And on the
fourth prong, the district court concluded that involuntary medication was medically
appropriate and in Dear’s “best medical interest . . . in light of his psychiatric and
medical condition.”
Id. The district court thus permitted the government to pursue its
provided treatment plan for up to four months.
Dear then filed this appeal, and the district court stayed its order pending our
ruling.4
Analysis
In an appeal from an involuntary-medication order, we review legal
4
We have jurisdiction over this interlocutory appeal under the collateral-order
doctrine. See Sell, 539 U.S. at 176–77.
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conclusions de novo and factual findings for clear error. See Bradley, 417 F.3d at
1113–14. Under the basic clear-error standard, “[a] finding of fact is not clearly
erroneous unless it is without factual support in the record, or unless the court[,] after
reviewing all the evidence, is left with a definite and firm conviction that the district
court erred.” United States v. Chavez, 734 F.3d 1247, 1250 (10th Cir. 2013) (quoting
United States v. Jarvison,
409 F.3d 1221, 1224 (10th Cir. 2005)). At the same time,
the parties agree that in the involuntary-medication context, the clear-error standard
incorporates the government’s burden of proving the Sell prongs by clear and
convincing evidence. See United States v. Valenzuela-Puentes,
479 F.3d 1220, 1227–
28 (10th Cir. 2007) (assessing involuntary-medication fact findings for clear error in
light of government’s clear-and-convincing burden). Additionally, when reviewing
for clear error, “our role is not to re[]weigh the evidence.” United States v. Gilgert,
314 F.3d 506, 515–16 (10th Cir. 2002) (quoting Concrete Pipe & Prods. of Cal., Inc.
v. Constr. Laborers Pension Tr. for S. Cal.,
508 U.S. 602, 623 (1993)); see also
Obeslo v. Great-West Life & Annuity Ins. Co.,
6 F.4th 1135, 1148 (10th Cir. 2021)
(“The district court ‘has the exclusive function of appraising credibility, determining
the weight to be given testimony, drawing inferences from facts established, and
resolving conflicts in the evidence.’” (quoting Holdeman v. Devine,
572 F.3d 1190,
1192 (10th Cir. 2009))).
Dear’s appeal focuses exclusively on one portion of Sell’s second prong: the
district court’s finding that medication is substantially likely to restore him to
competency. He first argues that the district court legally erred because it “failed to
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engage in any meaningful analysis of the evidence” or “make sufficient findings in
support of its determination.” Aplt. Br. 30. Second, he asserts that the district court
clearly erred in finding the government met its burden of showing, by clear and
convincing evidence, that involuntary medication was substantially likely to restore
him to competency. We consider each argument in turn.
On his first point, Dear contends that the district court failed to adequately
engage with his evidence below and to make accompanying specific findings. Our
caselaw does not provide a definitive standard for the required level of detail in an
order directing involuntary medication, but we have stated that “the need for a high
level of detail is plainly contemplated by the comprehensive findings Sell requires.”
Chavez, 734 F.3d at 1252–53. And indeed, the government does not dispute the basic
principle that involuntary-medication orders must include particularized findings. For
instance, we held in Chavez that details about specific medications and dosages were
required for the court to adequately assess potential side effects under Sell’s second
prong and medical appropriateness under Sell’s fourth prong. Id. at 1253. Here, of
course, the types and dosages of medication are not at issue, but the basic principle
holds: orders directing involuntary medication require at least some level of
particularized findings.
Id. at 1252–53.
Relying on two out-of-circuit cases, United States v. Watson, 793 F.3d 416
(4th Cir. 2015), and United States v. Ruiz-Gaxiola,
623 F.3d 684 (9th Cir. 2010),
Dear maintains that the district court failed to conform to this general principle here.
In Watson, the Fourth Circuit reversed an involuntary-medication order because the
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district court focused entirely on whether the treatment plan generally worked for
individuals with the defendant’s disorder and failed to make “any finding assessing
the likely success of the government’s proposed treatment plan in relation to [the
defendant’s] particular condition and particular circumstances.” 793 F.3d at 424–25
(emphasis added). Similarly, in Ruiz-Gaxiola, the Ninth Circuit reversed an
involuntary-medication order because the district court “failed to make any factual
findings relevant to the second prong of the Sell test,” resting instead on the flawed
and conclusory notion that because the treatment plan was designed to restore
competency, it was substantially likely to do so. 623 F.3d at 696.
No similar omissions occurred here. For instance, unlike in Watson, the district
court did not rely solely on the general efficacy of antipsychotics in restoring
competency to individuals with delusional disorder; its order included details specific
to Dear and his “particular condition and particular circumstances.” 793 F.3d at 424–
25. And unlike in Ruiz-Gaxiola, the district court here did not “set forth the
testimony offered by each side” and then simply choose a side based only on
generalized observations. 623 F.3d at 696. Instead, the district court specifically
explained that although it had “considered carefully the testimony” of the defense
experts, it placed greater weight on the government’s experts because “the[ir] long
experience . . . in competenc[y] restoration and their personal observations of and
interactions with . . . Dear” gave “their opinions . . . a substantially stronger factual
and clinical foundation.” R. vol. 1, 44.
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Dear does not dispute the government’s experts’ significant experience
restoring competency or their personal interactions with him, and both are sound
reasons to place greater weight on their testimony. See Ruiz-Gaxiola, 623 F.3d at
699–700 (noting that district court wrongly placed more weight on government’s
experts when record showed that defense expert “had a far superior knowledge
base”). Rather, he faults the district court for not additionally explaining why it
discounted the defense experts’ opinions. But such rationale is implicit in the district
court’s statements. By emphasizing Preston Baecht’s and Sarrazin’s personal
interactions with Dear and their decades of clinical experience with restoring
competency, the district court necessarily discounted the defense experts’ lack of
such personal interactions and less extensive experience.
To be sure, the district court could have addressed this and other topics in
more detail. For instance, even the government acknowledges that the district court’s
discussion of the scientific literature “was somewhat opaque.” Aplee. Br. 62. And the
district court could have offered more explanation for why it placed greater weight
on the government experts’ opinions and discounted the defense experts’ opinions.
But under the circumstances of this case, where (1) the weight placed on competing
expert testimonies was dispositive to the district court’s resolution of the motion, and
(2) the district court clearly explained its assessment of competing expert
testimonies, we conclude the district court provided sufficiently comprehensive
findings. See Chavez, 734 F.3d at 1252–53; cf. Ruiz-Gaxiola, 623 F.3d at 696
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(faulting district court for merely choosing between competing expert testimonies
without explanation).
Dear next argues the district court clearly erred in finding that the proposed
treatment is substantially likely to restore Dear to competency. At the outset, the
government suggests that we cannot review this factual finding because it rests “in
large part [on] its decision to credit the government’s experts over [Dear’s]” and
“credibility determinations by a factfinder are ‘virtually unreviewable.’” Aplee.
Br. 33 (quoting United States v. Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir.
2003)). But Dear correctly points out that the government erroneously conflates
credibility determinations with “the weight the district court gave the experts’
opinions.” Rep. Br. 6. Indeed, the district court explicitly concluded that the
government’s experts were “entitled to greater weight,” not that the government’s
experts were more credible than the defense experts. R. vol. 1, 44 (emphasis added).
Returning to Dear’s argument, he suggests that the government’s expert
testimonies were “exceedingly weak” on findings specific to him. Aplt. Br. 39. We
continue to agree that specificity is necessary. Indeed, we have previously
acknowledged that “the government cannot merely show that a proposed treatment is
‘generally effective’”—instead, it “must prove that a proposed treatment plan, ‘as
applied to this particular defendant, is substantially likely to render the defendant
competent to stand trial.’” United States v. Seaton, 773 F. App’x 1013, 1020 (10th
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Cir. 2019) (quoting Watson, 793 F.3d at 424).5 But we disagree that the district court
clearly erred in concluding that the government established as much by clear and
convincing evidence.
Dear’s appellate briefing emphasizes several factors that he maintains reduce
the likelihood of being restored to competency: his duration of untreated psychosis
(DUP), his age, and his cognitive abilities. Regarding DUP, the defense experts
opined as a general matter that a longer DUP reduced the likelihood of restoring
competency, but they offered neither specific studies nor anecdotal treatment
experience to support that conclusion. Preston Baecht, on the other hand, initially
explained that review of the relevant studies indicated “[in]sufficient data to suggest
that [a DUP of 15–30 years] is a strong predictor” of whether someone is
substantially likely to be restored to competency. R. vol. 3, 95. She additionally
noted that, based on her personal experience, patients with up to 40 years of untreated
psychosis had been “successfully restored to competency.” Id. at 96. Between these
two assessments, the district court did not clearly err in placing greater weight on
Preston Baecht’s opinion, which was more fully explained. See Seaton, 773 F. App’x
at 1020–21 (concluding district court did not clearly err in finding substantial
likelihood of restoring competency where defense expert generally opined that long
DUP cut against restoration and government expert proffered personal experience to
the contrary and highlighted absence of literature); cf. United States v. Breedlove,
5
We rely on Seaton for its persuasive value. See Fed. R. App. P. 32.1(a);
10th Cir. R. 32.1(A).
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756 F.3d 1036, 1041–42 (7th Cir. 2014) (finding no clear error where district court
placed more weight on government’s experts, who personally observed and treated
defendant, than on defense expert’s testimony that merely questioned one underlying
study that government experts discussed in addition to their personal observations).
A similar dynamic played out in the testimony about Dear’s age and cognitive
abilities. Two defense experts suggested in passing that Dear’s age could reduce the
chance of restoring his competency. Preston Baecht did not disagree; she
acknowledged some studies suggesting that older patients were less likely to be
restored, but she noted that this could be due to various other factors, like onset of
dementia. Sarrazin also explained that he would place greater weight on the age
factor if Dear were 85, but he did not believe Dear’s current age (in his 60s) weighed
heavily against the likelihood of restoration. As to cognitive status, both Preston
Baecht and Sarrazin testified that although poor cognitive condition could reduce the
likelihood of restoring competency, Dear appeared to possess typical cognitive
abilities. Both described him as “bright,” R. vol. 3, 51, 190, and Sarrazin stated that
“nothing” in his interactions with Dear indicated the existence of any “cognitive
difficulties,” id. at 191. To be sure, Woods testified for the defense that Dear did
show cognitive symptoms. But the district court did not clearly err in discounting this
testimony because unlike Preston Baecht and Sarrazin, Woods never personally
interacted with Dear. Indeed, both Preston Baecht and Sarrazin questioned Woods’s
opinion by citing their personal experiences with Dear. So, on these points as well,
the district court did not clearly err in placing greater weight on the government’s
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experts, who did not view Dear’s age or cognitive abilities as meaningfully reducing
the substantial likelihood that medication would restore his competency. See Seaton,
773 F. App’x at 1020 (finding no clear error in district court’s finding on substantial
likelihood of restored competency where government’s experts “persuasively
rebutted” defense expert); cf. Ruiz-Gaxiola, 623 F.3d at 699–701 (ruling that district
court clearly erred in relying on “generalized statements and unsupported assertions
of the government’s experts, when contrasted with the specific and authoritative
rebuttal evidence presented by the defense”).
Dear also devotes a significant portion of his clear-error briefing to what he
views as the insufficiency of the scientific literature regarding competency
restoration for individuals with delusional disorder. In so doing, he highlights two
points that the government’s experts did not meaningfully disagree with:
(1) historically, psychiatrists believed that delusional disorder could not be
effectively treated with antipsychotics, and (2) more recent studies questioning that
historical view suffer from certain weaknesses. But Dear overlooks Preston Baecht’s
explanation that the historical evidence also suffered from weaknesses, such as
inadequately short trial periods and lack of a specific focus on competency
restoration. And in any event, although the district court’s discussion of the scientific
literature was nonspecific and arguably inconsistent,6 the court did not base its
6
The district court noted that “[s]ome published studies” supported the
government’s experts’ estimation as to the likelihood of restoration, that “some
published studies reflect[ed] a lower competency restoration rate,” and that “some
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factual findings on any study. Instead, it relied on the personal experience of the
government’s experts in restoring competency generally and interacting with Dear
specifically. Under these circumstances, we decline to find clear error based on the
district court’s discussion of the scientific literature. See Breedlove, 756 F.3d at 1042
(rejecting argument that district court clearly erred in relying on expert testimony
about somewhat flawed scientific research in part because experts’ opinions were
also based on personal observations of defendant); United States v. Fieste,
84 F.4th
713, 727–28 (7th Cir. 2023) (rejecting argument that district court clearly erred by
relying on generalized statistics where government’s expert testified based on both
scientific literature and personal examination); cf. Watson,
793 F.3d at 426 (reversing
involuntary-medication order in part because expert’s cited studies provided “some
evidence that antipsychotic medication may be effective against [d]elusional
[d]isorder in general” but were in no way tied to specific defendant).
In sum, given the district court’s explanation for placing greater weight on the
testimony of the government’s experts, who specifically rebutted the views of the
defense experts, we are not left with the “definite and firm conviction that the district
court erred” in determining that involuntary medication was substantially likely to
restore Dear to competency. Chavez, 734 F.3d at 1250 (quoting Jarvison,
409 F.3d at
1224).
published studies” were less persuasive due to having small sample sizes, being too
short, or involving noncompliant patients. R. vol. 1, 43.
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Conclusion
The district court provided sufficiently particularized findings and did not
clearly err in placing greater weight on the government’s expert testimony to
conclude that involuntary medication is substantially likely to restore Dear to
competency. Accordingly, we affirm the district court’s order granting the
government’s motion to involuntarily medicate Dear in an effort to restore his
competency. And as a final matter, we grant the government’s unopposed motion to
file the second supplemental volume of the record under seal. See United States v.
Dillard, 795 F.3d 1191, 1205–06 (10th Cir. 2015) (noting that “the privacy interest
inherent in personal medical information can overcome the presumption of public
access”).
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