UNITED STATES of America, Plaintiff-Appellee, v. Michael Francis CHARTERS, Jr., Defendant-Appellant. AMERICAN PSYCHOLOGICAL ASSOCIATION, Amicus Curiae, v. AMERICAN PSYCHIATRIC ASSOCIATION, Amicus Curiae.
No. 86-5568
United States Court of Appeals, Fourth Circuit
Argued June 9, 1988. Decided Dec. 9, 1988.
863 F.2d 302
PHILLIPS, Circuit Judge
Joel I. Klein (Robert D. Luskin, Onek, Klein & Farr, Washington, D.C., on brief), for amicus curiae American Psychiatric Ass‘n in support of plaintiff-appellee.
Victor Darrel Louis Stone, U.S. Dept. of Justice, Washington, D.C. (Henry E. Hudson, U.S. Atty., Constance H. Frogale, Asst. U.S. Atty., Alexandria, Va., Melissa Glassman, Third-Year Law Student, on brief), for plaintiff-appellee.
Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN, WILKINSON, and WILKINS, Circuit Judges, sitting en banc.
PHILLIPS, Circuit Judge:
Michael Francis Charters, an involuntarily-committed psychiatric patient at the Federal Correctional Institution at Butner, North Carolina (Butner), appeals a district court order permitting the administration of antipsychotic medication over his objection. Charters contends that medicating him without his consent or a judicial determination that he is incompetent to make his own medical decisions unconstitutionally impinges upon his liberty interests. We believe the district court correctly determined that Charters’ interests were adequately protected by the exercise of the professional judgment of Butner‘s medical personnel at the time the decision to medicate was made. Because there may have been a change of circumstances in the interval, however, we remand for such reevaluation of the situation as the medical personnel think appropriate.
I
Charters was indicted in November 1983 for threatening the President of the United States in violation of
On January 17, 1986, the court made a determination consistent with its previous findings but denied the government‘s request to permit the medical personnel at Butner to treat Charters with antipsychotic medication over his objections. In April 1986, Charters’ treating psychiatrist, the Director of Forensic Services and Clinical Research at Butner, Dr. Sally Johnson, wrote the district court, detailing Charters’ condition and recommending the administration of antipsychotic medication.
In May 1986, the district court conducted a hearing to determine if Charters should be medicated. Dr. Johnson testified that Charters suffers from degenerative schizophrenia, which is incurable but can be controlled symptomatically with medication. She also testified that in his untreated condition Charters will almost certainly require indefinite confinement in an institutional setting. She noted however that, as demonstrated by previous treatment with antipsychotic medication, Charters’ mental state could improve through proper medication, decreasing his dangerousness to a
The district court considered Dr. Johnson‘s testimony and concluded that the government‘s legitimate interests outweigh Charters’ protected interests. The court identified the government‘s interests as: (1) protecting society and other inmates from a dangerous individual; (2) maintaining a pretrial detainee in a competent condition to stand trial; and (3) fulfilling its duty to treat the medical needs of the citizens in its custody. The court also determined that Charters possesses interests in liberty and privacy under the due process clause of the fifth amendment and in freedom of thought under the first amendment. These interests, the court concluded, were adequately protected by the exercise of the professional judgment of Butner‘s medical personnel. Based on this conclusion, the court ordered the administration of the proposed antipsychotic medication over Charters’ objections but stayed its order pending an expedited appeal to this court. Charters appealed, and a panel of this court reversed the district court, holding that Charters could not be subjected forcibly to the prescribed medication without a more elaborate procedural protection prescribed by the panel. United States v. Charters, 829 F.2d 479 (4th Cir.1987). We then ordered rehearing en banc.
II
All citizens possess a constitutionally protected liberty interest in remaining in free society. Parham v. J.R., 442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972). But this basic interest is extinguished for any period of legal confinement that follows commitment procedures that are compatible with due process. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). This does not mean, however, that persons legally confined are stripped entirely of all protectible interests. They retain significant interests, Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 2457, 73 L.Ed.2d 28 (1982); Vitek v. Jones, 445 U.S. 480, 491-94, 100 S.Ct. 1254, 1262-64, 63 L.Ed.2d 552 (1980), but they are not absolute. Romeo, 457 U.S. at 319-20, 102 S.Ct. at 2459-60. These retained interests must yield to the legitimate government interests that are incidental to the basis for legal institutionalization, see Rennie v. Klein, 720 F.2d 266, 273 (3d Cir.1983) (Seitz, J., concurring), and are only afforded protection against arbitrary and capricious government action. Cf. Slochower v. Board of Higher Education, 350 U.S. 551, 559, 76 S.Ct. 637, 641, 100 L.Ed. 692 (1956) (education employment context).
A
The Supreme Court has recognized several constitutionally-protected interests that are retained by involuntarily committed individuals—interests in conditions of reasonable care and safety, in reasonably nonrestrictive confinement conditions, and in such training as may be required by these interests, Romeo, 457 U.S. at 324, 102 S.Ct. at 2462—but the Court has not yet directly held that involuntarily-committed mental patients retain a protectible interest in refusing antipsychotic medication. It has, however, assumed “for the purposes of ... discussion” that such patients “do retain liberty interests protected directly by the Constitution ... and that these interests are implicated by the involuntary administration of antipsychotic drugs.” Mills v. Rogers, 457 U.S. 291, 299 n. 16, 102 S.Ct. 2442, 2448 n. 16, 73 L.Ed.2d 16 (1982) (citation omitted) (remanding for reconsideration in light of intervening State Supreme Court decision).
In this circuit, we have held, based in part upon the Supreme Court‘s recognition in Romeo of a protectible liberty interest in freedom from bodily restraint, that “the forcible administration of antipsychotic drugs presents a sufficiently analogous intrusion upon bodily security to give rise to such a protectible liberty interest.” Johnson v. Silvers, 742 F.2d 823, 825 (4th Cir.1984). See also Bee v. Greaves, 744 F.2d 1387, 1394 (10th Cir.1984) (recognizing a similar interest); Project Release v. Pre-vost, 722 F.2d 960, 977-79 (2d Cir.1983) (same). We hold here, therefore, that Charters possesses this constitutionally-protected retained interest.
B
Charters does not contest the fact of his confinement. The procedures by which he was committed fully comport with due process. Greenwood v. United States, 350 U.S. 366, 375, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956) (finding commitment pursuant to
Although the retained interest must yield in certain circumstances, it still is protected against arbitrary and capricious actions by government officials. We now turn to consider, as we must, what procedural protection is constitutionally required to protect the interest in freedom from bodily intrusion that is retained by an involuntarily-committed individual after a prior due process proceeding that significantly curtails his basic liberty interest.
III
There is of course no across-the-board prescription for procedural due process. The concept “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey, 408 U.S. at 481, 92 S.Ct. at 2600. More specifically, the process due in particular situations
These factors provide the framework for assessment of the procedural protections due here.
Charters and his supporting amicus, predictably emphasizing the highly sensitive nature of the individual interest at stake, contend that once an inmate has manifested objection to medication, only an elaborate two-stage procedural process is adequate to protect the interest thereby asserted. To provide it, they contend for a plenary judicial proceeding in an appropriate district court. In the first stage, an adversarial factfinding process would be used by the court to determine whether the inmate was mentally competent to make a rational decision respecting his own best interests—whether to accept the medication or not. If found competent in this respect, his objection must be honored. If found incompetent, the court would then make a “substituted” judicial judgment of the inmate‘s “best interests.”
Given the undoubtedly sensitive nature of the individual liberty interest at stake, there may be great instinctive appeal to the notion that only a panoply of procedural protections this complex and multilayered is adequate to protect it. This was the view advanced in the vacated panel opinion in this case, which directed just such a procedure. See 829 F.2d at 497-99. Two factors in particular are drawn upon to emphasize the need for so profound a set of procedural safeguards. First, the “mind-altering” quality of the proposed treatment, with all the images that evokes of the use by totalitarian states of “mind-controlling” psychiatric techniques specifically to curtail individual liberty. Second, the risk of possibly drastic mental and physical side effects of the antipsychotic medication in issue.3
The sensitivity of the interest in these respects cannot be gainsaid, but within controlling principles this does not end the search for the process due for its protection. The sensitivity of the interest, particularly in the two respects emphasized, merely identifies the nature and degree of the particular risk of error threatened by governmental decisions affecting it. Inquiry must then shift to the second and third Mathews v. Eldridge factors—to whether, in paraphrase, the risk of error identified is adequately guarded against by the process actually used by government, or whether, taking into account the nature of the risk, the probable value of additional or different protections, the governmental interest at stake, and the fiscal and administrative burdens involved, the further or different protections must, on balance, be required to ensure adequate safeguards. See Mathews, 424 U.S. at 335, 96 S.Ct. at 903.
Making that inquiry, we look first at the process proposed and actually used by the government. It places responsibility for making the base-line governmental decision to medicate in the appropriate medical personnel of the custodial institution. Treating this decision as essentially a “medical” one, it would find protection against error in making it, first, in the
There is both general and specific precedent for finding in such a regime the procedural protections required by due process guarantees. In the first place, it has long been recognized that “[w]hat process is constitutionally due cannot be divorced from the nature of the ultimate decision that is being made.” Parham, 442 U.S. at 608, 99 S.Ct. at 2507. Thus governmental “deprivation” decisions based essentially upon objective factual determinations of fault, or cause, or the like may require one sort of protective process, see, e.g., Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 88-90, 98 S.Ct. 948, 954-55, 55 L.Ed.2d 124 (1978) (rudimentary adversarial fact-finding process required for student disciplinary decision), while a decision based ultimately upon subjective peer evaluations of professional academic qualifications will require another, see, e.g., Siu v. Johnson, 748 F.2d 238, 244 (4th Cir.1984) (non-arbitrary exercise of professional academic judgment required for academic tenure decision), and one based upon specialized scientific expertise, still another, see, e.g., Parham, 442 U.S. at 606-13, 99 S.Ct. at 2506-10 (non-arbitrary exercise of “medical” judgment required for decision to commit child for mental or emotional illness). It is therefore settled that in appropriate circumstances government may properly commit base-line decisions to “deprive” persons of certain liberty (or property) interests to appropriate professionals exercising their specialized professional judgments rather than to traditional judicial or administrative-type adjudicative processes. This occurs when the conflicting interests—individual and governmental—can only be assessed in those terms, and even when, as is usual, the exercise of professional judgment necessarily involves some interpretation of the disputable “meaning” of clinical “facts.” See Parham, 442 U.S. at 609, 99 S.Ct. at 2507; Horowitz, 435 U.S. at 90, 98 S.Ct. at 955.
More specifically, precisely this basic regime—base-line decision committed to medical professionals, subject to judicial review for arbitrariness—has recently been upheld as comporting with due process both by the Supreme Court and this court. See Parham, 442 U.S. 584, 99 S.Ct. at 101 (“medical” decision to commit child for treatable mental or emotional illness); Romeo, 457 U.S. 307, 102 S.Ct. 2452 (inter alia, medical doctor‘s decision to put institutionalized mental patient under physical restraint);4 Johnson v. Silvers, 742 F.2d 823 (“medical” decision to administer antipsychotic medication to institutionalized mental patient).
While each of these cases inevitably involved somewhat different types of medical decisions and different bases for inmate commitment, their general approval of the basic regime proposed by the government here is plain. Of particular relevance is the Supreme Court‘s recognition, in approving such a regime in Parham, that while medical and psychiatric diagnosis obviously was fallible, there was no reason to suppose that it was more so than would be the comparable diagnosis of a judge or hearing officer. See Parham, 442 U.S. at 609, 99 S.Ct. at 2507.
We start then with the proposition that such a regime, properly conducted, may sufficiently protect against the risk of error in making the medication decision here
The proposed alternative regime is a complicated one. As indicated, it would involve and consist entirely of a two-stage plenary judicial proceeding in district court. The first stage would address, as an issue of fact, the inmate‘s mental competence to determine his own best interests, with the burden on the government to disprove that special sort of competence. The second stage, if incompetence were found by the court, would address the question of the inmate‘s “best interests,” with the judge making a “substituted judgment” for the inmate on that question. Both stages would be conducted in the adversarial mode.
Several critical features of such a regime in addition to its obvious complexity draw its potential for added protective value in serious question. First off, it skews the normal due process regimes under which
To the extent this proposed process reflects greater confidence in the ability of judges and adversarial adjudicative processes than in the capacity of medical professionals subject to judicial review to minimize the risk of error in such decision, it
flies directly in the face of the Supreme Court‘s perception on that score.
Although we acknowledge the fallibility of medical and psychiatric diagnosis, see O‘Connor v. Donaldson, 422 U.S. 563, 584 [95 S.Ct. 2486, 2498, 45 L.Ed.2d 396] (1975) (concurring opinion), we do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative hearing officer after a judicial-type hearing. Even after a hearing, the nonspecialist decisionmaker must make a medical-psychiatric decision. Common human experience and scholarly opinions suggest that the supposed protections of an adversarial proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real. Parham, 442 U.S. at 609, 99 S.Ct. at 2507.
To the extent it would relegate the institutional medical professionals officially charged with the care and treatment of mental patients to the roles of mere expert witnesses defending their opinions against those of non-treating, outside expert witnesses, it flies in the face of the Court‘s perception that in this type situation the decisions of such institutional professionals should be treated by courts as “presumptively valid.” See Romeo, 457 U.S. at 323 & n. 30, 102 S.Ct. at 2462 & n. 30.
Finally, by requiring a preliminary factual determination of the inmate‘s mental competence to decide his own best interests in receiving or declining medication, this regime would pose an unavoidable risk of completely anomalous, perhaps flatly inconsistent, determinations of mental competence by different judicial tribunals. It must be recalled that Charters (as would be all similarly situated inmates), has already been properly adjudged “so mentally incompetent as to be unable to understand the [criminal] proceedings against him or properly to assist in his own defense” under former
As indicated, Charters and his associated amicus, the American Psychological Association, urge as the special value, indeed the necessity, for the more complex regime they propose the special risk of drastic side-effects posed by the antipsychotic medication here in issue. We recognize that the possibility of the sort of dramatic side-effects Charters posits introduces an element in the risk of error that requires special concern. But the question remains whether it is an element so unique that it requires skewing the basically approved regime for insuring due process in making “medical decisions” affecting legally institutionalized mental patients. We are satisfied that it does not.
These side-effects, whose possibility in specific cases is conceded by all, are simply one element in the “best interests” decision, and an element that does not make it any less a “medical” one. Without exhaustive analysis of the scientific literature before us documenting these side-effects and their statistical probability, it suffices to observe that while there is universal agreement in the relevant professional discipline that the side-effects always exist as a risk, there is wide disagreement within those disciplines as to the degree of their severi-
These differences that we are told exist within the scientific community simply serve to emphasize that the side-effects question is simply and unavoidably an element of the ultimate “best interests” medical decision. No scientific opinion is advanced that these side-effects are so highly probable, so severe, and so unmanageable that the antipsychotic medication simply should never be administered by the medical profession even with patient consent. All concede that it may be in the best interests of all concerned, including the patient, in some cases. In this circumstance, we are persuaded that the potential for these specific side-effects does not require substitution of the procedural regime proposed by Charters for that proposed by the government. We are satisfied that as an element of the ultimate “best interests” medical decision, the side-effects threat can better be assessed and reviewed within the government‘s proposed regime than by an adversarial adjudicative process.
Finally, Charters claims an added value—amounting to necessity—for his proposed regime because of the necessity to protect the patient‘s right—if mentally competent to do so—to make the medication decision for himself, with the resulting necessity that his competency be determined preliminarily by a neutral factfinder. We have already pointed up the risk of anomalous, possibly inconsistent, “competency” adjudications that this might produce. Aside from that, we are not convinced that giving over the determination of this narrow, special dimension of mental competency to non-specialist judges and the adversarial process offers a better protection against error than would leaving it in the first instance to responsible medical professionals, subject to judicial review for arbitrariness. No one contends that the patient‘s desire is not a factor to be taken into account if the patient‘s mental competence to make an informed decision can be assumed. Indeed, the regime proposed by Charters and his associated amicus concedes the ultimate necessity for a “substituted judicial judgment” that medication should be administered if he is found incompetent to make that judgment for himself.
As with the potential for side-effects, we are satisfied that the patient‘s competence to make an informed judgment in this matter is properly treated as simply another
Finally to be weighed in the balance is the governmental interest at stake, and the administrative and fiscal burdens that would be imposed by Charters’ proposed regime. It has to be recalled that the government‘s role here is not that of punitive custodian of a fully competent inmate, but benign custodian of one legally committed to it for medical care and treatment—specifically for psychiatric treatment. In this relationship the government is under a specific statutory duty to attempt to restore mental competency so that the patient may be returned to the free society. See
All factors considered, we are satisfied that the basic regime proposed by the government for making the medication decision in issue is adequate, if properly administered, to comply with due process requirements. We do not believe that adequate protection here requires substitution7 of the pre-medication adjudicative regime proposed by Charters.
IV
Having concluded that the government‘s regime is adequate, if properly administered, to provide the process due, it is necessary—because of the posture in which we now consider the case—to address the question of its proper administration in this (and necessarily comparable) cases.
Again, fairly specific guidance has been provided by the Supreme Court. The basic principle is that a legally institutionalized mental patient is entitled to the exercise of “professional judgment” by those who have the responsibility for making medical decisions that affect his retained liberty interests. Romeo, 457 U.S. at 321, 102 S.Ct. at 2461; Parham, 442 U.S. at 607-09, 99 S.Ct. at 2506-08. This is the process due such a person in this particular circumstance, and its nature dictates both the way in which the decision is to be made by the responsible professionals and how it is to be reviewed if presented to the courts for that purpose.
Making an acceptable professional judgment of the sort here in issue does not require any internal adversarial hearing. Parham, 442 U.S. at 607, 99 S.Ct. at 2506 (“not necessary that the deciding physician conduct a formal or quasi-formal hearing“). The decision may be based upon accepted medical practices in diagnosis, treatment and prognosis, with the aid of such technical tools and consultative techniques as are appropriate in the profession. Id. at 607-08, 99 S.Ct. at 2506-07. Without attempting a definitive checklist, it is obvious that a decision of the type here in issue should involve consideration of such factors as the patient‘s general history and present condition, the specific need for the medication, its possible side-effects, any previous reaction to the same or comparable medication, the prognosis, the duration of any previous medication, etc. Rennie v. Klein, 653 F.2d 836, 848 (3d Cir.1981) (en banc). Just as obviously, the basis for the decision should
The “professional judgment” standard also dictates the scope of judicial review. Under that standard, the question presented by a judicial challenge such as Charters’ is not whether the treatment decision was the medically correct or most appropriate one. It is only whether the decision was made by an appropriate professional8 in the exercise of professional judgment, i.e., not arbitrarily. See Siu, 748 F.2d at 245. Due process is denied under this standard only if the decision was reached by such a “substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Romeo, 457 U.S. at 323, 102 S.Ct. at 2462.
This approach properly makes inappropriate any attempt by the courts to determine the “correct” or “most appropriate” medical decision from among the variety of opinions that might be advanced on that point by medical experts. It makes relevant only one question for any experts called to opine in such a proceeding: was this decision reached by a process so completely out of professional bounds as to make it explicable only as an arbitrary, nonprofessional one. This standard appropriately defers to the necessarily subjective aspects of the decisional process of institutional medical professionals, Romeo, 457 U.S. at 322-23, 102 S.Ct. at 2461-62, and accords those decisions the presumption of validity due them. Id. at 323, 102 S.Ct. at 2462.
The district court—probably conducting a broader inquiry and applying a standard of review even more favorable to Charters than the above principle of deference required—nevertheless concluded that the decision forcibly to administer antipsychotic drugs was made in the exercise of professional judgment. The court properly took into account the medical bases upon which the decision was made, conducting a careful inquiry into the diagnostic procedures followed. Significantly, no evidence was offered that the decision lay completely beyond the bounds of tolerable professional judgment. This undoubtedly reflects the fact that no such evidence was available. It is indisputably the case—whatever differences of opinion in detail may exist within the relevant professional community—that substantial portions of that community accept this form of treatment as not only appropriate in particular cases—but as the generally preferred treatment for serious cases. See, e.g., Baldessarini & Lipinski, Risks of Antipsychotic Drugs Overemphasized, 305 N.E.J. of Med. 588 (“the use of available antipsychotic agents continues to be the cornerstone of management for these serious and disabling mental illnesses“); Kane, Treatment of Schizophrenia, 13 Schizophrenia Bull. 133, 134 (1987) (“Antipsychotic drugs remain the primary modality in the treatment of an acute episode or an acute exacerbation of a schizophrenic illness“).
V
We therefore conclude that the district court did not err in approving forcible administration of the medication prescribed
There remains, however, the question of the appropriate remand at this point. Considerable time has elapsed since that medical decision was made and reviewed. We cannot assume that the same medical decision would be made now—though of course it might be. Under the circumstances, we think there is no recourse but to require that before medication is administered the appropriate medical professionals reevaluate the situation in light of present conditions and make a new decision before proceeding.
That decision should of course be now made under the procedures that we have suggested are required to meet the “professional judgment” standard. We observe that under the regime we have approved there is no requirement that, as a matter of due process, every medication decision by responsible medical professionals be submitted by the government for prior judicial approval before proceeding to carry it out. Such prior approval may of course be sought if desired, but under the approved regime such a decision is of a piece with other pre-deprivation governmental decisions such as those leading to job or social benefit terminations, prison transfers, disciplinary sanctions, and the like. Those decisions are of course routinely acted upon without prior judicial approval. Though their implementation is always subject to challenge by the aggrieved party, hence to the risk of liability if illegally or unconstitutionally made, we assume that medical professionals, now aware of the standard to which they are held, may be as willing to proceed without prior judicial approval as are other governmental officials such as those on prison disciplinary committees, civil service boards and the like.
Finally we must take into account that the United States District Court for the Eastern District of Virginia, whose judgment we review, is not the proper court to review future medical decisions respecting Charters’ treatment and continued custody. The proper court, so long as Charters remains in custody at the Butner facility, is the United States District Court for the Eastern District of North Carolina. See
SO ORDERED.
HARRISON L. WINTER, Chief Judge, concurring:
Although I initially concurred in the panel opinion, on rehearing in banc I am persuaded by the correctness of what Judge Phillips has written.
I concur in his opinion.
MURNAGHAN, Circuit Judge, dissenting:
Judge Phillips excels both as a wordsmith and as a thinker. It, therefore, is difficult to enter the lists as his opponent. Yet, here is a case where his words simply fail to convince me. My contrary views are set out in the vacated panel opinion, United States v. Charters, 829 F.2d 479 (4th Cir.1987). To attempt, point by point, to reemphasize the extent of our disagreement will serve little purpose and will merely appear to be an attempt to denigrate the style and thought processes of one whom I truly admire. I will, therefore, restrict myself to the questioning of an attempt to exalt the dependability, as specialized professional judgments, of opinions of government medical personnel because of their “duty to attempt to restore mental competency so that the patient may be returned to the free society.”
Nor should we ignore the likelihood that Butner would rather be freed of the concerns such as diversion of experts it would rather detail to other tasks than the care of Charters. It may well be that something other than Charters’ well-being drives the opining medical officials. I find due process lacking when the effective last word rests finally with government medical officials on whether an incompetent Charters—incompetent to stand trial, not, however, having been shown to be incompetent to make a rational decision as to whether to submit to antipsychotic medication—should be forced against his will to submit to antipsychotic medication with serious adverse medical risks. Fairness requires the assurance of an unbiased decision. That is the function of a court proceeding where one like Charters can be assured of competent independent representation and unbiased testimony.
The legal system under which we operate favors the presentation of opposing views. One side effectively unopposed is not enough. I respectfully dissent.