by Chad Marks

 Ajay Kumar, a citizen of India, was detained by Immigration and Customs Enforcement (“ICE”) officials in New Mexico and later transfered to Texas. He began a hunger strike because, in his words, he wanted his freedom. ICE officials wanted to force-feed him, but Kumar objected.

ICE, concerned with Kumar’s health after 61 days of not eating, sought an emergency order allowing them to force-feed him. In response, Kumar argued that he had a constitutional right to engage in a hunger strike under the First Amendment and substantive due process right to refuse medical treatment.

The Court ruled that when a prisoner’s hunger strike will kill him, the government must act. In making that decision, the Court relied on the U.S. Supreme Court’s decision in Youngberg v. Romeo, 457 U.S. 307 (1982). Youngberg involved a mentally disabled person who was involuntarily committed to a state institution. The Court found that Romeo had substantive rights under the Due Process Clause, but that those rights were not without limit.

Quoting Farmer v. Brennan, 511 U.S. 825 (1994), the Court acknowledged that the state must provide “adequate food, shelter, clothing, and medical care.” In that regard, the state has an interest in preventing the death of an individual in its custody. The state has an obligation to not allow a person to starve themselves to death.

Kumar had missed 188 meals, and doctors in the case had legitimate medical concerns about Kumar’s health. The malnutrition was life threatening, and he was facing irreversible organ damage. While Kumar had a liberty interest in conveying his message and in directing his own medical care, that interest though while in federal custody was diminished as suicide by starvation was not a liberty interest protected by the Constitution.

While the Court ordered ICE be permitted to force-feed Kumar, it was not without rebuke. The Court was troubled that Kumar was not brought to an independent doctor for immediate evaluation when his hunger strike began. The Court was further concerned with ICE’s failure to have Kumar seen regarding his malnutrition, and other issues stemming from the hunger strike.

Accordingly, the Court allowed Kumar to be force fed but also ordered that ICE provide bi-weekly status updates, and that if more intrusive medical procedures are necessary, ICE must first obtain Court approval.

See: In Re: Ajay Kumar, ________(9-12-19)

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