BANGOR – The attorney for a Penobscot County Jail inmate who is in the third week of a hunger strike asked the state Monday to vacate an order to force feed his client, claiming such a procedure is unconstitutional.

“Just as prisoners have a right to adequate medical care, they also have the constitutional right to refrain from such adequate medical care,” Dale Thistle, the Newport attorney representing hunger striking inmate James Emerson, 23, of Bangor, said late Monday afternoon.

Earlier in the day, Thistle filed a motion in Penobscot County Superior Court in Bangor to dissolve last week’s court order to force feed Emerson, who has been in jail since late April awaiting trial on state and federal charges. A hearing is expected to be held this week on Thistle’s motion.

Even before Thistle’s filing, the force-feeding was on standby.

Late last week, a Bangor hospital refused to force-feed Emerson and over the weekend Emerson was returned to a jail holding cell, where he is checked by a corrections officer every 15 minutes. Emerson has eaten little more than a few bites of potato chips and over the weekend it was reported he had taken some sips of orange juice on Sunday, Penobscot County Sheriff Glenn Ross said.

Emerson, who has lost more than 25 pounds since he began his hunger strike, has told Thistle that he would rather die than face the years of prison that could be ahead of him if he’s convicted.

Thistle said Monday that on a personal level he wished Emerson would resume drinking fluids and eating food, but that the case is beyond what he and others want and goes to the heart of privacy rights afforded by the Constitution. As long as medical personnel have determined that Emerson is competent to make his own decisions, the attorney said, Emerson should be allowed to do so.

Ross also said he is operating under far-reaching principles, but is on the opposite side of the debate.

“My sworn duty is to provide for the well-being of inmates under my care,” Ross said Monday afternoon.

Bruce Mallonee, a Bangor attorney representing Ross, said Monday that the sheriff’s actions are no different than when corrections officers intercede and prevent inmates from hanging themselves. The hunger strike is a more drawn out way of achieving the same result, he said.

“They have an obligation to prevent prisoners from committing slow-motion suicide,” said Mallonee, who described Ross’s actions as being “extraordinarily conscientious.”

Late last week, Ross obtained a court order to have Emerson force-fed, the order that Thistle is now seeking to have dissolved.

Even with a court order in hand, the force-feeding didn’t take place. Emerson was taken to Eastern Maine Medical Center on Friday, but the hospital refused to comply with the order.

A hospital spokeswoman, who said she could not specifically address Emerson’s case because of patient confidentiality policies, noted that as long as patients are competent enough to convey their wishes, the hospital would not go against those wishes.

“As long as the patients are able to give or withhold consent we must abide by their decisions,” Jill McDonald, director of community relations, said Monday.

Although there is another hospital in Bangor, St. Joseph Hospital, Ross said the jail has an affiliation with EMMC and he will continue to seek treatment for Emerson there for now.

Even though Mallonee and Thistle are squaring off in the legal ring, they do agree on one thing: that there appears to be no precedents in the state for force-feeding.

Although the Maine Supreme Judicial Court has not ruled on the issue, supreme courts in other states have.

In June, the Washington State Court of Appeals ruled that the Department of Corrections was justified in force-feeding an inmate.

Emerson was one of five people who were charged with a burglary in Corinth on April 27. In addition to facing burglary and theft charges, Emerson is scheduled to waive indictment and plead guilty to a federal weapons charge in U.S. District Court in Bangor on Friday.

As for Ross, even with the news of Thistle’s motion, the sheriff said that with continued concerns for the inmate’s health he intends to bring Emerson back to the hospital in another attempt to have him force fed.

“I am quite certain I’m going to be over to the hospital again this week,” Ross said. “I know I am.”

Reporter Judy Harrison contributed to this story.