Anal Probes And The Drug War: A Look At The Ethical And Legal Issues

Anal Probes And the Drug War: An Ethical And Legal Primer
medical glove to protection and ...
medical glove to protection and ...

Last week, news wires, blogs and pundits lit up with the horrifying story of David Eckert, a New Mexico man who last January was subjected to a series of invasive and degrading drug search procedures after a traffic stop. The procedures, which included x-rays, digital anal penetration, enemas and a colonoscopy, were all performed without Eckert's consent.

Eckert was pulled over by Deming, New Mexico Officer Bobby Orosco for making a rolling stop at a stop sign as he was leaving a Walmart parking lot. According to a subsequent search warrant, Orosco thought Eckert appeared nervous. A drug dog was called in, which alerted the officer to Eckert's seat. The officer then claims he received a tip from another, unnamed officer that Eckert had previously hidden drugs in his anus. (Eckert apparently has a prior record.) Based on all of this, the police officers were able to get both Deputy District Attorney Daniel Dougherty and a local judge to sign off on all the humiliation that followed. (According to the original report, the hospital then sent him a bill for the "services," and has since threatened to send a collection agency after him).

Days later, a second resident of New Mexico came forward with similar allegations. Timothy Young says that after a traffic stop in October 2012, he too was subjected to x-rays and a digital anal exam without his consent. New Mexico news station KBO-TV was first to report both incidents, which were performed by physicians at the Gila Regional Medical Center in Silver City, New Mexico. In both cases, doctors and police failed to find any illegal drugs.

A third alleged victim has since come forward, although this woman says her anal and vaginal searches, x-rays and CAT scans came courtesy of federal border patrol agents, and without a warrant.

These incidents raise troubling questions about how the criminal justice system and medical establishment could allow for such extreme and invasive measures based on such little suspicion for nonviolent drug offenses. Oddly, according to constitutional scholars and medical ethicists I've consulted, the indignities imposed upon Eckert and Young were both illegal and unethical. And yet it also may be that (a) none of the law enforcement officials or medical personnel responsible for the violations are likely to be held accountable in any way, and (b) they could probably do it all again tomorrow, and still wouldn't likely be held accountable.

The Legal Issues

Any discussion of the legal issues involved in these cases needs to begin with the general evisceration of the Bill of Rights wrought by the drug war. There's a reason why some constitutional law scholars refer a "drug war exception" to the Fourth Amendment. Over the last 45 years, the U.S. Supreme Court has generally taken the approach that drugs are such an existential threat to American society that some basic and inherent rights need to be suspended in order to facilitate their eradication.

The case that started us down the road to what happened in New Mexico is United States v. Montoya de Herandez. At issue were the Fourth Amendment rights of people that customs agents suspected to be "drug mules"-- people paid to swallow heroin-filled balloons, fly into the U.S., pass the balloons and then hand off the heroin to a drug inside the country. The court ruled 7-2 that U.S. Customs officials did not violate a suspect's Fourth Amendment rights when they detained her at the airport, locked her in a room, then held her incommunicado until "her peristaltic functions produced a monitored bowel movement." And they could do all of this without a warrant. The suspected mule, Rosa Elvira Montoya de Hernandez, was held in a locked room for 24 hours until two U.S. Customs officials could watch her defecate. It turned out that de Hernandez was smuggling heroin. But studies and surveys at the time showed that 80-85 percent of women similarly detained or subjected to body cavity searches turned out to be innocent. By the end of the decade, a New York Times survey of suspected drug mules subjected to x-rays or forced defecation found that in Miami, agents searched 101 people, and found drugs on 67 of them. In New York, 187 searches yielded 90 arrests. Houston was particularly inept. Agents there went 4 for 60. Nationally, the figures were about 50-50. One innocent person subjected to this sort of violation for every drug mule was apparently good enough for the drug war.

Associate Justice William Brennan, by then winding down his career on the court, wrote a blistering dissent. "Indefinite involuntary incommunicado detentions 'for investigation' are the hallmark of a police state, not a free society," Brennan wrote. "The nature and duration of the detention here may well have been tolerable for spoiled meat or diseased animals, but not for human beings held on simple suspicion of criminal activity." He concluded, "Neither the law of the land nor the law of nature supports the notion that petty government officials can require people to excrete on command." He ended with a quote from former U.S. Supreme Court Justice Felix Frankfurter.

[I]t is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.

It seems clear that we've entered the era of brazen. The Hernandez case applied only to border agents (the Supreme Court has basically declared that the Fourth Amendment is suspended along the border -- and any area within 100 miles of it). But it isn't difficult to see how licensing forcible defecations around the border could start us down a path to the day when law enforcement officials believe they have the authority to administer forcible enemas and colonoscopies within it.

The law here seems reasonably clear: What happened to Eckert and Young is illegal. John Wesley Hall, who has written legal textbooks on the Fourth Amendment and runs the blog, points to a ruling from the U.S. Court of Appeals for the Sixth Circuit just last August which found that "[m]edically paralyzing a suspect . . . to remove crack cocaine hidden in his rectum shocked the conscience of the court and was unreasonable under the Fourth Amendment."

Unlike the New Mexico incidents, that case involved a procedure that had been performed without a warrant. But in a 2012 decision, the U.S. Court of Appeals for the 5th Circuit found that even with a warrant, a "proctoscopic examination under sedation" to search for drugs is unreasonable under the Fourth Amendment.

Over at the legal blog the Volokh Conspiracy, Fourth Amendment scholar Orin Kerr notes that it was likely the drug dog's alert in New Mexico that provided the probable cause for everything that followed. This too comes from a series of flawed Supreme Court decisions that put far too much faith in the ability of K9 drug detection teams, which tend to have alarming rates of error. The problem isn't that dogs don't have the ability to detect illicit drugs, it's that dogs have been bred to please their owners. This trait can often override their detection abilities, causing the dogs to merely affirm the suspicions of their handlers. Invasive searches based only on the hunch of law enforcement officials is exactly the sort of thing the Fourth Amendment is supposed to protect against.

But the drug dog cases are also an excellent illustration of a huge problem with how the Supreme Court considers Fourth Amendment cases, particularly with respect to the drug war. These cases are considered and decided only within the limited context of the specific case that's brought before the justices. But they're then broadly applied well outside the parameters of that context. It's the difference between considering a legal question from an academic perspective, and considering it from a practical one. (It's also why the court is in dire need of more justices with more criminal justice experience.) It seems unlikely that when deciding this particular line of cases -- most of which involved relatively non-invasive searches of automobiles or pickets -- the justices considered the possibility that their decisions might later be used to authorize forced anal penetration, enemas and colonoscopies based mostly on the alert of a drug dog. But that's exactly what has happened. But like Hall, Kerr ultimately concludes that the searches in New Mexico were likely illegal.

This is where it all takes a surreal turn. David Eckert, Paul Young, you, I -- and all other lay people -- are expected to know every law on the books, at least to the extent that we can be held criminally and/or civilly liable for breaking them. But for police officers, judges and prosecutors -- all of whom are paid to enforce and administer the law -- there is no such expectation. Or at least, they aren't held accountable when they don't. In the Fifth Circuit case mentioned above, for example, even though the court found the search to be unreasonable, and therefore illegal, it still allowed the drug evidence found in the suspect's rectum to be admitted at trial, thanks to a "Good Faith Exception" granted to police officers who violate the law, but can plausibly claim they simply weren't aware that what they were doing was illegal. (It's usually incumbent on the defendant to show the cops were acting in bad faith -- a burden that is usually impossible to prove.)

In cases where police do find incriminating evidence during an illegal search, barring that evidence from being used at trial (the Exclusionary Rule) is supposed to serve as a deterrent to encourage police to play by the rules. It's often effective, but obviously it can't be very effective when the courts find reasons to avoid applying it. But in the New Mexico cases, the police didn't find any drugs, so the Exclusionary Rule doesn't apply. The best hope for Eckert and Young is a lawsuit. And here too, their hopes are slim.

Police officers are protected from lawsuits by the doctrine of qualified immunity. It isn't enough to show that a law enforcement officer violated your rights. You must also show that the rights the officer violated were "well established" at the time he violated them. In other words, the violation needs to be pretty egregious before you can even get in front of a jury. Oddly, qualified immunity actually provides an incentive for police officials to avoid keeping officers informed on the most recent relevant court ruling in constitutional law.

John Wesley Hall says that in this case, the fact that both a judge and a prosecutor were also wrong on the law, and that forced anal probes, enemas and colonoscopies aren't an issue that have yet been addressed by the U.S. Supreme Court, the cops in New Mexico will likely be protected from any liability. "Because the police were acting under a warrant signed by a judge, it seems unlikely that the plaintiffs will be able to get around qualified immunity," Hall says. And what about the judge and the prosecutor? They're protected by absolute immunity, which -- just as it sounds -- makes it nearly impossible to sue them for damages, even when they're flat wrong on the laws they're paid to know, and even when police officers then rely on a judge or prosecutor's mistaken views on the law in the course of egregiously violating someone's rights.

Professional sanction also seems unlikely. Deming, New Mexico Police Chief Brandon Gigante says his officers did everything "by the book," so there certainly won't be any discipline from the police department. (This may actually come back to bite Gigante -- one of the few plausible ways Eckert and Young could win in court is through municipal liability. They would need to show that there's a pattern or practice of such violations in Deming. Gigante admitting that illegal searches like these are consistent with his department's official policy could help them establish that pattern.) And state bars and courts are notoriously inept at disciplining prosecutors even for egregious, intended misconduct. All of which means Deputy District Attorney Daniel Dougherty probably doesn't need to worry about his law license for signing off on an anal probe warrant.

Medical Ethics

According to Eckert's lawsuit, the first physician the police asked to perform the procedures declined on ethical grounds before the officers took Eckert to Gila Regional Medical Center. So who was right?

Neither the American Medical Association, nor the New Mexico Board of Medical Examiners responded to my request to comment on these issues. (Actually, the NMBME responded to say they won't comment on possible complaints.) But I did speak with two medical ethics experts: Nathan Allen, an assistant professor of medicine and medical ethics with Baylor College of Medicine’s Center for Medical Ethics, and Scott Allen, a Clinical Professor of Medicine,Associate Dean of Academic Affairs at the University of California Riverside School of Medicine, and an adviser to the advocacy group Physicians for Human Rights. Both agreed that without consent from the patient, it would be unethical for a medical professional to perform the kinds of procedures that were done on Eckert and Young.

"I would say that the ethical lines here involve an adult patient who has the official capacity to make decisions for himself, and has the right to not be touched and to not have medical procedures performed that they don't want," Nathan Allen says. "The main ethical issue when physicians are asked to participate in the legal process -- authorizing a search, or ordering a medical provider to perform a procedure -- is to ask, is this medical care that the person needs or wants? Informed consent should always be of primary importance."

Scott Allen says it's important to keep a physician's skills within the realm of medical care. "One of the first dividing lines to consider is, (a) is it forensic, or (b) is it medical? If it's forensic, the people who are in charge of taking care of patients medically don't touch it. It's a violation of trust. You have to consider how and why an ethic like that has evolved. It's from experience, and the abuses that occurred when doctors and nurses participated in gathering forensic evidence. I've overseen medical care in a prison, and I wouldn't even let my staff even swab a cheek for DNA."

But what if a doctor has no choice? What if a court specifically orders a doctor to perform a procedure, or police threaten medical personnel with arrest? It isn't unheard of. Last July police in West Palm Beach, Florida, arrested a nurse for refusing to draw blood from a DUI suspect (she said she was following hospital policy, which instructed her to wait for proper authorization) and charged her with obstruction of justice. The charge was later dropped, but she's now suing for the arrest, lost wages and punitive damages. Both doctors consulted for this post say a doctor who cooperates with a police request to draw blood over a suspect's objections is less troubling than the more invasive procedures that occurred in New Mexico, but both also say that medical personnel should always retain the right to decline assistance.

"I'd rather a procedure like that -- which doesn't require a lot of medical expertise -- be performed by legal technicians," Nathan Allen says. "I can respect a medical professional's decision to cooperate. But it's critical that they have the freedom to refuse to allow their professional skill set be used to serve the interests of the state." Allen compares the situation to the recent revelations that the CIA ordered doctors to force feed Guantanamo prisoners protesting their incarceration with hunger strikes.

Scott Allen says that judges have on occasion issued orders for a specific doctor to perform a specific procedure, but adds, "There is almost always sufficient pushback from the medical community to persuade the legal system to back down. And that's important. When judges issue orders like that, they need to be told that they're effectively practicing medicine without a license."

"Where it gets tricky is when you get an order that is medical in nature, such as when someone has swallowed balloons filled with cocaine or heroin. At that point, it could be dangerous for the patient," he says. "But even here, as a medical professional, it's my responsibility to explain the risks to the patient so that he can make an informed decision. But the decision should be a medical decision between doctor and patient, not a legal decision between the doctor and law enforcement. If the patient declines the procedure, I'm ethically obligated to respect his wishes."

Nathan Allen sums up the discussion this way, "A physician's primary obligation is to provide care for the patient. Anything contrary to that, and that is against the patient's wishes, would be unethical."

But while both experts agree that performing such procedures over a patient's objections is unethical, Scott Allen says it's unlikely that any doctor who violates those ethical obligations would be sanctioned or disciplined. "State licensure boards tend to be deferential to law enforcement," he says. "So it seems unlikely that there would be any actions taken against these doctors. That's unfortunate, because it undermines the importance of medical ethics. What's the point of having an ethic if there's no consequence for violating it?"

In a follow-up email. Scott Allen adds that part of the problem is a lack of ethical training. "Quite often, the health professional doesn't even realize that they are in breach of professional ethics because they assume that law and ethics always conform. Of course, they do not. So training is a key issue, here."

Yes, You Were Violated. But There Isn't Much You Can Do About It.

In the end, we're faced with two unsatisfying lessons from all of this. First, what happened to Eckert and Young was wrong. The medical personnel acted unethically, and the criminal justice system personnel -- the judges, the prosecutor, the cops and the police department -- all illegally violated the constitutional rights of both men. And it's entirely likely that no one will be punished -- legally, financially or professionally. In fact, it could all happen again tomorrow, and tomorrow's victim couldn't do much about it, either. Remember, Gigante still insists his officers did nothing wrong. (Four months after the Eckert stop, Officer Orosco got a promotion.)

And don't think it can't happen elsewhere. Last summer, a dash camera video emerged in which female police officers in Dallas performed roadside vaginal and rectal searches for drugs of two women after a routine traffic stop. Days later, another video emerged of similar searches conducted in Houston. According to a New York Daily News report, civil rights attorneys later discovered that such searches are "standard policy among the Texas Department of Public Safety’s state troopers."

Ken White, a defense attorney and former federal prosecutor who writes at the Popehat blog, puts it this way:

I'm not afraid because police officers violated David Eckert's constitutional rights by raping and torturing him because they thought he might have a trivial amount of drugs.

I'm afraid that they might not have violated his rights as defined by the courts, because we have allowed those rights to wither away out of fear and indifference.

But it could be worse than even that. Some courts have determined that these were violations of rights -- and perhaps more, or even the Supreme Court, will follow. But the bubble of infallibility we've built around the public officials we entrust to respect and protect our rights means that our rights can be horribly, egregiously and illegally violated . . . but the illegal part only really matters on paper. At worst, taxpayers will compensate the victims, but the violators will survive to violate another day.

The best option may be to affect change through the political process. But even here, the options are limited. Gigante was appointed, not elected. Conceivably, the residents of Deming could hold the mayor or city council accountable if they refuse to replace him, or force him to change his policies. But now we're far removed from the initial violations. Few votes in a mayoral or city council election are ever going to be cast based on whether a mayor holds a police chief accountable for his police chief's reaction to a few officer's actions during a couple traffic stops. The most likely target of political repercussion could be Third Judicial District Attorney Mark D'Antonio. But few people pay attention to DA's races, and D'Antonio's deputy DA, while certainly culpable here, isn't at the root of this problem. He's more of an enabler. You could say the same for the judge, who will at some point be up for a retention election.

Take a few steps back, and it's rather astonishing that we're even discussing this. These men were sexually assaulted, and not really even under the color of law. If we're actually discussing whether government actors can or should be held accountable for digitally penetrating a suspect's anus, then subjecting him to multiple enemas, then forcibly sedating him and shoving a camera up his rectum, whether they should be able to legally require medical personnel to assist them, and all in pursuit of evidence of a nonviolent, consensual crime -- we're already far, far removed from a system that takes justice or constitutional rights very seriously.

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