Walk Straight or Face The Consequences
A man stopped on a routine traffic violation ended up getting an anal probe in search for drugs that weren’t there.
1. Eckert’s abdominal area was x-rayed; no narcotics were found.
2. Doctors then performed an exam of Eckert’s anus with their fingers; no narcotics were found.
3. Doctors performed a second exam of Eckert’s anus with their fingers; no narcotics were found.
4. Doctors penetrated Eckert’s anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
5. Doctors penetrated Eckert’s anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
6. Doctors penetrated Eckert’s anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
7. Doctors then x-rayed Eckert again; no narcotics were found.
8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert’s anus, rectum, colon, and large intestines. No narcotics were found.
To be fair, or something, Eckert could have avoided this had he not been walking funny. [via JVL]
You forgot the part where the hospital billed him for all that.
Not kidding. They did.Report
Yeah, the jury in the lawsuit is going to love that one. Outrageous medical bills are everybody’s favorite thing.
The only way they could have made this worse for themselves is to have involved the IRS and a telemarketer somehow.Report
That’s my favorite part of the story.Report
Good goddam I would be suing everyone I saw – cops, doctors, X-Ray techs.
He would have gotten off easier if he had been abducted by aliens. They only probe the once, then drop you off back in your bed.Report
And he is suing:
Report
Well, the settlement should definitely help him get out of his drug muling… says the Onion.Report
Someone on Facebook posted this story with the following comment:
“This is one reason why I don’t own guns.
Because if I owned guns and somebody did this to me, my reaction would not be to sue them.”
The fragility of civil society when it gets too close to the state of nature.Report
People have been banished for less.
Killing someone is easy, after all.
Letting them live? Much more amusing.Report
I didn’t count the syllables, but that’s Haiku, right?Report
Chris,
Nope, just a bit of truth.
Black cats hide many things behind a Cheshire grin.Report
[Edited: I have replaced my original comment, which came across as more mean-spirited than I intended, with the following:
Better to be kind
Than to write pithy poems
To prove silly points]Report
Russ,
wow, that’s an actual haiku.
I’d clap, but it has made me terribly sad
(for reasons relatively irrelevant).
Truly, I hope I’m not that bad!Report
@kim I don’t mean to make you sad. Really, I don’t. And if your feelings are hurt by something I wrote publicly, then you deserve just as public an apology.
If I may offer one small suggestion? Sometimes your comments seem… not entirely related to the subject matter they are ostensibly in response to. I can’t speak for anyone but myself, but when I come across some of those comments on posts I’ve written, it can make me a bit frustrated. Which perhaps comes out as haiku that weren’t as nice as they ought to have been.
I am, truly, sorry I hurt your feelings. I promise I won’t do it again.Report
Russ,
I said the reasons were relatively irrelevant.
That is to say, it’s not your fault that I’m upset.
Take my response to you as the last line, alone —
and meant relatively lightheartedly.Report
From this article:
(Emphasis added.)
One of the first things I thought of was, “Is this the sort of things physicians routinely do when the police ask them to? Because if so, that’s disturbing in and of itself. That one doctor refused makes me feel a little better.Report
Is this the sort of things physicians routinely do when the police ask them to?
No.
And the physicians in question should lose their licenses.Report
I was hoping you’d reply to that. And I was hoping that would be your reply.Report
To add to what Russell said, I asked Clancy about it yesterday. She didn’t even have the benefit of knowing what happened. I basically said “Let’s say the cops came in with a suspect and presented a warrant for an anal cavity search and the cops told you that they needed you to perform it. The suspect objected vigorously. Would you perform it?”
The answer was in the negative. That was before getting into the repeated searches and enemas.Report
I won’t even order drug tests on adolescent patients at parents’ request if the kid refuses.Report
There’s a precedent for state-ordered medical procedures being performed on unwilling subjects, and it’s not a good one.Report
OK, here is where I do have a question (and bear in mind that this whole thing was a travesty).
But let’s assume this was a less-ridiculous scenario – say the cops had reasonable suspicion that the suspect was hiding a vial of ricin (or something more critical than drugs – we’ll call this the “ticking tush bomb scenario”) in his ass.
IF they got a valid warrant to search the ass, I think I would rather the search be performed by a medical professional, than a random Officer Friendly. They are less likely to rupture something or mistake a polyp for a detonator.
So I would think that we would *want* doctors to comply with a validly-issued warrant in certain scenarios, whether the suspect vociferously objects or no.
With the following caveats: at some point, the search has to be deemed “complete”; no repeated do-overs.
And if no contraband is found, the bill needs to go to the city/PD, not the suspect.Report
@russell-saunders
Are there ethical standards for such situations?
@glyph
I don’t know the science of it all, but it seems to me that an XRay or similar, non-evasive scan should be effective enough to make a determination. The goal should be as few fingers in as few assholes as possible (cue Schilling).Report
Ah, the ethical gray zones.
Let us assume that the intra-colonic item suspected of being in situ is an imminent threat to others (rather than being merely illegal, in which case the officers can go hang), I would consider the following conditions necessary before an invasive procedure could be carried out:
1) Observation by a neutral party (eg. a member of the hospital’s ethics board, say), empowered to say “this question has been sufficiently addressed, and no further interventions are allowed by hospital staff”
2) A non-invasive study (eg. a CT scan) to determine if a non-organic object is housed within the organ in question. In the absence of an object deemed consistent with something that could cause imminent harm to others, no further interventions would be allowed by hospital staff.
3) The results of the preliminary study, if negative for said item, would not be discoverable in a criminal investigation should other, illegal but non-threatening objects be found.
There may be other things I would stipulate, but that’s all I can come up with for now, spit-balling between patients.Report
Kazzy, no question they should X-Ray first. But even then, there can be “a dark spot” or whatever, so there could be cases in which someone still has to go in, no? In those rare cases, I’d want that person to be a doctor, not a cop.Report
@russell-saunders
Those seem like a pretty damn good set of standards. I might also insist that officers be absent from the room during the exam and that the determination be made by a medical professional, not a police officer. We don’t need them saying, “Liver be damned, THAT’S A BOMB!” And seeing as how the results would immediately constitute a “medical record” and the warrant likely does not include access to that, the cops would have to make due with a simple yes or no from the medical professional in question.
Would a CT scan be sufficient to determine if a truly dangerous object was presence? Is there anything concealable within the human body that could be hazardous to others but would not show up under normal circumstances?Report
spit-balling between patients
It’s good you’ve found ways to make work fun.Report
@glyph
All of it should be done by a doctor. If they need to go in (and I’ll concede that there are probably some times where it might be necessary, but that determination should be made solely by a medical professional), it should require as many legitimate hoops to jump through as possible to prove it necessary. And, no, the o-ring does not qualify as a “hoop”.Report
@kazzy I’m not a radiologist, but I suspect anything non-organic would be sufficiently recognizably so on a CT scan.Report
And what are you going to do when someone really does have a bomb up his butt? You can’t expect the cops to sit around with their thumbs up their …, I mean twiddling their thumbs, when there’s a ticking tushbomb scenario.Report
Sigh…………..Report
I breezed through the actual complaint Scribd within the linked article. It’s actually worse than the summary in the OP describes — according to the defendant had been pulled over and searched without any evidence being found several times in the past, and twice they used the same dog to sniff for drugs, who came up with false positives both times.
The sticky issue will be the search warrant that was issued — a sticky issue for both sides. For the plaintiff, well, a search warrant was issued. Which means that law enforcement had good reason to believe that their search was reasonable, having gotten a judge to sign off on it. For the defendant, the search warrant appears to have expired and it appears to have been executed in a county where the judge lacked jurisdiction.
Also a bad fact was that on at least one of the anal probes, a doctor refused to administer the enema on ethical grounds, and the police had to go shopping to another hospital to find a doctor compliant enough to empty the plaintiff’s ass for them.
I’m reminded of a conversation I had with a client, whom I’ll call “Mr. X.” He showed me the complaint he’d just been served with, and then I got his side of the story. Then I told him, “Mr. X, I love this case. This is a great case and I really want to be a part of it.” Mr. X smiled at my enthusiasm. “You’ve only got one problem, Mr. X.” Mr. X asked me what the problem was, so I told him: “I want to represent the other side.” That’s probably similar to what the county attorneys are telling their clients about this lawsuit.Report
This is my layman reading of the situation. I think what really, really hurts the defense lawyers is that the first doctor refused. That was, if anything, an indication that there was something wrong here. The jury might otherwise be asking “Well really, what were the doctors supposed to do?!” This gives them their answer. Perhaps it’s a function of my marriage, but I’d be more “worried” about the doctors than the sheriff’s department. (Worried in quotes because I am not very sympathetic to their plight, pending more information.) The sheriff’s department’s real sin may not have been a breach (as incredible as that sounds), while it’s breaches were more bureaucratic in nature (we wouldn’t award a lot of money if this had been a basic search warrant that had expired and was in the wrong county – we care because it was very much not a basic search warrant).Report
I don’t know that I’d agree with this actually. Assuming that everything in the complaint is accurate and that nothing particularly material has been left out, the fact that another doctor refused to do this doesn’t alter the doctors’ ability to say that they were merely following the orders of someone acting under the color of law. I’m honestly not sure the extent to which the order from someone acting under color of law provides the doctors with immunity, but my assumption is that there is at least some sort of affirmative defense they can rely on in that regard, albeit one that the Plaintiff can presumably overcome (ie, I don’t think that the doctors would be entitled to absolute immunity). That the other doctor refused certainly lends credence to the argument that the doctors’ actions were illegal or unethical, but I don’t think that’s an argument that would need any bolstering – the doctors’ defense isn’t going to be that these are legal or ethical acts, but rather that they’re excused from liability for those acts by virtue of the order under color of law. I don’t know if they’ll win on that, but it’s certainly a non-frivolous argument.
On the other hand, the sheriff’s department and cops have a whole bunch of problems here that go beyond the facial invalidity of the search warrant. There’s fairly strong allegations, for instance, that the cops lied in their application for the warrant, and lacked the probably cause for an arrest in the first place; it’s also pretty clear that the warrant lacked the specificity that the 5th Circuit already said was necessary for this type of cavity search. Since there’s existing case law directly on point, I think this is a rare case where qualified immunity can be overcome without too much difficulty, at least with respect to several of the law enforcement defendants (probably not the DA, though).Report
One other thing – it seems to me like there’s some significant details missing from the complaint, although I’m not sure whether they’d prove to be legally significant rather than just significant to understanding how this happened. Specifically, it seems very odd to me that this all happened because of a single traffic stop where the plaintiff asked if he was free to go, particularly since the pretext for the traffic stop was a cracked windshield; there is almost certainly some sort of a history between the plaintiff and either the initial officer or the police department.
For starters, a cracked windshield is, to my knowledge, not something that a cop will pull you over for unless he’s either profiling you or has some sort of pre-existing animus towards you where he’s just looking for any excuse to pull you, specifically, over. Since this doesn’t seem to be a profiling case, the latter is almost certainly what happened here.
There’s at least one more hint in the complaint of a pre-existing animus – the fact that the officer is alleged to have claimed that the plaintiff had a reputation in the community of hiding drugs in his anus. While any claim to that effect would have almost certainly been a lie, it’s a lie that only makes sense if the officer is known within the department to have had prior dealings with the plaintiff – otherwise, it’s a lie that would be too easily questioned by even the most unethical of superiors.
So what were those prior dealings, and why were they left out of the complaint? The cynic in me would make the assumption that the prior dealings were that the plaintiff had a history of being a local gadfly of sorts, but if that were the case, the prior dealings would have been included in the First Amendment claim, so it’s probably not that. Another possibility would be a past criminal history, which would be unflattering but would also not be material to the claims one way or another. Still another possibility would be some sort of strained personal relationship resulting from a private dispute. Etc., etc.Report
acting under the color of law
Why is it that the color of law so often seems to be Rage Red?Report
Physicians are not officers of the court. They are not law enforcement personnel. Their professional, ethical obligations are to safeguard the health and well-being of their patients, and nothing further.
To act as though they are officers of the law, to override concerns about the patient’s well-being solely for the purposes of a forensic exam and commit violence upon that patient’s person through the application of techniques meant to be therapeutic, is an egregious breach of ethics.Report
@burt-likko
Even if they had a perfectly valid search warrant, at what point is the search considered to be complete? Is their case law on this? If not, could this establish it?Report
This is an excellent point. A warrant can’t be carte blanche to keep sticking my finger up a stranger’s rear-end, repeatedly, can it?Report
Are searches that involve the human body treated differently than those that don’t? If not, should they be?
My gut response tells me that anything that involves going into another person’s body ought to face a higher burden of proof than going into their car or home.Report
Leave burden of proof aside – at some point the term “search” has to mean something, or a “search warrant” can become a “torture/harassment warrant”. I can’t just keep coming into your house and tossing it repeatedly because I didn’t find the item I was looking for on the first or third or fifth or ninth try; at some point that moves beyond “I’m searching” and into “I’m just fishing with you, now.”
And that’s property, not your butt.Report
@glyph
I agree entirely. But I’m asking more generally. I don’t think any sane person would look at this and make a serious attempt at defending it. But if we concede that sometimes the government will need to conduct searches and sometimes it will need to conduct searches of a person and assume that these searches will be done appropriately, ought we view searches of property and searches of a person differently?
I say, “Yes!”Report
The exclusionary rule is one of the richest areas of case law in existence and it’s relevant to this case because it turns on the question of what kinds of searches are “reasonable” under a wide variety of circumstances.
The qualified immunity rule is also one of the richest areas of case law in existence because it provides immunity to public officials and others acting under color of law if they had no good reason to believe that their actions were contrary to law. So you can see why other case law, reflecting when it is reasonable to do things like a body cavity search (sometimes that is a reasonable search, like during a jail intake) will play in to the analysis of when a police officer, or a doctor acting at a police officer’s request, would think that he was acting reasonably and within the boundaries of the appropriate exercise of power.
It’s not a slam-dunk case for the plaintiff. As @mark-thompson notes, it’s quite likely that the police felt they had good reason to believe this guy had drugs or was on drugs. Which does not excuse their abuse of authority. The cops may “know” that this guy is a “shithead,” but even “shitheads” have civil rights and I’m all good with individual police officers holding a healthy fear of being named as individual defendants in civil rights lawsuits, so as to encourage them to be deferential to innocent citizens’ liberties while discharging their duties.Report
I have been assured by the Supreme Court — I believe Scalia, in fact — that the modern police are so professional that certain procedures put in place back in the dark ages of policing (like the Miranda warning and such) are no longer necessary.
I am sure this man was violated repeatedly in a very professional manner, also it’s possible he was a terrorist or hippy.Report
@morat20 or perhaps the police were reasonable in assuming that he freely and voluntarily consented when he failed to physically struggle against the repeated anal probes.Report
@burt-likko
If he really didn’t want to get searched, his body would have shut the whole thing down.Report
If he didn’t want to get anal probed, he shouldn’t have been wearing tight jeans that showed off his clenched buttocks.Report
Morat,
That’s the question that’s been stuck in my mind. How the hell do you know someone’s cheeks are clenched unless you’ve already stripped them down? And as a judge, wouldn’t you want to ask that question before issuing a warrant? (That is, you or I as a judge…I think the answer to that question about judges in general is all too obvious.)Report
As we now know, the bulk of the evidence supporting the search warrant came from the same location on the officer which was subsequently searched on the suspect.Report
I agree with Burt’s assassment.Report
Give that cop a flashlight, he should have checked for his head up there too.Report
As for the initial suspicion that he was clenching his buttocks, which scenario is more likely.
A) He rolled through a stop sign because he was in a hurry to deliver his anally packed drug stash, and was clenching his buttocks to keep the drugs contained; or
B) He rolled through a stop sign because he really had to do a number 2 & was in a bit of a hurry. Of course, when asked to get out of the car, he was clenching his butt checks so as not to soil himself.
I wonder…
What really disturbs me is not only that a judge thought clenched butt checks was sufficient for a warrant, but also that said judge will face zero repercussions from this.Report
I believe the warrant for the search of his body cavities came from the “clenched cheeks” and the response of the drug-sniffing dog. I imagine warrants are pretty common after positive responses from drug-sniffing dogs.Report
They shouldn’t be. Even well trained drug dogs can and do take cues from their handlers — and thus give false alerts because their handler is acting like something should be found.
Which, in real life, translates out to dogs that ‘alert’ to people or things the handler believes has drugs in them, regardless of whether it does.
But heck, people still trust polygraphs.Report
Balko (and others) have written about the unreliability of dog alerts (false positives can exceed 50% rate – that is, flipping a coin might be just as good an indicator of presence of contraband), and as you note, it ain’t really the dogs’ fault (their noses are amazing), it has to do with training and cues.
reason.com/archives/2011/02/21/the-mind-of-a-police-dogReport
The “drug sniffing dog” thing has always bothered me. From the perspective of legal defensibility, how do we grant these animals more credibility than a dowsing rod?
I mean, maybe the dog standing like that is in fact how it signals that it’s found drugs. Maybe that’s how it signals that it’s found salmon steaks in my grocery bag. Maybe that’s just how it stands.
The only person who knows for sure is the dog, and it ain’t talking except by standing like that. The one who’s talking wants to search me, and has one thing he can say that will make anything he finds admissible in court, and another thing he can say that will make it inadmissible. Which do you think he’s going to say?Report
And even assuming the dogs are reliable, they don’t testify when the warrant is requested. All the have is the policeman’s word that the dog reacted positively, and how hard is it for someone to lie about that?
They X-rayed him twice and penetrated him six times; I hardly think they’d have qualms about misrepresenting their dog’s responses.Report
James,
would you feel better if we videotaped the dogs?Report
Kim,
The cops would never stand for that. Privacy rights and all.Report
Kazzy,
Other professional dogs get videotaped.
(Yes in california they are licensed home inspectors).Report
I’m thinking rape charges and prison sentences for the cops, doctors, and everyone else involved. (Except the victim, of course.)
And this was rape.Report
That’d be nice. Unfortunately, the odds of that actually happening approach zero.Report
Yah, but “immunity” and all that jazz.Report
It actually wouldn’t be an immunity issue in a criminal proceeding – concepts of qualified immunity and absolute immunity only apply in the civil suit context. Instead, it’s not likely to happen because prosecutors don’t enjoy prosecuting themselves.Report
Mark,
You’re correct. But “Instead, it’s not likely to happen because prosecutors don’t enjoy prosecuting themselves.” is effectively the same thing…and that’s what troubles me most. That some prosecutors, who’s JOB is to punnish criminal behavior, won’t pick up this case and push hard. No one should get away with this crap.
And to comment on morat20’s comments below…What if this guy had been a woman? I expect we’d see different responses…..Report
You know, sad to say my absolute first thought when I read this? “Betcha David is distinctly minority, and the cops weren’t”.
Hearing that the cops had done this before shifts it to more of a personal grudge, which kinda mitigates that first impression a bit — instead of racial profiling, it’s more a case of “We know he’s dirty, just prove it!” in defiance of all evidence.
Which is, sadly, a not uncommon problem (if rarely to quite this degree) — prosecutors, detectives, investigators and police often have a tendency to ‘zero-in’ on a suspect to the point of ignoring exculpatory evidence.
Gut-feeling driven police work.Report
Wait… they’d done this before… TO THE SAME GUY?!?!?!Report
Why do you think he was clenching his butt cheeks? He probably tenses up every time he sees black-and-white cruisers (and forget going to the zoo, what with all the zebras and pandas).Report
Not that. I *thought* I read somewhere that the police had suspected him in the past. I can’t find confirmation for that, so I might have made it up.
Amusingly – -and quite contrary to my initial gut reaction — Ekhert is white, and the officers were Hispanic. (he’s also 63 years old).Report
Another one of those damn Boomers, damn their demographically-aging eyes.Report
Apparently he looked a bit hippy-like.
Obviously a grey ponytail on a 63-year old says “Pot smoking Willie Nelson fan”, which means he’s obviously muling some drugs…Report
You know, sad to say my absolute first thought when I read this? “Betcha David is distinctly minority, and the cops weren’t”.
If that were the case, that would have been the story. Since it’s not, the races of the parties involved are a trivial detail, barely worth mentioning.
Hearing that the cops had done this before shifts it to more of a personal grudge, which kinda mitigates that first impression a bit — instead of racial profiling, it’s more a case of “We know he’s dirty, just prove it!” in defiance of all evidence.
Whew! That’s a relief.Report
You know what I assumed? That Eckert isn’t a rich guy, because wealthy people don’t get treated that way.Report
@mike-schilling
Well, it happens to some rich people. but they usually have to pay the club fees and for the Doms time.Report
The only good thing I can think of to say about this is that surely this kind of rank idiocy will help hurry the War on Drugs to its inevitable but possibly unhappily distant grave.Report
For better or for worse, an old white guy as the victim also helps.Report
Of course, regardless of how awful this is, at least the guy is alive. A disturbingly large number of police encounters these days leave citizens dead.Report
This whole thing stinks, but this is more scary…
Via Popehat.
http://www.popehat.com/2013/11/07/what-is-the-quantum-of-proof-necessary-for-police-to-rape-and-torture-you-in-new-mexico/
Here’s the scary part:
“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.”Report
PopeHat has a look at the warrantReport
This is why subject matter experts should take the lead. I was not aware that anonymous tips must be corroborated before they can be used as the foundation to a search warrant. Why would I? White summarizes the foundation of the warrant application thus:
The dog alerting on the seat I might concede is probable cause to search the interior of the vehicle. Which may not even need a warrant at all. But I’d not have thought that a statement from a fellow officer could be an “anonymous tip” and without subject matter expertise I’d not have thought to have searched (in vain) for corroboration.
Also, kudos to Ken for calling the objectionable activities what they are: rape.Report
The city of Deming finds the use of the term “rape” unnecessarily prejudicial, and requests that the events that allegedly befell Mr. Eckert henceforth be termed “Complimentary Colonoscopies”.Report
Not complimentary: they billed him.
Or do you mean that while they were doing it, they said “Nice butt for an old guy!”Report
Hmm. Bets on whether ‘unnamed cop’ is fictional?
As in “We need three things, we’ve got two, let’s go with MadeUp McInformant again”?Report
Given that he identifies the unnamed officer as the K-9 officer, whose name is almost certainly in the officer’s report, I doubt that the unnamed officer is nonexistent. What I wonder is why the K-9 officer said what he said, if he did in fact say it.Report
@chris seems about right to me. Here’s a few alternatives:
a) “I know this guy, I busted him three weeks ago. We found two grams of pot wrapped up in a baggie stuffed up his ass. Could be why he’s walking funny.”
b) “This one guy, he got caught trying to smuggle weed into jail a couple years ago in the ‘usual way.’ I did the intake. Looked like this guy, I can’t quite remember if it was him or not. But lemme tell ya — yuck. So hey, Brother Officer, this one’s your collar. Have at it.”
c) “You know, sometimes guys like this, they stash the weed up their butts. Maybe you wanna check there?”
Which ones support a finding of probable cause? All of the above?Report
What really gets me is that this wouldn’t have made the news, were they to have actually found a controlled substance on or in Mr. Eckert.Report
For sure, that would just be business as usual.
If the ending of Requiem for a Dream taught us nothing else, it’s that you can’t save people from the dehumanizing debasement of drugs, without sedating them and sticking things up their fundament against their will.Report