In New Mexico, Forced Government Anal Probes are Way Better than Having Even One Person Smoke A Joint
Or so I am led to believe by the fine folks in Deming, New Mexico, who forced a man to undergo two forced X-rays, two anal probes, three enemas, and a colonoscopy under anesthesia because they worried that he might be hiding a smidge of illegal narcotics in his nether regions. Oh, and they made him pay the hospital bills for these procedures as well, sort of like billing someone's estate for the electricity used to execute them in the electric chair.
Update: Orin Kerr has a legal anal-ysis of the case (sorry, couldn't resist). His conclusion seems to be that the victim may be sh*t out of luck (sorry again) in seeking compensation. From reading it, he may even be stuck with the medical bills. I have come to expect cops to display this kind of excessive behavior. What is particularly disappointing is to see a doctor so eagerly cooperate and even, apparently, take the lead in escalating the intrusiveness of the search. It is depressing that Kerr believes the doctor may well enjoy qualified immunity for his actions. Thousands of doctors every day are successfully sued for malpractice over honest mistakes and differences in judgement, but this guy is going to walk?
ErikTheRed:
This has been well-discussed on the Interwebs. Other facts have come to light: The drug-sniffing dog that "alerted" the police wasn't certified in the state of New Mexico, and the same dogs and cops had inflicted this on at least one other innocent person in the past. Ken White had indicated he was looking into it, so with any luck he'll find it interesting enough to spew some of the legendary Popehat outrage at....
So here's my question: a clearly illegal arrest, an extremely questionable warrant, no consent at the medical center... at what point does this become kidnapping and rape?
November 7, 2013, 9:12 amphilyew:
Elsewhere I have read that the warrant had expired before the procedures were prepped and carried out, and they were administered in a county where the warrant had no jurisdiction. If the warrant was indeed executed illegally, then surely the costs should be borne by the responsible police authority? Not to mention facing the consequences of all the other legal fallout that might ensue.
November 7, 2013, 10:10 amjon:
The Pro Libertate blog said that the first doctor he was taken to refused to administer the examinations. So that is why they had to go to an out of jurisdiction area. Any question that we are living in a police state? How bad does it have to get before the general populace recognizes the boot on the throat?
November 7, 2013, 10:18 ama_random_guy:
The analysis on Volokh is interesting; and not very positive for truth and justice.
I've been in Deming - probably not all that many people can say that. This is a typical little town on the back-end of no where. The kind of place where the local cops often get their salaries paid by the tickets they issue, because the town can't afford to pay them otherwise. Mind you, I don't know if that's true in Deming, but it's that kind of place. The local cops strut tall, and do pretty much whatever they want to whoever they want. It's the kind of job the local high school bully aspires to.
This is where you really wish for a dash cam. I have zero evidence, but a big suspicion that Mr. Eckert gave the cops some lip, maybe flipped them off, disrespected them. The local roosters couldn't put up with disrespect, so they figured to get some petty revenge. Mr. Eckert didn't give in, and continually stated his objections to the proceedings, so the cops kept ramping it up. Finally, under full sedation, Mr. Eckert couldn't give them any more lip.
November 7, 2013, 10:50 amHenryBowman419:
It gets better: they did it again -- the same cops, the same dog, the same hospital. The only way to stop such nonsense is for cops such as these to GO TO JAIL. I'm certainly not holding my breath for that, though.
November 7, 2013, 11:07 amcredarkspace:
I don't know that I would've survived this encounter - I certainly would have fought as hard as possible to avoid it, including injuring or killing the doctors and cops trying to rape me. Why haven't they been arrested? In Charlotte NC where a cop recently shot an innocent wreck victim, he was arrested within hours - proving that there are good cops willing to do the right thing.
November 7, 2013, 12:12 pmPhilip Ngai:
Don't you think the doctors may have been scared of what the police would do to them if they also refused to cooperate?
November 7, 2013, 3:28 pmMingoV:
The physician committed medical malpractice as well as battery. A physician cannot legally perform medical procedures on a non-consenting competent adult unless there is a valid court order requiring the procedure.* Even then, a physician can refuse. Performing an invasive procedure on a non-consenting adult meets the criminal definition of battery. I don't believe that qualified immunity works against a criminal charge. Therefore, even if the victim cannot sue for malpractice, he should press charges for battery.
November 7, 2013, 4:33 pmMatthew Slyfield:
Since the procedures were performed against the patient's well at the behest of the police then the responsible Police Department should be required to pay the medical bills even if it was a legal search.
November 7, 2013, 4:34 pmPhilip Ngai:
I'm sure the doctors were told there was a search warrant.
November 7, 2013, 4:49 pmCraig L:
I enjoy the debate in the Volokh comments over whether the dog should be shot.
November 7, 2013, 5:14 pmmarque2:
I would like to point out that this is not an example of our Drug war gone bad. It is an example of police brutality and overreach. If the Drug war went away, we would hear about just as many of these cases but with different methods, and different victims. In CA, for instance, drugs have pretty much been decriminalized, so we hear about police frequently beating and shooting homeless people to death.
Legalize the drugs, but that doesn't make the problem with police go away. The drug war did not kill Giggles!
November 7, 2013, 6:32 pmmarque2:
I am not sure why this poor guy was told he had to pay for the procedures. Esp when they didn't find anything. It would be one thing if they found half a pound of crack up his, well crack, but there was nothing.
November 7, 2013, 6:35 pmmarque2:
Apparently cops can get their dogs to go on alert on command as well. It is quite possible the officers had the dog go wild on purpose.
November 7, 2013, 6:36 pmsean2829:
I thought colonoscopies were supposed to be free under Obamacare.
November 7, 2013, 6:36 pmMatthew Slyfield:
The problem is it isn't the police that billed the poor guy for medical procedures. He got billed by the hospital. Why should the hospital care whether anything was found or not, the procedures were requested by the police the bill should have been sent to the police.
November 7, 2013, 8:31 pmmarque2:
Only if it is part of your annual physical.
November 7, 2013, 9:01 pmphilyew:
I don't disagree, but that argument has apparently already been lost - at least for the present. What I meant was that, ultimately, the costs will have to be correctly assigned, if the warrant was executed illegally.
November 8, 2013, 8:56 amperlhaqr:
Hey. Drugs are bad.
November 8, 2013, 9:23 amperlhaqr:
Worse than this, apparently.
November 8, 2013, 9:24 amMatthew Slyfield:
"but that argument has apparently already been lost"
No, that argument has not been lost, it hasn't even taken place yet. My understanding is that the suspect only recently received the hospital bill and has not yet had the opportunity to contest it in court or otherwise.
November 8, 2013, 9:39 amMNHawk:
Which is why these guys DO probably have a case. The dog isn't certified. Government can't just go around literally raping people for no cause.
November 8, 2013, 9:54 amphilyew:
I think we are essentially taking the same view of this incident, but these questions will depend on whether the first legal step will be to dispute the billing, or the legality of the way the warrant was executed.
If the warrant was drafted too broadly, if it had expired under New Mexico law, as alleged, and if the procedure was conducted in a county where the warrant had no legal standing, then the most logical line of attack, from the victim's point-of-view, would be to establish that the whole process was illegal, which should automatically assign liability to the police department. The issue of who should pay could then be addressed and corrected without the legality of the hospital charging the suspect ever being tested.
Based on yesterday's CNN report, it seems that the victim's lawyer is indeed prioritizing a challenge to the legitimacy of the warrant.
November 8, 2013, 11:30 ammarque2:
Looks now like Hispanic cops don't want white people in town. Turns out they seem to have some vendetta against whiteys.
Also the "you didn't do a complete stop" is a common ruse. Even if you do a complete stop, there is no proof one way or another, and then they harass you all the want.
November 8, 2013, 7:00 pmmarque2:
Wouldn't the victim of the police also have some recourse, sue the hospital and the officers for damages? Turns out this is a racial hate crime as well, unfortunately X on white, gets laughed at in this country.
November 8, 2013, 7:03 pmmarque2:
Why wouldn't the hospital bill the people who ordered the procedure. Hospital is out of line in this case. If it turned out that there were drugs, then the police department would still have to pay, and it would be up to a judge to determine if the criminal should pay remuneration to the police as part of his sentence.
November 8, 2013, 7:07 pmphilyew:
While it's very possible the victim could take civil action against the hospital/ doctors, I doubt the issue would be the billing, but more likely the physical assault itself.
I've not seen any reports highlighting the racial dimension, so I'm in no position to respond to that comment at the moment.
November 8, 2013, 7:14 pmmarque2:
A good supplement to this blog is Carpe Diem http://www.aei-ideas.org/channel/carpe-diem/
Its the guy's attorney so take it with a grain of salt.
http://www.usnews.com/news/articles/2013/11/05/man-seeks-millions-after-nm-police-force-colonoscopy-in-drug-search
And we now know this happened to at least two men with the same dog, same police. (Police officers can signal the dog to "find something" even when nothing is there. I don't blame the dog in this at all.)
November 8, 2013, 7:50 pmmarque2:
Also it is a white slur (stereotype) that white people have clenched behinds, which was the reason the cops had the dog sniff him in the first place.
http://www.snotr.com/video/422/
Funny skit - tight but is about 54 seconds in. It is a slur held by minorities about whites.
November 8, 2013, 7:55 pmMatthew Slyfield:
I agree with you on who should pay, but that isn't what happened.
November 8, 2013, 9:12 pmmarkm:
I doubt that any search warrant can draft a 3rd party to perform the search for the cops - there's a little something known as the 13th Amendment - and one from another county certainly would not apply. At any rate, if they ever performed a colonoscopy on a patient who did have a rubber of drugs in the colon, they would have risked rupturing the rubber and endangered that patient. Any doctor with a shred of ethics would refuse, and go to court to make it stick if needed.
And by billing their victim, the hospital is claiming that he _was_ their patient. Police, judge, and doctors should all be going to prison, but the judge is immune, and the cops are immune for all practical purposes. The doctors aren't immune, and are quite likely to be sued and lose everything they'll earn in their lifetime - and if the state medical association is worth anything, their earning potential is just about to drop to near minimum wage.
November 9, 2013, 8:39 pmZach:
So if there's a war on drugs, can we execute these pigs for war crimes?
November 11, 2013, 12:25 pm