My introduction to what was done to David Eckert came from a twit by Tim Cushing at Techdirt. As I read the laundry list of things done to this poor man, which in the original story was borne of cops claiming he clenched his buttocks, I clenched my fists.
I was repulsed. My position on places the government cannot go has long been clear, My views on the physicians who are complicit in violating the bodies of human beings at the behest of the police are clear. That judges, cops, docs see nothing wrong with using the government’s force to rape human beings is beyond my comprehension.
After the twit from Tim, I received a great many emails about the case, and I decided not to write about it, both because of my gut-wrenching disgust at what was done to David Eckert and because others did an admirable job already. And more are still doing so. Hopefully, the repulsion that I felt as I read what happened will filter through to those who can make the choice when using power they don’t really deserve not to be rapists for the government.
So what, then, is this post about? At Volokh Conspiracy, Orin Kerr takes a preliminary stab at the legal ramifications of the rape of David Eckert. He begins by addressing the fact that the initial story, where the intrusion was claimed to be based on nothing more than clenched buttocks, was wrong. There was also a dog sniff (by a dog that hadn’t been certified in years), and a claim by a cop that Eckert was “known” to put drugs in his rectum (without any hint of the basis for such a claim).
Orin is right to flesh out the record beyond the reports, as it’s wrong to become infuriated based on only partial facts. Far better to be infuriated based on all the facts. Still missing in action is the application for the search warrant authorizing the rape, but it’s unclear that the warrant app will ever be available, so the best that can be done is to acknowledge that a hole still exists and try to work around it.
Orin then goes into a descriptive analysis of the law based on the known (or at least, best supposed) facts. While he touches on three issues, one is of particular interest here, whether the Fourth Amendment permits such invasive procedures:
The second issue is whether the police could use such invasive techniques to find the drugs. The key case is Winston v. Lee, 470 U.S. 753 (1985), which expressly considered when the government can get a warrant to perform surgery on a suspect for evidence in their body. Under Lee, the court must conduct a balancing of the overall invasiveness of the surgical measures as compared to the need for evidence to say whether a warrant can be used to allow the surgical technique. On one hand, withdrawing blood to test it for alcohol in a DUI case is reasonable, and is allowed. On the other hand, dangerous surgery to extract a bullet lodged under a suspect’s collarbone was unreasonable when the bullet was of relatively low evidentiary value.
So could the government obtain a warrant to conduct a colonoscopy, etc., to find drugs believed to be inside the person? I think the answer is no, although concededly the caselaw isn’t as well established as I would have thought. The closest precedent is United States v. Gray, 669 F.3d 556 (5th Cir. 2012), vacated on other grounds, 133 S.Ct. 151 (2013), which also dealt with a digital rectal exam and then a proctoscopic exam in a search for drugs in the suspect’s rectum pursuant to a warrant. The exam was successful and the drugs were admitted at trial. The Fifth Circuit held that the search was unconstitutional but that the good faith exception applied.
The tacit problem with Gray is the outcome, some boneheaded judge who perhaps rubber stamped a warrant or, even worse, thought nothing of another human being’s integrity, to approve a warrant. It was wrong, says the 5th Circuit, but good faith (reliance on the warrant) saves the day. Surely, no one who endures fingers up his anus, a colonoscopy and a few enemas would take issue with the good faith reliance on a warrant. A judge said it was okay, so what could possibly be wrong?
Now it’s my turn to offer a normative analysis. This isn’t what the law is, but what the law should be. While many arguments turn on a slippery slope approach, judicial approval of physical intrusion in a human body has now gone far enough down the slope that it’s no longer an argument: it’s reality.
There was once a time when collecting urine samples was questioned. How quaint. Then blood. Then catheterization when the bladder wasn’t cooperative. Then breasts on the roadside. Blood draws across the hood of a police cruiser. Vaginas in parking lots. Now rectums in hospitals from fingers to scopes with full anesthesia. Did I mention plethysmographs as a routine condition of supervised release after a sentence has been served?
In a twit yesterday, I suggested that it may now be time that judges, as part of their indoctrination, may need to know what a nonconsensual anal exam feels like. I’ve previously argued that all judges should spend some quality time in prison to appreciate just what they’re doing when they mindlessly sentence someone to incarceration. Even that seems quaint now.
As Orin explains, the current state of the law when it comes to authorizing the physical intrusion into the body of a human being is a balancing test.
Under Lee, the court must conduct a balancing of the overall invasiveness of the surgical measures as compared to the need for evidence to say whether a warrant can be used to allow the surgical technique.
I submit that this test is terribly, horribly, inhumanely wrong, and has led us down the slope to the point where judges are empowered to play some sick god with other people’s bodies. Who is a judge to decide that the forcible physical intrusion into another person’s body is no big deal, not enough to deny law enforcement its critical mission of collecting evidence for use against the person?
The act of physical intrusion into another person’s body is an act of forcible violence. Just as a judge could not possibly be lawfully permitted to approve the breaking of a suspect’s arm to get him to talk (the arm will heal), or the rape of a woman in front of her husband to coerce him to confess (it’s just the insertion of a penis into a vagina, happens all the time), the violation of a person’s body should not be permitted. If the test is balance, then it’s subject to whatever sick perspective some bottom tier judge finds acceptable to him. If his sensibilities tend toward the police, there is no limit to what can be approved.
And the fact that it may subsequently be reversed, denied, challenged or serve as the basis for a compensatory award isn’t satisfactory. The idea isn’t that it’s cool for the government to use its power to rape a person as long as he gets paid later if the government is wrong. The idea is that the government does not get to rape people.
While this should be sufficient to make the point, there remains the other side of the balancing test. The justification for this conduct is the collection of evidence. Not the safety of another person’s life in imminent danger, or finding a kidnapped child in the hands of a murderer, but to collect evidence so that it can be used at trial to prove guilt of a crime.
And not just a heinous crime. Not just a crime that involves the most horrible things a sick person can do to harm another person, like murder or rape or child molestation. No. Drunk driving. Possession of some unknown quantity of some unknown drug. Regardless of whether you think these shouldn’t be crimes, or at least not serious crimes, one thing is beyond dispute: these are not of the sort of imminent danger as saving the life of a person about to be murdered.
But then, I realized that it would just start the slide down another slippery slope, where rhetoric and dehumanization would empower a judge to sign off on a warrant, to provide the safe harbor of “good faith” to cover some cop’s sick need to see an anus raped. There is no test that can protect the safety and integrity of a human being from the things a judge or cop will do to them.
The only rule that serves a human society is that no forcible physical invasion of a human being’s body is permissible. This needs to be a line that cannot be crossed. Once it is, there is no stopping it.
Update: With the very kind assistance of “D”, the complaint which includes the warrant and application (starting at page 20) is now available. Lest this be missed, the warrant specifically seeks authorization to search that “include[s] but [is] not limited to his anal cavity.”
Aside from that, the warrant is shockingly banal otherwise, particularly in its stating that Eckert had been given a citation and told he was free to go, right before the detective asked if he minded the conduct of a search as Eckert walked away.
Update 2: Ken at Popehat parses the warrant application (somewhere about 15,000 words in) and notes how terrifying it is that such a shallow and pedestrian affidavit could support an anal cavity search. Of course, he presumes the judge (whose name isn’t clear on the warrant) read it. That may be an unwarranted assumption.
Update 3: The New Mexico judge who signed the warrant is identified as 6th District Judge Daniel Viramontes, who apparently has other issues as well.