Something Needs Clenching (Update — Warrant Application +2)

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.

We’ve lost all perspective, sliding down the slippery slope. My first thought was that the test would be better stated in terms of use of force, that the police cannot use, and judges cannot authorize the use of force to invade a human being’s body except in inverse proportion to the threat of physical harm to another person.  To do so for the collection of evidence is unacceptable.

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.

/rant

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.

34 comments on “Something Needs Clenching (Update — Warrant Application +2)

  1. John Burgess

    Great post. It’s not a rant, though. It’s a simple statement of fact coupled with humanity.

    You should send it (or I can) to all the members of the USSC.

  2. Brian Drake

    I agree with your argument that judges should have first-hand knowledge of prison before being put in a position to send someone there.

    In many sheriff’s departments, new deputies are required to work in the jail before being assigned to patrol duties. The stated objective probably has something to do with starting at the bottom, working your way up, etc. Beyond that, though, it serves a better purpose: acquainting deputies with the jail, so they have some understanding of what happens to the people they arrest. Maybe they will think twice before slapping the bracelets on a minor violator. Probably not, but maybe.

    Likewise, I think prosecutors and judges should have to work in a state prison before being placed in positions to send people there.

    1. John

      Brian,

      I think the idea is great, but it doesn’t work. I can’t count the number of time I went back to holding areas to talk to clients and the deputies did not think of the prisoners as human beings or empathize with their situation. Quite the opposite. I think that Stanford experiment says it all. What the deputies instead see is people who have been arrested for a crime (whether they committed it or not they don’t know) and so they see all of them as criminals. And no one wants to be in jail so they also see people who have no respect for the deputies and it begins to rub off. It becomes “us against them” which is the whole problem. The police are supposed to “serve and protect” the general public but somewhere they lost that and now it is to serve and protect themsevles because everyone is against them. There are good cops of course, but when the entire culture seems to be protect the other cops and get the bad guys no matter what (because everyone is a bad guy at some point in his/her life) it is corrosive. To better get what you want the cops, judges, prosecutors shouldn’t work in the jail, they should spend time in jail. Or maybe we should just reform the criminal code so that we aren’t arresting and throwing people in jail for pot (or even crack) but rather are saving those cells for violent offenders. While that would not solve the problem of what happens in jail, it would at least begin to bring back some humanity to the system because not everyone is bad guy anymore.

    2. SHG Post author

      Working in a jail/prison is a far cry from being an inmate. Typically, new criminal judges and prosecutors do a walk through to “experience” it. They don’t. They walk in, are treated respectfully, and walk out. It may be more of an experience with prison than they had before, but it’s a million miles away from the experience of an inmate. It’s not the same, and it’s not close enough.

      1. BL1Y

        Have you read Ted Connover’s New Jack? While there’s still a huge difference between being a guard and being an inmate, I think he gets a pretty good idea of what the experience is like on both sides. He gets to go home at night, but during the day he’s locked in there with them.

  3. Brian Drake

    John,

    I agree with your assessment; it is consistent with my experience.

    Perhaps the attitudes you describe (e.g., “not think[ing] of the prisoners as human beings or empathiz[ing] with their situation”) lend credence to my suggestion that prosecutors and judges be required to work there. It is possible that they would embrace the “us against them” mindset. It is also possible that, having seen the callous treatment, they would exercise more compassion when imposing punishment.

    Even if they don’t — let’s say the prosecutors and judges go the other way and pursue more severe sentences because the experience in prison hardened their hearts — they can no longer claim ignorance of the consequences of their actions. This could be used against them if they are ever prosecuted for civil-rights violations — e.g., committing aggression against peaceful people.

    1. SHG Post author

      Brian,

      First, if you’re going to reply to John, use the reply button at the bottom rather than starting a new comment thread. Second, these are issues that have been discussed at great length here. Your thoughts are fairly superficial. You might want to spend a lot more time reading and thinking before commenting.

      1. Brian Drake

        I apologize for both. I am a long-time reader, but missed the previous discussions about these issues.

  4. D

    Nothing substantive to add, just wanted to let you know that the affidavit in support of the warrant is attached to the plaintiff’s summary judgment brief and available on PACER. If you are interested it is floating around or probably available through RECAP. I downloaded it for my own reading but cannot recall where from now and cannot seem to find it, if you would like I would be happy to email it to you.

  5. Pingback: What Is The Quantum of Proof Necessary for Police to Rape and Torture you in New Mexico? | Popehat

  6. Jack

    I wish this were like a normal story… by which I mean normally something is blown out of proportion and the truth lies somewhere in the middle of the two sides. No – not this time. EVERY time I read something about this and feel sick to my stomach and enraged, something new comes out that just piles even more on. Medical records that read like a rapists diary, the affidavit that just so flippantly asks for permission to rape someone and of course the lovely additional “fuck you” of billing him for his own rape and then threatening to send him to collections on it… It’s hard not to turn into that tinfoil hat wearing guy going on about wanting to shoot the police after reading this.

    I did notice in his medical records they state specifically they were looking for a “bag of methamphetamine” but don’t see that anywhere in the affidavit in support of the warrant… You would think they would put that in there if they actually suspected it?

    Also, I noticed one major thing left out of his medical records: his race. Normally a patient summary starts with “Patient is a 56 year old white male presenting with…” or “Patient is a 25 year old native-american female presenting with…” – this is completely left out. At least at Duke and UNC this is standard in all charts (and several other hospitals/clinics I have seen patient charts at) and there is very good reason to include it. I think it would be interesting to know what his race was and if there is a history of racism in this city. It would at least offer SOME sort of explanation other than “Fuck you, that’s why”…

    1. SHG Post author

      You know, I pondered whether to include the billing aspect, but as outrageous as that is, it’s independent of the issue in this post.

      As for the “bag of meth,” that’s out of left field. I suspect the cops told the doc that’s what they suspected, but they had no basis for it and so left it out of the app.

      As for the absence of race in the patient summary, I’ve never seen that before either. Your guess is as good as mine, but yeah, it’s always included in a medical summary as far as my experience goes.

      1. Jack

        I found where the meth thing came from via a comment on Ken’s story. Also, the same source that the meth suspicion came from is also likely the source of Chavez’ “known to stuff drugs in his ass” tip. The incident report, page 4, from Robert Orosco:
        “I monitored the police radio and overheard Officer Chavez run a David Eckert at the driver of the vehicle. That I had prior knowledge that David was a known meth user from the Lordsberg, NM area. That I had knowledge that David had prior arrests for methamphetamine. Based on that information, I contacted Officer Chavez and advised him of the information.”

        The only place where the suggestion that Eckert shoved drugs up his ass appears is in Chavez’ affidavit and it doesn’t appear in the report of the guy who actually investigated Eckert previously and was likely the source of that “tip”. You would think if the “shoved drugs up his ass” thing wasn’t completely fabricated, Orozco would have mentioned it too?

        As for the medical records, besides conspicuously missing his race, it is also very light on things like labs, reports, etc. It would be interesting to know if they ran a tox screen on him as well, which they would normally do to confirm any suspected bag of drugs didn’t break open putting him in imminent danger. I would like to see the results. Even if he was positive for meth it wouldn’t justify ANYTHING, but if he wasn’t positive for meth, it would completely refute everything Orozco said…

        1. Jack

          Okay so I did a little searching in the New Mexico Court system and it looks like [Ed. Note: Balance of comment deleted.]

          1. SHG Post author

            Jack, while I realize why you did what you did, it was terribly inappropriate. Speculating about David Eckert’s criminal record might be the sort of thing that’s acceptable elsewhere, but not to me. Regardless of whether he was, in fact, a “known meth user” is utterly irrelevant to whether the warrant application proved that allegation, and by doing so established cause to conduct an anal cavity search (assuming the law should permit such a search under any circumstances). Moreover, a plea to probation is an acquiescence of guilt, but often happens as a matter of convenience rather than actual guilt. Similarly, dismissals don’t necessarily indicate factual innocence. So, maybe he’s not a meth user at all, but a kid who copped a plea to get out of jail because he couldn’t make bail. We don’t know, and the data doesn’t tell the real story.

            But most importantly, what happened to David Eckert at Gila Regional Medical Center is not an invitation to give him another public proctology exam here by describing and linking to his criminal history. Even though it may be available online, it is not something material to the post or appropriate for someone who has endured what he endured. Not even good intentions justify adding to his pain and humiliation. I trust you can understand.

            1. Jack

              I fully understand why it was deleted, agree with you, and am very sorry for posting it – lesson learned. What I do think is relevant out of what I said is that he was not in trouble at the time and never served a day in prison – he was NOT some career criminal or junky getting messed with by any means (which would be JUST as bad). I was just trying to figure out why they would ever do something like this and, like any rational person, am justifiably scared by this. He is a 54 year old man and not just some “kid”, which scares me even more.

              I know this part is OT, but this is the only story I have read recently that has really shaken me up, and I read about police misconduct on a daily basis. What sets this so far apart is that it wasn’t just a few bad cops who raped and tortured this innocent man, but a prosecutor, a judge, several doctors, and nurses – dozens of people who are supposed to be the best, most moral people in our communities. And they did it under the color of law with a warrant in hand.

              I just needed something, anything, that could explain why he was targeted and I couldn’t find what I was looking for…

              I always though if I were arrested I could just shut up and call a lawyer to prevent heinous things like this from happening, but it appears that he asked for a lawyer and they told him he wasn’t under arrest so he had no right to one.

              Again, very sorry and I full agree with what you said. I understand why it was inappropriate.

              1. SHG Post author

                Thanks, Jack, for understanding.

                What sets this so far apart is that it wasn’t just a few bad cops who raped and tortured this innocent man, but a prosecutor, a judge, several doctors, and nurses – dozens of people who are supposed to be the best, most moral people in our communities. And they did it under the color of law with a warrant in hand.

                I just needed something, anything, that could explain why he was targeted and I couldn’t find what I was looking for…

                The good news, if this is good news, is that it doesn’t happen often. But it does happen, and more than most people realize. You raise an interesting point: The doc in the first hospital refused, and stood firm when the cops no doubt ordered him to comply. He has earned our respect for doing so. But “respectable citizens” are often the first to do harm, to comply with authority. They’re usually easy; they don’t say “no” to cops. Or judges. Or authority in general. They love authority. They are authority. It must be right because authority can’t be wrong.

                Another irrelevant (for the purpose of this story) detail was that he was purportedly stopped for running a stop sign, a friggin traffic violation, which the cops converted into a drug stop after the traffic aspect was concluded, and end with his 15 hours of medicinal sodomy (and unpaid bills). This isn’t supposed to be possible. There is no explanation that can possibly justify what happened here.

        2. Wisconsin doc

          I am a physician. I never put the race in, as it does not add any medically useful information. I will sometimes put in nationality or the patient’s primary language, if I think it will have a bearing on their care, but IME, including race isn’t helpful. I would love to see the medical notes and how the “treatment” was justified. And a colonoscopy is often not useful without an adequate prep (clear liquid diet for at least 24 hours beforehand, and a gallon (yes, a gallon) of a laxative solution. Enemas, even multiple ones, don’t usually cut it; this makes me think the colonoscopy was retribution.

          1. SHG Post author

            Thanks for the insight. It’s always useful to have some hard knowledge available to make sense of things.

  7. Daniel

    As a long-time New Mexico resident there is not anything that surprises me in this case.

    One thing I want to point out that appears is getting lost in the shuffle is this fact: the first hospital they went to turned them away and refused to do it. It is unclear from the record why that happened; they may have been too busy. But lets assume they turned the police away for the right reasons. Perhaps that is something to be thankful for. Because as much as there is a legal aspect to this case there is also an issue of medical ethics. It should be interesting if the state board has anything to say about it.

    1. SHG Post author

      The doc in the first hospital refused because it was unethical. It was the right reason. The problem is they immediately found another hospital, other docs, more than happy to comply. That the first doc refused is something to be thankful for. Just not enough to save Eckert.

  8. Fubar

    Whether this is particularly relevant to your primary point of where the line should be drawn, only you can decide. But I’ll note it anyhow because the same New Mexico officers appear to be in the habit of drawing the line elsewhere: The Eckert incident is not the only time that bizarrely invasive searches have been conducted by the same officers.

    If you text search the comments for “theblaze.com” at the Popehat link you provided, you’ll find a link to a report of another recent and nearly identical incident. Same officers, same dog.

    1. SHG Post author

      I was aware of that, as the information has been pretty widely available. It’s not included here (as with numerous other details that surround this debacle) in order to focus on the core issue of the post.

      Too many “interesting” collateral issues and focus is easily lost amongst the details. But then, even as I try to avoid bringing them in, someone will often do so in the comments anyway under the assumption that I might have missed something.

  9. J.E. Andreasen

    Upon reading the actual complaint and fighting back overwhelming rage, I instead called the emergency room at Mimbres Memorial Hospital, (575) 546-5800. I asked that they relay my sincere appreciation and thanks to Dr. Ash, for refusing to aid in anally raping Mr. Eckert at the behest of a criminal syndicate of violent sociopaths. He needs to be recognized, praised, encouraged and rewarded. Battle the darkness by adding to the light.

    1. SHG Post author

      Usually, when someone leaves a telephone number here, it’s to encourage others to call and harass someone for something awful they did. I won’t allow that here. But you are absolutely correct, and we can express our appreciation in a positive way for Dr. Ash being ethical enough, professional enough and tough enough to refuse to do as ordered.

      He is deserving of our praise indeed. Thank you.

  10. Michael McNutt

    I know little if any “law” but what recourse(s) are open not only to this gentleman but indeed all of us.At what point are we able and or should refuse to take any more from police and courts that do this and worse? I guess I’m trying to say at what point do you start to fight back? When they are throwing you in the ovens along with everybody else? What does law say about fighting back? When can you use force to fight for not only your rights but indeed for your very life? What line(s) have to be crossed?

    1. SHG Post author

      I assume these are rhetorical questions, as there is no “answer” to them. Fight back, and the police will fight back as well, with a judge to sort it out later. It usually goes better for the police. The saying is it’s better to be judged by 12 than carried by 6, but its very hard to know when you are really at that level of risk. If you’re not, or if it turns out you’re wrong, the consequences can be severe. Best to avoid having to make the choice, if possible.

      But the fight happens every day. When you vote. When you go to public meetings and express yourself. When you write about the propriety of government’s handling of matters. When you speak with others. If you’re asking for when the revolution is going to happen, don’t hold your breath.

  11. Michael McNutt

    Revolution? No. But wondered if there is a line that once crossed gives the average taxpayer the “right” to resist and or fight back. You of course are correct, change comes from ballot box even if the two party system makes it unlikely. Really do enjoy your blog even if I don’t know law. You make it very interesting.

    1. SHG Post author

      It’s far too complicated a question to answer in the way you’ve posed it. It all depends on the specific circumstances, with the generic answer being no. The general rule is “comply now, grieve later,” which does you little good if you’re dead later. Sorry, but “answers” aren’t always as readily available as questions.

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