The things done to David Eckert were horrific and inexcusable, but if there is a saving grace to them, at least they were done pursuant to a search warrant. No, it’s not much comfort that a judge approved of the rape of a human being, except to those for whom process somehow makes the violation of a person palatable. But whenever it appears that we’ve reached bottom, that it can’t go any lower, boom.
Via Jacob Sullum at Reason:
The lawsuit, filed yesterday by the ACLU chapters in Texas and New Mexico, says the plaintiff, a 54-year-old New Mexico resident identified in the complaint as Jane Doe, was crossing the bridge between Ciudad Juarez, Mexico, and El Paso after visiting a family friend last December when she was chosen at random for “additional screening.” This “secondary inspection” involved a pat-down during which an agent “inserted her finger in the crevice of Ms. Doe’s buttocks”—a rather startling incursion inasmuch as the agents at this point had no basis to suspect that the woman was carrying contraband. But they were just getting started.
The basic rule is that a border search requires no probable cause; it’s the price ones pays to cross a border. This is true even when the border ceases to actually be a border, but is expanded to 100 miles from any border, the free-search zone. But then, a border search historically involves questioning, an inspection of baggage to assure that no contraband, dangerous plants or untaxed goods were being introduced into the country. It was never understood to be a free-for-all, with a border agent’s finger probing wherever it ended up.
The agents instructed the plaintiff to stand in line with other people who had been selected for additional screening and walked a dog past her. According to the lawsuit, the dog handler “hit the ground by her feet, but did not hit the ground by any of the others in the line,” and “the dog responded by lunging onto Ms. Doe and landing its front paws on her torso.”
Putting aside the ease with which a dog handler can direct a dog to alert, as it’s somewhat irrelevant since the handler inclined to cause an alert would be similarly inclined to claim an alert when none occurred (cheating is cheating, so what difference does it make how the handler cheated), the judiciary desperately clings to the time-honored tradition of trusting dogs too much. Despite evidence that they are the equivalent of a coin toss, they remain beloved, their sniff tantamount to probable cause.
But in this instance, Jane Doe detained, a putative dog hit and the opportunity to seek judicial approval for whatever came next, the border agent had a choice. Despite the scientific absurdity of basing probable cause on a dog’s reaction, real or phony, all it accomplishes legally is to provide probable cause. That’s the thing needed to obtain a search warrant. Probable cause is not, contrary to the understanding of too many in law enforcement, a free pass to do as they please.
There are exceptions to the warrant requirement, lots and lots of exceptions with cool names like exigent circumstances and the automobile exception, but there is no exception that applies when a person is detained, there is no emergency, no threat, and only the probable cause of a dog hit. Except when it’s at the border, because there are no 4th Amendment rights at the border.
First the agents strip-searched the plaintiff, examining her anus and vagina with a flashlight. Finding nothing, they took her to the University Medical Center of El Paso, where they forced her to take a laxative and produce a bowel movement in their presence. Again they found no evidence of contraband. At this point one of their accomplices, a physician named Christopher Cabanillas, ordered an X-ray, which likewise found nothing suspicious. Then the plaintiff “endured a forced gynecological exam” and rectal probing at the hands of another doctor, Michael Parsa. Still nothing. Finally, Cabanillas ordered a CT scan of the plaintiff’s abdomen and pelvis, which found no sign of illegal drugs.
And then there are the doctors, happy to stick whatever they’ve got into unwilling women (as was the case with David Eckert) because an agent said so. So that it’s clear, a warrantless ”forced gynecological exam” is rape. A warrantless forced “rectal probing” is rape. Jane Doe was raped. Unlike Eckert, neither the agents nor the physicians can hide like the sick cowards they are behind a judge’s warrant to excuse their conduct.
And they found nothing. Jane Doe was clean. Absolutely, totally, perfectly innocent of any wrongdoing. Not that it’s acceptable if she wasn’t, but she was.
Then, of course, the coup de grace:
“After the CT scan,” the complaint says, “a CBP [Customs and Border Patrol] agent presented Ms. Doe with a choice: she could either sign a medical consent form, despite the fact that she had not consented, in which case CBP would pay for the cost of the searches; or if she refused to sign the consent form, she would be billed for the cost of the searches.” She refused, and later the hospital sent her a bill for $5,000, apparently the going rate for sexual assault and gratuitous radiological bombardment.
Quite the deal, given that Eckert received a bill for $6,000. The ACLU filed a civil suit against the government for redress of what was done to Jane Doe, randomly selected for secondary inspection. It’s incomprehensible that she was left to her own devices to deal with this. There are good people in the Department of Justice, and it defies belief that this was not the subject of intense investigation leading to prompt prosecution and denunciation of such outrageous conduct. Is there no one at DoJ who takes issue with the rape of a human being by agents of the government under the guise of their authority?
Fellow blogger and Senior Judge in the District of Nebraska, Richard Kopf, noted what happened to David Eckert, calling it “astounding” without any further commentary. I’m constrained to ask, knowing his feelings toward drugs and assuming his affection toward the fine law enforcement personnel protecting our safety from the vaginas of innocent American women, is conduct of this nature acceptable in the United States of America?
As much as I would love to believe that now, this time, we’ve hit absolute rock bottom when it comes to outrages perpetrated on human beings by government agents, filled with their vast power and authority and unconstrained by either law, basic social norms or human decency, I can’t. My imagination isn’t sufficiently fertile to anticipate the next level of shocking and disgusting conduct, but experience tells me that there is yet a lower level of Hell and agents of the United States government will find it and go there.
But Judge Kopf, I ask you since you’ve been kind enough to join us in the blawgosphere: Is this good with you? Is this your America?
Update: From El Paso’s University Medical Center, this statement was issued:
“We want to assure the community that UMC is conducting a thorough review of the allegations raised in the ACLU’s lawsuit,” the statement said. “We take these types of claims very seriously and are taking steps to ensure that our staff does the right thing by every patient every day. Hospital policy is to obtain consent from all patients who receive medical services at UMC.”
Empty rhetoric, suggesting that while Drs. Parsa and Cabanillas were busy aiding the border agents’ sexual assault, UMC was busy whipping out crisis management response number 7.
H/T @DrowsyGeek, who reminds us that this statement meshes well with the deafening silence of the medical community to those docs willingly coopted by law enforcement to do its bidding.