District of South Dakota Chief Judge Roberto Lange has, finally, taken one hole out of play.
In a sharp rebuke to the practice, Chief Judge Roberto Lange of the U.S. Federal Court for the District of South Dakota said that the process of involuntary catheterization is a violation of the Constitution’s Fourth Amendment, which protects citizens from unreasonable police searches and seizures. Lange declined to dismiss the case brought by six individuals who sued the cities of Pierre, Wagner and Sisseton, as well as various law enforcement officers who oversaw forced catheterizations.
Apparently, it’s a crime under South Dakota law to ingest drugs, and cops used forced catheterization to obtain evidence. This isn’t a novel problem, and an outrageous physical intrusion that’s been going on for quite some time, often with judicial approval of an act tantamount to rape.
In a 106-page opinion, that unfortunately wasn’t linked in the article by Jonathan Ellis, Judge Lange denied a motion to dismiss suit brought by numerous catheterization victims.
“Defendants’ need to obtain the plaintiffs’ urine to prove a low-level drug crime did not justify subjecting the plaintiffs to involuntary catheterization, a highly invasive—and in these cases—degrading medical procedure,” Lange wrote. In his 106-page opinion, Lange recounted the particulars of each catheterization, including videos taken by law enforcement that showed three of the plaintiffs screaming in agony.
Involuntary cathetization is bad enough. It’s particularly bad when its purpose is to ascertain whether any crime occurred at all. It’s even worse when the potential crime being investigated is low-level, in some of these cases misdemeanors where the catheterizations could well be characterized as far worse a physical punishment than any a court might have the power to impose.
But then, there’s the outrageously nasty side of this abominable practice.
Two plaintiffs – Gena Alvarez and Aaron Peters – were subject to forced catheterizations even though they were not arrested for, or suspected of, drug crimes. Alvarez had been pulled over by the South Dakota Highway Patrol near Winner for drinking and driving, which Lange noted the officers already had evidence to support a drunken driving charge, and Peters had been arrested by Wagner police on a bench warrant for failing to pay a court fee.
Alvarez, who had a history of being sexually abused, woke up at the Winner Hospital being held down and her clothes removed. The Trooper who arrested her, Adam Woxland, had directed another male officer to hold down her legs while Woxland watched.
It almost seems as if the cops did it for punishment or kicks, there being no cognizable justification for an involuntary catheterization and it being intentionally conducted in the worst, most offensive, possible way. For this, Trooper Adam Woxland was the only cop against whom the suit was not dismissed under qualified immunity, so that he will remain in the case as well as the cities involved.
Lange dismissed the cases against the individual officers named in the suit, with the exceptions of Woxland’s role in administering the test on Alvarez. Jim Leach, a Rapid City attorney who represented the plaintiffs, said Lange dismissed the officers because they have qualified immunity, and at the time, it wasn’t clear that the practice was illegal.
However, Judge Lange held that the practice was unconstitutional, even though the law didn’t compel him to do so and make this practice a clearly established violation of the Fourth Amendment.
“But now,” Leach said, “it is crystal clear this is illegal.” He noted that police officers who continue the practice would no longer be protected by qualified immunity.
“That’s why this practice has to stop,” he said.
What remains unclear is whether the decision held all involuntary catheterizations to be Fourth Amendment violations, or whether it applies only to low-level offenses and non-drug offenses, or particularly outrageous abuses such as Woxland’s. It’s also unclear whether catheterizations pursuant to a warrant would be permissible.
It’s long been outrageous that police use the insertion of a tube in a person’s body as means of gathering evidence with which to determine whether a crime had been committed, and for use against the defendant. While it’s unclear how far this decision goes, as the discussion of the peculiar facts of the individual cases tends to suggest that these facts were material to the ruling and that, in the absence of similar facts, the holding would not apply, at least Judge Lange’s ruling moves toward the eradication of involuntary catheterization as a routine and acceptable means of evidence collection that shrugs off the fact that it allows cops to effectively rape a suspect with a catheter at will.
Why it would be any less a rape if the defendant is charged with a more serious felony, or if a judge approves of the rape, remains something of a constitutional mystery. The surrounding details may make the individual instances singularly outrageous, but the fact that any person should be subject to a forced catheterization by police, even with judicial approval, should be inherently unreasonable.
“There is no community interest in involuntarily catheterizing an emotionally distraught woman with a history of having been raped just to see if evidence exists to tack a drug ingestion charge onto an ironclad case of driving under the influence of alcohol,” Lange wrote.
Does this suggest there is a community interest in raping other suspects who aren’t emotionally distraught, who haven’t had a history of being raped, for whom there might not be an iconclad case of drunk driving?
“Although a blood test is inferior to a urine test in detecting past use of methamphetamine, the Fourth Amendment limits the ability of law enforcement to always get the best evidence, whatever the cost,” he wrote.
Forcing a catheter into the urethra of a suspect should be a hard and fast line that cannot be crossed in the quest for evidence. This is a start, at least for South Dakota. Whether it goes far enough remains to be seen. One hole down, maybe, and a few more to go.