In the blog entry below this one, I touched on an incident that occurred in New Mexico which has set a fire in the blogosphere. That entry drew a lot of criticism from folks who want the involved officers, and their little dog too, to be hung out to dry because they took a guy to the hospital for a rectal exam because they thought he had hidden drugs up his butt. The examination found no drugs. The examination went to an extraordinary degree: multiple digital anal probes, multiple enemas, and finally, a colonoscopy, all without the suspect’s consent.
A disproportionate number of the critics were first time posters here, generally an indication that they read somewhere else that I disagreed with them, and just had to fight. No comments on that last blog entry here have been deleted at this writing; I encourage debate here, unlike the anti-gun blogs. I do, however, appreciate it if those with opposing views at least know what they’re talking about.
Let me address some of the issues.
“They didn’t find drugs, so they were wrong. Punish them.” Sorry, folks, that’s not how it works. To make a long story short, “You don’t have to be right, you have to be REASONABLE.” Do a Google search for Graham v. Connor. The suspect, with a long record of drug arrests, was known to one officer to have stuffed drugs up his butt before; the drug-sniffing dog alerted to the driver’s seat where he had been sitting; and, what first alerted the officers to that area of his body, he was visibly clenching his buttocks tight.”
“They based it on an anonymous tip! Punish them!” No. ONE basis of multiple bases was that another officer said the suspect was known to put drugs up his butt. The fact that the officer giving that information was not named in the warrant does not make it an “anonymous tip,” and only someone with a child-like grasp of the criminal justice system would think so. It’s more like “transferred probable cause.”
“He was anally raped by the authorities! Punish them!” Uh, no. Any cop with experience and good training, like any experienced medical professional who works the emergency room, knows of cases where drug suspects have hidden the dope in their body cavities and died from that act. It normally comes from swallowing a baggie of heroin or a balloon full of cocaine, but anally-inserted drugs can act even faster than those taken orally. If these officers AND medicos had failed to investigate this and the man died, the same anti-authoritarians would be calling for all their heads for letting him die untreated and unexamined. The cops followed the protocol: when there’s a medical issue, turn it over to the medical people. No cop held a gun to the head of the physician who ordered the more extensive and invasive testing. When digital examination and X-ray were done, don’t you think there was SOMETHING that made the medical professionals involved continue the testing? Some considerable time elapsed between the arrest and the colonoscopy: by that time, any physician would have to consider the possibility that the drugs had already been absorbed, and might reasonably do the colonoscopy to detect other signs of that having happened.
I have to note that, to my knowledge, none of the bloggers who fueled the flames for outraging the public even considered any of this when they made their initial inflammatory posts.
But one other hospital refused to do it! That’s the way it looks. However, I also know of one hospital whose policy is that if they have reason to believe that the conscious adult patient has swallowed poison and he refuses to be examined and treated, personnel are under orders not to examine or treat. Was that policy in place at the first hospital? I don’t know. I do think that in any hospital with that policy, Risk Management needs to cross-pollinate with the Ethics Committee.
But the warrant was from another jurisdiction, and had timed out. If there is good reason to believe there may be life-threatening substances inside the patient’s body, exigent circumstances (look it up) have kicked in. That triggers the doctrine of competing harms/doctrine of necessity/doctrine of two evils. (Look those up, too.) The importance of the warrant now pales.
We all need to apply common sense. One commentator in the last blog entry noted the striking comparisons of this case to Florida v. Zimmerman. In many respects, I have to concur. Each trope came first from plaintiff’s counsel, unanswered by the defense (and the involved authorities) until much later. In this case, the defense (the police and the medicos) have not yet put their defense forward. We’ve seen their warrant from before the fact of the examination, but not their reasoning for what they did next. Doctors are constantly under siege from bogus malpractice complaints, cops likewise with false excessive force allegations, and lawyers tell their defendant clients “We won’t try the case in the press.” Thus, only one side gets heard.
It’s laughable that the cops did that for the suspect’s safety, according to one critic. And, cops have no responsibility for our safety. BS and more BS. A “special relationship” existed between the officers and the suspect the moment the investigative detention began. Once they came to believe he may have stuffed enough drugs up his butt to kill him, they had both legal and ethical duties to seek further examination. And if, when the docs caught the ball and did the examinations, they didn’t see some reason to continue looking, why on earth would they have done so? Cui bono? What would the docs who did the exams have possibly had to gain at that point, if those medical professionals DIDN’T have reason to think it was necessary?
The medical records and testimony will come out at trial, if not before. Don’t judge based on one side, get outraged at what that one side told you, and then feel a need to defend it so you won’t be embarrassed by being on the wrong side when the truth comes out.
Let’s wait to hear from both sides.
At Dennis, Np, figured as much.
Fellas, I’m going to ask you not to attack each other personally. Attack the argument, not the person, please. I’m fair game, but personal attacks on others posting here just isn’t going to fly.
Thanks,
Mas
i wish a cop would shove his hand up my ass, i’d be laughing all the way to the bank.
I have not read about this incident; I have only read MA’s comments.
So, I cast no dispersions either way, but one thing does bother me:
What if I were “mistaken” for one of these anal mules? How could I defend myself against medical procedures that are probably painful, and could be physically harmful based on a preexisting condition?
In other words, I would be concerned that the medical procedures used could aggravate an existing, unknown condition that could lead to death.
And what comes next? How far does this precedent go? An operation to cut open my stomach because they think they see something there?
I could tell the cops all day that I’m not their man, but who would listen?
No, I believe I’ll have to disagree with this one, even at the risk of letting a bad guy go.
Mas. I see your side. On the other hand digital exams, plus xrays, plus three enemas and a colonoscopy? At some point before a camera was inserted into the guy’s rear, the search no longer was reasonable, and a competent officer in my opinion should have realized that. Moreover, the PC is pretty thin. Yes, I know these got a warrant. Clinching his rear and supposedly a dog alert from a traffic stop. I don’t buy it. Now news comes of two more folks subject to similar searches. It smells bad to me. And no special relationship existed until the officers decided to retain the suspect and subject him to search. So that argument appears to be bootstrapping. Yes, it’s amazing what you find in people’s butts. But, this butt search seems unreasonable to me.
In the interest of calm and reasoned discussion, I waited a day and reviewed the affidavit [1] for the search warrant before commenting again.
After such a period of calm reflection, if this is found to be a legal warrant [2] then I think there are even larger problems than just the misconduct of a few rogue officers.
In support of searching the subject’s rectum, this warrant laid out the following facts (numbering is from the affidavit):
1. The subject ran a stop sign.
5. The subject avoided eye contact with the officer
6. The subject’s hand was shaking when handing an officer his documents.
8. Subject’s posture was erect and he kept his legs together.
14. A drug sniffing dog alerted on the driver’s seat of the subject’s car.
15. [An unidentified] Hidalgo County K-9 officer informed [the officer requesting the warrant] that the subject was known to insert drugs into his anal cavity and had been caught with drugs in Hidalgo county with drugs in his anal cavity.
I have to admit, this is a stronger evidence than I had recall / seen reported as it states that the subject had been caught with drugs in his anal cavity, as opposed to simply that another officer had said that ‘[the subject] was known to carry drugs in his anal cavity’.
Mas had said that this was not an anonymous tip, but information from a brother officer that deserved more deference. I can agree to that, however AFAIK, the probable cause for a warrant must be contained within the four corners of the affidavit. There was also no documentation of any previous arrests of this subject.
According Prof Kerr’s analysis [3] of this situation, Winston v Lee states that “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.”
The problems I see here are two fold. First, while I’m not sure what level of hearsay is allowed in warrant application, particularly when an officer is relaying information from a brother officer, I would think that a judge should consider unsworn testimony to be of less value than sworn and information from an unnamed source to be of less value than a named source.
It could be that the officer requested the warrant forgot the K-9 officer’s name and was applying for warrant hastily. However, if I wanted to get a warrant where I lacked probable cause and didn’t want to lie under oath, attributing information to an unnamed officer (whose name I might conveniently forget years later during a 1983 suit [4]) seems like a good way to do so.
Second, I don’t see that there was a balancing test preformed between the need for this evidence and the affront to the subject’s dignity of being forced to undergo a surgical operation. Nor do I see a request in the affidavit to undertake such a surgical operation.
In the end, I stand by my original belief that a dog alert [5] and some anonymous dude (even if he is cop) is not and should not be probable cause to anally probe someone.
[1] http://www.popehat.com/wp-content/uploads/2013/11/Affadavit-for-Search-Warrant-Eckert-1-2-13.pdf
[2] In an ideal world judges would bear the responsibility for signing illegal warrants, not the currently absurd formulation that an officer is liable for applying for and executing a warrant approved by a judge (and often a prosecutor) because the officer should have known the warrant was unconstitutional. But I guess when the lawyers make the rules, they get absolute immunity. Go Figure.
[3] http://www.volokh.com/2013/11/07/thoughts-eckert-v-city-deming/
BTW, I meant detain the suspect not retain. And I was not offended by MAS’s first post. One should be able to make light of a serious subject without everyone getting their noses out of shape.
Howdy Mas, how the hell are you doin? I’m just here to ask a question, (and dodge the current lynch mob here) what is your opinion on the Las Vegas school “Frontsite”?
JeremyR, please see my previous post a few above this.
It will explain why what you just tried to post does not appear here.
In this blog entry and the one preceding it, we’ve gone into three figures worth of sometimes contentious commentary, and this last comment from you is the only one I’ve had to disapprove.
For the last time, please don’t attack others who comment here.
This situation and the debate it has caused would not have happened if we ended the “war on drugs” and the funding it generates for law enforcement.
-Without going back and re-reading all the posts and links, I seem to remember that the original officer that started the events in motion stated he was assigned to a drug task force.
-Observed the “victim” and vehicle pull up to and enter a location that was under surveillance.
-After a short period of time exited the location, drove away, failing to come to a complete stop at a stop sign.
-Drug task forces don’t randomly select residences to to set up on. Normally these locations come through concerned citizens in the neighborhood and followed up on by task forces. Larger Jurisdictions receive and follow up on hundreds of these a week.
-Unless the “victim” was the only one detained during this operation, there is a very real possibility several arrests yielding drugs had transpired previously.
-Could be the victim was able to be get rid a the evidence prior to the stop. Happens all the time.
-Could be he was turned down by the dealer for credit and left disappointed.
-Could be he was a low level “mule” who had dropped off a one hour supply at the house as is common for drug houses. “Mules” at this level never carry more than this in order to avoid enhanced penalties and would have been “clean” when he left.
-Could be, as many seem to think, evidently, he was an innocent motorist who was lost and stopped at this location, by sheer bad luck, to ask directions.
-Fact is, their are too many what if’s and could be’s to make judgement on the intent of the officers.
“The process is the punishment.” Clearly so in this case.
The suspect had a long history of arrests for drugs and other offenses, but no convictions, That probably means he had a reputation with LEOs as a de facto (but not de jure) known offender, His escaping convicton in the past (did he have political influence? Or a clever lawyer?) would be resented. And maybe he has a smart mouth.
So there is a distinct possibility that police escalated this search as an unofficial punishment. Why did medical staff go along with this? Because they are friends with the cops, don’t like drug dealers (and probably know about this guy themselves), and the cops showed them paperwork that appeared sufficient.
I find it very hard to believe that any concern for the suspect’s safety or health was in play, though I do cmmend Mr. Ayoob for pointing out that aspect.
Police have a difficult, dangerous job to do, and a dangerous amount of authority and discretion. The temptation to cut corners or vent one’s anger is strong. If it is not curbed, it leads to situations like this.
I think the moral of the story is to not stick drugs up your butt.
Mass misses the point entirely. The criminals are the government with their war on peaceful people (war on drugs), those who like to take “drugs”. Why is it anyone’s business what people ingest?
Drug prohibition is the cause of the “crimes” in this war. The same thing happened with alcohol prohibition. Criminalizing lifestyle choices only forces them underground and attracts the seedier element into the black market.
If you disagree, I dare you to look at what Portugal did over 10 years ago, totally decriminalizing all drugs including heroin. They treat drug abuse as a health issue not a criminal issue.
Again, check out Portugal.
Cops are cowards because they spend a disproportionate amount of time pursuing and caging peaceful people for simple possession while a disturbingly large percentage of violent crimes go unsolved. They’re too afraid to pursue violent criminals, they instead choose the easy safe “work” and cage innocent people and destroy lives.
Sorry, Mass, I respect your firearms work, but it’s true.
Mas,
I’m still waiting for you to comment on the second case of “anal rape” that I mentioned in the previous blog.
http://www.usnews.com/news/articles/2013/11/06/second-anal-probe-lawsuit-filed-against-nm-police
Once was bad enough. Twice indicates a department out of control. I’m baffled as to how you can continue to defend the police officers and medical staff involved. Mayhaps you should not have opened this Pandora’s Box in the first place?
“Ignorance of the law is no excuse”
Unless you are a police officer.
That’s the law.
No, a police officer has no legal right to authorise an involuntary medical procedure just because they suspect a detainee’s life may be in danger. There’s plenty of caselaw on that. The fact that the procedure was not risk-free, could conceivably have resulted in the detainee’s death (about 1 in 40,000), measurably decreased life expectancy (2 chest X-rays – 6 rem whole body dose), and where the justification was at best questionable exacerbates the situation, but doesn’t change its nature.
1. Warrant validity. Based on the testimony presented by the police, a warrant to search the car and conduct a visual search of the suspect’s anal area was not grossly unreasonable. That is what a “search of the anal cavity” is. Cough and Squat, no more. So no blame on the Magistrate.
2. There is caselaw (699 P.2d 1078 (1985) State vs Gutierrez) that states that warrants may be executed beyond the county boundaries. So that alone does not invalidate the warrant.
3. Warrants may be executed only between the hours of 6am to 10pm. However, it could be argued that the warrant was executed from the time the police took the suspect to the first hospital. It’s not clear that the execution must be completed by 10pm, or that different procedures as part of a continued execution might not start later. It’s possible that such a warrant may effectively last as long as the suspect is held in investigative detention, while the police think up new procedures to execute as part of the search.
So the warrant (from the issuing magistrate’s view authorising a visual search of the suspect’s anal area, as well as his car) may be valid.
4. The police may claim that “in good faith” they thought authorisation for an anal cavity search included the entire digestive tract, and not just visually. The Supreme Court in a 5:4 decision authorised limited physical probing by prison authorities of incoming inmates – even those arrested for not having working bells on bicycles – so it is not unreasonable for police to assume that when a suspect is not under arrest, but under investigative detention so they can go on fishing expeditions for drugs from a known druggie, the same or even more relaxed standards apply. Wrong (I think), but not insanely so. No more unreasonable than the SCOTUS’s deference to the smooth running of prison administration. Had the suspect been under arrest, it’s clear that different and stricter standards apply.
Caselaw :
Winston v. Lee, 470 U.S. 753 (1985)
United States v. Gray, 669 F.3d 556 (5th Cir. 2012) (holding that such searches are unreasonable, defining limits of “anal cavity” search)
5 The doctors may also claim that “in good faith” they thought authorisation for a seach “including but not limited to the anal cavity” authorised a search of the entire digestive tract, and not just visually. The McCoy defence : “I’m a doctor, not a lawyer, Jim!”
The fact that this was the second time they’d done this without anyone saying “boo” would support such claims.
I’m very much afraid that although this shocks the conscience, there is no remedy, nor assurance that it won’t happen again. Unconstitutional, certainly yes, but so what? Illegalities by police and prison officials happen all the time without penalty.
Sam in Oregon, if you’re baffled as to what I’m saying, I’d suggest a re-read. The second case you mention is a semi-routine cavity search; the one under discussion, the Eckert case, involves extraordinary measures. The Pandora’s Box you mentioned was opened long before I got to the topic, first with a colonoscope and second with a lot of one-sided commentary elsewhere.
Many employers, as a condition of employment perform drug screening. With all they did to Mr Eckert, why didn’t they perform some kind of drug screening? My top choice for this would be a hair sample. I some how doubt that he is completely bald. That would have given them a history for Eckert going back several months. We cannot convict on such findings, but it would establish that he was indeed a drug offender.
Some people say its time to end the war on drugs. I’m not so sure. true that with their injections and inhalations, they only harm themselves, but the fact is they have to finance their habits. I would be totally opposed to using tax dollars to fund them.
A number of states have decriminalized pot. I am not against that. The stuff seems to grow all over the place. Importation is to me a problem. I am sure the officers in Deming are caught on the front line. They are at import central and have to deal with the drug cartels from Mexico.
That in no way excuses their behavior on this stop.
Other drugs, Meth, crack, prescription drugs, all have serious problems for their abusers. All abusers care about is their next fix. Most cannot hold a job, they finance their addiction by stealing or dealing.
Abusers have broken into number of my properties and cut out every bit of copper pipe. They have stolen radiators from old trucks and tractors belonging to friends, and in one case, gutted a pressboard processing plant turning it from a three million dollar set of machines into a few thousand dollars worth of scrap.
But does it all justify this?
My expectation here is that Eckert will walk away with a hefty payday. If he is inocent, he earned every penny of it, but if it is just by chance that the police missed him doing as Dennis alluded to being a mule or denied a sale, then it is a bitter pill for us as tax payers. Sure, the money is going to come from an insurance company liability policy, but that means it comes from every tax payer in the U.S.A. not merely the folks in Deming.
I see parallels with the Llamas brothers in Topeka. Very few people here like them, so it stinks big time that they waltzed away with $300,000 after being shot by cops who were OFF DUTY and drunk to boot.
Hi Mass, I’m a huge fan, but I have to call you wrong on this one. We are seeing an ever increasing trend to heavy handed and brutal police actions. In the past couple of years we have seen more and more incidednts of unwarented Tazing, beatings, and even questionable shootings. As a Salt Lake resident the shooting of a panicked teen girl and the fatal Tazing of an eppileptic man jump immiediatly to mind. It’s starting to look like our law enforcment personnel need to be reminded of the citizens’ rights.
Mas,
I love your work and have been reading you (and Jeff Cooper RIP) since I was a kid. However, you must admit, this simply shouldn’t happen in a free society no matter what. The drug war is a complete failure, much like prohibition before it. I get this wouldn’t have happened if this guy worked on Wall Street (Goldman, JP etc) even though he is more likely to be guilty as hell. If an idiot chooses to put that crap WHEREVER, our public duty is not to protect him from himself, but merely send someone to remove his corpse so it doesn’t become a public health hazard.
Your police brothers have stepped over the line a lot quite recently, its time for everyone to step back before we lose what we all hold dear.
John
Mas,
I feel we need to move on to another subject. After perusing some other blogs, this anti-police sentiment seems to be rampant on the web corresponding with a general distrust in government.
I understand and agree with some of these concerns, as you have also expressed in the past. I feel some think you were defending everything the officers did and agreed with all of their actions. I personally think your intent was to show what could be the other side of the picture, based on law and criminal procedure. I also believe some of the outcry was a knee-jerk reaction driven by this frustration we are all beginning to feel.
Those that expressed a dislike for law enforcement officers, I hope it was based on personal experience not something you read, as blog reports usually aren’t updated when officers are found to be innocent. Several posts on this thread read like “I have a relative, neighbor, friend, etc. who’s a cop and he’s a nice guy, but personally I don’t like cops”. My question then is why.
I know I speak from a biased perspective, but having lived on this earth 63 years, 34+ of those with one department, been retired for 8yrs., I can truthfully say I met very few who fit the description of the officers I have heard described during this debate. Those I did were normally removed by the department based on information provided by fellow officers. No one dislikes a rogue cop more than other cops, who have to live with the aftermath of their actions.
I still believe that if, as some predict, the “shtf” or “teotwawki” comes about, that “thin blue line” will still be your protector and Mas, I want you watching my back.
Mr. Ayoob,
You have made a case for listening to both sides and that would be the smart thing to do. However do police not have a duty to gain the trust, respect, and confidence of the communities in which they serve? To me this action while legal breaks the trust and confidence I have in thier ability to do thier job. I won’t be as likely volunteer information when I encounter them.
Further this leads toward an us versus them mentality. One side being the police, increasingly showing heavy handed tactics with good reason given increasing numbers of assult and killings of leo’s. The other civilian increasingly distrustful and alieninated by a government that steals data, violates the constitution without hesitation, and makes up rules to cover just about anything. This event however it began turned into a serious event that broke trust and damaged that’s departments ability to do its job and alieninated large sections of an otherwise supportive population. In Iraq, afganistan, and Vietnam it was called winning hearts and minds. Thier action didn’t help that effort.
In the end Mr. Ayoob however legal thier action was, was it worth the damage they caused to law enforcement everywhere?
John C.
John C., I think you make some good points.
When accusations go unanswered, they’re seen as admissions of guilt. Just human nature, I guess. In the cultures of medicine, law enforcement, and trial law alike, the rule has long been “we don’t try our cases in the press.” I wonder if some of the sentiments seen here will change after everything comes out in court. I just thought that both sides needed to be presented.
Dennis, I thank you for the thoughtful posts you’ve made here. You are correct that it’s time to move on. I try to keep this blog eclectic. The long period spent on the Zimmerman case was an anomaly, and a response to the fact that SO much BS had been dumped on the American public in a month of constantly-televised legal proceedings. I’ve said all I have to say about the case currently under discussion, though the door here will remain open as new information comes to light.
In response to Denis:
“Several posts on this thread read like “I have a relative, neighbor, friend, etc. who’s a cop and he’s a nice guy, but personally I don’t like cops”. My question then is why?”
Short answer, it’s complicated. Long answer, at some level law enforcement exists to protect society as a whole, not the individual. Individual police are good, honest, hard working public servants who I respect for doing a difficult and often thankless job. That’s not a rhetorical flourish—I genuinely respect every officer who goes out to make my life better through their efforts.
Police as a whole are interested in the good of the many vs. the good of the few. That has been born out in case law over and over again. I think anyone who really gives it some thought would agree that we can’t expect police to save us from all of life’s pitfalls. There are a finite amount of resources available to the roughly 800,000 peace officers in the United States and over 300,000,000 citizens to which those resources must be allocated. Triaging is a necessity. If you’re lucky, a LEO will be around to stop bad people from doing bad things. More often though, the police end up attempting to assign guilt after the fact.
Basically, unless I’ve called the police to report a crime there’s a good chance that they’re looking for someone who is guilty of something past or present. Based on that premise, I have to manage to the worst possible scenario and the lowest common denominator.
Look at this case. The subject didn’t have drugs in his butt. I think we can assume that he didn’t have anything incriminating in his vehicle since he hasn’t been charged with anything and he consented to have the truck searched in the first place. The guy, a known drug user, was seen leaving a suspected center for illegal activity. The police pulled him over on a traffic violation because they hoped to parlay that stop into a search of his vehicle and his person. Why did they do that? Because they thought there was a good chance he was guilty of something. They were suspicious. On the one hand, I want police to catch criminals. On the other I don’t want my but repeatedly violated because of someone’s hunch. There’s got to be a mid point where the police have the ability to “detect” but where I can assert my rights without increasing their desire to view me as a suspect.
In this case the subject should have declined the officer’s request to search his vehicle. They might have worked him on another technicality, but he would have closed one line of inquiry. Take note, the suspect’s optimal course of action as an innocent citizen was to stonewall the police as much as possible. He declined a more thorough personal search; they had already done a preemptive search for weapons when they asked to search his vehicle and his person in more detail. So if you want to know why people like friends who are cops but don’t profess to like police very much, part of the answer is likely that our best course of action when contacted by the thin blue line is to say as little, do as little, and interact as little as possible. Where contact is required we should have an attorney present. Like as not the officer doesn’t view us as a suspect…but we can’t take that risk. The fact that I can’t take a LEO’s statements at face value, the fact that even the most flimsy of suspicions can translate into a protracted and expensive legal battle, those facts do not inspire trust, good will, faith…etc.
Second, there is a difference between legally defensible action and that which is just. I refer you to comment 66 by Zoe Brain. The law offers police qualified but largely impermeable protection while they are carrying out their duties. I’m sure that from the other side there are a thousand ways an officer can screw up. From the other side citizens see a faceless wall of blue that can find precedent to justify almost anything given enough time. Could there be a perfectly justifiable reason that the “suspect” got 2 x-rays, three enemas, 2 anal probes, and an intrusive medical procedure requiring general anesthesia against his wishes after stating that he was innocent of any wrongdoing? Yes, absolutely. Considering that no drugs were found and that his worst offense can best be described as agreeing to have his truck searched was the extent of the search just? I think not. The thought of going through all of that and then being expected to pay for the privilege, which is what apparently happened, speaks to the inequity in our legal system.
Mas is absolutely right to say that both sides of this case need to be heard. I expect police to take the side of the officers in the same way I expect freedom minded citizens to take the part of the suspect. In the absence of complete disclosure, most people will default to supporting their peer group—that’s how people are. If something persuasive comes out at trial I expect default settings will be adjusted accordingly. Mas is also 100% right in saying that the fact that no drugs were found has nothing to do with the officers’ guilt or innocence. Granted, it makes it a hell of a lot easier to dump on the officers knowing the suspect didn’t have anything in is colon, but nobody knew for sure at the time. It is however fair to point out that this situation speaks to a growing trend in which suspects are increasingly considered guilty until proven innocent—often at ruinous expense. There are lots of reasons for this trend, new tactics developed to deal with the threat of terrorism, the prevalence of data base and predictive modeling, the ever increasing demands on an increasingly over-worked community of law enforcement just to name a few.
The upshot is a growing perception in the pro-2a community that law enforcement is unwilling and incapable of wielding its expanded authority responsibly. Law enforcement is too often the tool of oppressive government is the growing consensus. As more and more states begin targeting gun owners legally and politically, law enforcement continues to feed into the us-vs.-them mentality. So yes, many readers of pro2a forums are going to be for police in general but less than thrilled about law enforcement as it pertains to them in their daily lives.
It is a credit to Mas that he encourages these discussions here BTW.
Just because the actions of the officers and medical personnel are generally considered legally acceptable at what point can they be considered morally justifiable?
Mas,
I’ve tried not to weigh in here too heavily because I have my own view of cops. THE COPS IN MY AREA are not what you would call first rate. I live in rural northeast Oklahoma, where alterior motives are good reasons to become cops. First of all, it doesn’t pay enough, so they easily find themselves tempted to commit crimes, usually in the area of stealing from the evidence room. Secondly, I see kids become of age who were picked on, or bullied in their youth and seem to need some sort of payback with their new-found “authority.”
It is hard not to make the assumption that these kinds of corrupt/bully cops are everywhere. I have to remind myself that while these cops ARE EVERYWHERE, every cop is not this way.
MD Matt,
Well said, well thought out, and most of all done respectfully. I appreciate and respect your comments.
MD Matt,
Mostly agree, but –
At least one source says that the suspect did NOT consent to the search of his vehicle. Presumably this will be part of the lawsuit.
“Could there be a perfectly justifiable reason that the “suspect” got 2 x-rays, three enemas, 2 anal probes, and an intrusive medical procedure requiring general anesthesia against his wishes after stating that he was innocent of any wrongdoing? Yes, absolutely.”
I’ll dispute that altogether. It is clear that such treatment is above and beyond any reasonable measures. If they keep testing and testing and testing after everything turns up negative in the first few tests one is entitled to conclude that the testing is not being done in good faith. I expect that the inability to justify the extremes resorted to will be a key point in the lawsuit – assuming that TPTB allow it to proceed.
“The upshot is a growing perception in the pro-2a community that law enforcement is unwilling and incapable of wielding its expanded authority responsibly.”
And some of us do not believe that this ‘expanded’ authority should be granted at all.
OldCrusader,
Re-“I’ll dispute that altogether. It is clear that such treatment is above and beyond any reasonable measures. If they keep testing and testing and testing after everything turns up negative in the first few tests one is entitled to conclude that the testing is not being done in good faith. I expect that the inability to justify the extremes resorted to will be a key point in the lawsuit – assuming that TPTB allow it to proceed.”
I think we’re saying the same thing here. I don’t think what was done to the man was just or right. I do think that there’s enough flexibility in the legal system that the police can construct a legal justification for their actions—which is a problem in-and-of-itself imho.
Regardless, I’m interested to see how this goes at trial. As several people have said, the state usually declines to try these cases in the media…so there may be evidence from both sides which will change the landscape. I can’t think of anything that’s going to change my opinion, but I’m willing to be persuaded, open mind and all that.
As to your other point, preaching to the choir sir. The police militarization issue has been soundly thrashed out at this blog to the point where I don’t feel the need to throw it in all of my comments.
Keep your powder dry.
I think you’re missing the point. Cavity searches to find drugs are wrong. The search and (assuming they find something) subsequent imprisonment are far worse than the “crime.”
If you are right, and the cops were legally justified in taking said actions, then the law is meaningless because it achieves only wickedness and no good outcomes.
Eric,
This is going to be my last post on this issue since I don’t wish to get into arguments over semantics.
“I think you’re missing the point. Cavity searches to find drugs are wrong. The search and (assuming they find something) subsequent imprisonment are far worse than the “crime.”
I think you’re putting words in my mouth.
At a certain point, we as a society have to decide where the line between civil liberty and the need to protect that society ends. I think the response might be different if the search had turned up a canister of Nerve agent. Cavity searches are degrading and offensive. There’s really no way to get around that. We give law enforcement the ability to do extraordinary things because those powers are supposed to be strictly bound to the best interest of society and the individual. That’s why a search warrant was required in this case. See comment 66 in this thread and the oft-linked entry by Popehat. I in no way have ever said that I thought what was done to this man was morally or ethically justified. In fact I’ve said the exact opposite multiple times. Don’t construe my assertion that the law might shield the officers as support for said law or the actions of the officers and medical staff in question.
You’re entitled to your opinion re-cavity searches. My issue is that I don’t feel the officers had anything approaching probable cause to justify the scope of the warrant or the extent of their investigation. The issue is the latitude police have in these cases, not the tool itself.
“If you are right, and the cops were legally justified in taking said actions, then the law is meaningless because it achieves only wickedness and no good outcomes.”
Just because a law can be exploited doesn’t make it meaningless. Just because it can be used for evil doesn’t mean that any good it accomplishes is worthless. I’ll happily agree that the law here needs to change, but the law isn’t the problem. The issue is that people decided that they had a right to detain this man, violate him, and then bill him for the privilege. I maintain that until we have all the facts we can’t say for certainty that there was no legal justification for what was done. The only data we have so far is public record and the material the plaintiff has released. Based on that data I can’t see how the police were entitled to do the things they did, but then I haven’t seen much of what the defense has to offer. Just like the police should have assumed this guy was innocent until “proven” guilty, I have to assume the same thing in their case regardless of my initial impression. That’s due process.
People administer laws. The police got approval to request the search warrant. A judge granted it. Doctors, at the urging of the police and with a measure of approval from the warrant performed the search. A lot of people had to get behind the chain of events that lead to this point. If, as we both believe, the police did wrong, then the answer is to:
1. Compensate the plaintiff.
2. Hold anyone who broke the law accountable.
3. Clarify the purpose, extent, and limitations of relevant statutes and procedures so that this can’t happen again.
Mas, may i suggest a topic for maybe one of your upcomming blogs?
There are more straw men propped up in this so-called debate than I care to count. There are a number of things law enforcement are allowed to do that as a human being they should at the very least question and not be so immediate to defend. This includes but is not limited to cavity searches. What this guy went through is wrong. If you can’t understand that it is wrong, if you think without your background and in this same situation you would approve of being treated this way that is the problem. How would you feel if one of your loved ones was put through this? How about fighting for moral change instead of defending things that are just flat out wrong?
The most appalling part of all this is that what the police and medical personnel did to this man, all in an attempt to prevent someone from getting high, may very well have been legal. The standards for probable cause have been watered down gradually over the last few decades, especially in drug cases and automobile cases. It is at the point where a court could very well uphold what was done in this case, because we have gradually sacrificed our 4th amendment rights out of fear and panic over drugs.
John B., you are new here. It will help if you read the related blogs and commentary, and then come back and post again.
Joe in SC, suggest away.
Thanks Mas, well i was thinking.. Since its getting cool out down this way, i had an plan to get my favorite squirrel gun ready! I was thinking back to your topic or deer guns.. and thought maybe squirrel guns could be in a future topic! For me i never need a season to pull out the old 22’s for a nice plinking match with friends! Good day and God bless!
Mas,
I’m with Nick42 and John Balog on this; it looks to me like you’ve solidly and immediately deferred to the Thin Blue Line.
It doesn’t sit well with me to see you repeatedly make statements to the effect of “we don’t know everything yet,” “all the facts still haven’t come out,” and “I wonder how many people will admit they were wrong if the evidence later shows the police to be fully justified,” and pretty much simultaneously see you go into full apologist mode for the police officers’ actions as if they were already justified, as if it’s your (seemingly) reflexive default.
…unless you’ve deliberately gone into Thin Blue Line-esque apologist mode as a means of trolling the “default anti-cop” types here, I don’t think this is a proper course of action.
Mas, not sure if my post made it? If not here it is again.. I wad saying that since the weather has cool’d off down here, it has me in the mood for some squirrel hunting. My suggestion was a topic on favorite bushy tail guns ! I never have to wait on the season to open, to enjoy plinking with friends use’n my favorite 22’s. Just had the idea from your topic on deer rifle’s, afew post back! Take care and God bless… Joe
Actually,Andy, I’m in full-on “Let’s wait to hear from them why they did it” mode.
From the article I’m not sure what type diagnostic x-ray procedure (modality) was performed on the patient against his will. However Stochastic effects from diagnostic x-rays are considered non-threshold so there is no “safe amount”. There is also the possibility of genetic damage that will be passed on to this persons children. To expose another human being to ionizing radiation against their will based on the “hunch” of another person is just wrong. If Law Enforcement personnel can do this to this American citizen they can do it to just about anyone.
And for all these years I thought it was space aliens who were into anal probing people…
Problem: the dog wasn’t recertified, making him a departmental pet until he is certified.
Problem: The dog had previously alerted on this guys car, and a search found nothing.
Problem: The officer who claimed the guy was known to hide drugs in his butt, was incorrect / mistaken. Problem: the anal cavity is only about 5 inches long; giving enimas, chest X-rays, and colonoscopies goes way beyond 5 inches.
problem: If someone of sound mind refuses medical treatment (“we did this to save his life”), the doctors cannot perform medical proceedures on that person.
Problem: If drugs are more readily absorbed by the lower G.I. tract; at the very least the guy should have been as high as a kite; at worst symptomatic of a severe drug overdose.
Biggest problem: “The War on Drugs” has pushed police officers into a role where they are seeking anal cavity searches, based on a hunch about a persons posture, and an alert by an uncertified dog!
“We the People” now have much to fear from an ordinary traffic stop…
“I do not think that word means what you think it means.” Mark, as explained earlier, sufficient probable cause for a magistrate to sign a warrant goes way beyond a “hunch.”
“sufficient probable cause for a magistrate to sign a warrant goes way beyond a “hunch.””
It *should”. It didn’t.
Frank, I think you missed the “you don’t have to be right, you have to be reasonable” part.
Has anyone here ever had a medical test come back inconclusive? I have, and maybe… just maybe. The test they did for drugs in X-Rays came back the same. Needing another test to clear up what may have looked like something inside the man! My last post i said i felt they took this to far, well i will amit.. maybe i was fast to look at this whole thing! And i also said a druggie will almost never amit to anything up the butt or down the throat.. and i will hold to that as a fact! But for now i feel we all need to sit back and wait for all the facts to come out! The other side!
For a lot of you out there it will take for your son, daughter, wife or self to have the unconstitutional jack-boot of tyranny shoved up your ass by several “lawfully authorized officers and medical personnel” before you understand how stupid these arguments about “reasonable suspicion” are.
The presumption being that if a piece of paper somewhere says that officer friendly can rape you repeatedly for having some plant matter concealed on your person then he’s within his rights to violate you to his heart’s content.
The founding fathers, of course, would brand you as the most detestably pitiable of all creatures. European serfs. But as long as you can carry your guns around you’re still a beacon of freedom, right? Free to be sodomized by the constabulary apparently, while in pursuit of enforcing unconstitutional laws…
To anyone who defends this sort of business on any grounds, I hope that what happened to that man happens to you. Dulce et decorum est.
The real problem is not the cops, it’s the policy
Maybe it’s time to consider if maybe we would all be better off if we just brought the drugs out into the open, regulate them, and put taxes on them.
Because it seems to me that the cops can’t enforce the current policy w/o being able to do the kind of onerous searches such has occured, and I think we can all agree that we have a problem with that, right?
They had no cause to search, and no, their stated reason was not sufficient.
Another low-information newcomer weighs in, above…:-)
To Wombat… 1 if my family member was ever to be treated luke this man was… hopefully it would be for a good reason! 2 I can only beluve that our founding fathers would be left, standing around scrathing their heads to figure out the drug war! 3 i belive the right to carry has no reflection on this topic. Only that atleast most could agree that a man legaly able to carry would maybe be of good judgement ,not have a history with bad behavoir! 4 Im purdy sure that this would never happen to me, but if it did… hopefully it would be fir a good reason.One im still waiting to hear about from the facts to why!
To exEMT… i dont agree with the regulation of drugs and taxing them. But you do have a point on policy matters. First to cintrol you must knock out the user “The bottom”! Then work your way up the ladder. But by the time you get to the top… Its 10 times as many bottoms started back from the one top man you got! As ling as its a user their will be a seller! The regulation would help the seller to stay free from the law.. But the buyer would still be a criminal in finding ways to pay for a habit!