There is a highly disturbing case out of New Mexico where David Eckert has filed a federal case against the Hidalgo County Sheriff’s Office, police officers with the City of Deming and medical professionals at the Gila Regional Medical Center. Eckert was stopped on a minor traffic violation and accused by an officer of holding his buttocks. What followed was a nightmare where officers and doctors subjected Eckert to outrageous abuse as they searched for drugs or contraband in his body.
On January 2, 2013, Eckert had finished shopping at Walmart when he did not stop at a stop sign after leaving the parking lot. I recently wrote about police have used such pretext stops for searches after the Supreme Court refused to consider the motivations of police in such encounters. In this case, Eckert was told to step out of his vehicle for the minor failure to stop. An officer said that he thought Eckert appeared to be clenching his buttocks. This was used as the basis for probable cause that he had drug in his anal cavity and he was taken to a hospital in Deming for an anal exam. The doctor however refused on ethical grounds.
That did not stop the police however. They went to Gila Regional Medical Center in Silver City where doctors appear to have few ethical qualms. They reportedly x-rayed him but found no evidence of drugs. Rather than admit mistake, the doctors were then told to go forward and they explored Exkert’s anus using their fingers. No drugs were found. However, rather than admit their error, they went forward with a second penetration of the anus. No drugs were found. Rather than admit error, they then ordered a third penetration with an enema. He was then forced to defecate in front of witnesses. No drugs were found. They then penetrated his anus with a second enema. He was again forced to defecate in front of witnesses and his stool again inspected. No drugs were found. He was then penetrated a fifth time with a third enema and he was again forced to defecate in front of witnesses. No drugs were found. No willing to admit mistake, he was then sedated and doctors performed a colonoscopy where a scope with a camera was inserted into his anus, rectum, colon, and large intestines. No drugs were found. So to wrap of the account below: we have five manual penetrations; three forced defecations before witnesses; and an intrusive surgery under sedation. All of this was done without consent and without any basis other than an officer saying he looked like he was clenching his buttocks.
The alleged abuse follows the concept of “path dependence” in economics where people will not consider alternatives due to the investments in an original course or concept. When no drugs were found, it seemed to commit the police and doctors to more examinations to justify their actions.
Deming Police Chief Brandon Gigante is qouted as saying “We follow the law in every aspect and we follow policies and protocols that we have in place.” Obviously, those policies and protocols need to be examined.
David Eckert is suing The City of Deming; Deming Police Officers Bobby Orosco, Robert Chavez and Officer Hernandez; Hidalgo County Hidalgo County Deputies David Arredondo, Robert Rodriguez and Patrick Green; Deputy District Attorney Daniel Dougherty;the Gila Regional Medical Center; and doctors Robert Wilcox, M.D and Okay Odocha, M.D.
What is most disturbing is that the police secured a warrant from a judge with the presumed help of the district attorney. So if a person stopped on the most minor traffic stop appears to be clenching, that is considered sufficient for a warrant ordering an anal cavity search. The fact that such warrants are issued is a chilling glimpse into the increasing dominance of police stops and searches in our society — a trend fueled by decisions from the Supreme Court removing constitutional obstacles for police. In addition to barring review of the motivation of officers in pretextual stops, the Court has held that police can now take DNA samples from arrested individuals as a matter of course. It said also ruled that, if you remain silent, prosecutors can now use that silence against you to suggest guilt in a trial. These are only recent decisions that join a massive shift toward police powers in the United States. Citizens are finding themselves subject to the whim of officers in whether they will be allowed to leave or whether they will be searched. Police also now claim the right to handcuff citizens and transport to different locations without it being treated as placing someone into custody.
Just this week, the Supreme Court ruled that police can kick in a gate to pursue a man who ignored an order to stop. The court ruled unanimously to find qualified immunity that failure to stop is sufficient to allow warrantless entries on to property — reversing the Ninth Circuit. The police cited that fact that he was suspected of committing a misdemeanor — failure to obey an officer. In the case of Stanton v. Sims, Officer Mike Stanton was investigating an “unknown disturbance” in La Mesa when Nicholas Patrick entered a yard. Stanton kicked open the gate and hit homeowner, Drendolyn Sims, who struck her forehead on the steps. Sims sued the officer.
The Court noted that the issue is whether it was clear that the entry was unconstitutional, which the Ninth Circuit found in determining the decision was “incompetent”:
There is no suggestion in this case that Officer Stanton knowingly violated the Constitution; the question is whether, in light of precedent existing at the time, he was“plainly incompetent” in entering Sims’ yard to pursue the fleeing Patrick. Id., at ___ (slip op., at 12). The Ninth Circuit concluded that he was. It did so despite the fact that federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect.
The Court however declined to answer the question and create a clear line. Instead, it simply found that the confusion, which will continue after this decision, was sufficient to preserve immunity:
We do not express any view on whether Officer Stanton’s entry into Sims’ yard in pursuit of Patrick was constitutional. But whether or not the constitutional rule applied by the court below was correct, it was not “beyonddebate.” al-Kidd, supra, at ___ (slip op., at 9). Stanton may have been mistaken in believing his actions were justified, but he was not “plainly incompetent.” Malley, 475 U. S., at 341.
Here is the per curiam decision.
We have not seen the response of the police to the lawsuit so this account is coming from the complaint without rebuttal or contradiction from the defendants.
Kudos: Michael Blott