We have all recoiled in shock and disgust at the stories coming out of New Mexico (though that state is hardly alone here) about the police doing invasive anal probes to find drugs on virtually no evidence. Radley Balko, who has done better reporting on police abuse and civil liberties than any other reporter in the country, explains how we got to this point:
The case that started us down the road to what happened in New Mexico is United States v. Montoya de Herandez. At issue were the Fourth Amendment rights of people that customs agents suspected to be “drug mules”– people paid to swallow heroin-filled balloons, fly into the U.S., pass the balloons and then hand off the heroin to a drug inside the country. The court ruled 7-2 that U.S. Customs officials did not violate a suspect’s Fourth Amendment rights when they detained her at the airport, locked her in a room, then held her incommunicado until “her peristaltic functions produced a monitored bowel movement.” And they could do all of this without a warrant. The suspected mule, Rosa Elvira Montoya de Hernandez, was held in a locked room for 24 hours until two U.S. Customs officials could watch her defecate. It turned out that de Hernandez was smuggling heroin. But studies and surveys at the time showed that 80-85 percent of women similarly detained or subjected to body cavity searches turned out to be innocent. By the end of the decade, a New York Times survey of suspected drug mules subjected to x-rays or forced defecation found that in Miami, agents searched 101 people, and found drugs on 67 of them. In New York, 187 searches yielded 90 arrests. Houston was particularly inept. Agents there went 4 for 60. Nationally, the figures were about 50-50. One innocent person subjected to this sort of violation for every drug mule was apparently good enough for the drug war…
The Hernandez case applied only to border agents (the Supreme Court has basically declared that the Fourth Amendment is suspended along the border — and any area within 100 miles of it). But it isn’t difficult to see how licensing forcible defecations around the border could start us down a path to the day when law enforcement officials believe they have the authority to administer forcible enemas and colonoscopies within it…
Over at the legal blog the Volokh Conspiracy, Fourth Amendment scholar Orin Kerr notes that it was likely the drug dog’s alert in New Mexico that provided the probable cause for everything that followed. This too comes from a series of flawed Supreme Court decisions that put far too much faith in the ability of K9 drug detection teams, which tend to have alarming rates of error. The problem isn’t that dogs don’t have the ability to detect illicit drugs, it’s that dogs have been bred to please their owners. This trait can often override their detection abilities, causing the dogs to merely affirm the suspicions of their handlers. Invasive searches based only on the hunch of law enforcement officials is exactly the sort of thing the Fourth Amendment is supposed to protect against.
But the drug dog cases are also an excellent illustration of a huge problem with how the Supreme Court considers Fourth Amendment cases, particularly with respect to the drug war. These cases are considered and decided only within the limited context of the specific case that’s brought before the justices. But they’re then broadly applied well outside the parameters of that context. It’s the difference between considering a legal question from an academic perspective, and considering it from a practical one. (It’s also why the court is in dire need of more justices with more criminal justice experience.) It seems unlikely that when deciding this particular line of cases — most of which involved relatively non-invasive searches of automobiles or pickets — the justices considered the possibility that their decisions might later be used to authorize forced anal penetration, enemas and colonoscopies based mostly on the alert of a drug dog. But that’s exactly what has happened. But like Hall, Kerr ultimately concludes that the searches in New Mexico were likely illegal.
This is where it all takes a surreal turn. David Eckert, Paul Young, you, I — and all other lay people — are expected to know every law on the books, at least to the extent that we can be held criminally and/or civilly liable for breaking them. But for police officers, judges and prosecutors — all of whom are paid to enforce and administer the law — there is no such expectation. Or at least, they aren’t held accountable when they don’t. In the Fifth Circuit case mentioned above, for example, even though the court found the search to be unreasonable, and therefore illegal, it still allowed the drug evidence found in the suspect’s rectum to be admitted at trial, thanks to a “Good Faith Exception” granted to police officers who violate the law, but can plausibly claim they simply weren’t aware that what they were doing was illegal. (It’s usually incumbent on the defendant to show the cops were acting in bad faith — a burden that is usually impossible to prove.)
And all of the law enforcement officials involved are pretty much legally untouchable:
Police officers are protected from lawsuits by the doctrine of qualified immunity. It isn’t enough to show that a law enforcement officer violated your rights. You must also show that the rights the officer violated were “well established” at the time he violated them. In other words, the violation needs to be pretty egregious before you can even get in front of a jury. Oddly, qualified immunity actually provides an incentive for police officials to avoid keeping officers informed on the most recent relevant court ruling in constitutional law.
John Wesley Hall says that in this case, the fact that both a judge and a prosecutor were also wrong on the law, and that forced anal probes, enemas and colonoscopies aren’t an issue that have yet been addressed by the U.S. Supreme Court, the cops in New Mexico will likely be protected from any liability. “Because the police were acting under a warrant signed by a judge, it seems unlikely that the plaintiffs will be able to get around qualified immunity,” Hall says. And what about the judge and the prosecutor? They’re protected by absolute immunity, which — just as it sounds — makes it nearly impossible to sue them for damages, even when they’re flat wrong on the laws they’re paid to know, and even when police officers then rely on a judge or prosecutor’s mistaken views on the law in the course of egregiously violating someone’s rights.
Professional sanction also seems unlikely. Deming, New Mexico Police Chief Brandon Gigante says his officers did everything “by the book,” so there certainly won’t be any discipline from the police department. (This may actually come back to bite Gigante — one of the few plausible ways Eckert and Young could win in court is through municipal liability. They would need to show that there’s a pattern or practice of such violations in Deming. Gigante admitting that illegal searches like these are consistent with his department’s official policy could help them establish that pattern.) And state bars and courts are notoriously inept at disciplining prosecutors even for egregious, intended misconduct. All of which means Deputy District Attorney Daniel Dougherty probably doesn’t need to worry about his law license for signing off on an anal probe warrant.
So there’s pretty much zero accountability for raping and torturing innocent people. And we call this a “justice” system.
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