As regular readers know, I frequently write about police misconduct, but not the common, daily reports that may represent nothing more than citizens misunderstanding routine police procedure, the law or the Constitution. sometimes these cases result in the deaths of innocents, like the Erik Scott case, or the Jose Guerena case. But I must admit, I’ve never seen anything quite like the case of David Eckert and the Deming, New Mexico Police. First, however, let’s consider a case that will surely be considered in the Eckert case: Rochin v. California. A police website, Officer.com, has the background:
On July 1, 1949 three Los Angeles sheriff’s deputies received information that Rochin was selling narcotics from his mother-in-law’s home. The officers went to the home and found an entry point open, so they entered the home. They went to Rochin’s room and forced entry. Once inside they saw Rochin sitting on the bed beside his wife who was lying down. There were two capsules on a night stand. The officers asked who owned them. Rochin grabbed the pills and swallowed them.
All three officers tried to stop Rochin from swallowing the pills without success. Rochin was handcuffed and taken to the area hospital. The officers told a doctor there to give Rochin an Emetic drug to induce vomiting. The doctor did so by forcing the tube into Rochin’s stomach against his consent. Rochin vomited and the pills were retrieved. Examination of the pills revealed they contained morphine.
The case wound its way to the U.S. Supreme Court, where it was finally overturned. Keep in mind that this was a misdemeanor case with a relatively light, misdemeanor sentence. The Supreme Court grants cert for only a tiny fraction of the cases submitted each year, so the Court obviously believed this misdemeanor case represented issues of substantial constitutional importance. The decision said, in part:
This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents — this course of proceeding by agents… of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.
“Conduct that shocks the conscience.” Keep that phrase in mind as you read. From local media source, KOB.com:
A review of medical records, police reports and a federal lawsuit show deputies with the Hidalgo County Sheriff’s Office, police officers with the City of Deming and medical professionals at the Gila Regional Medical Center made some questionable decisions.
I hereby nominate the author of this article for the understatement of the millennium award.
The incident began January 2, 2013 after David Eckert finished shopping at the Wal-Mart in Deming. According to a federal lawsuit, Eckert didn’t make a complete stop at a stop sign coming out of the parking lot and was immediately stopped by law enforcement.
Eckert’s attorney, Shannon Kennedy, said in an interview with KOB that after law enforcement asked him to step out of the vehicle, he appeared to be clenching his buttocks. Law enforcement thought that was probable cause to suspect that Eckert was hiding narcotics in his anal cavity. While officers detained Eckert, they secured a search warrant from a judge that allowed for an anal cavity search.
The lawsuit claims that Deming Police tried taking Eckert to an emergency room in Deming, but a doctor there refused to perform the anal cavity search citing it was ‘unethical.
This doctor was the only professional, rational human being associated with this case. Read on, but be sure you have a strong stomach and have taken your blood pressure meds.
But physicians at the Gila Regional Medical Center in Silver City agreed to perform the procedure and a few hours later, Eckert was admitted.
…While there, Eckert was subjected to repeated and humiliating forced medical procedures. A review of Eckert’s medical records, which he released to KOB, and details in the lawsuit show the following happened:
1. Eckert’s abdominal area was x-rayed; no narcotics were found.
2. Doctors then performed an exam of Eckert’s anus with their fingers; no narcotics were found.
3. Doctors performed a second exam of Eckert’s anus with their fingers; no narcotics were found.
4. Doctors penetrated Eckert’s anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
5. Doctors penetrated Eckert’s anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
6. Doctors penetrated Eckert’s anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
7. Doctors then x-rayed Eckert again; no narcotics were found.
8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert’s anus, rectum, colon, and large intestines. No narcotics were found.
Throughout this ordeal, Eckert protested and never gave doctors at the Gila Regional Medical Center consent to perform any of these medical procedures.
One might think, gentle readers, the police and medical personnel involved could not possibly be more wrong, but consider this:
There are major concerns about the way the search warrant was carried out. Kennedy [Eckert’s attorney] argues that the search warrant was overly broad and lacked probable cause. But beyond that, the warrant was only valid in Luna County, where Deming is located. The Gila Regional Medical Center is in Grant County. That means all of the medical procedures were performed illegally and the doctors who performed the procedures did so with no legal basis and no consent from the patient.
In addition, even if the search warrant was executed in the correct New Mexico county, the warrant expired at 10 p.m. Medical records show the prepping for the colonoscopy started at 1 a.m. the following day, three hours after the warrant expired.
It will come as no surprise, I suspect, that the attorneys for the officers and medical personal being sued have no comment. They are:
David Eckert is suing The City of Deming and Deming Police Officers Bobby Orosco, Robert Chavez and Officer Hernandez.
Eckert is also suing Hidalgo County Hidalgo County Deputies David Arredondo, Robert Rodriguez and Patrick Green.
Eckert is also suing Deputy District Attorney Daniel Dougherty and the Gila Regional Medical Center including Robert Wilcox, M.D and Okay Odocha, M.D.
The police chief involved has said that his officers followed proper procedure. If so, the procedures of that police agency resemble those of totalitarian torture chambers, if not in ultimate severity, than certainly in spirit.
The Affidavit, Warrant, and the Judge: I have not been able to find a downloadable copy of the affidavit for the search warrant, but there are only two possibilities: the officers lied in spectacular fashion or the judge was amazingly derelict in his duty. Actually, both could be true.
No warrant should ever be authorized absent convincing evidence that a specific crime has been committed and a specific person has committed it. These are the plain requirements of the Fourth Amendment.
That evidence must consist of the observations of a reasonable police officer to that effect. In this case it appears that the only “evidence” available was that Eckert was clenching his buttocks, and I’m sure the officers wrote that he appeared nervous as well. And from this they concluded he must be hiding narcotics in his anal cavity. There were, apparently, no actual indicators of drug use, the presence of drugs, or other criminal involvement. Clenching one’s buttocks could also be a sign of hiding a sex toy, but there was apparently no more evidence of that than there was of drugs.
No rational, professional police officer could possibly leap from their observations to probable cause to believe any crime was being committed, and certainly not that Eckert was secreting narcotics in his anus. Any competent, professional police agency should be seriously questioning the fitness of these officers to serve as police officers based on this alone.
A search warrant is nothing more than the legal document authorizing a search and specifying its limits. It is the affidavit, sworn under oath by an officer, that provides the probable cause for the warrant. Unless the officers grotesquely embellished the affidavit, it is virtually impossible to understand how any competent judge could have authorized a warrant in these circumstances. Given the information currently available to the public, there is simply no probable cause; none.
If attorney Kennedy is providing accurate information–and that seems likely–there seems no question that any search and/or procedures performed outside the boundaries of the warrant–and that would be every one of them–were illegal. Practically, when an officer exceeds the limitations of a warrant, anything they find generally may not be used against them in court. In this case, that would essentially require overturning the conviction. However, because we’re also dealing with a civil suit, the officer’s actions in knowingly exceeding their legal boundaries would arguably demonstrate a stunning level of bad faith and contribute to a considerable settlement or jury award for damages.
Medical Complicity: the doctor that thought all of this unethical and refused to be involved should be praised to the heavens. I hope the hospital that employs him is thankful for his sound judgment and humanity. It is ironic that it was his professionalism that sent the officers shopping for doctors willing to violate medical ethics and the law, and thus they ended up at the Gila Regional Medical Center (GRMC), well outside the boundaries of the warrant.
Let us assume, for the sake of argument, that the officers presented themselves in such a way that the GRMC doctors believed that their actions were justified under the law, or they assumed that the officers would not violate the law or demand that they violate medical ethics. In any case, the question is–and will be at trial–even if the doctors are given the benefit of the doubt for acting in good faith, at what point should they have known they should stop and quit probing Eckert’s anus? Remember that Eckert was continually complaining, making it plain he was not a willing participant in his continuing anal rape.
First, they did the least intrusive thing available to them: an x-ray. They found nothing. Arguably, they should have then called a halt, but let’s give them credit for being thorough.
Then they probed him with their fingers, but found nothing. At this point, one would hope a rational doctor would be able to authoritatively say there were no foreign objects present. But these doctors did it again, with the same results. Let’s really stretch credulity and give them the benefit of the doubt: they really wanted to be thorough, so they forcibly gave him an enema and emptied his bowels, making him defecate while they and the police were watching. They pawed through his feces as he was forced to watch. Again, nothing was found.
At that point, what possible medical purpose could be served by proceeding? What evidence did the police or the doctors have that anything more was justifiable? Quite simply, there could have been none, yet they once more forced Eckert to have an enema, they again forced him to defecate in front of them, they again pawed through his feces, and again, found nothing.
Apparently encouraged by their lack of results, they did a third enema, and a third time, forced Eckert to defecate in their presence, again searched his feces and again, found nothing. By this point, everyone involved descended into insanity, likely including Eckert, who had already endured being anally raped five times. But that still wasn’t enough.
Let’s assume the doctors were hoping to completely empty Eckert’s bowels in the hope that an x-ray would be more revealing. And lo and behold, they did another x-ray, finding–nothing.
At this point, I cannot imagine what was going through their minds. I suppose we–and Eckert–can only be thankful that the doctors didn’t simply cut Eckert open with a dull, rusty knife, and spread his bowels and intestines on the floor for a more thorough search. Finally, against his will, he was anesthetized and subjected to a colonoscopy, which found–you guessed it–nothing.
Was there no point at which the doctors told the police that further procedures would yield nothing?
The Police: From the beginning of this debacle, the officers conducted themselves abominably. If the information available to the public is accurate, they are guilty of the most egregious abuse of authority–other than officers murdering innocent citizens in cold blood–of which I’ve ever heard. Remember that this never-ending official rape took place over some 12 hours. There were many opportunities for a rational police officer to step back and say, “maybe we ought to slow down a bit. We haven’t found anything. Maybe we were wrong.”
It was the absolute obligation of the officers to follow the law and not to exceed the limitations of the warrant. Doctor’s can’t be expected to know these issues, and they virtually always rely on the police to inform them and to keep them from running afoul of the law.
Testimony in this case will be interesting, to say the least.
Another issue of some importance is what appears to be a complete lack of competent supervision of these officers. In every police agency, each 8-hour shift has at least a Sergeant as supervisor. Larger agencies have multiple Sergeants with a Lieutenant or higher-ranking officer in overall charge. In every police agency in which I worked or knew of, the actions of these officers would have required, at the least, the active knowledge and at least tacit permission of their supervisors, particularly because they had to transport a prisoner out of their jurisdiction. And because of the time frame of this rolling rape, there must have been at least two distinct sets of supervisors, on two separate shifts, involved. The supervisors of the new shift would surely–if minimally competent–have wanted to fully inform themselves about what was happening.
A body cavity search of a suspect that took this long, that extended over two shifts, would have caused any competent supervisor to come, in person, to the medical facility, particularly one that was out of the jurisdiction of the arresting agency. If that didn’t happen, the supervisors involved were horribly negligent. If they did come to the GRMC, but did nothing to stop this abomination, they are incredibly incompetent.
The Aftermath: While the sources I’ve found have not provided specific information on what happened after the colonoscopy, it takes little imagination to pose a plausible scenario. The only authority the officers had to hold Eckert was the alleged stop sign violation. Such offenses, 99.5% of the time, are handled by a simple citation and take no more than 15 minutes of a citizen’s time. The available evidence indicates that the police did not even charge Eckert for the alleged stop sign violation.
When the officers and doctors finally realized they had been drilling a dry hole–perhaps they simply couldn’t find a dull, rusty knife–any justification to further detain Eckert vanished. Of course, he was asleep, and the anesthetic would not wear off for many hours. We don’t know if they simply abandoned him at the GRMC, returned him to Deming and incarcerated him, or what they did, but at some point, after more than 12 hours, he was able to escape their custody.
The officers will, no doubt, argue that they had probable cause to detain, search and hold Eckert because of their drug suspicions, but considering the length, intrusiveness, and brutal and unnecessarily humiliating nature of their multiple “searches,” that isn’t going to hold water. If these defendant’s attorneys are smart rather than arrogant, they won’t want this case anywhere near a jury.
A former supervisor of mine used to say that no officer should ever do anything he’d be ashamed to tell his mother. I eventually modified that to suggest that no officer should ever do anything that he would not want done to his wife, daughter or mother. Apparently these officers were hatched in test tubes.
It is possible that there are facts of which I am not aware, facts that would, to at least some degree, mitigate the officer’s actions. However, considering the sheer number of intrusions, it’s virtually impossible to imagine what could justify what happened to Eckert.
Every facet of the criminal justice system utterly failed. The failure was complete at the level of the officers, the supervisors, and the judge. With the exception of the first doctor, every other ethical, professional facet of the medical system failed. In fact, Eckert was actually billed for his own rape. The invaluable Mark Steyn explains:
Deming police chief Brandon Gigante says his officers did everything ‘by the book.’ That’s the problem, in New Mexico and beyond: ‘the book.’
Getting into the spirit of things, Gila Regional Medical Center subsequently sent Mr. Eckert a bill for $6,000. It appears he had one of what the president calls those ‘bad apple’ plans that doesn’t cover anal rape. Doubtless, under the new regime, Obamacare navigators will be happy to take a trip up your northwest passage free of charge. That’s what it is, by the way: anal rape. The euphemisms with which the state dignifies the process — “cavity search” — are distinctions that exist only in the mind of the perpetrator, not the fellow on the receiving end.
Attorney Kennedy has suggested that this incident may have occurred because the police officers involved are Hispanic and Eckert is white, a “New Mexico thing.” I don’t know enough about that sort of “New Mexico thing” to comment intelligently, but perhaps some informed reader can help.
What I do know is that in the Rochin case, the intrusion occurred once, was far more brief, was not inherently humiliating, and the officers actually had cause to believe Rochin was holding illegal drugs in his stomach. The emetic given him proved it. In this case, there was apparently no probable cause whatever.
Given these facts, I suspect any court would find this to be “conduct that shocks the conscience.” I know my wife and mother would.
I’m tempted to advocate for an Old Testament sort of punishment–in excess of punishing monetary damages, of course. The defendants–if found liable; everyone deserves the due process of law Eckert was apparently denied–ought to have the opportunity to be treated precisely as they treated Eckert, and with a large, hostile, and leering audience.