Archive for "March, 2013"

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A Look At The Ethical And Legal Issues

canada goose outlet in uk Last week, news wires, blogs and pundits lit up with the horrifying story of David Eckert, a New Mexico man who last January was subjected to a series of invasive and degrading drug search procedures after a traffic stop. The Canada Goose Coats On Sale procedures, which included x rays, digital anal penetration, enemas and a colonoscopy, were all performed without Eckert’s consent. canada goose outlet in uk

canada goose outlet buffalo Eckert was pulled over by Deming, New Mexico Officer Bobby Orosco for making buy canada goose jacket cheap a rolling stop at a stop sign as he was leaving a Walmart parking lot. According to a subsequent search warrant, Orosco thought Eckert appeared nervous. A drug dog was called in, which alerted the officer to Eckert’s seat. The officer then claims he received a tip from another, unnamed officer that Eckert had previously hidden drugs in his anus. (Eckert apparently has a prior record.) Based on all of this, the police officers were able to get both Deputy District Attorney Daniel Dougherty and a local judge to sign off on all the humiliation that followed. (According to the original report, the hospital then sent him a bill for the “services,” and has since threatened to send a collection agency after him). canada goose outlet buffalo

canada goose factory outlet toronto location Days later, a second resident of New Mexico came forward with similar allegations. Timothy Young says that after a traffic stop in October 2012, he www.picframer.ca too was subjected to x rays uk canada goose and a digital anal exam without his consent. New Mexico news station KBO TV was first to report both incidents, which were performed by physicians at the Gila Regional Medical Center in Silver City, New Mexico. In both cases, doctors and police failed to find any illegal drugs. canada goose factory outlet toronto location

canada goose outlet belgium A third alleged victim has since come forward, although this woman says her anal and vaginal searches, x rays and CAT Canada Goose Jackets scans came courtesy of federal border patrol agents, and without a warrant. canada goose outlet belgium

canada goose victoria parka outlet These incidents raise troubling questions about how the criminal justice system and medical establishment could allow for such extreme and invasive measures based on such little suspicion for nonviolent drug offenses. Oddly, according to constitutional scholars and medical ethicists I’ve consulted, the indignities imposed upon Eckert and Young were canada goose factory sale both illegal and unethical. And yet it also may be that (a) none of the law enforcement officials or medical personnel responsible for the violations are likely to be held accountable Canada Goose sale in any way, and (b) they could probably do it all again tomorrow, canada goose clearance sale and still wouldn’t likely be held accountable. canada goose victoria parka outlet

canada goose outlet uk sale Any discussion of the legal issues involved in these cases needs to begin with the general evisceration of the Bill of Rights wrought by the drug war. There’s a reason why some constitutional law scholars refer a “drug war exception” to the Fourth Amendment. Supreme Court has generally taken the approach that drugs are such an existential threat to American society that some basic and inherent rights need to be suspended in order to facilitate their eradication. canada goose outlet uk sale

canada goose outlet in new york The case that started us down the road to what happened in New Mexico is United States v. Montoya de Herandez. Customs Canada Goose Outlet 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. 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. canada goose outlet in new york

canada goose outlet nyc Associate Justice William Brennan, by then winding down his career on the court, wrote a blistering dissent. “Indefinite involuntary incommunicado detentions ‘for investigation’ are the hallmark of a police state, not a free society,” Brennan wrote. Supreme Court Justice Felix Frankfurter. canada goose outlet nyc

canada goose parka outlet [I]t is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly cheap Canada Goose at first, then stealthily, and brazenly in the end. canada goose parka outlet

canada goose outlet las vegas It seems clear that we’ve entered the era of brazen. 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). canada goose outlet las vegas

canada goose outlet houston The law here seems reasonably clear: What happened to Eckert and Young is illegal. Court of Appeals for the Sixth Circuit just last August which found that “[m]edically paralyzing a suspect… to remove crack cocaine hidden in his rectum shocked the conscience of the court and was unreasonable under the Fourth Amendment.” canada goose outlet houston

canada goose outlet miami Unlike the New Mexico incidents, that case involved a procedure that had been performed without a warrant. Court of Appeals for the 5th Circuit found that even with a warrant, a “proctoscopic examination under sedation” to search for drugs is unreasonable under the Fourth Amendment. canada goose outlet miami

canada goose outlet mall 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 canada goose uk shop 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. canada goose outlet mall

canada goose outlet store new york 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 canada goose uk black friday 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. But that’s exactly what has happened. But like Hall, canada goose clearance Kerr ultimately concludes that the searches in New Mexico were likely illegal. canada goose outlet store new york

canada goose outlet england 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 canada goose black friday sale 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 canada goose coats 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.) canada goose outlet england

canada goose outlet london uk In cases where police do find incriminating evidence during an canada goose illegal search, canada goose store barring that evidence from being used at trial (the Exclusionary Rule) is supposed to serve as a deterrent to encourage police to play by the rules. It’s often effective, but obviously it can’t be very effective when the courts find reasons to avoid applying it. But in the New Mexico cases, the police didn’t find any drugs, so the Exclusionary Rule doesn’t apply. The best hope for Eckert and Young is a lawsuit. And here too, their hopes are slim. canada goose outlet london uk

buy canada goose uk Police officers are protected from lawsuits by the doctrine of qualified immunity. Cheap canada goose 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. Supreme Court, the cops in New Mexico will likely be protected from any liability. canadian goose jacket “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? cheap canada goose uk They’re protected by absolute immunity, which just as it sounds makes uk canada goose outlet 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 Canada Goose online of egregiously violating someone’s rights. buy canada goose uk

canada goose outlet price 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. canada goose outlet price

canada goose womens outlet According to Eckert’s lawsuit, the first physician the police asked to perform the procedures declined on ethical grounds before the officers took Eckert to Gila Regional Medical Center. So who was right? canada goose womens outlet

canada goose uk site Neither the American Medical Association, nor the New Mexico Board of Medical Examiners responded to my request to comment on these issues. (Actually, the NMBME responded to say they won’t comment on possible complaints.) But I did speak with two medical ethics experts: Nathan Allen, an assistant professor of medicine and medical ethics with Baylor College of Medicine’s Center for Medical Ethics, and Scott Allen, a Clinical Professor of Medicine, canada goose uk site

canada goose outlet edmonton Associate Dean of Academic Affairs at the University of California Riverside School of Medicine, and an adviser to the advocacy group Physicians for Human Rights. Both agreed that without consent from the patient, it would be unethical for a medical professional to perform the kinds of procedures that were done on Eckert and Young. canada goose outlet edmonton

canada goose outlet us “I would say that the ethical lines here involve an adult patient canada goose uk outlet who has the official capacity to make decisions for himself, and has the right to not be touched and to not have medical procedures performed that they don’t want,” Nathan Allen says. “One of the first dividing lines to consider is, (a) is it forensic, or (b) is it medical? If it’s forensic, the people who are in charge of taking care of patients medically don’t touch it. It’s a violation of trust. You have to consider how and why an ethic like that has evolved. It’s from experience, and the abuses that occurred when doctors and nurses participated in gathering forensic evidence. I’ve overseen medical care in a prison, and I wouldn’t even let my staff even swab a cheek for DNA.” canada goose outlet us

canada goose outlet factory But what if a doctor has no buy canada goose jacket choice? What if Canada Goose Parka a court specifically orders a doctor to perform a procedure, or police threaten medical personnel with arrest? It isn’t unheard of. The charge was later dropped, but she’s now suing for the arrest, lost wages and punitive damages. Both doctors consulted for this post say a doctor who cooperates with a police request to draw blood over a suspect’s objections is less troubling than the more invasive procedures that occurred in New Mexico, but both Canada Goose Online also say that medical personnel should always retain the right to decline assistance. canada goose outlet factory

canada goose parka outlet uk “I’d rather a procedure like that which doesn’t require a lot of medical expertise be performed by legal technicians,” Nathan Allen says. “I can respect a medical professional’s decision to cooperate. But it’s critical that they have the freedom to refuse to allow their professional skill set be used to serve the interests of the state.” Allen compares the situation to the recent revelations that the CIA ordered doctors to force feed Guantanamo prisoners protesting their incarceration with hunger strikes. canada goose parka outlet uk

canada goose outlet in canada Scott Allen says that judges have on occasion issued orders for a specific doctor to perform a specific procedure, but adds, “There is almost always sufficient pushback from the medical community to persuade the legal system to back down. And that’s important. When judges issue orders like that, they need to be told that they’re effectively practicing medicine without a license.” canada goose outlet in canada

canada goose outlet black friday “Where it gets tricky is when you get an order that is medical in nature, such as when someone has swallowed balloons filled with cocaine or heroin. At that point, it could be dangerous for the patient,” he says. “But even here, as a medical professional, it’s my responsibility to explain the risks to the patient so that he can make an informed decision. But the decision should be a medical decision between doctor and patient, not a legal decision between the doctor and law enforcement. If the patient declines the procedure, I’m ethically obligated to respect his wishes.” canada goose outlet black friday

canada goose outlet online store review Nathan Allen sums up the discussion this way, “A physician’s primary canada goose coats on sale obligation is to provide care for the patient. Anything contrary to that, and that is against the patient’s wishes, would be unethical.” canada goose outlet online store review.

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