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publius
2013-Nov-07, 03:32 AM
This may be out of bounds here, I'm not sure, but this is something I think everyone needs to be aware of. This actually happened, and twice, in the same county, same state, and due to a unreliable sniffer dog. Just put in "forced colonoscopy" in Google and you'll find the stories.

The rough details are a man was stopped for a minor traffic violation, and at some point a contraband sniffing dog "alerted" and the cops became convinced the man was hiding contraband you-know-where. They then obtained a warrant to search you know where, and that became a 12-hour ordeal of forced inspection of that area, forced enemas and finally a forced colonoscopy with sedation.

Forget about whether the authorites had the power to go that far. I want to know what sort of doctor would agree to do this. A colonoscopy involves risks of serious complications, as well a sedation. If there is no therapuetic benefit, no vaild medical reason to perform such a procedure, then no doctor should do it. In fact, the first medical facility they went to turned them down on ethical grounds, but they found some place that would do it (which was apparently outside the warrant, both in time as well as place).

I looked up the AMA's code of medical ethics, and from reading the relevant section, it seems this would be a flat-out violation of that code. A court can do a lot of things, but it has no power to make a medical diagnosis or order some procedure. Only a doctor can do that and only if it has benefit to the patient. (Some type of forced treatment would be allowed, but this for treatment that is medically valid and warranted).

Basically, if the king orders a doctor to do something that is not medically warranted, then the doctor is honor bound to refuse.

There is no benefit to the patient here, and nothing but unnecessary risk (not to mention dignity, etc.) I do not see how anyone who calls himself a doctor would agree to do this.

ETA: Forgot to say: No contraband was found at all after all that, and the medical facility had the gall to send the guy a $6K+ bill for all the "treatment" they provided.

Solfe
2013-Nov-07, 03:53 AM
I've been wrong before, but I think the AMA provides guidance to doctors and authorities, but each state mints their own doctors, so you would need to read the state codes.

On the side of the doctor(s), I would say the benefit to the charge (I am going to call him a charge, he isn't a criminal or willing patient) is that the guy has drugs in a place where drugs shouldn't be. Stuff you can swallow will kill if it goes in the other end. There could be a critical need for action. (see last paragraph for the "but!")

On the other hand, there are cases where doctors are not helping the accused, but the police. Drug tests, alcohol tests, preventing a suicide, etc. None of those further the goal of the person in question, those tend help the state, the police or others. I would imagine that there are some doctors who would refuse all of these actions, but the ethics actually providing the "treatment" is much more clear. There is clearly not much pressure either way, because they could eliminate a suspect as much as provide evidence against him, so the doctor does actually choose.

Where the logic (and humanity) fails is the incredible variety of things they did to this guy. I am sort of amazed that a judge asked for the search, as I understand it, they can hold you longer than you can hold you, if you know what I mean. Having a doctor who goes that far is crazy, there are tons of things that would have been ethical, this wasn't it.

publius
2013-Nov-07, 04:08 AM
On the side of the doctor(s), I would say the benefit to the charge (I am going to call him a charge, he isn't a criminal or willing patient) is that the guy has drugs in a place where drugs shouldn't be. Stuff you can swallow will kill if it goes in the other end. There could be a critical need for action. (see last paragraph for the "but!")


Doctor: Sir, have inserted drugs into your you-know-what?
Suspect: No.
Doctor: I must inform that if you are lying and do have something like that in you, it could rupture and possibly kill you. I will ask you again, do you have any drugs or any foreign substance inserted in your you-know-what?
Suspect: No, I do not.
Doctor: OK, it's on you if you are lying. Officers, there is no valid reason to perform any invasive procedures on this person, and I therefore refuse and ask you to leave this facility. I will be reporting this up the chain of command as well as contacting local media to inform them of this.

publius
2013-Nov-07, 04:20 AM
Oh, and if I was really concerned the guy might be lying and was in danger, I would order the officers out of the room, inform the guy of doctor-patient confidentiality and give him the opportunity once again to 'fess up. If I were a doctor, I would not willing cooperate with the cops at all. I guess they could subpoena me and all that later, but I wouldn't willingly provide any evidence if it was to be found. But that's just me, and I'm sure there is a leeway in attitudes there. My job would be doctorin', not being an agent of the state.

Solfe
2013-Nov-07, 05:18 AM
I agree with you, but would allow that if the doctor was really concerned, all of this questioning could be prolonged as a means of testing. Why do all of those other things? No need to really drag things out, let him leave and if he comes back with a drug OD, call the police back.

If the man had fallen over because he ingested something, it isn't an immediate police matter any more, either. It could be a really long time before someone recovers from that sort of damage.

I don't even understand how all of this came about. Exactly how bored does one have to be to call judge over something that started with a traffic stop? I do see this is a lawsuit, so perhaps the story is embellished or made up, perhaps not by the victim, but by a reporter on slow news day. I doubt it due to the paper trail, but perhaps.

publius
2013-Nov-07, 05:32 AM
Solfe,

It appears to be a case of well, not showing the proper respect, and all that was done to teach him a lesson. That's the way I read it. Here's a .pdf of the lawsuit filed in federal court:

http://www.scribd.com/doc/181730326/Traffic-Complaint-pdf

It was a traffic stop that escalated. He apparently asked "Am I free to leave", which ticked the officer off. From some commentary I've read, some lawyers say the doctor(s) are the ones who apparently are in the most trouble. At least, the easiest to get in a lot of trouble for going along. I'd think this rises to a level to pierce personal immunity for the cops, but many of them don't. Note the part about being handcuffed, but told he was not under arrest.

I've actually refused searches myself a time or two in life after a traffic stop. I try to be as nice as possible, but I am not going to allow any voluntary searches. It's never escala ted to where I need to employ "Am I under arrest? If not I'm leaving", but I will go that far if necessary. It will make them mad when you don't cooperate, but I always do it with an aw-shucks, don't take this personally attitude. I have to swallow my pride, but it's worth it, even if I want to tell them where they can go. Apparently, this guy just ticked them off.

Noclevername
2013-Nov-07, 05:57 AM
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. -- C. S. Lewis


Truer words, publius. And very appropriate for this thread.

EDIT: Well except post #6 shows it wasn't for the greater good, it was petty revenge and abuse of authority. Should have read that first before replying, d'oh!

Solfe
2013-Nov-07, 05:58 AM
Well, respect is important, but man, this whole thing is a great way not to get it. This now makes some sort of sense.

When I was in high school, I had a friend who understood respect, but utterly failed to understand any aspect of the law. He would do drugs and drive around. He was on a first name basis with every level of law enforcement in the area, or so it seemed to me. He would get pulled over and greet the police officer by name.

It the strangest sort of polite, non-confrontational, down hill one could imagine:

Officer: Are you on drugs?
Friend: No.
Officer: Are you sure?
Friend: Yes.
Officer: Really?
Friend: Ok, you got me. I took the following items....
Officer: Do you have more in the car?
Friend: No.
Officer: Are you...
Friend: Ok, you got me. Here is all my stuff.
Officer: Ok. Is this all of it?
Friend: Yes... er no. I have more at home in my sock drawer. In the little blue box.

I am not sure what sort of lawyer he had, but obviously, he never used any legal advice he received, because this happened to him a lot. It was sad and comical at the same time because the guy was dangerous, but clearly didn't see it for himself. It also seemed to me that he was cut an incredible amount of slack and it didn't help him a bit. I saw him about 15 years after high school, and the only thing that changed about him was he rode the bus.

publius
2013-Nov-07, 06:10 AM
Good lord, man. Everyone should "know their rights". Cops use intimidation and all that to try to make one compliant. The best advice is first be polite, and do not be intimidated. The cop (or any LEO) has more experience than you and can easily trick you, unless you're practiced. Do not give them the opportunity. I hate that it's come to this, but it has and so be nice and refuse to answer any questions. Don't deny or engage in small talk. Simply say, "I will not anwer any questions without speaking to an attorney and I don't consent to any searches". If they try to keep you there, ask if you are being detained. They may try to get cute and refuse to answer that question. If they do, say that if you are not being detained, then you are going to leave. If they don't stop you, do it (and realize that if it comes to that, any little thing you do that might give them an opening to arrest you, they will).

I've heard of some of them starting to do searches on the theory that if you objected, you would say so and so silence is consent. I don't know if that would hold up in court, but they will try a lot of tricks.

It's hard for many people to muster the courage to do that against a cop, but that's the only way to roll nowadays. Lawyer up.

I think if this poor guy would have done that, explicitly invoking his 5th Amendment right and demanding to speak to an attorney, that might have stopped it.

Solfe
2013-Nov-07, 06:22 AM
I saw this a couple of times, once while I was in the backseat of his car and I can't not describe the level of non-confrontational. These officers could have been reading ingredient off a cereal box. He was 25 when I met him. My guess would be this happened over well over a dozen times. The officers did the seemed to be going on the minimum hostility setting.

publius
2013-Nov-07, 06:37 AM
Another interesting rub according to that document. By doing this against the man's will at the behest of the state, the doctors (and all involved) became agents of the state themselves and are legally under the same "color of authority" abuse under federal law. And since they were the ones who actually did the deeds, they may indeed be the most liable. I'm seeing now how the doctors could indeed easily be in the most trouble.

You remember all the movies and TV shows where doctors were fiercely independent -- Dammint Jim, I'm a doctor, not a cop -- and wouldn't take any flack at all about doing their job? Their superior officer would order them to do something, and they would angrily refuse, citing the rules that gave them ultimate authority on medical decisions. Were there every any doctors like that in real life?

I mean, if I were the doctor, I'd throw them out of my office/hospital and wouldn't care what piece of paper any judge had signed. Indeed, in this case, I would have used any medical excuse I could come up with to take the man out of the custody of the cops and place him under my care (getting a lawyer there ASAP in the meantime). Well, officers, I see this man has a lesion on his hands from your handcuff. That could get infected, and you've head about antibiotic resistant strains that haunt medical facilities. I need to get that cleaned up and treated ASAP, and you will get the hell out of my way while I treat my patient. And on the remote chance that any actual contraband did turn up, it would get indadvertantly flused down the nearest toilet. Cleanliness, you know. The whole thing would just offend me enough that I'd do anything to hinder the cops.

profloater
2013-Nov-07, 08:42 AM
This strip search question comes up a lot at borders and we all know smugglers do stick things in orifices and swallow bags so there must be a practical balance, it seems to me. The doctor in this situation is there to minimise the risk to the individual while exercising her duty to the rest of society.

In these examples society has decided smuggling illegal substances is bad and the customs officers are in the front line. There is a whole other question about that illegality, about prohibition, with all its practical consequences in criminality.
When balancing the risk to an individual against the risk to many unseen people, these procedural questions must arise but, it seems to me, cannot only be decided on the basis of what is good for the individual.

Noclevername
2013-Nov-07, 08:50 AM
This strip search question comes up a lot at borders and we all know smugglers do stick things in orifices and swallow bags so there must be a practical balance, it seems to me. The doctor in this situation is there to minimise the risk to the individual while exercising her duty to the rest of society.

In these examples society has decided smuggling illegal substances is bad and the customs officers are in the front line. There is a whole other question about that illegality, about prohibition, with all its practical consequences in criminality.
When balancing the risk to an individual against the risk to many unseen people, these procedural questions must arise but, it seems to me, cannot only be decided on the basis of what is good for the individual.


But that's not what happened in this case. The officers and doctor had the option of simply holding the guy and waiting for nature to take its course. Instead they chose the most literally invasive and humiliating way to go about checking this guy for drugs. It was not necessary.

Noclevername
2013-Nov-07, 08:53 AM
Also, a colonoscopy is still surgery, which always carries a health risk. The probe can potentially puncture the intestinal wall. It also involves sedation, which is a risk in and of itself.

publius
2013-Nov-07, 08:57 AM
I meant to mention this, but forgot. A neighbor actually had this happen to him due to a colonoscopy, checking for cancer/polyps. He went home after the procedure, then a few hours later got deathly sick, sicker and sicker. They had accidently punctured his colon. I forget if they did it just with the probe, or if it was done cutting a polyp off, but he was in serious trouble, and had to have emergency surgery and a stay in ICU.

pzkpfw
2013-Nov-07, 09:07 AM
... and the medical facility had the gall to send the guy a $6K+ bill for all the "treatment" they provided.

I think this shows the mentality of the facility and the Doctor(s) there. The same attitude that let them perform the invasive search lets them charge the guy afterwards.

To send this bill after the guy was shown to be innocent (of the specific crime suspected - I have no way to know if he's actually a saint or sinner) - I hope they do get some book thrown at them.

publius
2013-Nov-07, 09:12 AM
This strip search question comes up a lot at borders and we all know smugglers do stick things in orifices and swallow bags so there must be a practical balance, it seems to me. The doctor in this situation is there to minimise the risk to the individual while exercising her duty to the rest of society.


I couldn't disagree more. First, just imagine if this happened to you. And this was far more than a simple strip search but was a forced invasive medical/surgical procedure involving significant risk. Minimizing the risk here means not doing the procedure at all. There was no medical reason to do any of it. Like I mentioned above, I read the AMA's medical ethics code (and I'm sure there are similiar codes the world over), it is unethical to peform a procedure for no valid medical reason period. THere is no larger benefit to a society from doing a forced medical procedure for which is there is no valid medical reason, only the search for evidence of contraband. There is no "duty to society" that comes in such a case at all. Down that road lies utter horror, as history has shown.

The only thing I can see where I ever come close to justifying something like this, is say if the suspect had kidnapped someone who was soon going to die, say buried alive or something with a limited air supply (saw a movie with the villian doing this), and had someone put the coordinates or something in that area of the body. Or there was a big bomb and the location was on a piece of paper that he had hidden in that manner.

That is just about the only thing I can imagine where something like that could come close to being justified.

profloater
2013-Nov-07, 09:13 AM
But that's not what happened in this case. The officers and doctor had the option of simply holding the guy and waiting for nature to take its course. Instead they chose the most literally invasive and humiliating way to go about checking this guy for drugs. It was not necessary.Of course you are right and if it was just a case of waiting they should have waited, and to charge afterwards is plain outrageous.

profloater
2013-Nov-07, 09:18 AM
I couldn't disagree more. First, just imagine if this happened to you. And this was far more than a simple strip search but was a forced invasive medical/surgical procedure involving significant risk. Minimizing the risk here means not doing the procedure at all. There was no medical reason to do any of it. Like I mentioned above, I read the AMA's medical ethics code (and I'm sure there are similiar codes the world over), it is unethical to peform a procedure for no valid medical reason period. THere is no larger benefit to a society from doing a forced medical procedure for which is there is no valid medical reason, only the search for evidence of contraband. There is no "duty to society" that comes in such a case at all. Down that road lies utter horror, as history has shown.

The only thing I can see where I ever come close to justifying something like this, is say if the suspect had kidnapped someone who was soon going to die, say buried alive or something with a limited air supply (saw a movie with the villian doing this), and had someone put the coordinates or something in that area of the body. Or there was a big bomb and the location was on a piece of paper that he had hidden in that manner.

That is just about the only thing I can imagine where something like that could come close to being justified.Yes you are right about the forced colonoscopy, there seems no justification and there are technologies for non invasive examination. As well as just waiting.

publius
2013-Nov-07, 09:22 AM
Just read that .pdf of the lawsuit and the allegations. They did a couple of X-rays, forced enemas not once but twice (he was forced to void in front of everybody) with the resulting output inspected for contraband. No evidence was found, yet they went ahead and did the colonoscopy.

I mean at some point, you've got to ask, is it worth it? Do we care about such a little case so much that we're going to do all this? If the guy is this good at hiding drugs in his digestive tract, then at this point, he wins. :) Let him go.

Actually, I suppose what happened was this: First of all, the cops got mad at him and did this to humilate him. But once they got the X-rays and enema and nothing was found, at that point they may realized, and all of them, doctors included, they went too far and how much trouble they were likely in. So they become desperate to find something to justify what they had just done.

And this has apparently happened twice, and from the same sniffing dog, too, I keep forgetting. They have done this more than once before.

Glom
2013-Nov-07, 09:45 AM
So what has happened to the bent coppers responsible?

Here, at the very least, the IPCC would have suspended them pending investigation.

Noclevername
2013-Nov-07, 10:37 AM
I think this shows the mentality of the facility and the Doctor(s) there. The same attitude that let them perform the invasive search lets them charge the guy afterwards.


I was going to make a remark comparing the two actions, but it wouldn't be appropriate for the forum.

Noclevername
2013-Nov-07, 12:25 PM
So what has happened to the bent coppers responsible?

Here, at the very least, the IPCC would have suspended them pending investigation.

If you mean this IPCC (http://en.wikipedia.org/wiki/Independent_Police_Complaints_Commission) and not the one on Climate Change, I don't think we have anything similar in the US. The specifics vary by state and municipality, making it difficult to bring charges against cops. The closest we have are the many Internal Affairs (http://en.wikipedia.org/wiki/Internal_affairs_(law_enforcement)) divisions of each separate department or police force.

profloater
2013-Nov-07, 12:39 PM
there seems to be a bent sniffer dog too. As the details emerge it does seem to be worse and worse. And it does seem they had a strong suspicion perhaps because of the dog, and that raises an interesting problem. Because dogs are assumed to be neutral and to have a very specific nose training, the dog reaction is taken as very strong evidence. There are several ways to imagine whether the dog made a substance mistake or a correct trace detection which was misinterpreted by the police.

Solfe
2013-Nov-07, 12:43 PM
So what has happened to the bent coppers responsible?

Here, at the very least, the IPCC would have suspended them pending investigation.

I think we call this process a "forced legal colonoscopy".

publius
2013-Nov-07, 01:51 PM
If you mean this IPCC (http://en.wikipedia.org/wiki/Independent_Police_Complaints_Commission) and not the one on Climate Change, I don't think we have anything similar in the US. The specifics vary by state and municipality, making it difficult to bring charges against cops. The closest we have are the many Internal Affairs (http://en.wikipedia.org/wiki/Internal_affairs_(law_enforcement)) divisions of each separate department or police force.

Note that in the lawsuit, filed in federal court, they are going after this under the "color of law" provisions of the federal civil rights law. This allow the feds to bring criminal action and the victims to bring civil action against any government actors, federal, state, or local, acting under the guise of "color of law" to violate civil rights.

Note they are going after the doctors under the same color of law civil rights violations (as well as alleging malpractice). By acting at the behest of the state, they themselves become state actors and thus are subject to the color of law charges. That was a very good move.

Hornblower
2013-Nov-07, 01:52 PM
For starters I would be concerned about the judge's fitness to be issuing that sort of warrant. I don't think it takes a legal brain trust to see this as outrageous. If the police have compelling probable cause I would expect x-rays and bowel movements to be sufficient.

If a previously reliable dog has given two false alarms, and the police are sure it has not gone the way of Trusty in Lady and the Tramp, perhaps some further studies of anal smells should be done.

I could go on and on, but it might get inappropriately gross for this forum.

Moose
2013-Nov-07, 01:53 PM
I've heard of some of them starting to do searches on the theory that if you objected, you would say so and so silence is consent. I don't know if that would hold up in court, but they will try a lot of tricks.

A story hit Fark sometime three or four months ago that suggested a US judge somewhere went along with that 'logic', that you have to specifically assert a right for it to legally exist. I no longer remember the jurisdiction, the scope, nor details, and have no idea if that opinion was appealed or upheld.

There was a vaguely similar controversy in Canada a few years ago (the particulars were strange, IIRC) where a judge ruled that our equivalent to the 'right to remain silent' during questioning had to be specifically asserted, that simply remaining silent was explicitly not enough for the right to exist, and another strange ruling (maybe the same case, I'm not sure, but it was around the same time) that one's right to council during police questioning didn't actually exist during police questioning, but only prior to it (or presumably afterwards). Again, I don't know what came of that.

publius
2013-Nov-07, 02:08 PM
Well, one recent case that sort of tore it for me was a Supreme Court ruling that they could use something a suspect said before being formally arrested and "Mirandized" (advised of right to remain silent) against him in court. And it may have included not speaking as well.

Anyway, the upshot is one needs to formally invoke the "right to remain silent". For me that was the final straw where I decided to consider any encounter with a cop as hostile and I won't help them in any way.

Swift
2013-Nov-07, 02:12 PM
I am very concerned that we are getting into topics inappropriate for CQ. I am closing this thread while this is discussed.


P.S. - After further discussion among the Moderation Team, this thread will remain closed and the OP was given an infraction. If anyone would like us to consider reopening this thread, please Report the opening post.