Imagine that are in a room with four strangers. You’re in the room because you’ve been arrested on suspicion of drug activity. Those strangers ask you to take your clothes off so they can insert a catheter into your body to draw urine. Horrified at the suggestion, you refuse and asked them to draw blood instead. Those men then proceed to hold you down, and in spite of your attempts to physically resist them, they tear your clothes off, spread your legs apart and expose your genitalia so that a fifth person can insert the catheter into your urethra against your will.
First Question: Has a rape occurred?
Second question: would it matter to you if it was done by law enforcement officials looking for evidence of drug activity?
This is what happened to Haley Owen Cooper in 2004. Haley was arrested by members of the Central Utah Narcotics Task Force after a search of her car and person during a traffic stop revealed no evidence of drugs. They then arrested Haley, took her to the Sevier county jail, and secured a “bodily fluids” search warrant. She was thereafter pinned down by four officers and had a catheter forcibly inserted into her urethra.
Haley’s urine did test positive for methamphetamine. But a Utah district court judge suppressed the urine test, on the basis that it was obtained in violation of Haley’s constitutional rights. The judge noted that the officers had the choice of drawing blood, but chose to forcefully insert a catheter into Haley’s urethra:
The search warrant obtained by the officer made reference only to “bodily fluids.” It was silent as to the particular substance and the methodology. When the defendant declined to produce a urine specimen, one of the officers called a court clerk who testified that she called the issuing magistrate, Judge Mower, who indicated that the warrant was not limited to particular body fluid nor methodology. This information was communicated back to the officer, who then, along with three other officers, proceeded to physically hold the defendant down, remove her clothing, exposing her genitalia so that a licensed practical nurse on hand could insert a catheter in her urethra and extract a urine specimen against the defendant’s will.
That’s right: the officers were told by the judge who signed their warrant that they could’ve just drawn a blood sample. We learn later in the opinion that there were two female officers nearby who were licensed to draw blood, in addition to the nursing staff. The defendant even begged them to do so:
“I screamed, `Why can’t you just take my blood?’ The guy in the black cowboy hat said, `The judge wants urine. We’re going to take urine.’”
Which, as Utah district court judge Mciff notes later in his opinion, is bullshit:
[T]here is nothing in the record before this court to substantiate the officers’ assertion to the defendant that “the judge wants urine.” To the contrary, it appears this was the choice of the officers and there is considerable risk that the choice was influenced by the officers natural response to the contemptuous, belligerent and foul-mouthed manner in which the defendant addressed them. Though udnerstandable, that does not form an adequate foundation to engage in a highly invasive and demeaning, forceful procedure not required to achieve the desired objective.
Haley Owen is not the only person who this has happened to. In his opinion judge Mciff describes the case of Marty Dickinson, who was arrested under similar circumstances to Haley. Marty initially complied and provided a urine sample after the police secured a warrant. But the officers weren’t happy with Marty’s sample, and gave him an hour to give them more. He couldn’t. So they decided they were going to go in and take it themselves:
[T]he officers became impatient and told [Marty] they could not mess with the matter any longer and the four officers stripped him from the waist down and forcefully held him while the nurse inserted the catheter through his penis into his bladder and extracted the specimen. She was only able to obtain a quarter of inch of urine in the bottom of the sample cup.
Given the fact that the Utah district judge in Haley’s case was rather clear about the offensive character of the officers’ conduct in this case, you’d think that Haley would have good grounds for a civil claim against the government under § 1983 for violating her constitutional rights, right?
Wrong. After all, all Haley had to do was stop resisting:
[T]he ability to avoid what Owen now claims amounted to “excessive force” always remained within Owen’s control. The voluntary providing of a urine sample is a completely non-invasive and minimally intrusive procedure. The undisputed facts demonstrate that at all times during the encounter Owen had both the capacity and repeated opportunity to comply with the officers’ requests and to provide a urine sample in a completely non-invasive manner. Owen’s voluntary compliance would have obviated the need to use any amount of force, but Owen chose to not comply.
Quoted from Hooper v. Pearson, unreported decision, No. 2:08–CV–871, 2010 WL 2990809 at *11 (D. Utah 2010)
Notice how different Judge Benson’s characterization of the facts is from judge Mciff. Notice how when the federal judge completely trusts the version of events given by the officers, the outcome changes. As a result of judge Benson’s opinion, Haley Owen Cooper’s civil lawsuit was dismissed. Because all she had to do was stop resisting.
Of course, none of this would have occurred if possession of methamphetamine (or any other drug for that matter) was not an arrestable offense. If drug possession was not a criminal offense, it is unlikely that the officers in Haley’s case would have been able to secure a warrant for Haley’s forced catheterization. There’d literally be no reason to search her urine. There would be no probable cause, because there’d be no crime. The same is true for Marty Dickinson.
But our current drug laws give law enforcement officials the power and incentive to do this. Nobody is going to cry over what happened to Haley Owen. The officers involved will not be disciplined. And it does not matter that what happened to Haley was actually illegal: Judge Mciff noted in his opinion that Sevier County officials had been warned by the courts about forced catherization of drug suspects. But they did it anyway. If they think you have drugs in your system, they will do whatever it takes to get them out of you. And when you try to sue them for violating your constitutional rights, your case will be tossed out on Qualified Immunity grounds, because the judge is going to trust the word of the officers before he trusts you. Especially when you’re just a lowly criminal suspect like Haley Owen or Marty Dickinson.
These kinds of searches become unnecessary when the various drug-related substances that police might discover in your urine are not unlawful to possess or ingest. But when drugs are illegal, the state may use whatever means necessary to search for them. Even if that means four armed strangers get to strip you, hold you down on a table, and then force you to expose your genitalia to a fifth stranger, who inserts a long catheter into your penis or vagina against your will. And so long as they’re looking for drugs, it’s not rape. It’s just good ole’ fashion drug enforcement.
h/t LRC blog