Court Has No Problem With Multiple Invasive Probings In Search Of Drugs That Didn't Exist

from the 'Your-Bodies,-Ourselves,'-by-CBP-and-El-Paso-County-healthcare-professio dept

If a government employee suspects you might be carrying drugs, be prepared to engage in a nonconsensual, highly-intimate relationship with the feds and their helpers. A New Mexico resident suspected of carrying drugs was subjected to multiple anal probings and enemas before law enforcement finally decided he wasn't actually carrying any drugs on him (or in him). An 18-year-old Arizona woman was subjected to vaginal and anal probing when attempting to return from a short trip to Nogales, Mexico. Again, no drugs were found but the helpful medical "professional" decided to go from CBP accusation to painful probing, bypassing less intrusive options (x-rays, etc.) in his earnest desire to save America from illicit substances.

Another incident with lots of probing and violations but zero drugs has landed in the Fifth Circuit Appeals Court. Gloria Bustillos (an American citizen) was attempting to return to El Paso, Texas after a visit to Juarez, Mexico when CBP agents decided she must be trafficking drugs. The indignities began immediately. From the decision [PDF]:

First, two female agents conducted a pat down. The agents found no drugs. The agents then held Bustillos for a K-9 search. The K-9 failed to alert to the presence of drugs. Two agents then took Bustillos to a restroom, where they ordered her to pull down her pants and underwear and bend over slightly. The agents conducted a visual inspection of Bustillos’ vaginal and anal area. Again, the agents found no drugs.

Free to go? Not a chance.

Despite no evidence of drugs, the agents placed tape on Bustillos’ legs and abdomen, handcuffed her, and transported her to the University Medical Center (the “Hospital”) in El Paso.

At the Hospital, Doctors Michael Parsa and Daniel Solomin (the “Doctors”) ordered a series of x-rays to search for drugs. The x-rays revealed no drugs. The Doctors then performed a pelvic exam. Again, the pelvic exam evidenced no drugs. Solomin then conducted a rectal exam. Yet again, Solomin found no evidence of drugs. As part of these searches, the Doctors, and Nurses Lynette Telles and Frank Mendez (the “Nurses”), allegedly “brutally” probed Bustillos’ cavities in the presence of hospital personnel. Bustillos did not consent to any of the above searches.

Having been violated multiple times in an attempt to confirm the CBP's verifiably-wrong suspicions, Bustillos sued. And the court has nothing for her. The district court upheld immunity for the medical personnel who performed the series of invasive searches and the Fifth Circuit Appeals Court affirms this decision.

Bustillos argues that the Doctors and Nurses violated her Fourth Amendment right to be free from unreasonable searches and seizures by detaining her in order to conduct x-ray, pelvic, and rectal exams without reasonable suspicion of criminal activity. The district court held those allegations cannot overcome the Doctors’ and Nurses’ qualified immunity because the right at issue was not clearly-established. We agree and affirm on that ground.

This part sounds hopeful…

Nonetheless, we take this opportunity to clarify the constitutional duties of medical staff when they cooperate with law enforcement searches.

But it isn't. The appeals court holds that medical personnel are in no position to question the orders of government agents. CBP officers can make almost any statement and suggest courses of action and medical personnel should just shut up and do what they're told, even if less-invasive procedures suggest more-invasive procedures aren't any more likely to produce supposedly-hidden drugs. (Emphasis added.)

Accordingly, Bustillos’ allegations could potentially assert a constitutional violation. The complaint is, however, ambiguous on critical factual allegations. For instance, it is unclear who Bustillos alleges actually ordered the various searches. Further, it is unclear what the CBP officers told medical staff regarding their basis for requesting the various searches. These facts are important because the officers’ articulation of probable cause for a minimally invasive search, such as the x-ray, would not necessarily shield the Doctors and Nurses from liability for the more intrusive searches, such as the rectal probe, if the officers did not request that search or represent that sufficient suspicion justified it. However, if the officers requested all of the medical examinations, the Doctors and Nurses would have a strong argument that they had no duty to second-guess the Fourth Amendment basis for those searches.

But the appeals court stops there. It could have examined the sufficiency of the allegations. The court says the underlying facts (apparently not on the record) "are important" as they would what was done under the command of CBP officers and how many invasive searches were performed without direct instruction. Certainly medical personnel aren't well-positioned to questions law enforcement assertions -- and it may be ultimately correct that they should not be held liable for invasive tests ordered by the government. But the appeals court just discards the discussion without sending it back to the lower court to further assess the underlying facts. The appeals court simply says the right to be free of invasive medical searches performed possibly at the government's behest was "not clearly established." The "clarification" the court promised earlier in the decision materializes as a muddy paragraph that clarifies nothing because the court is unwilling to clarify it further than "maybe medical personnel shouldn't question law enforcement."

This failure of justice is made even more apparent when the court moves on to discuss Bustillos' challenge of the lower court's denial of discovery.

Bustillos claims that the district court abused its discretion by failing to grant her requests to conduct discovery prior to ruling on the motions to dismiss. We disagree.

Both motions for protective orders noted that the Doctors had asserted qualified immunity. “One of the most salient benefits of qualified immunity is protection from pretrial discovery . . . .” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). Thus, “[b]efore allowing discovery in a matter where qualified immunity is alleged, the district court must first find ‘that the plaintiff’s pleadings assert facts which, if true, would overcome’ a qualified immunity defense.” Williams-Boldware v. Denton Cty., 741 F.3d 635, 643 (5th Cir. 2014) (quoting Backe, 691 F.3d at 648).

Because Bustillos’ claims could not overcome the clearly-established prong of the qualified immunity defense, the district court did not err by declining to grant Bustillos’ discovery requests.

So, the court says plaintiffs in her situation are fucked. They can't sufficiently allege violated rights without more factual development, but the qualified immunity defense prevents discovery from even occurring. Plaintiffs apparently have to enter the court with all the facts on hand at the time of filing. Most government agencies are unwilling to hand over pertinent documents to victims of their malfeasance at any point, forcing plaintiffs to engage in an FOIA lawsuit (and secure a victory) before even attempting to file a civil rights lawsuit. The clock starts ticking on civil rights lawsuits the moment a violation occurs, making it all but impossible to win a public records suit (and secure helpful facts) prior to bringing allegations of rights violations to the court. Qualified immunity is an insanely high bar to meet, and it's only made worse when courts at the appellate level refuse to clarify constitutional duties of medical professionals beyond "if law enforcement is involved in any way, medical professionals can do whatever they want without worrying about being held liable for their actions."


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 30 May 2018 @ 3:35pm

    Lot of pervs in law enforcement.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2018 @ 3:53pm

    KING, ELROD, and GRAVES, Circuit Judges.

    Before KING, ELROD, and GRAVES, Circuit Judges.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 May 2018 @ 4:29pm

      Re: KING, ELROD, and GRAVES, Circuit Judges.

      I suspect they're all smuggling drugs in their body cavities. How do I report this? They really need to be searched, repeatedly and roughly, in the most intimate manner possible.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 May 2018 @ 4:35pm

        Re: Re: KING, ELROD, and GRAVES, Circuit Judges.

        How do I report this?

        Prayer.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 May 2018 @ 5:34pm

        Re: Re: KING, ELROD, and GRAVES, Circuit Judges.

        They need to have all of the sexual assaults and rapes that the woman has gone through where no rights have been found to have been violated. Since the person claimed to be a law enforcement official, the medical professionals who actually perform the violations will be immune from prosecution then as well.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 May 2018 @ 7:40pm

          Re: Re: Re: KING, ELROD, and GRAVES, Circuit Judges.

          " Since the person claimed to be a law enforcement official, the medical professionals who actually perform the violations will be immune from prosecution then as well."

          Why did the medical professionals assist, they should have said no, don't they take an oath or something? Like the nurse in Utah that refused to draw blood form an unconscious patient. Tell these jack boots to go screw themselves.

          reply to this | link to this | view in chronology ]

      • icon
        Madd the Sane (profile), 30 May 2018 @ 6:01pm

        Re: Re: KING, ELROD, and GRAVES, Circuit Judges.

        How do I report this?

        Seek for impeachment.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 May 2018 @ 4:22am

          Re: Re: Re: KING, ELROD, and GRAVES, Circuit Judges.

          "Seek for impeachment."

          Of whom? You want to impeach Dwight D. Eisenhower? The guy that was in charge when the "constitutional free zone" was established? Or maybe every other President after who allowed it to continue? I'm afraid you're going to have to be more specific.

          There are plenty of legitimate reason not to like the current President, lets not start making shit up.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 31 May 2018 @ 7:51am

            Re: Re: Re: Re: KING, ELROD, and GRAVES, Circuit Judges.

            There are many reasons to impeach trump, which ones do you disagree with?

            reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 30 May 2018 @ 4:03pm

    What Good is the Bill of Rights?

    The appeals court holds that medical personnel are in no position to question the orders of government agents.

    Fuck the appeals court and the government agents.

    We are not their property to be abused for their own sadistic gratification regardless of the specious justifications that may be presented.

    Always follow the advice of a professional medical doctor/nurse over the orders of costume wearing low self-esteem tax-feeding losers in government.

    Remember the government is nothing with out (y)our consent.

    What good is the Bill of Rights if every government flunky that comes along uses it as a doormat?

    What is the limit to the thievery/indignities/murder/torture that Americans willingly suffer at the hands of at tyrannical government before they cast off it's repressive/criminal yoke in order to provide for a new tomorrow?

    Or as our ancestors so eloquently jotted down some 242 years past:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

    http://www.ushistory.org/declaration/document/

    Our ancestors would be ashamed as how a once proud/free people has been reduced to being the US governments chattel.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2018 @ 4:06pm

    Fifth Circuit Court of Appeals

    The main problem here is that this case went to the Fifth Circuit -- the most conservative, anti-civil-rights, pro-law-and-order appeals court in the country. Had the case been heard by the far-left Ninth Circuit, the outcome would have likely been completely different.

    https://mississippitoday.org/2017/07/24/in-reviewing-hb-1523-will-fifth-circuit-return-to- its-radical-roots/

    reply to this | link to this | view in chronology ]

    • icon
      PartTimeZombie (profile), 30 May 2018 @ 6:47pm

      Re: Fifth Circuit Court of Appeals

      Having politically motivated courts seems like an odd way to run a country.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 May 2018 @ 7:50pm

        Re: Re: Fifth Circuit Court of Appeals

        I keep hearing people talk about "rule of law" but I suspect many do not understand its meaning because their actions are considered to be "rule of power".

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 May 2018 @ 10:26am

          Re: Re: Re: Fifth Circuit Court of Appeals

          There are so many laws that nobody could know them all, but with enough research, government can find a law (or precedent) that allows them to do whatever they want while claiming it's just.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 31 May 2018 @ 10:40am

            Re: Re: Re: Re: Fifth Circuit Court of Appeals

            Yes, and usually that occurs after the fact during their excuse generation phase.

            The trump admin, and many more politicians everywhere believe that rule of power is the way to get what they want, they just dont want to be known for the practice.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 May 2018 @ 3:33am

        Re: Re: Fifth Circuit Court of Appeals

        It seems any action is political in some way. Judges can try to be impartial, but their decisions will always be tainted by their subjectiveness in some way.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 May 2018 @ 7:52am

          Re: Re: Re: Fifth Circuit Court of Appeals

          No two cases are the same, why should court proceedings be a cookie cutter affair?

          reply to this | link to this | view in chronology ]

    • icon
      Seegras (profile), 30 May 2018 @ 11:52pm

      Re: Fifth Circuit Court of Appeals

      There is no such thing as a far-left court. Except in Catalonia between 1936 and 1939.

      reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 1 Jun 2018 @ 2:11pm

      Re: Fifth Circuit Court of Appeals

      > Had the case been heard by the far-left Ninth Circuit,
      > the outcome would have likely been completely different.

      You say that like having a far-left court of appeals is any better than having a far right one.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2018 @ 4:13pm

    Court failure

    This should have been very easy for the court to get right:

    Did the medical personnel enter into the record a warrant, secured by Customs and Border Patrol, directing them to perform these procedures? If yes, medical personnel are immune and the suit goes after CBP because they were "just following orders." If no, medical personnel are liable.

    • Simple.
    • Motivates medical personnel to demand a warrant before performing procedure
    • Creates naturally public paper trail

    reply to this | link to this | view in chronology ]

  • icon
    Nathan F (profile), 30 May 2018 @ 4:15pm

    I bet they even made her pay for all the medical tests, just to add insult to injury for making them go through all that work looking for something that wasn't there to begin with.

    reply to this | link to this | view in chronology ]

  • icon
    Atkray (profile), 30 May 2018 @ 4:31pm

    Too bad the medical "professionals" didn't follow the example of that nurse in Utah. https://www.cnn.com/2017/09/01/health/utah-nurse-arrest-police-video/index.html

    reply to this | link to this | view in chronology ]

    • identicon
      David, 31 May 2018 @ 6:16am

      Re:

      That nurse acted irresponsibly. Apart from her actions endangering patients by causing a shortage of medical personnel, she could have triggered a drone strike on the hospital as an obvious stronghold of medical terrorists conspiring to maliciously and intentionally make state authorities look bad.

      Always comply to law enforcement first, complain later. Or even better, don't complain at all. That's what model citizens would do, at a model scale of 1:87.

      reply to this | link to this | view in chronology ]

      • identicon
        Anon, 2 Jun 2018 @ 4:24pm

        Re: Re:

        Never, ever comply with criminals impersonating law enforcement.

        Anyone imprsonating law enforcement is an extremely dangerous criminal and should be shot dead immediately. If someone in a uniform commits a crime, they are clearly impersonators and not real law enforcement... regardless of whether their badge is real.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 30 May 2018 @ 4:37pm

    'In possession of a working brain', a bar too high for CBP

    So, the court says plaintiffs in her situation are fucked.

    No, it's worse than that. They were fucked, or to be more accurate raped, what the court is saying is that it doesn't care so long as the one(s) doing so either have a badge or are being ordered to by someone that does and they violate someone's rights in a new way each time(or hell, the exact same way considering how spineless the judges here are).

    Bustillos argues that the Doctors and Nurses violated her Fourth Amendment right to be free from unreasonable searches and seizures by detaining her in order to conduct x-ray, pelvic, and rectal exams without reasonable suspicion of criminal activity. The district court held those allegations cannot overcome the Doctors’ and Nurses’ qualified immunity because the right at issue was not clearly-established. We agree and affirm on that ground.

    It's almost impressively disgusting how they can make write this out and not see the huge glaring flaw. The fourth protects against unreasonable searches and seizures and yet highly invasive searches of your body without a warrant somehow doesn't count because it didn't specifically prohibit that?

    By the 'logic' they are putting forth someone could literally get away with murder if they were creative enough by simply killing someone in a way that's not expressly mentioned in the law. After all, how were they to know that killing someone in that specific manner was wrong just because killing people in general is against the law?

    Other than the victim no-one involved comes out looking anything less than disgusting and vile. From the agents who performed the initial sexual assault, the doctors who went above in beyond in more sexual assault, and now the judges who gave it all a pass because hey, the law doesn't specifically mention this particular way of violating someone's rights, so no harm(to anyone that matters) no foul, right?

    reply to this | link to this | view in chronology ]

    • icon
      discordian_eris (profile), 30 May 2018 @ 6:08pm

      Re: 'In possession of a working brain', a bar too high for CBP

      You're forgetting the most important part of this qualified immunity crap. Federal judges have no choice in the matter!

      The supreme court made a ruling, and their instructions to all other judges is to follow their ruling exactly. That's why the QI bullshit has reached Rube Goldberg levels of logical and legal distortion. Place the blame where it belongs, on the supreme court.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 May 2018 @ 6:18pm

        Re: Re: 'In possession of a working brain', a bar too high for CBP

        Federal judges have no choice in the matter!

        Federal judges can always resign. If there is some irreconciliable conflict of law against all conscience, they have a way out. There is a choice. They can always quit.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 May 2018 @ 8:27am

          Re: Re: Re: 'In possession of a working brain', a bar too high for CBP

          Great! So all of the judges with a conscience will quit leaving only the assholes. That's the justice system I want!

          reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 30 May 2018 @ 6:28pm

        'They told you to do it, but you're the one who chose to do so.'

        No, I think I'll place it on both. 'I was just following orders' has never been an acceptable excuse for inexcusable behavior, and if they truly objected to it's use they could refuse to make the ruling and take the consequences. Pretty sure any judge that went that route would find plenty of support.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 May 2018 @ 6:56pm

          Re: 'They told you to do it, but you're the one who chose to do so.'

          'I was just following orders' has never been an acceptable excuse for inexcusable behavior

          These three judges themselves did not order this particular rape.

          On the overall scale of things, this is actually pretty tiny compared something like destroying a city with an atomic bomb. If you've every really thought about the morality of using nuclear weapons on population centers, then you've thought about the difference between ‘prompt fatalities’ and ‘soft fatalities’. The ‘soft fatalities’, who initially survive somewhere outside the blast radius, and then die from infection due to burns or radiation, basically get tortured to death.

          So, after you've considered the logic of mutual assured destruction for a bit. Keeping the peace between the U.S. and the U.S.S.R. Well, then come back and consider the morality of countenancing a rape. Countenancing one after the fact of it has occurred.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 30 May 2018 @ 7:57pm

            Re: Re: 'They told you to do it, but you're the one who chose to do so.'

            Ummmm - wut?

            Sexual assault it not the same as nuclear war. Wth are you going on about?

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 30 May 2018 @ 8:26pm

              Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

              Wth are you going on about?

              Go back and re-read the sentence I was responding to—

              'I was just following orders' has never been an acceptable excuse for inexcusable behavior

              The “I was just following orders” defense is well-known as the so-called “Nuremburg defense.” It immediately evokes a context.

              So, calibrate your moral sense.

              It's real easy to get all outraged and shocked —shocked!— —shocked!— about these three judges and their decision setting a national policy, to provide no redress for a rape.

              But consider a national policy of MIRVed multi-megaton warheads. To put things in moral perspective.

              reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 30 May 2018 @ 11:07pm

                Re: Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

                The “I was just following orders” defense is well-known as the so-called “Nuremburg defense.” It immediately evokes a context.

                If you're looking for context it might have helped if you'd read the comment immediately before mine, the one I was responding to.

                You're forgetting the most important part of this qualified immunity crap. Federal judges have no choice in the matter!

                The supreme court made a ruling, and their instructions to all other judges is to follow their ruling exactly. That's why the QI bullshit has reached Rube Goldberg levels of logical and legal distortion. Place the blame where it belongs, on the supreme court.

                Had you read that you could have saved yourself a lot of time and wasted effort going on about the cold war and nukes which had nothing to do with the conversation.

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 31 May 2018 @ 7:10am

                  Re: Re: Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

                  … which had nothing to do with the conversation.

                  I guess the moral issues I see in my frame of reference are simply too remote, too abstract for you to grasp in your frame of reference.

                  Is it easy for you to say, “These judges are evil people, complicit in an evil system”? Can you just glibly go from there to, “Damn them to hell”?

                  reply to this | link to this | view in chronology ]

                  • icon
                    That One Guy (profile), 31 May 2018 @ 1:18pm

                    Re: Re: Re: Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

                    So just to be clear, no 'but what about nukes!' or 'you just don't get it' arrogance, do you support what the judges did here, or do you have a problem with it, and either way why?

                    reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 31 May 2018 @ 7:56am

                Re: Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

                Hello? ...... Germany did not have nuclear weapons.

                wtf?

                Your analogy horrible.

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 31 May 2018 @ 9:41am

                  Re: Re: Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

                  Germany did not have nuclear weapons.

                  Luckily.

                  That's why they didn't nuke a city or two. I'm sure they would've, given the means to do so.

                   

                  Your analogy horrible.

                  Not so much analogy, as reflection.

                  Look, I get it. You're pure. You're innocent. You'd never harm a kitten, let alone torture people to death. You simply cannot imagine yourself ever, ever following orders to incinerate people — torture people to death. At scale. At mass scale.

                  You wouldn't do it. You just couldn't.

                  reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 31 May 2018 @ 2:44pm

                Re: Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

                Have you considered squeezing the squid?

                It's been shown to be effective in your type of 'situation'.

                reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 30 May 2018 @ 11:03pm

            Re: Re: 'They told you to do it, but you're the one who chose to do so.'

            No, they didn't order it, but they did make it clear that they don't see it as something worth punishment because hey, how were any of those involved supposed to know that what they were doing was a bad thing if someone hadn't specifically addressed the situation before, which is pretty much indistinguishable from a statement that they don't give a damn if someone is raped under color of law so long as the situation hasn't been expressly and exactly addressed before.

            That would be disgusting enough from a random citizen, coming from three judges it becomes all the more vile.

            As for the rest of your comment, that has absolutely squat to do with anything. Bombing half of civilization would technically be better than bombing all of it, but it would still be a deplorable action. That a nuke wasn't employed here does not make the rape of the victim any less abhorrent, or the gorram cold war relevant in the slightest.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 31 May 2018 @ 10:02am

              Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

              … coming from three judges it becomes all the more vile.

              Evil judges, then? Damn them to hell?

              reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 31 May 2018 @ 12:58pm

                Re: Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

                If you were fishing any harder I'd be picking hooks out of my skin.

                reply to this | link to this | view in chronology ]

            • icon
              Wyrm (profile), 31 May 2018 @ 10:03am

              Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

              You should add that their decision actually reinforces this behavior.
              This could not be successfully sued because no precedent exists to prohibit it. Since this case will not establish a precedent either, this behavior will not be prohibited in the future either.
              Even better, this case establishes more precedent that it cannot be sued.
              It's a vicious circle there.

              reply to this | link to this | view in chronology ]

              • identicon
                Paul Brinker, 31 May 2018 @ 6:43pm

                Re: Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

                Accept that this court calls out that this does in fact create notice that the court has seen the situation and will in fact rule the other way due to this case.

                Also nothing here stops them from suing the state itself, qualified immunity just says that the actor is immune not the state.

                reply to this | link to this | view in chronology ]

                • icon
                  That One Guy (profile), 31 May 2018 @ 8:06pm

                  Re: Re: Re: Re: Re: 'They told you to do it, but you're the one who chose to do so.'

                  Given they gave everyone involved a pass this time because 'how could they have known sexual assault was wrong?', if you don't think they would do the exact same thing when it comes up again you've got far, far more optimism than I do.

                  reply to this | link to this | view in chronology ]

                  • icon
                    The Wanderer (profile), 31 May 2018 @ 8:12pm

                    In theory, I think a ruling that "yes, this is prohibited, but that wasn't clearly established" is considered to clearly establish for future reference that it's prohibited, so if a sufficiently similar situation comes up again in the same court's jurisdiction, qualified immunity will not apply.

                    Of course, the definition of "sufficiently" similar can cover a multitude of sins...

                    reply to this | link to this | view in chronology ]

                    • icon
                      That One Guy (profile), 1 Jun 2018 @ 1:31am

                      Re:

                      They already ignored the fourth and it's prohibition against unreasonable searches and seizures without a warrant, why would they not ignore something as trivial as a pathetic 'well, I mean you probably shouldn't have done that...' ruling, even if it was their own?

                      Just find an excuse for how the next time was totally different(or the same action done by different people) and therefore how was anyone to understand that they shouldn't engage in sexual assault and another slap on the wrist will be handed out.

                      It's possible they'll grow some spines between this time and when it happens again, but given their actions here I'd put the odds at 'low' to 'non-existent'.

                      reply to this | link to this | view in chronology ]

    • identicon
      loftwork, 30 May 2018 @ 7:34pm

      Re: 'In possession of a working brain', a bar too high for CBP

      This case depressingly involves the violation both of a fundamental legal constitutional right against unreasonable search, and of a fundamental medical duty in the Hippocratic Oath, to do no harm. In a society where those who govern and determine standards of ethics and morality themselves outrage the principles they claim to uphold, is it surprising that the rot spreads to the rest?

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 30 May 2018 @ 5:15pm

    Auto Qualified Immunity...just need to assert it...Granted

    "Both motions for protective orders noted that the Doctors had asserted qualified immunity."

    So all it takes is someone to ask for qualified immunity (qualifications that should exist only with very, very, very and previously specified particulars) and they get it? No suggestion that maybe they should do something to prove that their 'qualifications' actually exist?

    “One of the most salient benefits of qualified immunity is protection from pretrial discovery . . . .”

    Could not the district court do some discovery 'in camera' or what ever the lawyers call private, for the courts eyes only, then allow the failure of written directions, names of agents, or other salient, probative points to be available for the plaintiff (the one who filed suit in this case)? Of course that would tie the appeals courts hands in putting another nail in the 4th Amendment coffin.

    I, along with a lot of other folks, just don't understand what is so difficult to understand:

    U.S. Constitution

    Amendment 4 - Search and Seizure

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Seems pretty clear to me.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 30 May 2018 @ 6:54pm

      Re: Auto Qualified Immunity...just need to assert it...Granted

      Oh, and let me add:

      "Civilization rests on the principle that we treat our criminals better than they treated their victims. (Person of interest S3E10 @ 41;51)"

      This courts actions does not seem particularly civilized. Which ones were the criminals...again? While that platitude is correct, letting criminals off because they wear badges of some sort is not civilized. Treat the better, sure. Let them off entirely, give them an excuse to absolve their obviously criminal behavior? Absolutely not.

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 30 May 2018 @ 5:20pm

    No cigarette

    "So, the court says plaintiffs in her situation are fucked."

    No, she didn't get that pleasure. Only lots of foreplay.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2018 @ 8:00pm

    It's a shame she had not eaten at Taco Bell prior to her being raped. Would they have considered that to be assault with a half digested burrito?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2018 @ 9:25pm

    out_of_the_blue's heroes, ladies and gentlemen!

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 30 May 2018 @ 9:40pm

    'because the right at issue was not clearly-established'

    Because somehow we have to legally clarify that randomly conducting multiple searches backed by nothing more than a hunch of the little boy who cried wolf is a bad thing.

    We can't let you sue the doctors who performed procedures upon you without consent... if they had sex with you without your consent it would be rape but we can totally spread your vagina open, poke & prod despite the very large pile of negative results that proceeded it that did not require state sanctioned abuse.

    While you might not be able to sue the doctors & nurses but I bet you can end their careers. First do no harm, informed consent, ignoring multiple negative results & charging forward into her vagina. They ignored the standard of care, their duty to the patient, simply because some asshat with a badge refused to accept a series of results that did not conform to the narrative in their head not grounded in reality.

    I think it would be nice if the Judges were subjected to the same treatment, how can they make an informed decision without actually understanding what it is like to be in that position. Of course the Judges would balk, because they feel they deserve different treatment than us little people the CBP are sure have drugs despite all evidence to the contrary. The court should have stated if forcing surgery would be perfectly fine, that despite no evidence of drugs being surgically implanted the CBP was SURE they were smuggling drugs and the simple fact every less invasive thing said they were wrong we need to make sure.

    Drugs are bad so we need to ignore your rights.
    Terrorists are bad so we need to ignore your rights.

    Rights only matter for your betters not for you, now strip, bend over and cough you fscking drug mule!!!!!!!!

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 30 May 2018 @ 10:25pm

    How many?

    Police officers
    Political persons
    Senators
    Congressmen
    Judges
    ...
    ...
    Have been searched so well.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2018 @ 10:39pm

    Have these ever resulted in actual findings? When if ever are suspicions like these ever justified?

    And regardless, I hope the victim will pursue her avenues to revoke the medical certifications of get attackers. Are there avenues outside the court system to seek punitive measures against the hospital, doctors, and nurses?

    reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 1 Jun 2018 @ 2:19pm

      Re:

      > Have these ever resulted in actual findings? When if ever
      > are suspicions like these ever justified?

      Actually, yes. Almost every day. CBP and ICE routinely catch people smuggling drugs and other contraband in their bodies and orifices.

      That doesn't excuse the behavior in *this* case, but let's not pretend this never happens and people are never caught doing it.

      reply to this | link to this | view in chronology ]

  • identicon
    David, 30 May 2018 @ 11:53pm

    You've been brainwashed already

    "Search of Drugs that didn't exist"

    That's it: you swallowed their cool-aid. The existence or not-existence of drugs cannot justify a search after the fact. The point of a search is finding out which it is.

    If it justifies the search, finding or not finding anything does not change the legitimacy. If it doesn't, finding or not finding does not change the legitimacy either: it just gives some bargaining material for plea deals.

    Which is exactly why law enforcement keeps digging itself deeper searching bodily cavities: they hope to find something they can use to bargain themselves out of their initial privacy violations.

    Your implicit condonement of unreasonable and invasive searches on guilty persons is exactly what makes those people go on and on in the hope of finding some dirt they can use for bartering themselves off the hook.

    So you are part of the underlying problem, the persuasion of U.S. citizens that if you can be proven guilty of any transgression, that makes you lose all your rights predating the discovery,

    Rights are rights. Either you have them, or you don't. If you have them, you don't forfeit them retroactively.

    reply to this | link to this | view in chronology ]

  • icon
    Seegras (profile), 31 May 2018 @ 12:03am

    puritan pukes

    Clearly the whole mess has arisen out of an unfounded prohibition of certain substances by some puritan pukes that couldn't get over the revocation of their failed prohibition on alcohol.

    And the solution is amazingly simple. Get rid of that bad law that is responsible for so many rights violations, so many lives ruined and so many dead.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 31 May 2018 @ 2:15am

      Re: puritan pukes

      Making drugs generally available works only when you are dealing with responsible adults, and if we were dealing with responsible adults, Trump would not be president.

      Arguably, giving everybody the means to kill themselves might be morally preferable to giving an egotistical madman the means to kill everybody. But then it does not need to be one or the other.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 May 2018 @ 4:33am

        Re: Re: puritan pukes

        Oh hell, talk about tangents.

        Look, responsible adults wouldn't have voted for Hillary either you dolt.

        reply to this | link to this | view in chronology ]

        • identicon
          David, 31 May 2018 @ 6:03am

          Re: Re: Re: puritan pukes

          Yeah, spare me your "crooked Hillary" kool-aid. Either way, responsible adults would not have stayed down in a hole until the primaries converged on candidates they could not get behind. Democracy does not start with the final ballot.

          If you wait until the only possibility for not getting a candidate you find inacceptable is getting another candidate you find inacceptable, you were too late to the booth.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 May 2018 @ 8:02am

        Re: Re: puritan pukes

        Are you aware of the fact that there are no known instances of death resulting from use/abuse of pot? Well, of course you are but do continue with your bullshit.

        reply to this | link to this | view in chronology ]

  • identicon
    mik, 31 May 2018 @ 3:40am

    Call it what it is

    At what point is the charade of "qualified" going to be dropped and its just called exactly what it is, a free pass for law enforcement to do whatever they want.
    As for the medical staff involved in this, they should be ashamed of themselves. Dr's and Nurses are supposed to be smarter than the average bottom feeder whose low intelligence and lack of education means their only hope in life is to get into something like the Border Patrol.

    On the topic of calling it like it is, here are some more.
    When will USA stop considering itself:
    The land of the free
    Leader of the free world
    A first world country
    A country of law

    reply to this | link to this | view in chronology ]

    • identicon
      MathFox, 31 May 2018 @ 4:21am

      Re: Call it what it is

      When will USA stop considering itself: The land of the free Leader of the free world A first world country A country of law

      Considering that most dictatorships tried to keep up appearances (of freedom) for as long as possible, I'm inclined to say never.

      reply to this | link to this | view in chronology ]

  • icon
    ArkieGuy (profile), 31 May 2018 @ 6:42am

    #metoo

    This sounds like a MUCH more invasive version of what many of the people in the #metoo movement are complaining about. Being sexually molested by people in power without consent.

    Maybe the #metoo folks should take this as a call to arms and stand up for this lady.

    Can you imagine what would happen in millions of people started protesting CPB, the judges, the doctors and the Hospital?

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 31 May 2018 @ 7:15am

      Re: #metoo

      I think you're on to something there, ArkieGuy. While I do believe that one touch on the knee during an interview isn't that big a deal I've got a massive problem with what amounts to state-sponsored rape with malice aforethought. Put this on Twitter with a #MeToo tag on and see what happens. I hope it goes viral.

      Try adding it to a #MeToo comment by a popular user.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 May 2018 @ 8:05am

        Re: Re: #metoo

        I thought metoo is about much more than a touch of the knee as you put it.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 May 2018 @ 9:12am

          Re: Re: Re: #metoo

          I thought metoo is about much more than a touch of the knee as you put it.

          It is and it isn't. Yes, there are far more serious violations alleged (maybe proven; but definitely at least plausibly alleged). There are also some very stupid "violations" that easily could have been innocuous. Those stupid potentially innocuous incidents degrade the credibility of the victims reporting real violations. A passing touch on the knee, even if intentional, is almost nothing compared to the "casting couch" style conduct alleged in other cases, yet it all gets lumped into the same movement. That lets critics look at the trivial plausibly innocuous incidents and claim that "It's all just an overreaction." There might be a few overreactions, but if the allegations are true, there were also some very serious violations.

          reply to this | link to this | view in chronology ]

      • identicon
        bob, 31 May 2018 @ 8:13am

        Re: Re: #metoo

        Yep, the CBP saw #metoo and thought it meant pound me too.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2018 @ 8:11am

    This is the down side of your insistence on extreme legalisms!

    In the story on prosecuting the Inauguration rioters in DC, you were all for having to prove EXACTLY who did what and when, and that there could be no conspiracy, dozens of people just happened to be near obvious rioting.

    Well, this judge is bound by duty to follow excessive legalisms TOO, even though crimes may have been committed. So since can't determine exactly who and what here, they skate!

    Where's your stock phrase: "better for ten guilty to go free rather one innocent be jailed" now, huh? -- Turns out you believe exactly as I do, that The Law has to shave off corners when are obvious crimes.

    Now to be clear before the usual troll tactic of mis-stating my views: I'm FOR jailing those caught near rioting / property destruction in DC, and for jailing these CBP TOO.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 May 2018 @ 8:36am

      Re: This is the down side of your insistence on extreme legalisms!

      > Turns out you believe exactly as I do, that The Law has to shave off corners when are obvious crimes.

      Where in the hell did you get that? Nowhere in the article does it say anything like that. In fact, that's completely unrelated to the article.

      Back to your cave, troll.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 May 2018 @ 4:57pm

        Re: Re: This is the down side of your insistence on extreme legalisms!

        Careful ... shaving off corners may just get you a law suit from Apple about those rounded corners.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 May 2018 @ 8:55pm

      Re: This is the down side of your insistence on extreme legalisms!

      What a surprise. Your "criticism" of authority can't help but come bundled with an irrelevant snipe at the lowly serfs.

      I stand by my statement that authority is your hero and you will fluff that authority regardless of how blatantly abusive they've been.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2018 @ 8:34am

    Yet another reason why the WAR ON DRUGS needs to end!! This woman was raped by law enforcement with ZERO evidence of anything. It's sickening what is going on.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2018 @ 9:15am

    Maybe someone else had already said this and I missed it but it bears repeating.

    Nuremberg trials. Hello?! "I vas chust following orders" excuse does not relieve anyone of the responsibility of their actions.

    Sounds like those doctors and nurses would have fit right in at Buchenwald and Auschwitz.

    WTF was the court thinking?

    reply to this | link to this | view in chronology ]

    • identicon
      David, 31 May 2018 @ 10:48am

      Re:

      This isn't comparable since the U.S. government are the good guys. So qualified immunity applies for going through with illegal atrocities. The Nazis were the bad guys, so qualified immunity would have been a perversion of justice.

      Because justice is defined by the good guys, not the bad guys.

      reply to this | link to this | view in chronology ]

  • identicon
    TRX, 31 May 2018 @ 11:15am

    "No, Yer Onner, it weren't rape! We were jus' checkin' fer DRUUGZ!"

    "Oh, that's cool, then. Dismissed!"

    reply to this | link to this | view in chronology ]

  • identicon
    that david from oz, 31 May 2018 @ 9:17pm

    ethical violation

    While not exactly sure of the laws involved, at least she could make an ethics complaint to the medical board about the actions of the medical personnel.

    Once the xray failed to show the abscence of say, a condom full of coke, there is then no argument about any invasive procedure being "life saving".

    From a purely eithical viewpoint, once any invasive procedure ceased to have any emergent medically relevant function, the doctor is ethically obliged to comply with the wishes of a competent patient.

    I don't believe there are any cases of doctor vs warrant extant (I know there was no warrant in this case; nobody seems to have assumed legal responsibility); the analogy would be the journalistic shield laws. As a medico myself, I hope I would be brave enough to refuse LE demands in a similar situation.

    reply to this | link to this | view in chronology ]

  • identicon
    Bad Penguin, 1 Jun 2018 @ 12:14pm

    Courts

    Its been my experience and observations that the court systems don't care about the truth nor are they there to protect citizens from out of control law enforcement officers.

    reply to this | link to this | view in chronology ]

  • icon
    amozabael (profile), 2 Jun 2018 @ 10:15am

    Surveillance for authority figures.

    This only justifys the need to impose surveillance on people working under official authority. I am sure if you had the power to monitor those agent's personal lives or at least look for indicators of lust before they were allowed to go any further then the dogs, then you would definitely have bullshit alarms ringing across the border checkpoints.

    reply to this | link to this | view in chronology ]

  • identicon
    Sass, 3 Jun 2018 @ 6:11pm

    Dr. Parsa responds in a comment thread

    Seems to actually be him:

    http://blog.bennettandbennett.com/2013/12/a-few-words-for-dr-michael-parsa/#comment-346797

    "Let me tell you what did happen that night.

    This patient was brought in by the Customs and Border Protection agents for suspicion of smuggling drugs across the border. They requested an exam of the patient without consent (body cavity search) to search for contraband.

    I spoke to the patient. I asked if she would allow us to do the exam as requested. She said no. I then went and spoke to the officer and told the officer that she was not consenting. The officer explained to me how high their suspicion was and made it clear to me that they had the authority to have this done and that they really wanted this to be done even if it was without consent.

    I went back and spoke to the patient, explaining to her my conversation with the officer. The patient then allowed my designee (Dr. Cabanillas) to do the exam without resistance. The exam was similar in nature to a typical pap smear that women often have. The patient and ACLU never alleged any physical force such as being held down.

    That’s what happened. What did I do wrong? Two things. First, I listened to the officer and I did not ask for proof that she had the proper authority (warrant) to do the exam without consent. The reason I did this was because I thought I’d just go back and ask the patient a second time. If she had again refused, I would have gone back to the officer. I was not about to have the patient held down for the exam.

    Secondly, I asked twice. I should not have asked twice. The patient made it clear the first time when she said no. Even though I did not use harsh or commanding language, by explaining my conversation with the officer to her I was pressuring her to consent. This is not acceptable and should not have been done.

    The patient claimed that this experience caused her psychological distress and was awarded over a million dollars from law enforcement and the healthcare entities involved. As a result of this case federal agents, at least in our region, do not bring suspected body packers to local hospitals for searches any longer."

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Techdirt Logo Gear
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.