The factors that allegedly justify police intrusion into David Eckert’s anus are:
- That his hands were shaking and he avoided eye contact during a traffic stop;
- He refused to consent to a search of his person;
- He stood erect with his legs together;
- No drugs were found in his car or in a pat-down of him (police pat-downs for weapons often turn up drugs, which mysteriously feel like dangerous weapons when touched by police, or which are immediately identifiable as drugs when touched by police);
- A drug dog (with no information given about the dog’s training or qualifications or success rate) “alerted” to his car seat (though no drugs were found in his car); and
- An unidentified Hidalgo County K-9 officer asserted, without any specificity, that Eckert had previously hidden drugs in his anus.
That’s all. It really comes down to three things: (1) subjective officer impressions that Eckert looked nervous, (2) a dog alerting on his seat, and (3) an unnamed cop making an unspecific claim that he had previously hidden drugs in his anus.
The first factor is smoke and mirrors. It is increasingly clear in America that a reasonable person should be fearful during an encounter with police, who can generally shoot you (or your dog) with probable impunity, and who, it appears, can arrange for you to be systematically anally raped if the mood strikes them. My hands would shake too.
The second factor — the dog alert — has its own problems, but at any rate does not connect drugs to Mr. Eckert’s anus. The third factor is effectively an anonymous tip. The affiant, Officer Chavez, does not identify the officer, explain the basis for the officer’s knowledge, or offer any details about the alleged instances in which drugs were found in Mr. Eckert’s anus. Anonymous tips must be corroborated to support probable cause, and this effectively anonymous tip isn’t.
Mr. Eckert asserts that drugs were never found in his anus by any law enforcement agency. If true, that suggests someone lied – the K-9 officer who allegedly told Officer Chavez that, or Officer Chavez. A warrant premised on material false information is invalid. In deciding whether false information was provided to the court to secure the warrant, consider this: the Hidalgo County K-9 officer’s report on the incident here doesn’t mention any such knowledge about Eckertand doesn’t say he conveyed any such information to Officer Chavez. Do you think that would have made it into his report if he had? …
Some people are citing this incident for the proposition that it is terrifying that police officers and doctors would break the law and violate a suspect’s rights. I submit there is something far more terrifyingabout it: the prospect that a court might find that Mr. Eckert’s rightsweren’t violatedat all, and that he has no recourse for a team of cops and doctors raping and torturing him.
What’s terrifying is that the warrant requirement is supposed to protect our rights from overzealous cops, but here a judge approved a warrant to probe a man anally premised on fluff an a tip from an anonymous cop.
What’s terrifying is that lawyers are supposed to guide cops in the law, but a Deputy DA approved this warrant.
What’s terrifying is that thought the warrant is extraordinarily flimsy, there’s a decent chance a judge might find it sufficient. That’s because the judiciary has been steadily ground down by decades of law-and-order thin-blue-line rhetoric and by the purported imperatives of the Great War on Drugs, and judges routinely shrug and accept transparently bogus police speculation and awful warrants.
What’s terrifying is that a judge who has bought the government’s narrative may, employing the balancing test Prof. Kerr talks about, decide that the amount of drugs that can be hidden in a man’s rectum justifies detaining him, X-raying him, repeatedly digitally probing him, and despite a total lack of indication he is carrying drugs, sedating him and subjecting him to a colonoscopy.
What’s terrifying is that the Fourth Amendment to the United States Constitution is only as strong as judges allow it to be — and, by extension, only as strong as We the Peopleinsistthat it must be. We the People are easily frightened into agreeing that the promise of safety outweighs the Fourth Amendment. As Learned Hand said:
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.
I’m not afraid because police officers violated David Eckert’s constitutional rights by raping and torturing him because they thought he might have a trivial amount of drugs.
I’m afraid that they might not have violated his rights as defined by the courts, because we have allowed those rights to wither away out of fear and indifference.
The government will continue to act like that until we decide, collectively, that a government that would rape and torture a man to find a fistful of drugs is not worthy of our allegiance, obedience, or respect. The government will continue to act like that until we say “enough.”
This was rape, pure and simple. Anyone attempting to rape an innocent deserves to be stopped, with violent force if necessary. That is to say, if people were attempting to rape me or a loved one, it would be completely just and right to use force - even lethal force, if necessary - against said rapists in defense.
But here, the rapists are agents of the state. And the state claims a legal monopoly on force. We’ve seen countless videos of police scrums beating people to the shouts of “Stop resisting!” even when they are not actually resisting. Which means actual resistance, even justified resistance against rapists, would not fare very well.
But this will keep happening and escalating as long as the public allows it.