07 November 2013

The government can anally rape you, literally

You have probably already read about this horrific case of David Eckert, who was suspected of holding drugs in his anus. Eckert was subjected to an x-ray, two digital (finger) exams, three enemas, a second x-ray, and finally, a colonoscopy. No drugs were ever found. Here is a copy of Eckert's lawsuit.

You may remember that a few weeks ago, I wrote about the article, "Call Yourself A Hacker, Lose Your 4th Amendment Rights:"
...this case has zero, zilch, squat, nothing, to do with the Fourth Amendment.... This case is about a temporary restraining order between two private parties. The Fourth Amendment's prohibition on unreasonable searches and seizures only applies to “state action." There is simply no state action here. Perhaps the author chose the title as link bait. Nonetheless, the headline is not only misleading, but erroneous, and detracts from the issue at hand.
In this case, all of the invasions of Eckert's body were done by doctors. The doctors, of course, are not government officials. So, where is the state action? In this case, the doctors acted at the request of law enforcement to aid law enforcement. The doctors, then, acted under "color of law," which means that the doctors were using authority given to them by a government official; in this case, the police officer. As a result, the doctors' actions can potentially subject them, and the government, to liability.

This post is only meant to address issue of the doctors acting on behalf of the state. For a fuller legal analysis of this case, see Orin Kerr's post at Volokh Conspiracy and Ken White's post at Popehat. They're both worth reading in full.
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