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."

Filed Under: 4th amendment, 5th circuit, cbp, drug searches, drugs, gloria butillos, police