TX8: Hospital can’t be sued under § 1983 for medical negligence and battery in conducting intensive body, pelvic, and rectal searches for CBP that produced nothing at all
Plaintiff, an El Paso resident, was stopped at the border coming into El Paso from visiting a friend and subjected to several searches for drugs, including taking her to the appellant hospital for x-rays and a pelvic exam. Nothing was found and she was released. She sued the hospital for medical negligence in the guise of a § 1983 action. Texas law doesn’t permit it. Even the assault and battery claims fail. Texas Tech Univ. Health Scis. Center-El Paso v. Bustillos, 2018 Tex. App. LEXIS 4259 (Tex. App. – El Paso June 13, 2018).* The whole thing she was subjected to was, frankly, ridiculous and the pelvic and rectal searches were completely unnecessary and unreasonable:
Bustillos alleged she was returning to El Paso after visiting a friend in Juarez, Mexico, when agents detained her at the border because they suspected she was carrying illegal drugs. They conducted a pat down search but found no drugs and conducted a canine search, but the dog failed to alert to the presence of drugs. The agents then had Bustillos pull down her pants and underwear and conducted a non-invasive visual search of her vaginal and anal areas, but again found no drugs. They handcuffed and transported her to University Medical Center of El Paso where two TTUHSC physicians, Dr. Parsa and Dr. Solomin, ordered a series of x-rays to search her body, subjecting and exposing her to unnecessary radiation. The x-rays did not reveal the presence of drugs. The physicians then conducted an invasive pelvic and rectal exam, both of which failed to reveal any drugs. The doctors eventually released Bustillos to the agents who transported her back to the border and released her. She alleged that the searches humiliated and traumatized her physically and emotionally and that she incurred medical expenses for the unnecessary rectal and pelvic exams.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
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—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
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or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
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property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
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to freedom are naturally alert to repel invasion of their liberty by evil-minded
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of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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But if you try sometimes / You just might find / You get what you need."
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"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
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---Pepé Le Pew
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is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
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judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)