Forced catheterization of drug suspects with a search warrant, who refused to urinate on demand, because of suspicion of drug use was unreasonable under the Fourth Amendment under Schmerber. The individual defendants get qualified immunity, however, because of a lack of a “robust consensus of cases” except for a male officer holding the leg of a female prior sex assault victim in obvious distress while she endured the forced catheterization nude from the waist down in a hospital. Municipal liability questions deferred. Riis v. Shaver, 2020 U.S. Dist. LEXIS 74484 (D.S.D. Apr. 28, 2020):
The Supreme Court rejected just such a “more substantial intrusion” in Winston v. Lee, 470 U.S. 753 (1985). There, the Court enjoined police from forcing an armed robbery suspect to have a bullet lodged in his chest surgically removed. Winston, 470 U.S. at 763-67. The Court analyzed the reasonableness of the proposed surgery under what it called the “Schmerber balancing test,” which consists of three factors: (1) “the extent to which the procedure may threaten the safety or health of the individual;” (2) “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity;” and (3) “the community’s interest in fairly and accurately determining guilt or innocence.” Winston, 470 U.S. at 761-63. The Court held that the surgery, which involved placing the suspect under general anesthesia and “surgical probing beneath his skin,” would be unreasonable under this test; although the bullet may have been helpful in prosecuting the suspect, this interest did not outweigh the potential health risks to the suspect and the “severe” intrusions on his privacy. Id. at 763-67.
Courts have applied the Schmerber balancing test to other bodily intrusions, including body-cavity searches, United States v. Oyekan, 786 F.2d 832, 839-40, 839 n.13 (8th Cir. 1986); Rodriques v. Furtado, 950 F.2d 805, 809-11 (1st Cir. 1991); proctoscopies, United States v Gray, 669 F.3d 556, 564-65 (5th Cir. 2012), vacated on other grounds 568 U.S. 802; x-rays, Spencer v. Roche, 659 F.3d 142, 147-48 (1st Cir. 2011); and catheterizations. Elliott v. Sheriff of Rush Cty., 686 F. Supp. 2d 840, 858-60 (S.D. Ind. 2010). And courts have analyzed searches under the Schmerber test even when the police had a warrant. See Gray, 669 F.3d at 564; Husband, 226 F.3d at 630-36; United States v. Bullock, 71 F.3d 171, 176-77 (5th Cir. 1995). This Court now applies the Schmerber balancing test and other relevant factors to determine whether the catheterization of each plaintiff was reasonable.
. . .
iv) Balance of the Schmerber Factors
A balancing of the Schmerber factors indicates that the catheterizations violated the Fourth Amendment. The first factor does not count much in either party’s favor because although the catheterizations posed some risk to the Plaintiffs’ health and safety, this risk was not great. But the unreasonableness of the Defendants’ conduct becomes clear under the second and third Schmerber factors. Defendants’ need to obtain the Plaintiffs’ urine to prove a low-level drug crime did not justify subjecting the Plaintiffs to involuntary catheterization, a highly invasive—and in these cases—degrading medical procedure. Consider Alvarez’s case. The law enforcement need for Alvarez’s urine was not so great that it was reasonable for a male officer to hold down her bare leg, as a nurse ran a tube up her urethra and into her bladder, as Alvarez lay naked from the waist down screaming, even though she had told all present about having been sexually assaulted and was visibly distraught. Indeed, by the time of the forcible catheterization of Alvarez, law enforcement already had evidence of her driving under the influence of alcohol, so law enforcement’s purpose in her involuntary catheterization was merely to see if evidence of some other charge of ingestion—in her case of marijuana—might also be brought. There is no community interest in involuntarily catheterizing an emotionally distraught woman with a history of having been raped just to see if evidence exists to tack a drug ingestion charge onto an ironclad case of driving under the influence of alcohol. Peters’s case also illustrates the point. Peters was arrested on a bench warrant for failing to pay a court-ordered financial obligation after having been seen outside an apartment complex. The point of catheterizing Peters was to see if he could be charged with a drug-ingestion offense. A video shows Peters being catheterized with four officers holding him down and with his feet twitching as he screams in pain repeatedly.
Importantly, all the Defendants could have used a blood test to find evidence of recent drug ingestion. Although a blood test is inferior to a urine test in detecting past use of methamphetamine, the Fourth Amendment limits the ability of law enforcement to always get the best evidence, whatever the cost. See Winston, 470 U.S. at 759 (“A compelled surgical intrusion into an individual’s body for evidence, however, implicates expectations of privacy and security of such magnitude that the intrusion may be ‘unreasonable’ even if likely to produce evidence of a crime.”); United States v. Torres, 751 F.2d 875, 883 (7th Cir. 1984) (Posner, J.) (“[A] search could be unreasonable, though conducted pursuant to an otherwise valid warrant, by intruding on personal privacy to an extent disproportionate to the likely benefits from obtaining fuller compliance with the law.”). In sum, forcing the Plaintiffs to undergo catheterization was unreasonable given the extreme intrusion on the Plaintiffs’ dignitary interests, the nature of the suspected crime, and the availability of less intrusive means to collect evidence of guilt.