The Crappy Business of Anal Searches
February 6, 2017 (Fault Lines) — If Kenneth leaves a park traveling east on his bicycle at 10 mph, and Kyle leaves a police station traveling west in his patrol car at 40 mph, how many fingers does Carlos ram up Kenneth’s ass?
A variant of that question will now have to be addressed by a California jury, following this recently-published order by the state’s Court of Appeal in Simmons v. San Diego. The appellate court reversed a superior court grant of “summary adjudication” (summary judgment for we lawyers not on the Left Coast) on plaintiff Kenneth Simmons’s claims under California’s Bane Act. The Act, California Civil Code §52.1, lets people sue the government when police officers “interfere” with someone’s constitutional rights “by threatening or committing violent acts.”
These stories begin, as they so often do, with law enforcement patrolling for drugs:
On the night of May 17, 2014, San Diego police officers [Carlos] Robles and [Kyle] Williams were patrolling Memorial Park (the park). They observed Simmons straddling his bicycle next to four Hispanic males who were standing by a park bench. The officers activated the emergency lights on their patrol vehicle and told another group of people that the park was closed.
While the race of that “other group of people” is not noted in the court’s opinion, that group wasn’t arrested. Simmons wouldn’t be so lucky, as the officers approached with a thoroughly California-esque pretext:
[D]efendants argued the officers “had separate probable cause to detain[Simmons] for riding a bicycle in a time of darkness without a light in violation of Vehicle Code section 21202.”
The Court gently noted its disapproval of the poor citation by including a footnote that the proper section was actually Section 21201(d)(1), which requires “[a] lamp emitting a white light that … is visible from a distance of 300 feet in front and from the sides of the bicycle.”
Simmons pedaled away from the police rather than stay to be questioned, claiming at trial that the same two police officers had searched and beaten him a week prior so Simmons feared for his life. Even though Officer Williams claimed in a deposition that Simmons was “free to ride his bicycle away when the officers began to drive toward him,” the officers sensed an opportunity to do “real” police work and gave chase anyway due to the unlit bike lamp.
Here again the Court gently notes its displeasure via a footnote, recounting at length Officer Williams lying at his deposition that he could see the bike lamp, until “after being shown a transcript of his testimony from Simmons’s criminal trial, Williams revised his testimony[.]”
There’s no dispute in the case that Kenneth Simmons is a drug user. Once he realized he was being pursued, Simmons turned down an alleyway to hide his rock cocaine in the front coin pocket of his jeans. Officer Williams arrived soon after and:
[G]rabbed [Simmons], threw him to the ground, and punched him … Robles caught up and joined in, striking Simmons in the face, kicking him in the back, and hitting him in the head several times with a flashlight. The officers handcuffed Simmons and removed a knife from his waistband. Williams put on black latex gloves and the officers began to search Simmons.
Since drug users have no substantive rights in the War On Drugs era, this is the point in the story where the fecophiliacs on the force went to town:
[T]he officers stated they believed he inserted them in his rectum. The officers searched Simmons’s pockets and removed a plastic baggie. Williams pulled Simmons’s underwear into a “wedgie” and inserted an unknown number of fingers into Simmons’s rectum. Robles also penetrated Simmons’s rectum. Simmons said the officers penetrated him as many as four times and to a depth that hurt and caused him to defecate a little in his underwear.
Now this isn’t the first time state-sanctioned rape has been covered here at Fault Lines. The mere smell of weed will get you an anal probe in Texas. South Carolina’s roadside colonoscopies don’t even require reasonable suspicion. And up in New York, they even let school nurses join in the rectal rummaging.
But what makes the Simmons case less common is the appellate court’s willingness to call the Government out on its bullshit.
Here’s the Government’s constipated insistence that bodycam footage exonerates its officers from liability:
Although defendants make no mention of the searches on appeal, they [the Defendants] argued below that Williams’s body-worn camera footage “does not lie and does not create a triable issue of fact because it shows the officers did not search Simmons'[s] rectum.”
The hapless judges on the Court of Appeal watched the tape themselves. They were more probing with their analysis:
We have reviewed the video and find that it is not so conclusive as to entitle defendants to summary adjudication. It begins shortly after Williams bear-hugged Simmons to the ground and runs continuously for eight minutes 44 seconds until the officers placed him in the patrol vehicle. About one minute into the video, Williams puts on black latex gloves. At about the 3:40 mark, Simmons pulls the left side of his underwear into a wedgie and Robles grabs the underwear with his bare hand to stop him. One officer asks, “Did you get it?” The other responds, “I think he shoved it in his ass.”
Williams then pulls the right side of Simmons’s underwear into a wedgie (exposing both sides of Simmons’s buttocks) and manipulates the upper part of the underwear with his hand. At about the 5:00 mark, Williams removes a plastic baggie from Simmons’s right front coin pocket. One officer asks, “Is it an empty bag? Or have you checked?” There is no audible response. At about the 6:55 mark, Williams tells Simmons, “Stop trying to shove it up you.” Simmons responds, “I’m not. I’m not trying to shove nothing.” The officers then stand Simmons up, search his sweatshirt, and place him in the patrol vehicle.
Compare that first line with the unanimous SCOTUS opinion in White v. Pauly last month.
The Court of Appeal narrative of the video, described in the dry tones common to the judiciary, raises questions the opinion itself doesn’t answer. Why wasn’t Simmons patted down before a cavity search was done, which would have led to the rock cocaine being found in his front coin pocket? Once the baggie with cocaine inside was found, why didn’t the officer who found it notify the other to stop shoving his hand up Simmons’s rectum? Was a handcuffed and restrained suspect really “trying to shove it up” himself, or was Officer Williams’s just talking dirty for foreplay?
The police charged Simmons with possessing a controlled substance, using a weapon in a fight, and resisting an officer; a jury acquitted him on the weapon and resistance, and deadlocked on the drug possession.
And now, with the appellate court’s ruling fresh in hand, Simmons will have his opportunity to probe the police. The only downside is that it will ultimately be taxpayers needing the lube.