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Lawsuit in NM ‘anal cavity’ search pending, but are officers still on the job?

By   /   January 21, 2014  /   No Comments

PAYING UP: The city of Deming, N.M., and neighboring Hidalgo County will pay $1.6 million in a lawsuit but officials won’t say if the police officers involved in the case are still on the force or not. Photo from KOB-TV.

By Rob Nikolewski │ New Mexico Watchdog

SANTA FE, N.M. – Hidalgo County and the city of Deming may have to pay $1.6 million to settle with a Lordsburg man who filed a lawsuit after he was forced to undergo anal cavity searches and a colonoscopy. Officials in the two southern New Mexico communities refuse to say whether the police officers involved in the searches are still on the job.

Telephone messages left by New Mexico Watchdog to Deming Police Chief Brandon Gigante and Hidalgo County Sheriff Saturino Madero have gone unreturned, as has a voicemail message for Darr Shannon, chairwoman of the Hidalgo County Commission.

Update: Shannon called New Mexico Watchdog Tuesday morning and said, “I don’t think it would be good for me to comment right now … Bear with us and let us feed you that information in time.”

Last week, the lawyer for 64-year-old David Eckert said a portion of the lawsuit was settled; Eckert will get $950,000 from Deming and $650,000 from Hidalgo County.

Eckert named three Deming police officers and three Hidalgo County Sheriff’s officers in his lawsuit, but it’s not known whether the officers have even been disciplined. The case sparked outrage across the country and made headlines around the world.

“This case took my breath away,” said Jonathan Turley, a nationally recognized legal scholar and professor at the George Washington University Law School in Washington, D.C. “If officers are not fired for this level of abuse, particularly after such a huge settlement in damages, it sends a rather chilling message. It suggests that there is no abuse that will cost an officer his or her job.”

More settlements may be coming.

Agreements may have been reached with the city of Deming and Hidalgo County, but Eckert’s lawsuit still names as defendants the Gila Regional Medical Center in Silver City, two doctors and a prosecutor in the 3rd Judicial District Attorney’s Office. 

Eckert has not talked to reporters but released a statement last week, saying he felt vindicated by the $1.6 million settlement.

“I feel that I got some justice as I think the settlement shows they were wrong to do what they did to me,” Eckert said, according to the Associated Press. “I truly hope that no one will be treated like this ever again. I felt very helpless and alone on that night.”

According to Eckert’s lawsuit, Deming police pulled him over in January 2013 after he allegedly failed to make a complete stop in a Walmart parking lot. Police told Eckert to step out of his vehicle and, police say, he appeared to be clenching his buttocks. Believing he had narcotics in his anal cavity, police got a search warrant and took Eckert to a nearby emergency room to perform a cavity search.

The attending physician in Deming refused, saying it was “unethical.”

Undeterred, police took Eckert to another county — Hidalgo — and to the Gila Regional Medical Center where, the lawsuit says, against Eckert’s protestations he was subjected to X-rays, two digital rectal exams, three enemas and forced to defecate in front of the officers and the doctors.

Police then ordered a colonoscopy. Again, Eckert says he did not give his consent, but doctors sedated him and performed the procedure. No drugs were ever found.

To add insult, Eckert later received a $6,000 bill for the colonoscopy.

“I think (the people in Deming) are embarrassed,” said state Sen. John Arthur Smith, a Democrat who lives in Deming and has represented Senate District 35 for 25 years. “It’s going to be tough to give up $950,000.”

Jonathan Turley

Turley says heads should roll, saying in the dozens of cases of alleged abuse he has followed “virtually all of those cases result in the termination of officers.”

“Quite frankly, I’m astonished the chief of police (in Deming) has retained his position,” Turley said in a telephone interview with New Mexico Watchdog.

When news of the Eckert case broke, Police Chief Gigante told KOB-TV, “We follow the law in every aspect, and we follow policies and protocols that we have in place.”

In some instances of alleged abuse by public employees, officials refuse to talk to reporters on the grounds that speaking about “personnel” matters may open the local government to litigation from the employees in question.

But Turley isn’t buying it.

“These are public officials who have to answer to the public as to why they not only cost the (city of Deming and Hidalgo County) so much money in damages but also how they allowed this type of rogue police operation to continue,” Turley said. “To claim they’re concerned with litigation is one of the most transparent evasions used by government officials. They are responsible for answering to the misconduct. They are responsible to answering to the public, not only how such a thing could occur but the steps taken to avoid further occurrences.”

For Smith, there’s only one bright spot, and that’s the attending physician in Deming — his name is listed only as “Dr. Ash” in the lawsuit – who refused to perform the cavity search.

“The common talk around town is that we should give the doctor a bonus,” Smith said. “The (additional) financial and legal exposure would have been phenomenal.”

Contact Rob Nikolewski at rnikolewski@watchdog.org and follow him on Twitter @robnikolewski 

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Since 2010, Rob Nikolewski has covered New Mexico politics and investigated fraud, waste and abuse in government. He also writes an opinion column in the Sunday editions of the Santa Fe New Mexican. Rob joined New Mexico Watchdog after 20 years in television as a sports anchor and reporter. He anchored at MSNBC, New York City, Boston, Pittsburgh, Phoenix, Reno and Boise, winning three regional Emmy awards along the way. He holds a master's degree in journalism from Northwestern University, a master's in public administration from Columbia University's School of International and Public Affairs and a bachelor's degree in journalism from Trinity University in San Antonio.

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