Sep 092009
 September 9, 2009  Posted by  Court, U.S.

A newly filed lawsuit and an appellate decision involve Fourth Amendment rights protecting against forcible and warrantless taking of biological samples….

Courthouse News summarizes the background of a lawsuit (pdf) filed by a man who says police had him forcibly catheterized when he couldn’t produce a urine sample.

A man claims a Lawrenceburg police officer had him forcibly catheterized to obtain a urine sample because the officer suspected him of drunken driving. Jamie Lockard claims he was restrained and catheterized by force on Officer Brian Miller’s orders.

Lockard says Miller pulled him over after he failed to make a complete stop at a four-way intersection. Miller gave him a breathalyzer and Lockard blew a .07, barely within Indiana’s legal limit, according to the federal complaint.

After administering the breath test, Miller obtained a warrant for a blood and urine sample and took Lockard to Dearborn County Hospital, where he willingly offered a blood sample, but was unable to urinate immediately, according to the complaint.

Lockard says Miller ordered hospital workers to restrain him and get a urine sample by force. Lockard says he was held down and a catheter was inserted into his penis.

In another Fourth Amendment case, the Ninth Circuit released its amended opinion (pdf) in a case where a prisoner was forcibly swabbed for a DNA sample without a warrant. Writing for the majority, Judge Sidney R. Thomas writes:

Las Vegas Metropolitan Police Detective Dolphus Boucher, with the approval of Clark County Deputy District Attorney Elissa Luzaich, forcefully extracted a DNA sample from Kenneth Friedman. The officer did not have a warrant or a court order authorizing the taking of the sample, nor was Friedman under any suspicion of a crime for which a DNA sample might be justified. The extraction occurred simply because the deputy district attorney wanted to put Friedman’s DNA sample in a cold case data bank. Friedman alleges that the forcible extraction occurred after he was shackled and chained to a metal bar.

Friedman brought suit against Boucher and Luzaich (“Defendants”) under 42 U.S.C. § 1983 on the ground that they violated his Fourth Amendment rights by taking the sample. The district court held that Boucher and Luzaich are entitled to qualified immunity and granted Defendants’ motion to dismiss. Because the forcible taking of the DNA sample under these circumstances violated Friedman’s clearly established Fourth Amendment rights, we reverse.

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