Q: Did it hurt when she inserted it?
A: Oh, yeah. Bad.
Q: Describe that for me.
A: Just as if somebody would take a burning hot coal and stick it up your penis.
— Deposition of Jamie Lockard, in a lawsuit against police in southeastern Indiana
In the United States there is a wealth of case law pertaining to the Fourth Amendment, with the U.S. Supreme Court and the rest of the judiciary fashioning jurisprudence on what constitutes an unreasonable search or seizure. But the courts have yet to reach any kind of consensus about one particularly cringe-worthy practice, as exemplified by what happened to Jamie Lockard in a small town in southeast Indiana, close to the Ohio border.
In March of 2009, police in Lawrenceburg, Indiana, pulled Lockard over for not stopping at a stop sign. Suspecting he was drunk, the police had him take a breathalyzer test. He blew a .07 percent, just under the legal limit. The police then obtained a search warrant for blood and urine samples and took Lockard to a local hospital. The blood draw — nurse and needle, with no resistance from Lockard — was no problem. The urine was another matter. Unable to get a sample from Lockard the conventional way — hospital personnel said he wouldn’t go, Lockard said he couldn’t go — the police took Lockard to the emergency room and handcuffed him to a bed. A police sergeant held one of Lockard’s ankles while an officer held the other. A nurse inserted a catheter — a tube, typically 16 inches long — up the urethra, through the prostate and into the bladder.
Ultimately, Lockard pleaded guilty to reckless driving and got a suspended sentence. (His blood sample produced a blood-alcohol content of .05 percent.). But he sued the police officers and the city of Lawrenceburg, alleging the forced catheterization had violated his civil rights. In a deposition, Lockard described pain both physical — “felt like something twisting where it ain’t supposed to be twisting” — and emotional: “Like it could happen again. Just makes you think, what’s this world coming to. It was bad, bad.”
In 2011, a federal judge in Indiana threw out the lawsuit, ruling that the police were entitled to qualified immunity. Under the law, police cannot be held liable for “bad guesses in gray areas,” according to the courts. And this case, the federal judge wrote, fell into “nebulous territory.” While the U.S. Supreme Court has drawn lines on extracting blood and even bullets from involuntary suspects for purposes of gathering evidence, the forcible extraction of urine remains an unsettled area of the law. One lower court wrote that forced catheterization is “more intrusive than a needle but less intrusive than a scalpel, making it hard to classify.”
In an interview, Lockard’s attorney, Douglas Garner of Lawrenceburg, called it shocking that some police use such force — and shocking that courts have generally allowed it. “It’s barbaric. It’s unbelievable. But that’s where we are.”
Barry Friedman, a law professor at New York University and founding director of its Policing Project, co-authored a law review article published last December saying forced catheterization has slipped “entirely below the public radar.” In an interview with The Marshall Project, Friedman said: “Hopefully, it isn’t happening very often. The thing that I think we all should be shocked at is that it happens at all.”
Three months ago, the Argus Leader, a newspaper in Sioux Falls, S.D., wrote about police in the state using forced catheterization on uncooperative suspects. “They don’t anesthetize them,” one attorney who has had two clients catheterized without consent told the paper. “There’s a lot of screaming and hollering.” A search of case law and media clips also turned up instances in Utah (“They made me feel like an animal,” a catheterized man told Fox 13 in Salt Lake City), Washington and Idaho, among other states.
It's unclear in some of these cases precisely what catheterization procedures were used — for example, the kind of numbing agent applied, if any. (For anyone seeking a description of urethral catheterization in general, this Medscape entry should suffice. The queasy might prefer to skip the part about topical anesthesia.)
In the Idaho case, decided in 2011, the state’s Supreme Court expressed puzzlement as to why police in a DUI case would resort to forcible catheterization to get a urine sample instead of simply drawing blood to test for alcohol. “[C]atheters impinge on a person's dignity much more severely than a blood draw,” the court held, noting the required exposure of genitalia and a stranger handling “very private parts.” A blood draw — “a small needle into the arm” — is relatively painless compared to a long tube into a body cavity, the judge noted. Plus, catheterization carries a greater risk of infection by pushing bacteria into a normally sterile area. Still, the court granted qualified immunity to an Idaho state trooper who opted for catheterization without a warrant, saying American law on the subject is undeveloped.
While South Dakota is the state where forced catheterization has drawn the most attention recently, the state where the issue has arisen most often could be Indiana. In addition to the Jamie Lockard case in Lawrenceburg, police in Schererville, in northwest Indiana, and in Rush County, east of Indianapolis, have been sued in federal court for obtaining urine samples through force. The Schererville lawsuit is still pending, while the litigation out of Rush County reached an unusual conclusion for these cases.
In 2006, when a Rush County sheriff’s deputy pulled Larz Elliott over for speeding, the deputy, suspecting intoxication, secured a warrant allowing him to seize blood or urine — emphasis on or. The deputy took Elliott to the hospital and got blood and urine samples, the latter with the assistance of a local police officer and a nurse with a 15-inch catheter. “They were pinning my legs down, yelling at me, telling me to quit screaming, telling me not to cuss at the lady,” Elliott said in his lawsuit.
Elliott had tried providing a sample the usual way, but was unable to urinate even after drinking five cups of water in 45 minutes. “He had shy bladder syndrome,” says Stephen Gray, an Indianapolis attorney who represented Elliott in the civil suit. Asked during the lawsuit why he opted for catheterization, the deputy said: “That's the only other way I know that you can urinate.” He had used forced catheterization “four or five” other times in the previous 2½ years, the deputy said.
When Elliott sued the sheriff’s office and the individual deputy, the case went before U.S. District Court Judge Richard Young. In 2010, the judge refused to throw out the lawsuit, ruling that the deputy was not entitled to qualified immunity. The deputy exceeded the warrant’s scope by obtaining both blood and urine, the judge wrote. And while Judge Young could not find any other cases closely analogous to this one, he concluded that the deputy’s conduct amounted to so “obvious” a violation of the constitution that the deputy should have known it was wrong.
The lawsuit was subsequently settled for $250,000, according to Elliott’s attorney.
The suit also helped lead to a change in practice. “In short, no, we do not do forced catheterizations any more,” David Sliger, chief deputy of the Rush County Sheriff’s Office, told The Marshall Project. “The prosecutor’s office is issuing search warrants for blood, so we’ll get a blood draw now.”
Asked whether it was fair to describe forced catheterization as “barbaric” — the label applied by an attorney in another Indiana case — Sliger said: “Honestly, I’ve never had a catheter, so I couldn’t tell you. But the medical field uses catheters every day.”
