Authorities across South Dakota have been illegally forcing catheters into young and old alike to acquire urine for drug tests, lawsuits filed last week allege.
The American Civil Liberties Union of South Dakota is representing five adults and a toddler alleging violations of the Fourth Amendment’s protection against unreasonable searches and seizures, as well as excessive use of force and infliction of physical and emotional distress.
Two men were willing to give voluntary urine samples but the Pierre Police Department forcibly catheterized them any way, a lawsuit filed on behalf of the five adults says.
The child was allegedly catheterized in February after his mother’s boyfriend failed a probation-ordered drug test. South Dakota Department of Social Services workers allegedly ordered the procedure because he was not toilet-trained.
The boy screamed as he was held down and complained of pain for days, according to the lawsuit specifically addressing his case, which says his urine was free of drugs. He allegedly developed a staph infection from the catheter.
Jason Riis, who was catheterized by Pierre, South Dakota, police, was arrested in March 2016 on suspicion of drugged driving. Another man, Dirk Sparks, was arrested the same month after officers reportedly observed him being “fidgety” when they responded to a domestic dispute.
Riis told South Dakota’s Argus Leader newspaper — which in April described allegations by Sparks, Riis and the boy’s mother — that he offered to voluntarily urinate when officers got a warrant, but was told it was too late.
“One cop held my penis, and a doctor shoved a catheter in me,” Riis told the newspaper. “It hurt for a week. I couldn’t pee.”
Sparks told the paper he experienced painful urination for weeks and has nightmares about the experience. He said he was hooded with a mesh bag before the catheter was forced in, and told the paper he also saw an officer filming the encounter.
A third man catheterized by Pierre police, Cody Holcombe, “agreed to give a urine sample voluntarily, and drank two cups of water provided to him,” the lawsuit says, but when he still was unable to urinate, officers “told him ‘you’re taking too long,’ and forcibly catheterized him.'”
Officers catheterized Riis and Holcombe, their lawsuit alleges, “for the purpose of gratifying their personal sadistic desires.”
Another man named in the lawsuit, Aaron Henning, claims he was forcibly catheterized by the Sisseton Police Department when he was arrested in a house where marijuana was present. A warrant authorized urine samples for everyone present in the home.
The one female adult plaintiff, Gena Alvarez, alleges she was catheterized by the South Dakota Highway Patrol. The precise circumstances are not described in the lawsuit.
Dr. Maurice Garcia, a catheter expert and urologist at the University of California at San Francisco, expressed surprise when told officers were forcibly catheterizing suspects.
“It’s sort of like someone stuffing food into your mouth — you resist by tightening your lips,” Garcia told U.S. News in a recent conversation. “The muscles down in the pelvic floor, if they tighten, can make it close to impossible to get a catheter in there. And if it’s forced in, it can tear the walls of the urethra close to where the muscle is.”
Garcia says painful urination for weeks would indicate an injury to the urethra lining.
Though the lawsuit does not allege long-term injuries, Garcia says tears to the urethra can cause rings of scar tissue called strictures that make it difficult to urinate or pass future catheters.
“A stricture is scar tissue. Once you have a stricture it doesn’t disappear,” he says.
Garcia says children generally are difficult catheter subjects, but that they should be soothed into relaxation if a catheter is medically necessary.
Experienced doctors and nurses know tricks to ease the process, such as using lidocaine jelly to alleviate discomfort, Garcia says. He says antibiotics should be given to patients as a prophylaxis to prevent infections.
“I think it would be foolish for someone without a lot of experience to be putting catheters in against someone’s will,” Garcia says. “If the police need a sample, they can just wait until the suspect produces some urine. Every measure should be taken before undergoing this procedure, plain and simple.”
The lawsuit on behalf of the adults does not say the outcome of the drug tests. It also does not specify dates or identify medical personnel that may have been involved. In the two adult cases previously reported by the Argus Leader, however, either a nurse or doctor administered the catheter.
The adults are not suing medical workers, but the boy’s lawsuit names as defendants Avera St. Mary’s Hospital in Pierre, and six of its employees. The hospital did not immediately respond to a request for comment.
In at least some of the cases police had warrants to acquire urine, but the ACLU argues those warrants said nothing about forced catheters and that in the case of Henning the warrant did not identify him by name.
Tony Mangan, a spokesman for the South Dakota Department of Public Safety, declined to comment on the highway patrol’s conduct. Captain Jason Jones of the Pierre Police Department also declined to comment. Spokespeople for the Department of Social Services and Sisseton police did not respond to requests for comment.
The two men who spoke with the Argus Leader did have drugs in their system. Riis pleaded guilty to drugged driving and to a drug consumption charge, the paper reported, after his urine tested positive for methamphetamine, pot and benzodiazepines. Sparks reportedly pleaded no contest to drug charges after his urine tested positive for methamphetamine and pot.
Forced catheterization lawsuits have fared poorly in the past, with authorities saying they deferred to the medical advice of health personnel and successfully claiming qualified immunity because the legality of the conduct was not clearly established.
Recent cases in Indiana and Utah have been dismissed by judges and the legal team representing the catheter patients could not immediately provide an example of a successful similar case.
The Associated Press reports that ACLU attorneys believe the Supreme Court’s 2013 ruling in Missouri v. McNeely that police must generally get a warrant to draw blood — in addition to a 1985 ruling in Winston v. Lee against surgical intrusions to collect evidence — will tilt the scales.
It’s unclear why police chose urine samples over blood draws in the six cases.
“In a lot of cases it’s just cops being a–holes,” says attorney Jeremiah Johnson, who represented a woman forcibly catheterized in Kansas in 2008. The woman, Samantha Cook, had been pulled over for speeding and officers came to suspect her of driving under the influence of alcohol.
Johnson says qualified immunity often derails forced-catheter cases, but that he’s particularly optimistic about the toddler’s chances.
“Qualified immunity probably doesn’t save them with the 3-year-old,” he says. “I think the 3-year-old wins that case all day and every day. They don’t have a leg to stand on.”