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D.C. police garner 2nd suit; ACLU claims improper search

Posted 3:24 p.m. Oct. 19

by Carolyn Polinsky

(U-WIRE) WASHINGTON – The American Civil Liberties has filed an improper search lawsuit against the Washington, D.C., Police department on behalf of Mitchell Fernandors, a D.C. resident who is accusing police of violating him during a routine body search in which an officer allegedly used his hand to examine the Fernandors’ rectal region.

The type of search is so common, according to Arthur Spitzer, the legal director of the ACLU in the area, that its nick-name among police officers is “a butt check.” Fernandors contacted the agency believing it was wrong, and “after checking with a number of people (the ACLU) concluded it was a problem,” Spitzer said.

The federal lawsuit, filed in the U.S. District Court in Washington, D.C., on Oct. 11, seeks compensation for humiliation, embarrassment and emotional distress suffered by Fernandors.

On Oct. 10, 2001, Fernandors was standing at a bus stop at the corner of Rhode Island and 4th Streets, in the northeast corner of the city when a police cruiser drove up. Several officers got out and approached him, apparently investigating a murder in the neighborhood, Spitzer said.

The officers accused Fernandors of possession of an open bottle of beer, which was sitting near him, and used that as probable cause to search his body. One officer allegedly put on rubber gloves and searched within his underwear “presumably to find what was hidden” Spitzer said.

“It all seems unlawful,” Spitzer said, but Fernandors probably wouldn’t have approached the ACLU if it weren’t for the type of search used. The ACLU is claiming Fernandors’ 4th Amendment rights concerning unlawful search and seizure were violated.

Spitzer said there were no grounds for searching Fernandors and the charges against him were later dropped. The ACLU is trying to find others who were treated in a similar manner to join their suit against the police department.

According to D.C. law, police must have a search warrant to search body cavities, but the ACLU believes the practice often occurs without one.

“We as an Office recall approximately two to five cases of this type in the last few years,” said Peter Lavallee, the communications director for the Office of Corporation Counsel for the D.C. government.

Spitzer believes the search was “not necessarily” racially motivated because most people and police officers in the district are black. However, he thinks Fernandors might have been treated differently if the situation would have occurred in a different neighborhood and if Fernandors wasn’t black.

Two other district men, William Turner III and his 73 year-old grandfather, contacted the Washington Post this month with allegations of an intrusive search, but they have not filed a lawsuit. They have filed a complaint with the police department, and the ACLU is encouraging them to join the civil suit.

Police authorities have spoken out against the practice in the past, and refused to officially respond to the allegations.

D.C. Police Chief Charles H. Ramsey condemned the alleged use of that type of search, and was quoted as saying, “If they’re [officers] doing that [searching body cavities], they’re way, way out of the ballpark,” in the Washington Post.

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