- Associated Press - Thursday, June 29, 2017

SIOUX FALLS, S.D. (AP) - The American Civil Liberties Union sued South Dakota on Thursday over the forced use of a catheter to take a urine sample from a 3-year-old boy who was being tested for exposure to drugs as part of a child-neglect investigation.

The ACLU filed a pair of federal lawsuits challenging the practice, saying it violated the constitutional rights of the boy as well as five adults who underwent the same procedure in separate cases.

“Subjecting anyone to forcible catheterization, especially a toddler, to collect evidence when there are less intrusive means available is unconscionable,” said Heather Smith, executive director of the ACLU of South Dakota.

The boy’s mother said she was coerced into giving consent for the procedure, which Smith called “painful, physically and emotionally damaging, and deeply degrading.”

The lawsuit filed on behalf of the toddler said he was catheterized at a Pierre hospital after his mother’s boyfriend violated probation by testing positive for illegal drugs. The complaint alleges that the procedure caused the child to develop a staph infection in his penis.

A state Department of Social Services caseworker told the mother that her children would be taken away if she did not submit them to drug tests, according to the lawsuit, which names the department, several agency officials, Avera St. Mary’s Hospital and others as defendants.

Hospital staff held the boy down and inserted the catheter while he screamed because he was not toilet trained and could not produce a sample in a cup, the lawsuit said. The mother said she was not informed of any alternatives to catheterization, such as placing a bag over the child’s penis to collect urine, and did not know that she could object.

The tests came back negative for drugs, according to the complaint.

The Sioux Falls Argus Leader newspaper first reported on the incident in April, but the department declined to discuss specific cases. Spokeswoman Tia Kafka said in an email at that time that the agency may seek a parent’s consent for a child’s drug screening, but the agency does not determine the method or perform the tests.

The department had no immediate comment about the lawsuits. Avera Health said in a statement that it had not been served with the lawsuit but that it has long recommended that care never be forced on anyone.

“We have communicated this position to law enforcement and conducted staff training,” the statement said. The hospital said it looked forward to “seeing that Avera and our staff are vindicated.”

The other complaint was filed against law enforcement agencies on behalf of five adults who were allegedly subjected to forced catheterization as part of criminal investigations.

The adults include Dirk Sparks, who said four Pierre police officers restrained him as he was catheterized against his will at the same hospital.

He told the newspaper that police were called to his home last year for a domestic disturbance and suspected he had been using methamphetamine. He said he refused to give them a urine sample at the jail, so they got a warrant and took him to the hospital for the procedure, which he described as painful and embarrassing. A judge ruled the warrant was valid.

Pierre Police Chief Dave Panzer did not immediately return a call seeking comment.

While case law generally forbids drawing blood or performing surgery without consent or warrants, the law is murkier on forced catheterization.

The ACLU points to a 2013 U.S. Supreme Court decision against warrantless blood draws and a 1985 decision against surgical intrusions into a person to retrieve evidence. The group argues that catheterizations without consent should be treated the same - as a violation of the constitutional right against unreasonable search and seizure, and the right against excessive force without due process.

Lower courts have ruled in favor of law enforcement in a handful of catheterization cases, but those rulings are not binding on federal courts in South Dakota.

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Associated Press Writer Steve Karnowski in Minneapolis contributed to this report.

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