ACLU defends Limbaugh's privacy in prescription drug case

[peterh]

http://www.miami.com/mld/miamiherald/news/breaking_news/7691982.htm

WEST PALM BEACH, Fla. - Rush Limbaugh and the American Civil Liberties Union don't agree about much, but they are in accord on at least one matter - that the conservative radio commentator's medical records should be off-limits to prosecutors.
The Florida ACLU filed court papers Monday supporting Limbaugh's argument that state investigators violated his constitutional right to privacy when they seized his medical records in November to investigate whether he violated drug laws when he purchased prescription painkillers.
"It may seem odd that the ACLU has come to the defense of Rush Limbaugh," Howard Simon, Executive Director of the ACLU of Florida, said in a statement. "But we have always said that the ACLU's real client is the Bill of Rights and we will continue to safeguard the values of equality, fairness and privacy for everyone, regardless of race, economic status or political point of view."



Can’t say I’m pleased, but I guess even the lowest of scoundrels are entitled to their rights….Too bad the SC doesn’t agree with that…

[aquart]

1. Okay, let's just savor this moment.

<giggling>

[Richardo]

5. As Phil Harman: "Delicious"

:D

[tedoll78]

31. Haha!!

I can hear him saying it right now. Oh, that voice! I miss him.. *sniff*

[Richardo]

2. Where's your pariah now, Limbaugh?

Nyeah...

Richardo <-- channeling Edward G. Robinson

[mac56]

3. The irony here is truly mind-boggling.

nm

[denverbill]

20. No shit. Considering 'activist judges' created the right to privacy.

It comes from the penumbras of the Constitution.

So tell me Rush? How are we going to prosecute abortionists if medical records are private?

[Muddleoftheroad]

22. Not activist judges

I think privacy is part of the FLA constitution.

[BOSSHOG]

4. The ACLU has integrity

and is governed by a moral compass and standards of decency which limbaugh will never understand or accept.

[KissMyAsscroft]

6. Limbaugh has to give up his records...

They aren't made public, they are given to the prosecutors.

If you are charged with a crime, your medical records can be viewed.

He WILL be forced to turn them over, and he is just delaying the inevitable.

[BenFranklinUSA]

21. ...not until he's actually charged n/t

[RememberTheCoup]

39. On what Florida statute are you basing that? (nt)

[styersc]

33. Limbaugh has not (yet) been charged with a crime.

Unless they've made stupidity illegal.

[dae]

7. Oil and water can be mixed but they soon separate.

Rush must be really really sick over this.
}(

[fertilizeonarbusto]

8. HAHAHAHAHAHA

I wonder what Flush has to say about the ACLU now, the pompous hypocrite.

[joeunderdog]

9. Oh, the indignity of it all!!!

Imagine the despair that Rush feels as this horrible civil rights organization come to defend his right to fair process. As an ACLU member, my mixed feelings turn to joy when I think about what this does to Rush. I like it.

[LawDem]

10. Rush will lose -- unless those damn liberal judges . . .

Medical records were not privileged from use in court proceedings at common law. And while most states have now adopted physician-patient privileges, they are generally subject to multiple exceptions. Here in Kansas, for example, the privilege does not apply at all to felony prosecutions. Unless there is some peculiarity to Florida law, the prosecutors will ultimately win on this issue. There is clearly no federal constitutional right implicated here. Rush's only hope is that those crazy liberal Florida Supreme Court justices (you remember, the guys -- some gone now -- who ordered the recount) will come through with some nutty liberal interpretation of state law (common law, statutory or constitutional -- state constitution, not federal).

The ironies of this case flow faster than the water going over Niagara Falls.

[Muddleoftheroad]

23. Florida law

Is different I believe. I think they bothered to create an actual stated right of privacy.

[Ganja Ninja]

27. I don't know one way or the other but....

isn't there a diffrence in the right to privacy in a civil case vs the right to privacy in a criminal case?

[RememberTheCoup]

36. I think you are wrong

Based on what the ACLU is saying, I don't think this is about Florida "creating" a right to privacy. This is part of the ACLU's statement:

The Florida Legislature mandated a process...that requires law enforcement officers to notify the person whose medical records they seek to obtain and give that person the opportunity to object before the subpoena is issued and before the records are seized.

"The legislature has enacted procedures that carefully balance the interests of law enforcement against the right of every citizen to maintain the privacy of their communications with their physician," said Ft. Lauderdale attorney Jon May, who is serving as counsel for the ACLU. "In this case the State Attorney has circumvented this carefully crafted scheme..."

So this is about state prosecutors supposedly going around the "carefully crafted scheme" that balances privacy rights with law enforcement interests. The procedures did not "create" the right to privacy, IMO; they merely took it into consideration. It sounds as if they are alleging that the police didn't notify Limbaugh before they seized his records. We'll have to wait and see whether this claim turns out to be true and how, if it is true, it will affect the case.

I personally believe that privacy is a "self-evident" right, with reasonable limitations, and that in terms of the U.S. Constitution, rights that are not explicitly reserved for the government are assumed to belong to the people. I don't think it should matter whether or not you are lucky enough to live in a state that "creates" an expressed right to privacy.

[Bandit]

11. I'm confused

How is it legal for the Police to take blood samples or breath samples then if medical records are off limits? A blood test is quite "Medical" and basically so is a UA or Breath test. :crazy:

[salinen]

12. Judicial Watch

should be all over limpballs. Oh, wait, JW is only interested in going after dems. Larry Klayman is a pigfucker.

[Zhade]

25. Uh...that's not an accurate statement.

Look, I'm not the biggest fan of Klayman, but he's SUING CHENEY, for God's sake.

It's because of Klayman that we got the few documents - oil maps of Iraq, Suadi Arabia, and the UAE, as well as contract wish-lists - we've seen from the Energy Task Force as of yet.

So, maybe he's an every-other-day pigfucker, but he doesn't just go after Dems. Let's at least be honest about that.

[yellowcanine]

34. Yeah, Klayman is actually an equal opportunity pigfucker

And actually a very unpleasant person as well. Kind of a Right wing Larry Flynt.

[sendero]

15. I think...

.... that those tests are voluntary. If you have not been charged with a crime, you can refuse them. In fact, if you are arrested for DUI, you are not obligated by law to take a blood/breath test. Your refusal will of course be a black mark at your trial :)

[Richardo]

17. Pretty sure you give your consent when you get your license...

...that's what I've always understood.

[sendero]

29. I think it is a state law....

... and here in TX, you have the option of refusing, and many people do.

[northzax]

30. I know that in DC

you are not obligated to take a breath test when asked by a police officer. Of course, the penalty for not taking one on demand is worse than the penalty for driving while impaired, so it's certainly in your best interests to do so.

[CheshireCat]

13. Makes me proud of the ACLU

Once again, I pleased to see the ACLU standing up for their principles - even if it means defending one of its biggest enemies.

I have been a member of the ACLU since 1976. I stay a member because the ACLU is truly nonpartisan. When I send them $$, I know it will go to defend the Bill of Rights and our Constitutional rights.

Remember, when the ACLU defends the privacy of Rush, they are defending the privacy of all citizens.

Maybe Rush will learn something from this situation.

[rexcat]

14. Don' hold your breath that he will learn anything from this one...

Rush does not have the capacity to learn. His mind was shut down many years ago but the ACLU does make a good point and it looks like the police screwed up another investigation.

ACLU Asks Court to Protect Confidentiality of Rush Limbaugh’s Medical Records, January 12, 2004. to view ACLU press release go to http://www.aclu.org/Privacy/Privacy.cfm?ID=14698&c=27

“Because of heightened concerns about medical privacy, the Florida Legislature mandated a process – outlined in Sections 456.057(5)(a) and 395.3025(4)(d) of the Florida Statutes – that requires law enforcement officers to notify the person whose medical records they seek to obtain and give that person the opportunity to object before the subpoena is issued and before the records are seized.”

I have been a card carrying ACLU member for sometime now and it looks like they got this one right, as usual.

[RememberTheCoup]

32. I think the Herald news story glosses over this.

This appears to be mostly about a possible screw-up on the part of the prosecution:

"As both the ACLU and we have stated, the seizure of Mr. Limbaugh's private medical records without due process (bold mine) is not only a violation of Florida law and the Florida Constitution, but also a threat to everyone's fundamental right to privacy," (Limbaugh attorney Roy) Black said in a statement Monday.

And from the ACLU statement link:
http://www.aclu.org/Privacy/Privacy.cfm?ID=14698&c=27

The ACLU said in its motion that the state infringed on Florida’s constitutional right to privacy when it failed to follow well-established protocol, mandated by law, when confiscating Limbaugh’s medical files....

The Florida Legislature mandated a process...that requires law enforcement officers to notify the person whose medical records they seek to obtain and give that person the opportunity to object before the subpoena is issued and before the records are seized.

"The legislature has enacted procedures that carefully balance the interests of law enforcement against the right of every citizen to maintain the privacy of their communications with their physician," said Ft. Lauderdale attorney Jon May, who is serving as counsel for the ACLU. "In this case the State Attorney has circumvented this carefully crafted scheme..."

I'm not a lawyer, and I don't know whether the State Attorney reallly did fail to follow proper procedure, but I think it's important to understand that that is the argument the ACLU is making -- not that medical records are completely immune from being used in a prosecution.

I'd also like to suggest that the following statements seem irrelevant to me (a non-lawyer) and make me a little less trusting of the ACLU's position here. I mean, I essentially agree with what they are saying about the "War on Drugs," but what does that have to do with their claim that proper procedures were not followed?:

The ACLU has long recognized the need for a viable public health approach for drug control. Criminal prosecutions are the government's primary weapons to stamp out illicit drugs in the "War on Drugs." However, the ACLU has maintained that the so-called "War on Drugs" has led to a dramatic increase in the nation’s prison population, while doing little to curb the drug trade. The organization believes there are better ways, other than criminal prosecution and incarceration, to address drug abuse that will ultimately lead to a healthier, freer and less crime-ridden society.

"Limbaugh’s case demonstrates that the 'War on Drugs' is not working," said Anthony Romero, Executive Director of the American Civil Liberties Union. "This case provides a stark example of how the government chooses to prosecute non-violent drug offenses, rather than provide treatment for drug users."

[sendero]

16. I agree...

... civil liberties as defined by our laws and constitution belong to everyone.

Frankly, if Limbaugh were charged, this would probably be a non-issue. Access to these records would be part of a valid investigation.

If he were Joe Schmoe, he would have been charged with a crime by now, so I can't feel too sorry for him.

edited for atrocious grammatical error

[Zhade]

26. ...except, of course, when it comes to your right to vote.

I love the ACLU on most things, but they are dead wrong regarding voting standards - they are AGAINST paper ballots!

Ask any BBV activist for further details. It's an unhappy reality that the ACLU is on the wrong side of this issue.

[mouse7]

18. OWWWWWWW!

I just hit my head on my monitor laughing.

[Guaranteed]

19. The last time I listened to Rush, he was talking

serious, serious shit about the ACLU. He said that they were the most dangerous organization in the country.

[nolabels]

24. Freaking double standards again

Hey ACLU when are you going to start protecting the little folks. I smell some overzealous lawyers looking to grandstand here somewhere.

Thank goodness I was put on this earth with two hands to type, and set of lips to spell out how this lowest of scoundrels is just that. ACLU can defend him in Court all they want. That does not mean everybody in the world will not know something about. The words of the street are much more powerful than any backroom deal any slick huckster can whip up.

The dude is the scum of the earth, thank you very much

[0007]

28. I wasn't holding my breath - how will Rush deal now with the

ACLU? Roy Black is one of the best so we know that this is costing the schmuck plenty.

[nolabels]

37. Well maybe some lemonade will come out of this lemon

But not betting on it. It's all about if you have he money to buy the lawyers, not if there is any JUSTICE that needs to be rendered. The people with the most money usually win in most US courts today. Serving the good of the public is secondary and is thrown out if too much money is involved.

[Robb]

35. Grandstanding? Absolutely!

...And I think it's great. The wonderful part about the ACLU is they understand how important it is to defend both sides of the aisle vigorously, when it comes to civil liberties. Because the next time someone says they just support left-wing wackos, they can casually point out they've also supported a right-wing wacko like Rush. And this gives them the ammo to, as you say, protect the little folks.

[RememberTheCoup]

38. Is he the first person in Florida to experience this?

The Florida ACLU is claiming that the police and prosecutors did not follow the procedures set forth in state law for seizing a person's medical records. Assuming this is true, is this the first time the State has neglected to follow procedure? Many, many people go to jail in Florida for drug possession. Was the state more meticulous in protecting their rights than in protecting Rush Limbaugh's? I find it difficult to believe.

Either the State has been railroading those accused of drug crimes for years and the ACLU hasn't ever done anything about it, or the State was deliberately sloppy with Rush Limbaugh's case, or the State really did follow proper procedure and the ACLU's claim is false. I tend to think maybe the first possibility is most likely. I don't like the idea of the ACLU taking Rush's case just so that they can claim even-handedness in the future. It's one thing to protect civil liberties regardless of the parties involved, it's another to actually seek out such cases. I hope that is not what the ACLU did.

I guess another possibility is that the ACLU in Florida spends this much time and effort on everyone in Florida who is in the same (alleged) situation. If so, I'd like to see a link or some evidence addressing this.

[AwareOne]

40. I have been an ACLU member for over a decade now

and I really resent what they have done here. To me, this is just a cheap publicity stunt.

[RememberTheCoup]

41. Okay, I think I've finally sorted it all out.

I've been looking at Florida statute and at news stories from December and I think I've pieced this thing together.

First, here are the two statutes cited by the ACLU:

(Medical) records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:
In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records.

Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent to:
In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.

And here is what happened: First a search warrant was obtained. The search warrant allowed police to search several doctor's offices for Limbaugh's medical records. But the search warrant stipulated that prosecutors couldn't actually look at the records without a judge's approval. Then they got a subpoena to look at the records. Limbaugh's attorney appealed the subpoena unsuccessfully. But another legal maneuver by Limbaugh's attorney resulted in the records being resealed that same day. I think it is this latest legal aspect that has the ACLU involved. If anyone sees any errors in this summary, let me know.

[burrowowl]

42. Seems to be

a reasonable summary.

[RememberTheCoup]

43. Well, now that I've sorted it out for myself,...

...the legal aspects are becoming more interesting to me. Any actual lawyers want to offer an opinion here? If a judge gave the police permission to physically take the records but not for prosecutors to examine them, is that still considered "seizing" the records? What will happen if a court determines that the first judge was wrong to allow that? Can the records never be used as evidence then? Do they get returned but then can be subpoenaed the "right" way? Does this sort of thing happen often (I mean the way the first judge allowed the records to be confiscated but not unsealed until the defendant has a chance to appeal) or is it only because this is such a high-profile case? And, if it happens routinely, why is this the first time the ACLU has ever gotten involved? Or is that not correct?

[RememberTheCoup]

45. Oh, come on...

Not a single lawyer on DU has any opinions they'd like to share on this matter?

[Oreegone]

44. Ok my day is now made

The ACLU does have a sense of humor.O8)