Todd A. Heywood Posts

A member of the first federal commission to look at the HIV epidemic says it is “probably past time” for states to revisit their HIV-specific criminal laws.

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LANSING, Mich. — A Dearborn, Mich., police officer was caught on tape telling a man and a woman that he was issuing them traffic and marijuana possession tickets because he was “aggravated” that the woman failed to disclose her HIV-positive status before he searched the couple’s car. The incident has raised allegations of discrimination and violations of civil rights.

The police dashboard video, obtained by the American Independent through a Michigan Freedom of Information Act request, shows what should have been a routine traffic stop last month. During the traffic stop, the officer discovered the woman is HIV-positive when he allegedly found her HIV medications and asked her, “What are these?” (This exchange occurs about 14 minutes into the video, posted below.)

Advocates for those living with HIV say the type of incident the video portrays has a wide-ranging impact on the personal well being of people with HIV. They say that these types of incidents could have adverse public health impacts, discouraging HIV patients from taking their medications as prescribed and, therefore, potentially facilitating the development of drug-resistant strains of the disease.

The video shows Dearborn Police Officer David Lacey telling Shalandra Jones that she should disclose her HIV-positive status whenever a police officer asks her to step out of a vehicle. He said he was “pissed” that Lacey hadn’t disclosed her status before he searched the vehicle, and he told the couple: “Honestly, if it wasn’t for that, I don’t think I would have wrote anybody for anything. But that kind of really aggravated me, you know what I mean? You got to tell me right away, ‘I’ve got this. I’ve got that.’ ‘Cause at that time, I wasn’t wearing any gloves.”

Legal experts say there is no legal obligation in Michigan for a person with HIV to disclose his or her status to a police officer.

Lacey made repeated statements expressing his fear of being infected with HIV or other diseases after coming in contact with the woman’s earrings, which were in her purse, during a routine search of the couple’s vehicle. At other points, however, he seemed to say that he understood that he was not ask risk for contracting HIV. He expressed concerns about the possibility of being exposed to contaminated needles in the course of his search, but he did not find any needles in the vehicle. He also said he was worried about taking diseases home to his family.

While some medical experts say it is reasonable for the officer to be concerned about — and take precautions to prevent — exposure to diseases, there was little actual risk that he could contract HIV in this particular encounter.

The Michigan Department of Community Health and the Center for Disease Control both say HIV is not transmitted through casual contact, such as sharing drinking glasses or touching items worn by people with HIV. Both agencies say the virus is usually transmitted through unprotected sexual intercourse or needle sharing with an infected individual.

HIV can also be transmitted through accidental sticks from a needle contaminated with infected blood. Still, experts told TAI that the risk of HIV transmission from the Dearborn incident was very low and that there are no known cases outside of the health care setting in which HIV has been transmitted through an accidental needle stick.

No license and the marijuana

Some of the statements made in the 29-minute video are inaudible because either the occupants of the car are too far away from the microphone, or police radio traffic drowns out the conversation.

On August 3, Lacey pulled the couple over in a 1999 GMC Jimmy because he notices a burnt out brake light. In his initial contact with the couple, Mark Scott, who was driving, told the officer he does not have a driver’s license with him and may have a warrant for his arrest related to a traffic ticket. The officer asked Scott for another piece of identification, which Scott provided him.

The officer then stated, “Where’s the weed at? I can smell it pretty strong from right here.”

Scott said something, which is inaudible, and Lacey responded, “It smells like you guys were smoking it.”

Both Scott and the passenger, Shalandra Jones, denied they had been smoking marijuana. (Scott later appeared to admit to have smoked marijuana earlier in the day.)

“I’m not worried about a little bag of weed or something like that,” Lacey said. “If you’ve got a dime bag, please let me know.”

Jones then admitted that there was marijuana in the car and handed it over to Lacey.

Later, Jones admitted the marijuana was hers and said that she is a registered medical marijuana patient in the state of Michigan. After Lacey asked her why she didn’t say anything about that, she said she was nervous and thought the card might be expired. Jones’ attorney has since confirmed to TAI that the card was indeed expired and that they are working to renew it.

Later during the stop, Lacey referred to the medical marijuana program “a scam.”

Michigan law specifically lists HIV infection and AIDS as qualifying conditions for medical marijuana. The drug is used to treat various side effects of the infection and antiretroviral treatment — such as nausea, weight loss, and various pain issues. A recent study from Mt. Sinai School of Medicine in New York also found the drug may interfere with the virus’ ability to infect specific immune blood cells the virus uses to reproduce.

Lacey removed Scott and placed him in handcuffs in the back of his patrol car. As he did this, he explained he had pulled the couple over because of an inoperative brake light.

“I couldn’t even see who was in the car,” added Lacey. “I just rolled up and saw the brake light out, and I thought, ‘Well, you know, what? I’m kind of bored.’ So — might as well – it’s worth a stop.”

During a search for warrants for Scott, Lacey discovered Scott was wanted by neighboring Allen Park on an outstanding ticket for failure to provide proof of insurance. The computer system showed Scott owed $169 for the ticket.

“What are these ones?”

After checking out Scott, Lacey returned to the Jimmy and asked Jones to step out of the vehicle. This interaction took place out of camera frame, but the audio was captured on the recording.

Unlike his interaction with Scott, Lacey asked Jones if she had “anything that’ll poke you or stab you on your person.” Jones replied in the negative.

He directed Jones to sit on the front bumper of his patrol car while he searched the vehicle.

Then, apparently after finding Jones’ HIV medication, Lacey addressed Jones:

LACEY: Hey, Shalandra, what are these ones?

JONES: I’m HIV positive.

LACEY: OK, that’s (inaudible) probably something you want to tell me when you get out of the car, OK? If you ever get pulled out for any reason, you want to tell us, OK?

JONES: Alright.

LACEY: ‘Cause I want to make sure I put gloves on and all that stuff, OK? What is it?

JONES: [inaudible]

LACEY: For your HIV? OK?

Jones’ attorney, Joshua Moore of Detroit Legal Services, told TAI Lacey was holding Jones’ HIV medications during the exchange.

Lacey later stated that he was “aggravated” and “pissed” that Jones did not proactively disclose her status. The officer put on his leather gloves and completed the search of the vehicle.

“I don’t want to catch something”

Lacey returned to his patrol car and asked Scott, “Do you have any diseases or anything I should know about?”

Scott told him, “No, sir.”

Lacey then asked him about Jones: “Does she have anything I should know about?”

“What do you mean?” Scott asked.

“Her? Anything medically wrong with her?” Lacey asked.

“Oh yeah, she’s been diagnosed as HIV-positive,” Scott responded.

The officer told Scott that her HIV status was something that ought to have been disclosed.

“That might be something you want to tell a cop if they ever pull you out of a car. I’m here going through her purse and she’s got earrings and shit –” Lacey said. “And I don’t want to get anything.”

Scott attempted to allay Lacey’s fears, saying, “It’s not like that.” But the officer continued.

“I know this is the west end of Dearborn, but I work a lot on the east end of Dearborn. So I deal with a plenty of crackheads and heroin addicts,” Lacey told Scott. “But I’ll tell you, if they got a needle on them, if you ask them, ‘You got anything on you I should know about,’ — ‘Yeah I got a needle and I’m Hep C. I’m this, I’m that.’ And they’ll tell you right away what they got. So that way we don’t get pissed. ‘Cause otherwise we get pissed — bad things happen.”

Scott responded in the affirmative, and Lacey continued.

“I found a needle on a guy once and he didn’t tell me. We let’s say he doesn’t do that,” the officer said. “He’s not going to forget anymore.”

“I don’t want to catch something, you know?” Lacey said. “I don’t want that shit. I got a family.”

Scott attempted to explain that Jones had held an undetectable viral load for 11 years. Scientists and public authorities generally agree that an undetectable viral load makes a person with HIV substantially unlikely to transmit the virus.

The officer then explained to Scott that he was giving the couple a break.

“And even though I’m still pissed about the HIV thing, I’m still cutting you guys a break,” Lacey said. “I’m not taking anyone to jail.”

Scott and Lacey then had the following exchange:

SCOTT: This is not to debate with you, but it’s not feasible to catch it like that.

LACEY: What do you mean? Oh the HIV?

SCOTT: Yes.

LACEY: No. I know. I know that, but –

SCOTT: I see that –

LACEY: If there — I’m one of those guys who gets sick of everything. Like I said I worked for a long time in the jail system. You know, for like seven years I worked supermax. You know, I’ve seen all sorts of crazy shit in there and I’m one of those guys who got sick all the time when I worked there. Because I can drive by somebody that’s sick [radio traffic covers part of the statement] as it is. And it makes me nervous. It should ‘cause like I say, I got a kid home. I’ve got a family. I’ve got all that stuff. Where I don’t want to … I leave my boots here at work. I leave my uniform here at work. I don’t take none of that home with me because I don’t want to track any of that crap that I go through — you know the crack houses and everything else. I mean 9 times out of 10 we chase somebody — they’re in Detroit or Inkster — and we’re going through the house. You know what I mean? And we’re going through doors and, you know, half of those houses in there are like falling apart, dilapidated, you know? There are holes in the freaking floor. There’s dog shit everywhere. There’s homeless people in the basement doing God knows what. You know, needles and all that stuff. So I try my best not to take that home with me. You know, and that’s exactly what I want to continue to do.

SCOTT: I’m sorry.

LACEY: Yeah, tell her, you know — I mentioned to her, you know, that’s something I may want to know. You’ve got earrings in here. “Oh, I didn’t know they were in there.” Well, I don’t care. If I’m going to pat you down, or whatever, I want to make sure that … I don’t catch anything, you know?”

Lacey issued Scott two tickets, both of which amount to “fix-it tickets.” The first was for not having a driver’s license with him, which can be resolved without more serious consequences.

The second was for the faulty brake light ticket. If Scott had it repaired and any police officer in the state of Michigan signed off on the ticket verifying the repair, the ticket would be dismissed.

Lacey then gave Jones a ticket for a criminal misdemeanor for marijuana possession, which requires a court appearance. Jones’ criminal case could end up being dismissed if she renews her medical marijuana license.

Lacey then returned to the topic of Jones’ HIV.

“OK, I explained it to [Scott],” Lacey said to Jones. “I asked him if he had anything and he said, ‘No.’ Stuff like that, as soon as I’m getting you out of the car, ‘Sir, I’d like to tell you I’m HIV-positive.’ Whatever it is. Tell me right away. I explained to him, you know, this is the west end of Dearborn. It’s a relatively nicer area, and we usually don’t have a lot of stuff like that around here.”

Lacey told Jones that if suspects don’t disclose diseases they have and whether they are carrying needles, “we’re going to be really mad.”

“I understand that what you have isn’t something I could get, but it makes me nervous … I don’t want to take it home to my family,” Lacey told Jones. “Honestly, if it wasn’t for that, I don’t think I would have wrote anybody for anything. But that kind of really aggravated me, you know what I mean? You got to tell me right away, ‘I’ve got this. I’ve got that.’ ‘Cause at that time, I wasn’t wearing any gloves.”

“I wrote you for the marijuana,” explained Lacey, instructing her to get her marijuana card renewed and to contact the court within 14 days.

“Out of line”

One expert consulted by TAI said that some of Lacey’s fears about contracting illnesses — especially more contagious diseases like Hepatitis C, and parasites such as lice and bed bugs — were reasonable, but that the encounter with Jones posed little risk of HIV transmission.

“His perceived risks of looking into handbags or under seats are real,” said Dr. Paul Benson said in an email.“He has no idea what’s inside and who knows what he would come across or injure himself even using caution. The earrings themselves were probably of a very low risk, but still an unknown risk. Factors include when they were worn last, what the viral load of HIV of the source person was, and if there was any blood on them.”

Benson, who treats HIV through his southeast Michigan clinic, added: “There is a lot more risk with Hepatitis C than HIV with accidental pricks and such. Handling these items without breakage of the skin would make transmission almost impossible.”

According to data posted on the CDC’s website, health care workers have a .3 percent chance of contracting HIV if they are stuck by a needle contaminated with the virus.

TAI also contacted Dr. Joseph Sonnabend, a retired HIV physician from New York City, and asked him to review the video of the incident. Sonnabend was one the first physicians in New York City to treat people with HIV in the early 80s, and helped found the prestigious journal AIDS Research. He was also a co-founder of the American Foundation For AIDS Research.

“I’m quite happy to state that HIV is not transmitted by casual contact and that there are no known transmissions by needle stick outside health care settings,” Sonnabend said in an email.

Risk aside, there is no law requiring people in Michigan to disclose their HIV status to police.

“This officer was clearly out of line and there is no legal requirement in Michigan [for a person] who is subject to a traffic stop to have to disclose their HIV status to a police officer,” said Jay Kaplan, staff attorney for the ACLU of Michigan LGBT Project, in an email statement after reviewing the video.

Emily Dievendorf, policy director at Equality Michigan, and Catherine Hanssens, executive director of the Center for HIV Law and Policy, concurred with Kaplan. Michigan law only requires a people with HIV disclose their infections to potential sexual partners, prior to engaging in sexually penetrative acts.

“The Dearborn police officer’s belief that people with HIV have an affirmative obligation to announce their status to any police officer who approaches them is just more evidence of the country’s stubborn embrace of 1980′s attitudes about HIV,” says Hanssens. “His belief — clearly shared by many of his colleagues — is not only contrary to basic knowledge about HIV, it’s contrary to federal law that prohibits this kind of treatment of people with HIV and other disabilities.”

Sonnabend, Kaplan and Hanssens also note that the incident highlights an apparent lack of adequate training in relation to HIV transmission and risk and dealing with persons living with HIV.

“Either training of police officers in Michigan is defective or this particular officer didn’t accept what he was taught,” says Sonnabend.

“It also is evidence of the extent to which law enforcement agencies around the country ignore their obligation to educate personnel on HIV, universal precautions and respect for all communities regardless of race and disability,” says Hanssens.

“This incident demonstrates the need for adequate police training regarding not only HIV,” says Kaplan, “but the treatment of persons who are HIV-positive.”

For Dievendorf and Laurel Sprague, regional coordinator for the Global Network of People Living with HIV – North America, the legal issues are only part of the concern the video brings to light.

Dievendorf says the incident highlights “the unfortunate ignorance that remains in regards to HIV/AIDS.” And that ignorance runs deep in American culture. A 2009 Kaiser Family Foundation public opinion survey found that American’s had an understanding of HIV transmission at the same level as people in 1987 — only seven years after the epidemic was identified.

“This ignorance exists broadly but is especially dangerous when expressed through the actions of community members granted unique power and authority,” Dievendorf said. “The degradation of this woman in Dearborn was offensive, destructive, and conduct unbecoming a law enforcement officer.”

Sprague raises concerns about the impact incidents of “shaming” have on people living with HIV’s ability to take their medications as prescribed.

“The very fact that she was carrying her medications with her indicates that she is adhering closely to the instructions she has been given by her doctor to take her medication on schedule and keep her viral load undetectable,” Sprague says. “Sadly, having her medications with her is the thing that grabs the officers attention and subjects her to discriminatory behavior…If people living with HIV feel they will be subjected to demeaning behavior by police officers if they are caught carrying their medications, then we can expect people to leave their medications at home, even at the risk of missing doses and developing resistance to the medications. People living with HIV are vulnerable to a range of personal violations because of their HIV status, from employment discrimination to domestic violence, we need to have the police on our side so that we have recourse for the violations committed against us.”

Legal showdown looming?

In the days following the incident, Jones filed a written complaint with the Dearborn Police Department. The status of that complaint is unknown.

But a statement released by the Dearborn Police Department on Monday, Mary Laundroche said Ronald Haddad, chief of the police department, had completed his “initial review of the incident,” but “has not yet had a chance to finalize his assessment of the situation.”

“At this point in time, the Chief is standing behind the officer while the review continues,” the statement continued.

Moore, Jones’s attorney, concurs with the other experts.

“The actions of the Dearborn Police Department in this matter clearly violated the civil and human rights of Ms. Jones,” Moore says.

 

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A team of researchers has published findings that they say indicate criminalization of HIV nondisclosure may discourage testing and hinder efforts to prevent the spread of the disease.

The study, from Canada, found that a significant minority of men who have sex with men said that a series of high-profile criminal prosecutions related to HIV nondisclosure had impacted their willingness to get tested for the virus or to discuss risk factors with medical professionals. The researchers further reported that these individuals were more likely to engage in higher-risk sexual practices.

“Our results indicate that, although it is a minority of individuals (17.0 percent and 13.8 percent respectively) who reported that nondisclosure criminal prosecutions either (a) affected their willingness to get tested for HIV, or (b) made them afraid to speak with nurses and physicians about their sexual practices, this small group reported higher rates of unprotected penetrative anal intercourse and internal ejaculation with, on average, a higher number of different sexual partners within the previous 2 months,” wrote the study’s authors.

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