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Video Of Police Arresting Utah Nurse Over Blood Test Leads To National Controversy

Utah Nurse Alert

A police officer in Utah has been suspended after a video emerged showing him arresting and manhandling an Emergency Room nurse who refused to allow him to draw blood from a patient without a search warrant:

The body camera video from a Salt Lake City police officer in an emergency room at University of Utah Hospital was rife with tension.

For almost 21 minutes, the video showed the officer, Jeff L. Payne, and a nurse, Alex Wubbels, locked in a battle of wills.

Officer Payne demanded that she draw blood from a sedated patient as part of an investigation into a car crash. Ms. Wubbels steadfastly said hospital policy did not allow it because it did not meet one of three criteria: The person was not under arrest, and the police had neither a warrant nor the patient’s consent. She said she had checked with several hospital administrators and managers who supported her position.

The officer continued to accuse Ms. Wubbels of interfering with a criminal investigation. “If I don’t get to get the blood, I’m taking her to jail,” he said, adding later: “I either go away with blood in vials or body in tow. That’s my only two choices.”

Ms. Wubbels put her boss, Brad Wiggins, on speakerphone and he told Officer Payne, “Sir, you’re making a huge mistake” by threatening a nurse. With that, Officer Payne said, “We’re done,” and moved to take Ms. Wubbels into custody.

She took a few steps back and screamed, “Somebody help me!” as Officer Payne pushed her through two sets of doors out of the emergency room and outdoors, twisted her so she was partly facing a wall and placed her in handcuffs.

Excerpts from the video, which came to light at a news conference by Ms. Wubbels and her lawyer on Thursday, gained widespread attention.

The video led to apologies from the mayor of Salt Lake City, Jackie Biskupski, and the police chief, Mike Brown, on Friday and an outpouring of support for Ms. Wubbels, 41. Investigations by the Police Department’s Internal Affairs unit and the city’s Civilian Review Board are also underway, the mayor said in a statement.

“These are officers of the peace,” Ms. Wubbels said in an interview on Friday. “There was nothing peaceful about this incident.”

The episode unfolded on July 26 as the Salt Lake City police were helping another police department in an investigation of a driver who had crashed into another vehicle while fleeing the police. The fleeing driver was killed, according to a report filed by Officer Payne, and the other driver was flown to Utah Hospital.

Officer Payne wrote that he was seeking to draw blood from the patient to check if he had “any chemical substances in his system at the time of the crash,” though it was not clear why.

He wrote that he spoke with Ms. Wubbels, who was the nurse in charge in the burn unit, and tried to explain the “exigent circumstances” of the request.

The confrontation intensified as they headed to the emergency room from the burn unit upstairs.

“I’m just being told what to do by my entire hospital,” she said, referring to her administrators.

Officer Payne responded, “And I’m being told what to do by my boss, and I’m going to do what my boss says.”

Officer Payne could not be reached on Friday. Chief Brown said in a statement on Friday that he was alarmed by the video.

“I want to be clear, we take this very seriously,” he said, adding, “Within 24 hours of this incident, Salt Lake City Police Department took steps to ensure this will never happen again.”

In a statement on Friday, the Police Department said that it was conducting a criminal investigation into the episode and that the officer involved would be placed on administrative leave.

Ms. Wubbels, a nurse at the hospital since 2009, said she was adhering to hospital policies and the law. The United States Supreme Court has ruledthat the police do not have the right to draw blood in drunken-driving investigations without a warrant.

“It wasn’t like she decided she was a constitutional scholar,” her lawyer, Karra J. Porter, said in an interview on Friday.

No charges were filed against Ms. Wubbels, who was in handcuffs for about 20 minutes before being released. Ms. Wubbels said she wanted to use the episode to educate medical professionals and the police and to “open a civic dialogue.”

University of Utah Health, which runs the hospital, supports Ms. Wubbels and is “proud of her decision to focus first and foremost on the care and well-being of her patient,” Kathy Wilets, a spokeswoman, said in an email. “She followed procedures and protocols in this matter and was acting in her patient’s best interest.”

Here’s the video of the incident that’s been made available to the public, the shorter video shows the height of the confrontation between Ms. Wubbles and the police, while the longer one consists of a local news station’s report on the case that has a longer version of the body camera footage that has been released in this case and a third video posted by Desert News that appears to consist of the entirety of the body cam footage:

 

The Salt Lake City Tribune argues in an Editorial today that there was no justification for the way police treated Nurse Wubbels in this situation:

The legalities of the situation are such that the mayor and the chief are unlikely to say anything more about the matter until the police internal affairs investigation and a parallel Civilian Review Board examination are finished. But, to the rest of us, serious questions remain and firm action is necessary.

Unless the investigations turn up something that is not now apparent, it seems clear that Payne should already have lost his job, and that his certification to be a law enforcement officer should be permanently revoked. The fact that he was removed from the roll of officers who are allowed to take blood samples, but not placed on leave until the matter became public and a criminal investigation launched, can only serve to undermine public confidence in the whole department.

Going forward, officials must make sure that police officers are fully trained in the law of searches and in the policies of the medical institutions they interact with. It was also troubling to see other law enforcement officers who were present at the time do nothing to intervene or to de-escalate the situation, as it was to hear that Payne was acting on instructions from a police supervisor.

At the end of the day, there is little doubt about who is in the right here, and it’s clearly not the police. Not only is the requirement for either a warrant or patient consent for police to draw blood in a situation like this hospital policy, it is also the law. Utah law on the subject, for example, is clear and states that the “implied consent” that exists for a breathalyzer test in DUI cases does not apply to cases involving blood testing. Instead, the relevant state law requires the police to apply for and obtain a warrant for such a test from a duly authorized judge based on probable cause. Additionally, the Supreme Court ruled in a 2016 case called Birchfield v. North Dakota has ruled that the “implied consent” exception to the Fourth Amendment’s warrant requirement does not apply to blood tests. As I noted at the time this decision was handed down, the Court’s distinction between breath analysis and blood testing in a case involving driving under the influence was a reasonable application of the balancing test that it has often applied in cases such as this. At the same time, the Court left somewhat unanswered the question of what would happen in a situation such as this where the police were seeking to draw blood from an unconscious patient before the time during which blood alcohol levels would begin to fall from where they had been during the time of an accident or another event that led them to be admitted to the hospital was about to expire. Until the Court clearly makes a distinction for such cases, though, the law is clear and the officer was clearly in the wrong for even attempting to conduct a blood test in this situation without first obtaining a search warrant. All of which makes his treatment of Nurse Wubbels not only inappropriate but also potentially illegal.

While much of the national news media has been deep in coverage of the aftermath of Hurricane Harvey and its impact on the Houston area and other parts of the South, this video has gone viral and the reaction has been swift and severe. Even conservatives who have normally jumped to the defense of police in past examples of obvious police abuse have found it hard to defend what can clearly be seen here. What we clearly see is an officer who was abusing his authority, not only with respect to the unconscious patient whose rights he was seeking to violate but also with respect to Ms. Wubbles who was simply doing her job by enforcing hospital policy and, as I noted, protecting the rights of her patient under both that policy and all applicable law. In fact, the requirement for a warrant in these situations has been the law in Utah since at least 2007, well before the Supreme Court made it the law nationwide. As a result, it seems entirely implausible to me that the officer would be unaware of what the law is in his state and based on last year’s Supreme Court ruling. Additionally, it appears that his arrest of Ms. Wubbles was a clear violation of department policy in situations like this. Given the lack of justification both for her detention and arrest and for the underlying demand for a blood test, it seems clear that this officer ought to be removed from the force and never allowed to carry a badge and a gun again and that he ought to be charged with assault, battery, and unlawful imprisonment for taking Ms. Wubbles into custody. Indeed, Reason’s Scott Shackelford is correct when he argues that every officer involved in the incident needs to be fired:

What Payne did here is patently, inescapably wrong in just about every possible way. Just one year ago the Supreme Court ruled that police must get a warrant or consent in order to draw a person’s blood. It’s utterly inconceivable that Payne, who is a trained phlebotomist with the police, did not know this. According to coverage from the Salt Lake Tribune, Payne acknowledged that he didn’t have probable cause to get a warrant, but nevertheless insisted he had the authority to demand Wubbels draw blood.

But Payne did not have the authority to demand the blood draw and Wubbels was not “interfering” with a police investigation as they insisted at the time. Unsurprisingly, she was released later at the hospital and was not charged with any crime.

In fact, the claim that this blood draw was part of an “investigation” at all adds another layer of revulsion to Payne’s behavior. The unconscious man Payne wanted blood from was not suspected of any crime and had done nothing wrong. He was, in fact, a victim of a crime.

The patient, William Gray of Idaho, was driving a semi truck in Northern Utah when he was struck head-on by a man who veered into oncoming traffic on a highway in Wellsville on July 27. That driver, who died in the crash, was fleeing from the police in a high-speed chase. Utah Highway Patrol officers were responding to calls about an erratic driver, and the man, Marco Torres, 26, led police on a chase rather than get pulled over and detained.

So Gray’s terrible injuries were a consequence of a police chase that he had absolutely nothing to do with. He was in the wrong place at the wrong time. According to the coverage of the arrest, Payne said that he wanted to draw blood from Gray to check for drugs in order to “protect” him in some fashion, not to punish him, and that he was ordered to go collect his blood by police in Logan. It is not made clear in any coverage what exactly the police would protecting him from by drawing his blood without his consent while he was unconscious. Payne also said it was his watch commander, Lt. James Tracy, who told him to arrest Wubbels if she refused to draw blood.

Payne has been suspended from the police’s blood draw program but remains on duty. He needs to be shown the door. It doesn’t matter if he was just following orders, he should have known he didn’t have the authority. For that matter, Wubbels herself was just following orders. She served the hospital, which had strict guidelines for drawing blood that the police were attempting to bully her into ignoring.

Tracy needs to be shown the door, too. We don’t see Tracy in the video acting the way Payne did, but it’s very clear from the Tribune‘s coverage that the lieutenant did also insist that he had the authority to force Wubbels to draw blood, even though he most assuredly did not.

As of this morning, there have been some positive developments that would appear to indicate that justice will be done. Local prosecutors have opened an independent criminal investigation of the incident in addition to the internal investigation launched by the police department. Salt Lake City’s Mayor and Police Chief, meanwhile, have apologized to Wubbels for her treatment, and two of the officers have been placed on administrative leave. This is a vast improvement over the departments initial reaction, which involved removing Officer Payne from the blood draw program but allowing him to remain on active duty. Much of this is due to the national attention that the case has gotten since the body cam footage was released, a fact which seems to me to strengthen the argument for mandating the use of police body cams in all jurisdictions. After all, if this had happened without such footage being available it’s probably that Payne would still be on duty and free to continue to violate the rights of the people of Salt Lake City. The only question that remains is how many Officer Paynes there are out there that we don’t hear about.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Slugger says:

    I don’t see any controversy. Payne assaults the nurse, period.
    The only question in my mind are what sanctions need to be imposed. I favor firing the Chief of Police; it is certainly his responsibility to ensure correct conduct by the people he commands.

    Like or Dislike: Thumb up 12 Thumb down 0

  2. Jack says:

    Much of this is due to the national attention that the case has gotten since the body cam footage was released, a fact which seems to me to strengthen the argument for mandating the use of police body cams in all jurisdictions.

    This only works in those jurisdictions that make body cam footage available.

    This week North Carolina’s governor signed a law that excludes police body cam and dash cam recordings from that state’s open records laws.
    http://www.npr.org/2016/07/13/485895793/state-laws-restrict-release-of-police-body-cam-footage

    In Texas, body camera footage is exempt from public disclosure unless it is used as evidence in a criminal case. In Connecticut, release of recordings is banned when it involves victims of domestic abuse, suicide, homicide or a fatal accident. 
    https://www.washingtonpost.com/news/post-nation/wp/2016/02/25/these-are-the-states-that-want-to-regulate-police-body-camera-videos/?utm_term=.82717d7b6d4d

    Police body camera footage is becoming a state secret.
    https://www.theverge.com/2017/6/12/15768920/police-body-camera-state-secret

    Like or Dislike: Thumb up 11 Thumb down 0

  3. Just 'nutha ig'nint cracker says:

    “I want to be clear, we take this very seriously,” he said, adding, “Within 24 hours of this incident, Salt Lake City Police Department took steps to ensure this will never happen again.”

    Policy Manual: [New Policy] When you need to manhandle a civilian in the process of violating a suspect’s right to privacy, make sure that your body camera accidentally falls on the floor and is broken before proceeding.

    That ought to cover the problem.

    Like or Dislike: Thumb up 5 Thumb down 0

  4. Bill says:

    @Slugger:

    I don’t see any controversy. Payne assaults the nurse, period.

    No it isn’t. At the end of the video there is talk about going back inside to get the blood themselves. Now that’s conspiracy. Where’s the FBI?

    In some jurisdictions, interfering with a medical professional doing their work is a crime.

    Paine has been getting blood draws for a decade. His ignorance of Utah and United States laws on the subject is totally unprofessional for someone in his line work. Either the man is a complete idiot or a bully there is no middle ground. I tend towards the bully choice, and an almost complete idiot because how could Payne ever think with his camera on that his conduct wouldn’t become known.

    Like or Dislike: Thumb up 6 Thumb down 0

  5. OzarkHillbilly says:

    She should have just complied with the officers requests.
    .
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    What? Isn’t that what we say every time a black man/woman gets the snot beat out of them by a cop?

    Like or Dislike: Thumb up 0 Thumb down 0

  6. Terrye Cravens says:

    I work with a lot of nurses and everyone of them that I have talked to about this has said that the nurse here did the right thing, the only thing, she could do. The cop had to know that.

    Like or Dislike: Thumb up 4 Thumb down 0

  7. MarkedMan says:

    Given that the police were involved in a high-speed chase that resulted in the death of the suspect in a critical injury of an innocent bystander, it is at least possible that the reason they wanted that drug test of the innocent bystander so badly is the hope that a positive result could mitigate their liability in the situation. It raises the possibility that they would have made sure that blood test came back positive

    Highly-rated. Helpful or Unhelpful: Thumb up 25 Thumb down 0

  8. Terrye Cravens says:

    @Bill: All he had to do was get a warrant. So, yes, this man is a bully. I wonder if he would have done this to a male nurse?

    Like or Dislike: Thumb up 3 Thumb down 0

  9. CSK says:

    @MarkedMan:

    That was my first thought.

    Like or Dislike: Thumb up 3 Thumb down 0

  10. Gustopher says:

    @Slugger: The controversy is that when the police are told to “take the gloves off”, the police are not always hearing the implied “when dealing with minorities.” The nurse isn’t even poor!

    When the police are so emboldened that they will bully middle class white people, in an area they should know is filled with cameras, something has gone wrong. They think they are above both the law, and the proper social hierarchy. Don’t they know that they are public servants?

    Now, the police are out of control.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  11. CSK says:

    I’ve seen some readers at other news sites ask why none of Wubbells’s colleagues came to her aid while she was being attacked.

    To which my response would be: And risk the very real chance of being shot to death by Payne and his Merry Men?

    Like or Dislike: Thumb up 7 Thumb down 0

  12. michilines says:

    The condescending lecture the second cop gave the nurse while she was handcuffed in the car seems to indicate a high level of CYA was going on. As she told the condescending jerk off, medical personnel had taken blood earlier and they could have simply gone through the proper channels to obtain the sample they so desperately needed.

    These officers showed no concern for the injured man despite their later CYA that they were just trying to protect him. That’s prime grade BS.

    Like or Dislike: Thumb up 5 Thumb down 0

  13. Franklin says:

    @CSK: There’s that, and there’s also the contingent of extreme police apologists who insist that you must always do as the authority figure says. Or maybe they only say that when the victim is black, I can’t remember.

    P.S. I note that even in the top picture, that guy on the phone appears to be hospital security? He probably knows this is BS, and is asking his supervisor what to do.

    Like or Dislike: Thumb up 1 Thumb down 0

  14. Franklin says:

    Officer Payne spent a little bit too much time watching his idol Andy Sipowicz on NYPD Blue. At least he’s got the hair down.

    Like or Dislike: Thumb up 2 Thumb down 0

  15. James Pearce says:

    @Gustopher:

    When the police are so emboldened that they will bully middle class white people, in an area they should know is filled with cameras, something has gone wrong.

    This happens all the time to middle class white people. It just doesn’t normally make the news.

    If there wasn’t footage of this incident, it wouldn’t have made the news either.

    Like or Dislike: Thumb up 10 Thumb down 0

  16. Unsympathetic says:

    This isn’t just one bad apple. Count the number of other cops standing by.

    Just like what Doug said, all those cops should be put under suspension and eventually fired, not just the one. I bet Payne has been nothing but a bully his entire life.

    Looks like the “You will respect my authoritah” SouthPark episode of Cartman is closer to reality than we thought.

    Who’s shocked that nothing happened to the cop until the video was released? Anyone? Anyone?

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  17. Kari Q says:

    I can’t find the link now, but I read an article that stated the other uniformed individuals seen in the video are hospital security, not regular law enforcement officers. They may know that this is being badly handled, but if they aren’t public employees and regular law enforcement, I’m not sure they would have been treated any the nurse had they tried to intervene.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. Franklin says:

    @Unsympathetic: Although he didn’t press the matter, one of the other cops was heard saying something like, “I don’t think this arrest is gonna stick.” But cops back cops, so I’m sure he felt an internal pressure to just shut up.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. george says:

    @James Pearce:

    True. It happens more (about 2-3 times more per capita) to visible minorities, but it still happens regularly to middle class and poor whites. Probably the only people it doesn’t happen to is the top 0.001% richest and most powerful whites.

    As in, probably no cop is going after the President, a senator or congressman, the local governor or mayor. After that you’re fair game.

    One interesting thing is that, scanning various right wing sites like hot-air or national review, I notice almost everyone (as in 99% of posters) came down on the nurse’s side. No one is taking the cop’s side on this.

    Its the first time in awhile where I’ve seen something where everyone agrees.

    Like or Dislike: Thumb up 5 Thumb down 0

  20. HarvardLaw92 says:

    I’m not sure where to begin with this shitshow.

    The officer here, on the orders of a lieutenant, proposes to compel the production of blood from a comatose victim not under arrest and not accused of any wrongdoing, without a fricking warrant, and then arrests a nurse when she refuses to draw it?

    A few thoughts:

    1) She has a massive lawsuit against this dept, which she should pursue and which she would win.

    2) This department needs to acquaint itself with the 4th Amendment, and Birchfield v. North Dakota in particular, in short order. The only thing saving it from a parallel massive lawsuit by this man’s family is that the blood wasn’t successfully obtained in the first place.

    3) They have at least two officers who, at a minimum, merit a period of unpaid suspension & reassignment. Had they succeeded in this ill conceived quest, they’d be facing massive lawsuits as well. The US Constitution is not a list of suggestions, so get it together guys.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  21. Paul L. says:

    @michilines:

    The condescending lecture the second cop gave the nurse while she was handcuffed in the car seems to indicate a high level of CYA was going on.

    The second cop was Det. Payne’s supervisor Lt. Tracy who needs to fired too.
    He is the guy who ordered Det. Payne to get the blood sample to try and blame the accident on the Semi driver being DUI instead of being caused by the police high speed chase.

    Like or Dislike: Thumb up 8 Thumb down 0

  22. James Pearce says:

    @george:

    No one is taking the cop’s side on this.

    Ah, finally…..consensus. It’s a beautiful thing, innit?

    Like or Dislike: Thumb up 8 Thumb down 0

  23. CSK says:

    @HarvardLaw92:

    The nurse actually refused to allow the cop to draw the blood himself, which is exactly what she was supposed to do: deny this schmuck access to the patient..

    Like or Dislike: Thumb up 4 Thumb down 0

  24. HarvardLaw92 says:

    @CSK:

    Thanks for the update.

    Which is even worse. No hospital should ever allow external personnel to conduct medical procedures on its premise, regardless of training or qualifications. The liability issues are too large to even begin to consider it. Frankly somewhat shocked that this one apparently allows it.

    Like or Dislike: Thumb up 3 Thumb down 0

  25. Rune says:

    A) Reason should never be your first stop when looking for a legal opinion. Or any step at all, in my experience.
    B) The Rodriguez ruling didn’t address unconscious subjects *at all* – it addressed a conscious subjects refusal, and determined that upon refusal, the law would require the issuance of a warrant.
    Utah law *very clearly did*, and states in section 10.3.3, here: https://justice.utah.gov/Documents/Sentencing/ProsecutionManual/chapter10.pdf
    that anyone deemed *unable to refuse*, ie unconscious or dead, would be assumed to have consented.

    Like or Dislike: Thumb up 0 Thumb down 3

  26. Rune says:

    Jeezus. Doug Mataconis. I should have known.

    Like or Dislike: Thumb up 0 Thumb down 2

  27. HarvardLaw92 says:

    @Rune:

    State law can’t permit something which is explicitly unconstitutional. The victim (key point there – this guy was the victim of the crash, not the causal agent) in question here had not been arrested, therefore Chimel doesn’t come into play and there is no lawful / SITA exception which can be advanced to permit the warrantless search.

    Moreover, as I noted above, even if the police officer in this instance somehow believed he had cause to effect arrest, which is frankly ludicrous, Birchfield is governing. Warrantless breath analysis is permissible, warrantless collection of blood is a no no. Had the officer pressed ahead anyway and collected it, it would be inadmissible as evidence and the act of collecting it would have opened him and his department up to a massive civil lawsuit (which they would lose).

    It seems somewhat clear that this was an attempt to partially shift liability for the crash to the victim, IMO in a misguided attempt to indemnify the department from liability stemming from their participation in the high speed chase which resulted in the crash. It backfired in this case, but it’s troubling that they’d even try this stunt. I’m left wondering how often they’ve gotten away with it in the past.

    Like or Dislike: Thumb up 9 Thumb down 0

  28. Unsympathetic says:

    Wubbels, the nurse who was arrested, was an Olympic athlete who made the 98 and 02 olympics in Alpine skiing.

    One additional policeman [one of the bystanders] has been placed on leave. The commander is still being reviewed, so it’s not him. Thus we can conclude the additional cops weren’t just hospital rent-a-cops..

    The blood being requested was of an innocent driver who was hit head-on by a guy who was fleeing police. Such a pointless situation..

    Also.. Let’s assume psycho cop does get the guy’s blood.. what was he going to do with it? Drag the nurse by her hair to the hospital’s lab and demand she perform a stat chem-12? [Because we can be sure hospital staff wouldn’t test it themselves for him] Keep the vial in his car’s center console cupholder just to show how good he is at contaminating specimens via hemolysis?

    Like or Dislike: Thumb up 4 Thumb down 0

  29. Stormy Dragon says:

    Officer Payne wrote that he was seeking to draw blood from the patient to check if he had “any chemical substances in his system at the time of the crash,” though it was not clear why.

    If there’s drugs in his blood (which there would be since the nurse said he was sedated), the police can blame the accident on him and not their high speed chase.

    Like or Dislike: Thumb up 6 Thumb down 0

  30. Monala says:

    @James Pearce: Speaking of consensus, I thought about a similar situation in which the health care professional protecting his patient was black: Charles Kinsey, the behavioral therapist in Florida shot by a cop even though he was lying on the ground with his hands in the air.

    I wondered what had happened to the officer involved. Apparently, he was finally charged with attempted manslaughter in April 2017, nine months after the shooting. Meanwhile, he remains employed as a police officer for the same force.

    The general consensus of his lawyers, the police union, and quite a few commenters on the various stories is NOT, as in this case, that the cop was in the wrong and should be fired. No, he just made a mistake, a lamentable but understandable one (even though at least 30 seconds before the shooting, he and his fellow officers reported to their dispatch that there was no danger; even though he claimed he was shooting at the agitated client, who was on the other side of the cop from the therapist; even though he left the therapist bleeding for 20 minutes without medical aid). Furthermore, anyone who claims that the cop should be punished is just trying to aggravate racial tension!

    The difference is interesting, innit?

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 0

  31. michilines says:

    Another plausible reason this happened is because the cops weren’t happy with the hospital. The lecturing cop complains about how the hospital had handled their requests in the past. It could also explain why he was so quick to pull the arrest trigger. Their intention was to use this case as intimidation of hospital personnel for not routinely complying with their unlawful requests.

    It solves two problems for the cops — they scare the hospital employees into doing what the cops want and if it backfires, the hospital and its employees take the heat — cops get what they want.

    This clearly wasn’t the first time this happened. It was the pimple finally popping.

    I’m glad it was on camera. Hopefully, more will come of this and people won’t simply forget.

    Like or Dislike: Thumb up 3 Thumb down 0

  32. Franklin says:

    @Unsympathetic:

    Wubbels, the nurse who was arrested, was an Olympic athlete who made the 98 and 02 olympics in Alpine skiing.

    Hadn’t seen that, cool. But from the video alone, she already had my great respect.

    Like or Dislike: Thumb up 0 Thumb down 0

  33. Roger says:

    The good news: almost everyone–liberal, conservative, and in between–agrees that what officer Payne did was horribly wrong, and they are right to believe that. The bad news: although almost everyone seems to believe that this means that nurse Wubbles has an easy, clear cut winning lawsuit, they are wrong to believe that. This might well be a difficult case to win. Ms. Wubbles probably will be paid, but that’s more the result of the bad publicity the video has caused than it is of the state of the law.

    I don’t know much about Utah, but in Missouri, where I practice, Ms. Wubbles probably would not be able to succeed on any state law claims because officer Payne would be protected by official immunity and his employer would be protected by sovereign immunity. I’m guessing that’s true in Utah as well, so she would need to file a federal 1983 action, where the Supreme Court has spent the better part of a generation handing down opinions making these cases harder and harder to win.

    Any private employer is vicariously liable for the bad acts of its employees, but in a 1983 action the Supreme Court says that cities are not responsible for the bad acts of cops unless those acts were the result of city policy. Salt Lake has been working hard to make a record that Payne acted contrary to policy, loudly condemning his actions and imposing administrative penalties. His claim that he was told by his supervisor to do what he did cuts against the city’s defense, but Wubbles’ claim against the city certainly is no gimme.

    That leaves a 1983 claim against Payne, where Wubbles will learn about the beauty of the judge-created defense of qualified immunity, which protects officers from suit unless they violated a “clearly established” constitutional right. You might think that this patient’s right not to have blood drawn without a warrant is clearly established since the Supreme Court said exactly that in Birchfield, but you’d likely be wrong about that, because under the current state of constitutional jurisprudence the question is not whether there is a general right to be free from such searches. It is, instead, the much more narrow question of whether a reasonable officer could have believed under the facts of this case that a blood draw was constitutional, and that is a very close question under the rules the Supreme Court has given to evaluate such claims.

    Despite frequent claims that Birchfield says cops must get a warrant to draw blood, the court actually held no such thing. Instead, it explicitly left standing the ability on a case-by-case basis to do a warrantless blood draw based on exigent circumstances. Even an exigent circumstances search requires probable cause and Payne is on tape saying there is none, so that ends that defense, right? Wrong. Payne’ subjective belief that there was no probable cause is irrelevant. If any reasonable officer could have believed based on the totality of the circumstances that there was probable cause, the search is righteous, whether or not Payne himself personally believed it. It’s a pretty lousy police lawyer who can’t cobble together some kind of pitch for probable cause after the fact.

    Finally, despite what Mr. Mataconis says the Supreme Court did not hold in Birchfield that implied consent laws do not apply to blood draws. They answered the much narrower question of whether someone could be criminally prosecuted for refusing a blood draw in violation of an implied consent statute. Since the patient in this case was unconscious, the fact pattern of Birchfield never came into play, and a reasonable officer could rely on the statement in Birchfield that nothing in the opinion should be read to cast doubt on implied consent laws. As it happens the precise wording of Utah’s implied consent law may have made it inapplicable to this case, but that doesn’t mean that it can’t provide a defense to officer Payne, because the only Supreme Court we’ve got says that a search is constitutional if it’s based on an officer’s reasonable mistake about the scope of state law.

    So we’ve got a case where everyone agrees a cop did something awful, and there’s still a reasonable chance no one has to pay. The law needs to change, and until it does people need to realize how little protection the law gives them.

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  34. James Pearce says:

    @Monala:

    The difference is interesting, innit?

    Oh trust me, I am not comforted by my suspicion that consensus in this case is made easier by the fact that all the participants are white, but I think the more compelling part of the video is how the male cop is treating a woman. So yeah, biases are in play, as they are in everything.

    Furthermore, anyone who claims that the cop should be punished is just trying to aggravate racial tension!

    A little over-stated perhaps, but I take your point. I would also insist that no one should be mad that the privileged white lady is now getting all the attention. We shouldn’t have to stop walking to chew a little gum.

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  35. Mikey says:

    @James Pearce:

    I would also insist that no one should be mad that the privileged white lady is now getting all the attention. We shouldn’t have to stop walking to chew a little gum.

    Seriously? Being mad at the cops for mistreating a white woman is pretty much an American reflex. It takes no coordination whatsoever.

    When Americans are equally unified in their outrage at police mistreating people of color, we’ll have started to walk and chew gum at the same time.

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  36. Hal_10000 says:

    One stray observation. We’ve seen this over and over again: citizens are expected to know every detail of the law. If we violate some minor regulation or obscure law, ignorance is not an excuse in Court. Hell, we can get punished for disputed interpretations of law absent any mens rea, as anyone whose dealt with the IRS knows.

    But … cops are not held to this standard. We’ve seen this over and over again. If we get arrested for a crime that doesn’t exist or punished for obeying the law, it’s not their fault. The Courts have repeatedly decided that ignorance of the law is an excuse for bogus arrests, harassment and shootings.

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  37. Unsympathetic says:

    @Stormy Dragon:

    Yes, but that requires everything between “get a vial from patient” to “achieve results from a different lab” to happen perfectly.. and I think even within the hospital the horrible cops know that none of those steps would ever actually work.

    I truly think the cops had been doing this for quite some time merely as intimidation – they NEVER intended to actually get it tested even if they had been able to get a vial of blood before.

    Because the cop is just a bully, he will be doing a lot of stuff just to Show His Superiority Over Normal People Every Day — and so the reaction you saw isn’t merely to the fact that he couldn’t get a vial of blood from a patient, it’s to the notion that this person didn’t Respect His Authoritah.

    Fun fact: The patient (who’s still in a coma) is a reserve policeman in Idaho.

    What are the issues between walking out the door of a hospital with a bloodvial to Receiving Results?

    1) Even if he “got blood” there’s no guarantee that the specimen which was drawn was sufficient. What if it’s a difficult stick? What if that unit/hospital has the policy of phlebotomists always doing the draw to eliminate the need for re-draws? I will never in a million years believe that some cop thug has magically cross-trained as a phlebotomist in his spare time.

    Specimen might not be sufficient simply due to the patient being dehydrated or any number of reasons. What happens then? He goes back to the hospital and repeats this exercise? Precisely how many vials is he going to take – are they even aware that multiple vials are needed to get the test done?

    2) Even if the cop walks out the door with multiple blood vials, precisely where is this magical 24-hour-a-day lab to which this cop will take the blood? Back at the precinct? Let me get this straight.. they pay the labor cost for 24-hour lab tech coverage of a lab with the same expensive equipment as a hospital? And this Batman lab would do all this work with no records because those records would then show their lawlessness? Nope, I don’t buy it.

    3) Even if the cop had a destination laboratory and had enough vials and was competent at drawing blood.. how exactly would he get the vials to the lab? By throwing the vials in the passenger seat of his own car and driving fast? Nope, that would hemolyze the specimens every time.

    4) Even if he had a lab, had the vials, was good at drawing blood, and had calmly transported the blood to the lab…. Those blood results would get thrown out of court by any self-respecting attorney more competent than Lionel Hutz [voiced by the great Phil Hartman].

    I don’t think there ever was an actual plan to get the results.. I think the cops just wanted to intimidate with the side benefit of people THINKING he had those results

    All that to say…. the rage this cop was showing had to be more because he was realizing his scheme to Get The Respect He Deserves was getting squashed – not because he really wanted some random blood.

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  38. Hal_10000 says:

    One other thing: note at the end the cop says they will now only bring transient to that hospital in retaliation. This is one of the reasons police misbehavior needs independent investigation. DAs who bring charges against cops or judges who rule against them get blackballed. It’s one of the reasons charges are so rarely brought.

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  39. Monala says:

    @James Pearce: Ditto to what Mikey said. No one is seriously saying that people shouldn’t be outraged at what happened to the nurse. (A few people are sarcastically doing the “she should have just complied!” routine African-American victims often get.)

    One thing about the Kinsey case, as hard as people are trying to absolve the cop, at least no one is blaming the therapist for getting shot for a change.

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  40. george says:

    @Mikey:

    Most of the time. And certainly there’re a hundred times more likely to get upset at cops being violent against a white woman than any one else.

    But even that isn’t anything close to a guarantee of getting consensus support against police violence. There are many examples of cops being violent with young white women at protests (all the way back to the ’60’s, its not a new phenomena, and I suspect it went back to the suffragettes as well), and the general attitude at conservative sites is the same “they deserved it”.

    The trick is to be a white woman with the ‘correct’ political views.

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  41. PT says:

    @Rune:

    Jeezus. Rune. Who the eff is Rune?

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  42. CSK says:

    Nurse Wubbels has the backing, support, and thanks of the Rigby police department for which William Gray, the burn victim, is a reserve officer.

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  43. Katie Short says:

    @Kari Q: the other uniformed folks are Hospital Security, but since this is a University Hospital, they are University Police. The nurse has stated that she believes that department to have behaved with such ineptitude that it will be addressed separately. That’s definitely not a quote, but my recollection of the meaning of her statement. Either way… they should have stepped in to protect Hospital staff – that’s their job.

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  44. Unsympathetic says:

    @Katie Short:

    Some of them are – but we know that at least one other person in the area was a uniformed officer from the same department.. because the department suspended 2 people not counting the lieutenant [not just the one guy caught on video].

    As expected, the police demonstrated through their continuing inaction that they’re not actually sorry in any way —– they’re just sorry they got caught.

    Just did some digging — Although it’s tough bc Utah calls the first level of training “Peace Officer 1” it would seem that the job description of police officer is exactly the same [at least as written at Glassdoor] for “security officer” at Utah Hospital and “police officer” employed by the city. Fun sentence: “6. Obtains and serves search/arrest warrants as well as apprehends suspects; performs warrantless searches and seizures as necessary.”

    To be clear: It’s not that the Utah employees “couldn’t” do anything [they’re hiring from the same pool of applicants] ——- it’s that they wouldn’t, it’s one of their own. The hospital security does in fact have the same powers and responsibilities on hospital grounds as the local police force.

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  45. Tyrell says:

    It seems there should have been a doctor in charge. How about the hospital director ? Where were these people when all this occurred? They should have been more visible and pro-active in this. Everyone knows that the police just can’t go barging in a hospital and take over. “Not on my watch!” Looks like the nurse got hung out to dry here.
    The “hippa” confidentiality laws were probably violated, as well as doctor – patient relationship rules.
    The attending physicians of this patient and the director should have gone immediately to the police station, demanded the release of this nurse, and filed a formal complaint.
    There should be some kind of meeting in the near future involving the police and hospital officials. Rules, protocols, and regulations involving the police and the hospital need to be reviewed and explained.

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  46. george says:

    @Tyrell:

    Unless that physician happened to also be a cop, it wouldn’t matter. The police are as happy to arrest doctors as they are nurses or anyone else other than brother/sister officers.

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  47. Just 'nutha ig'nint cracker says:

    @Katie Short:

    they are University Police.

    Thanks! I was wondering why the other officer in the photo–the one operating the door opening switch–seemed “out of compliance” with the normal police standard of one’s chest measurement needing to be larger than one’s girth. That he was a Kampus Kop, while disappointing and disturbing, does explain my confusion adequately.

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