I’ve written before that “as the son and brother of heroic police officers, I know a little bit about law enforcement – exactly enough to know that I know practically nothing,” and most people know even less. As such, when I see negative press about a police officer, I react in one of two ways: either “that was completely, unquestionably justified based on even rudimentary knowledge of police work,” or “I’m not sure; let’s wait for more facts.”
On rare occasions, there’s a third response, which can be best characterized as “why on Earth did that cop just drag a Utah nurse out to his squad car after she refused to draw an unconscious patient’s blood without a warrant?” You might notice that this category is oddly specific. Like I said, it’s very rare.
On July 26, a nurse at University of Utah Hospital in Salt Lake City defied a detective’s order to draw the blood of an unconscious truck driver who had collided head-on with a vehicle that was fleeing police. The suspect was killed in the crash, while the semi driver was rendered unconscious.
The officer, Detective Jeff Payne, informed Nurse Alex Wubbels that it was protocol to draw blood from any party involved in such an accident, but Wubbels countered (rightly) that it was against the law for her to do so without following search and seizure provisions under the 4th Amendment. Wubbels insisted that she would not comply with the officer’s demands without either a warrant or consent from the patient, or unless the patient were under arrest.
Payne became frustrated and placed Wubbels under arrest, forcibly escorting her to his car, where Wubbels waited until she was eventually released with no charges filed.
See the video for yourself here.
In my amateur opinion, the officer was clearly in the wrong and attempting to violate the basic human rights of both the nurse and the patient. But since I try to defer to expert testimony, I thought it would be best to criticize Detective Payne through the lens of experienced officers: my brother (B) and my dad (D).
Let’s take a look step by step, according to an adapted list of the metrics I’ve been given by police on how to react to police controversy:
What is the law:
B: “We have to get a warrant. … The reason for arrest is the thing that bothers me.”
D: “Clearly the cop overstepped his bounds. he violated her civil rights, the nurse’s, and attempted to violate somebody else’s civil rights.” Additionally, had Wubbels drawn the blood anyway, “the blood evidence would have become what they call in law ‘the fruit of the poisonous tree.’ It would then be thrown out as would their case, and justifiably so…because it was obtained contrary to the fourth amendment, because it violated their protection against unlawful search and seizure.”
Whose side of the story have I heard?
In other words, a lot has been made of Payne’s malfeasance. But did Wubbels do anything wrong?
B: “She did a good job requesting a warrant. When she was told she was under arrest, it would have helped if instead of trying to run away from the cop and screaming for help like she was being kidnapped, she asked for his supervisor and asked for a lawyer. I can’t blame her for being distressed, but when people act out like she did, rather than allow a huge scene to be made in the emergency room an officer is going to remove someone quickly. I don’t mean to sound like a jerk, but if people freak out then it escalates, and a simple arrest, even a false one, can turn into a struggle.”
Put yourself in the officer’s shoes:
Even if Payne were right about the protocol, what should he have done differently?
D: “Even if he thought the nurse was wrong, he had many other avenues to take other than to bully and arrest her. He knew that and clearly acted with malice and should be gone. … Other avenues…would have been to go above her head or get the warrant or place the person under arrest if they had any other probable cause and he could’ve then pulled the blood, or ask for another nurse to do it.
What are the police trained to do?
This is particularly important since many are calling for department-wide trainings on how to handle this sort of thing. Is that even necessary, or should the cop have known better?
D: “It’s basic training for him that would have told him that he was violating these people’s civil rights. Every cop knows you could not draw blood from somebody without their consent or without a warrant. That is elementary. … He acted like a thug, a common schoolyard bully.”
What should happen now?
D: “I believe the cop should be fired and the nurse should be compensated by the city. … Fire the clown and compensate that poor nurse who was treated as she was. The cop acted like a thug and a bully. That’s why I say fire him. He is the type you do not want in that profession.”
Wubbels has stated that she won’t be filing a suit against the city, but that doesn’t mean the city shouldn’t offer restitution as a show of good faith. The hospital has come to Wubbels’s defense, and it appears the situation is being dealt with responsibly.
Feel free to copy this pattern of evaluation for future police incidents. It helps deter immediate outrage and remain sufficiently objective. As we’ve seen here, it doesn’t automatically excuse the cop’s actions either. It always pays to be level headed amid controversy.
Richie Angel is a Co-Editor in Chief of The New Guards. Follow him and The New Guards on Twitter, and check out The New Guards on Facebook.
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I think you have neglected to address some of the more troubling police behaviors documented in this case. What is the responsibility of the other cops that stood by and watched as she and her rights were violated? Those cops swore an oath to protect and serve, who were they protecting? If a citizen had assaulted and absconded with her they would be arrested. Why has no one arrested Payne?
I would like to hear your, your dad’s, and your brothers response to the above please. I too was wondering why none of the other officers helped her?
This is unusual since the discussion is in regards to implied consent. Something you give when you accept your license. They were checking to see that he had NO jntoxicants in his body which means there’s no PC or even RS to believe he was intoxicated. Many departments including mine have policies based on laws. In the NYPD it two hours from the time of arrest to test. As stated above – fruits of the poisonous tree would have tossed this case. Should we sit her and Monday morning QB and suggest the Detective be fired for this? No. Due process is a beautiful thing. If the three of you disagree with his discretion fine – but we all know how things work – department policy formed from case law both state and federal will be applied. If he was following the law and he applied his actions in good faith – well you may want to review how you Monday morning QB the cop next to you that does something that may aplear wrong but was within the legal scope of the law. I don’t know how much time you, your brother and dad have on the job. But with 30 plus years on these are points I would lay out to my sons.
No Monday morning QBing here. The Supreme Court ruled in 2016 in Birchfield v. North Dakota that implied consent can only be justified for “warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.” This was not an incident of arrest and the request was for a blood sample. Implied consent holds no water in this case.
The implied consent agreements ONLY apply to “if you want to keep your license” which is a contract/civil agreement, NOT a criminal one. You can, even if awake, STILL say NO to the blood-draw — you just risk losing your license. So that was really a bad argument.
The patient must give consent for the draw for it to be constitutional.
You don’t need to prove you were NOT on drugs, they need to have probable cause that you were. All evidence with this crash showed it was primarily the fault of the criminal suspect driver (and possibly the pursuing police) and that the burn-victim was not at all at fault!
FURTHER the implied consent was rendered unconstitutional on June 23, 2016 in the case of Birchfield v. North Dakota.
I’ve found that when people say, “I don’t mean to sound like…(fill in the blank)” they usually are the thing they say they don’t mean to sound like, i.e. your brother being a jerk. When someone “freaks out” with an encounter with an officer, it SHOULD be in the officer’s training and skills to deescalate, not the opposite. Otherwise aren’t you (your brother) saying that only people who are accepting, nice and easy going when they are arrested, even falsely, are the acceptable arrestees? Ridiculous in my book and in my response, yes, I admit want to sound like a jerk because I won’t accept such a ludicrous response.
I hope that any encounter I ever have hereto forward… is with your Dad or someone’s whose training, judgment, integrity and moral compass appears to be that of one with high standards such as his.