I believe the situation in the mind of the cop was that obtaining the blood was time sensitive. Coupled with another cop as a possible victim, arresting cop lost it.
That is out of control. I understand the cop worried for a fellow cop, but arresting that nurse in that situation should subject that cop to way more than civil penalties or loss of his job.
The cop definitely fucked up, and I see zero mitigating circumstances. The best outcome for him is simply to lose his job. The nurse, on the other hand, can look forward to a nice paycheck.
"The best outcome for him is simply to lose his job."
There could be facts we are unaware of which would change things, but if not, I saw several crimes committed by the detective while armed and acting under color of law.
DOJ:
Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.
The most outrageous thing about this is disrupting an emergency department over something like this. GET A FUCKING WARRANT. It is not difficult to do, there are judges on call who will give it to the cops over the telephone. She was right. He did not like being told no.
If he does not get fired, there will be riots in the street...oh wait, this is Utah...There will be sternly written letters to the editor!
My wife was 30 seconds ahead of me in watching the video through Facebook. She said that she's been waiting for something like this to happen, because it is very common. Officers come to the hospital, demand blood (literally), and the nurse's role is to be an advocate for the patient, particularly when the patient can't speak for themselves. Further, doctors and nurses can't just do invasive things to patients, and drawing blood is invasive. To do so without patient consent is assault. That's why hospital's had policies in place before 2016 requiring warrants.
But this cop is ignorant of the law. First, he wants to get the blood of a person he considers to be an innocent victim. Because the cop made the decision of the patients legal status, the officer does not have probable cause for a warrant. The patient is sedated, so can't give consent. I see absolutely no room for "implied consent", especially since the officer deemed the patient not to be a suspect. The Supreme Court was clear on this just one year ago. SCOTUS decision pretty much hinged on the invasive nature of a blood test. A driver's license gives implied consent for a breath test, because it is no intrusive, but it does not give consent, implied or otherwise, for a blood test. To get a blood test, you need a warrant. To get a warrant, you need to have probable cause. To have probably cause, the cop needs to consider the patient to be a suspect.
In short, the cop is f'head that needs a job that doesn't require critical thinking skills.
The nurse needs the arrest expunged, an apology, and per her request, the cop to be educated on the laws of the United States and Utah. She's being extremely generous. I'd be testing the cop's qualified immunity, as SCOTUS seemed to clarify the law just one freakin' year ago.
I will give credit to Utah for having police trained to be phlebotomists. It's crap that nurses at a hospital have to be placed in a situation of violating the rights of patients, particularly since nurses typically are not government officials with qualified immunity. The problem here was the patient, having been accepted by the hospital ER, was already a ward of the hospital, and so the police had to ask permission. To bad this officer training stopped on "how to draw blood", and didn't cover patients or citizen rights.
1. Nothing happens, Wubbels doesn't press an assault charge, and Payne and other cops have to go to a class on a weekend on the new rules for obtaining blood samples. Payne hasn't lost one day's pay but gets a letter of concern in his file. The hospital and the police chief put out a joint press release.
2. She presses charges. Police agree to reassign Payne, send hospital a statement that its procedures are being / will be reviewed. Payne loses the extra $100 a month he got for being the department phlebotomist. She drops charges.
3. She presses charges. City quickly settles with hospital and nurse for unknown amount, with gag order. Payne reassigned, made to attend anger management workshop for 2 weekends.
4. She presses charges, case goes to court. City hires top-notch jury research consultant and finds 2-3 jurors who will always side with the cops (very easy to find), and trial ends in hung jury. She declines to refile charges.
5. County attorney declines to proceed with a criminal case.
6. Payne quits, hires on as deputy sheriff in southern New Mexico, where the local hospitals have no scruples about who administers anally invasive procedures to patients or suspects.
Checking the local SLC paper, it seems that this video just today made the news, more than a month after the altercation. Now the county attorney and mayor are in the hot seat, both claiming they just saw the video, both promising action. Cover up! Always worse than the crime!
fixed: "For every asshole like this, there are many other assholes protecting him."
Like the gray haired cop verbally abusing Wubbel in the police car, for example. Or like the three other cops in the hospital who didn't have the guts or the balls to intervene. Or like the chief of police, finally forced, after the video goes viral, to express some banal and meaningless concern.
The video was apparently held by Wubbel's lawyers(!) who then went public with it yesterday. Maybe they thought that the case was not being taken seriously (as Payne was still on active duty) and that the release would ratchet up the pressure. Seemed to work.
john, Yes. Other cops, even some good cops, will remain silent. That is one of the biggest problems in police work. And you might reply "If they're good cops why to they remain silent." I'm conflicted on that. They should speak up, but I do understand the enormous pressure on them to keep their mouths shut. john, that code of silence has to change. But, w/ the assault on ALL cops by BLM, the MSM, etc. it is just getting more entrenched.
rcocean, cops gets fired. Both Tracy (the supervisor who ordered this) and Payne. That is the proper remedy. I would forgive it if Payne just lost it for a moment. It is the tapes afterwards where he and Tracy are plotting whether to sneak in and get the blood themselves and how he will bring transients to the hospital as pay back (Payne moonlights as an ambulance tech) that show their true character (or lack thereof).
23 comments:
I believe the situation in the mind of the cop was that obtaining the blood was time sensitive. Coupled with another cop as a possible victim, arresting cop lost it.
A bureaucratic snafu.
She's going to have a dandy lawsuit.
That is out of control. I understand the cop worried for a fellow cop, but arresting that nurse in that situation should subject that cop to way more than civil penalties or loss of his job.
Right up there with cops who shoot dogs.
The reaction of the other cops tells the story. Their failure to intervene tells another story.
The cop definitely fucked up, and I see zero mitigating circumstances. The best outcome for him is simply to lose his job. The nurse, on the other hand, can look forward to a nice paycheck.
"The best outcome for him is simply to lose his job."
There could be facts we are unaware of which would change things, but if not, I saw several crimes committed by the detective while armed and acting under color of law.
DOJ:
Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.
I'm trying to think of what mitigating circumstances there might be which would work in the officer's favor and so far I've got;
1. Brain tumor. Worked for McCain.
2. Demonic possession. It's Mormon land, so, could be.
3. Alien pod type possession. Again, Mormons.
4.
The most outrageous thing about this is disrupting an emergency department over something like this. GET A FUCKING WARRANT. It is not difficult to do, there are judges on call who will give it to the cops over the telephone. She was right. He did not like being told no.
If he does not get fired, there will be riots in the street...oh wait, this is Utah...There will be sternly written letters to the editor!
The cop thought if he applied pressure she would knuckle under.
He bet wrong with the world class competitive skier.
My wife was 30 seconds ahead of me in watching the video through Facebook. She said that she's been waiting for something like this to happen, because it is very common. Officers come to the hospital, demand blood (literally), and the nurse's role is to be an advocate for the patient, particularly when the patient can't speak for themselves. Further, doctors and nurses can't just do invasive things to patients, and drawing blood is invasive. To do so without patient consent is assault. That's why hospital's had policies in place before 2016 requiring warrants.
But this cop is ignorant of the law. First, he wants to get the blood of a person he considers to be an innocent victim. Because the cop made the decision of the patients legal status, the officer does not have probable cause for a warrant. The patient is sedated, so can't give consent. I see absolutely no room for "implied consent", especially since the officer deemed the patient not to be a suspect. The Supreme Court was clear on this just one year ago. SCOTUS decision pretty much hinged on the invasive nature of a blood test. A driver's license gives implied consent for a breath test, because it is no intrusive, but it does not give consent, implied or otherwise, for a blood test. To get a blood test, you need a warrant. To get a warrant, you need to have probable cause. To have probably cause, the cop needs to consider the patient to be a suspect.
In short, the cop is f'head that needs a job that doesn't require critical thinking skills.
The nurse needs the arrest expunged, an apology, and per her request, the cop to be educated on the laws of the United States and Utah. She's being extremely generous. I'd be testing the cop's qualified immunity, as SCOTUS seemed to clarify the law just one freakin' year ago.
I will give credit to Utah for having police trained to be phlebotomists. It's crap that nurses at a hospital have to be placed in a situation of violating the rights of patients, particularly since nurses typically are not government officials with qualified immunity. The problem here was the patient, having been accepted by the hospital ER, was already a ward of the hospital, and so the police had to ask permission. To bad this officer training stopped on "how to draw blood", and didn't cover patients or citizen rights.
One or more of these.
1. Nothing happens, Wubbels doesn't press an assault charge, and Payne and other cops have to go to a class on a weekend on the new rules for obtaining blood samples. Payne hasn't lost one day's pay but gets a letter of concern in his file. The hospital and the police chief put out a joint press release.
2. She presses charges. Police agree to reassign Payne, send hospital a statement that its procedures are being / will be reviewed. Payne loses the extra $100 a month he got for being the department phlebotomist. She drops charges.
3. She presses charges. City quickly settles with hospital and nurse for unknown amount, with gag order. Payne reassigned, made to attend anger management workshop for 2 weekends.
4. She presses charges, case goes to court. City hires top-notch jury research consultant and finds 2-3 jurors who will always side with the cops (very easy to find), and trial ends in hung jury. She declines to refile charges.
5. County attorney declines to proceed with a criminal case.
6. Payne quits, hires on as deputy sheriff in southern New Mexico, where the local hospitals have no scruples about who administers anally invasive procedures to patients or suspects.
Checking the local SLC paper, it seems that this video just today made the news, more than a month after the altercation. Now the county attorney and mayor are in the hot seat, both claiming they just saw the video, both promising action. Cover up! Always worse than the crime!
@John
7. Returns phone call from the ACLU.
Lem said...
The cop thought if he applied pressure she would knuckle under.
He bet wrong with the world class competitive skier.
Nurses are like that.
Trust me.
john, This nurses remedy is in a civil lawsuit and it will settle for 6 figures. Maybe 7, definitely 6.
ndspinelli -
fixed: "For every asshole like this, there are many other assholes protecting him."
Like the gray haired cop verbally abusing Wubbel in the police car, for example. Or like the three other cops in the hospital who didn't have the guts or the balls to intervene. Or like the chief of police, finally forced, after the video goes viral, to express some banal and meaningless concern.
Yeah, the Cop was wrong. Did anyone get killed? Nurse gets a payout for a few minutes of discomfort. Cop get disciplined.
Everyone moves on.
The video was apparently held by Wubbel's lawyers(!) who then went public with it yesterday. Maybe they thought that the case was not being taken seriously (as Payne was still on active duty) and that the release would ratchet up the pressure. Seemed to work.
john, Yes. Other cops, even some good cops, will remain silent. That is one of the biggest problems in police work. And you might reply "If they're good cops why to they remain silent." I'm conflicted on that. They should speak up, but I do understand the enormous pressure on them to keep their mouths shut. john, that code of silence has to change. But, w/ the assault on ALL cops by BLM, the MSM, etc. it is just getting more entrenched.
rcocean, cops gets fired. Both Tracy (the supervisor who ordered this) and Payne. That is the proper remedy. I would forgive it if Payne just lost it for a moment. It is the tapes afterwards where he and Tracy are plotting whether to sneak in and get the blood themselves and how he will bring transients to the hospital as pay back (Payne moonlights as an ambulance tech) that show their true character (or lack thereof).
John (above) is spot on over the likely outcomes.
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