Alex Wubbels, Bill Gray, Gordon Crabtree, Gov. Gary Herbert, James Tracy, Jeff Payne, Margaret Pearce, Mike Brown, Salt Lake City, Sim Gill, SLCPD, University of Utah Hospital
In Bloodletting, I introduced you to Nurse Alex Wubbels of Salt Lake City. Wubbels is a former two-time Olympian in skiing, and by all accounts a fine nurse, concerned, as all nurses must be,with the welfare and rights of her patients. I also introduced you to one Detective Jeff Payne of the local police force, a police officer and part-time paramedic. In this article, I’ll also introduce you to one Lt. James Tracy. We now have a much better picture of why you might want to know these people, so please, gentle readers, let me bring you up to date. Local station KSL.com takes us back to July 26, 2017:
Tracy was the watch commander or supervisor on duty July 26 when Salt Lake police received a request from the Logan Police Department to draw blood from a patient who was flown by medical helicopter from Cache County to University Hospital’s burn unit following a crash that involved a fatality.
Payne was sent to the hospital to collect the blood. But Wubbels — citing policy agreed upon by the hospital and the police department, as well as instructions from nearly a dozen superiors including the hospital’s chief operating officer — declined to tell Payne where the patient was or allow him to draw blood.
After about 90 minutes of negotiating, according to a police report, an impatient Payne is seen in the video telling Wubbels, the charge nurse, that she is under arrest for interfering with a police investigation. Video of Wubbels screaming as Payne lunges for her, grabs her, pushes her outside the hospital doors and against a wall as he handcuffs her and places her in a patrol car, sparked immediate outrage across the country.
Not quite immediate outrage. It now appears the Salt Lake City Police were, in fact, aware of what Payne did, but sat on the case until the week of September 3, when Wubbels’ attorney released the video of Payne’s abusive arrest of Wubbels on social media. Things then began moving quickly indeed.
In another KSL.com report, we learn more about what happened:
Wubbels is a charge nurse, or a liaison between patients and doctors and hospital managers, at the burn unit. Payne had come to the unit to draw blood from the victim in a fiery head-on crash with a vehicle that was fleeing from police in Cache County and crossed into oncoming traffic. The driver of the fleeing vehicle was killed.
Because the victim in the crash, Bill Gray, was unconscious and could not consent to the procedure and was not under arrest, and because police did not have a warrant, Wubbels denied the blood draw. Payne said in the video he was arresting her for impeding a police investigation.
A substantial part of Payne’s current woes are directly related to his unprofessional and excessively violent treatment of Wubbels, who, by all accounts, was completely in the right, following the lawful and prudent instructions of her superiors, to the highest levels of their organization.
Wubbels said she was sorry for making me wait so long and I said, ‘No your (sic) not,’ and walked away,’ the report states.
Payne described in his report arresting Wubbels: ‘She pulled away and as I tried harder to control her, she continued to try to get away. … I was able to get a grasp on her right wrist with my right hand and twisted her so she was facing the ER doors. I then used my left hand to hold onto her shoulder and I pushed her out of the ER through the doors so we were outside and not causing problems in the ER. I was then able to hold her against a wall and place handcuffs on her.
During the incident, considering his paramedic status, Payne also made a profoundly stupid threat (via Fox News):
During the recorded incident, Payne said he could retaliate against the hospital when he said, ‘I’ll bring them all the transients and take good patients elsewhere.
Another KSL.com report demonstrates Lt. Tracy didn’t exactly cover himself in glory:
Payne says in the video that he was following orders from Tracy. After the nurse was handcuffed, Tracy arrived at the hospital. Several hospital staffers attempted to talk to him either directly or hand him a cellphone with one of the hospital’s top brass on the line.
‘I don’t need you to make a phone call to tell me what authority I have because I know what authority I have,’ the lieutenant is heard saying during one call.
Obviously, someone needed to tell Tracy, and Payne, just that, though later, Tracy seemed to wise up, at least a little:
Later in the video, Tracy tells Payne that Wubbels’ arrest won’t stick and that they will let her go, but allow her to believe the case may be reviewed with prosecutors for criminal charges.
‘We have found a workaround so that we don’t have to try to get through the huge amounts of roadblocks your organization has put in front of us, to get what is lawfully ours to have,’ he tells the hospital COO on the phone.
Actually, Tracy’s only “workaround” would have been to obtain a warrant for the blood, but I’ll get to that shortly.
Since my first article on the case, Payne and Tracy have been administratively suspended, and both have lawyered up. They certainly have a right to do that, and were I in their position, I’d do the same. I’m sure they’re not going to be giving any statements to SLCPD investigators or administrators. In addition, Payne, who had been working for Gold Cross Ambulance since 1983, has been fired from his part-time paramedic position. He was, according to media accounts, a good paramedic, but no ambulance service can abide employees threatening to treat any patient less than professionally.
The local prosecutor has not only opened a criminal investigation, the prosecutor, Sim Gill, has asked the FBI to investigate the case. The SLCPD is also investigating internally, and possibly criminally. About a year ago Utah law was amended to make assault on medical personnel a felony, just as it had previously been for assault on law enforcement personnel.
In addition, the hospital has enacted a new policy. Fox News reports:
The University of Utah Hospital is enacting new restrictions on law enforcement officials following the controversial arrest of a Utah nurse who refused to draw blood from an unconscious patient.
Instead of interacting with nurses as a first point of contact, police will now make requests to ‘house supervisors,’ who are highly trained in medical laws and hospital rules, medical officials said Monday.
Additionally, police will no longer have access to patient-care areas.
Margaret Pearce, chief nursing officer for the University of Utah hospital system, said the job of nurses ‘is to take excellent care of the patients.’ She added, ‘We never want them to leave patient care to deal with a police officer issue … so we are taking them totally out of the loop.
That’s going to leave a mark.
I need to make sure this never, ever, ever happens to another one of our care providers again,’ Pearce said, calling the officer’s treatment of Wubbles ‘appalling’ and ‘totally unacceptable.’
Pearce said the new policies had already been put into place, before the incident went public, to prevent similar situations. So far, 2,500 nurses have been trained in the new rules.
Gordon Crabtree, interim chief executive of the hospital, said he was ‘deeply troubled” by Wubbles’ arrest.
Praising Wubbles’ strength and devotion to patients’ privacy and safety, Crabtree said, ‘her actions are nothing less than exemplary. She handled the situation with utmost courage and integrity.’
‘This type of situation won’t happen again,’ Crabtree said. ‘We simply will not let Alex down.
The mayor has abjectly apologized; the Police Chief has done the same. Even the Governor of Utah has thrown Payne and Tracy under the bus. Wubbels is reportedly still considering a civil suit.
Police Chief Mike Brown said Payne was pulled from the blood draw program, and the SLCPD’s internal investigation was supposedly started within 24 hours of the July 26 incident, though he claims to have seen the video only last week. It’s a police body cam video, so one wonders why it took so long for the SLCPD to be aware of it? He has also, according to media accounts, said he worked with the hospital to resolve the situation. The hospital said it too implemented its new no-cops-around policy immediately after the incident. If these statements are so, why was the SLCPD taking more than a month to deal with the supposed internal investigation? Major public service agencies do not work together to dramatically change their policies and relations if there is no need to do so. Payne–and Tracy’s–actions could not be more wrong, and the major policy changes are proof of it. What more was there to investigate?
The immediate, and groveling nature of Brown’s behavior after the video went viral, and the public went ballistic, suggests the SLCPD was trying to sweep Payne and Tracy’s appalling lack of judgment and arrogant, badge-heavy misbehavior under the rug. Even if that were the case, even if the SLCPD was merely uncommonly slow in doing the right thing, events have overtaken them, and they have badly damaged the reputation of the SLCPD, which will ever after appear to have been attempting a cover-up.
Let us assume, for the sake of argument, Payne’s attempt to draw blood was a good faith mistake. He truly believed he had the lawful authority to take the blood of Bill Gray, the crash victim, who was unconsciousness and could not consent. Acting in good faith, he believed he had probable cause to arrest Alex Wubbels, and used the minimum reasonable force necessary to make the arrest. Only later, at the order of his Lieutenant, did he realize he made a mistake, and released Wubbels without actually arresting her.
Were all of this true, the remedy for the mistake would begin with Payne, who should have sincerely apologized to Wubbels and everyone and anyone that saw what he did. He should have explained, in detail, why he believed he had the authority to act, and why he came to understand he was wrong. Apparently, he did none of this, and he and Tracy continued to behave as though they were in the right. If Wubbels had been taken to jail and booked, she should have been released as soon as possible, and all charges dropped.
As I explained in the first article of what appears sure to become a series, Wubbels was actually arrested, because an arrest occurs when a reasonable person’s liberty is restricted for even a short time, and they would not believe they were free to go. Having been told she was under arrest, violently restrained, handcuffed and stuffed in a police car for more than 20 minutes, Wubbels would only have been unreasonable if she thought she were free to go. There are a very few exceptions to this general principle, but none apply in this case.
All available evidence suggests Payne was not acting in good faith, and should have known it. He is an active paramedic. His police employer assigned him to a blood draw program. More than a year ago, the Supreme Court’s decision (Birchfield v. North Dakota, 06-23-16) that absent consent, blood may only be drawn under a warrant, invalidated implied consent laws that allowed blood draws without consent. How is it possible a paramedic, and a police officer intimately involved with blood draw situations, could have failed to learn about current law relating to that subject? Were Payne’s ambulance and police employers both incompetent in informing and training their personnel regarding a procedure they encounter daily?
Kept waiting 90 minutes by a troublesome little nurse who kept climbing the authority ladder, blocking Payne at every turn, obviously enraged Payne, who equally obviously felt his authority was being questioned and thwarted. Every badge-heavy tendency he ever had bubbled angrily to the surface, and in full contempt-of-cop mode, he lashed out at Wubbels, the law be damned.
He compounded this mistake with his incredibly stupid threat about patient transports, which had to be the final determining factor in his dismissal from Gold Cross Ambulance. I suspect, however, his damage to the relationship between the police and medical personnel was so significant he would have been fired anyway. His stubborn refusal to release Wubbels until essentially ordered to do so by Tracy, is not helping his case either.
Tracy is also in serious trouble. It is the job of police administrators to know the law and to ensure their subordinates are properly trained. How could Tracy have been ignorant of the Supreme Court’s decision? His behavior and angry, badge-heavy comment about his authority, suggests he was ignorant, or also suffering from contempt of cop syndrome.
Why Payne wanted Gray’s blood remains a mystery. He was an innocent victim, injured because a criminal fleeing from the police rammed his truck head-on, killing himself. There could be no professional, lawful reason why the police would want his blood. It has been suggested the Logan, Utah Police requested it be done, perhaps merely to be thorough, but if so, that did not relieve Payne of his duty to obey the law. Payne reportedly claimed he wanted Gray’s blood to “protect” him. Gray is a reserve police officer, but blood panels are routine in hospital treatment, something Payne surely must have known. How Payne could be protecting Gray by violating his rights also remains a mystery. If the Logan Police had probable cause to believe Gray’s blood contained evidence of some crime, they apparently did not communicate that information to Payne, who apparently made no mention of it in his report or otherwise. It may be no more complex than that Payne backed himself into an ego corner and could think of no way out other than attacking Wubbels.
Is there a criminal case against Payne? Wubbels suffered humiliation, fear, and perhaps some temporary pain, but no lasting damage. In fact, her reputation has obtained a polish that will shine brightly for a very long time. Unquestionably, what Payne did was foolish and wrong, but does that rise to the level of a felony?
Police officers must be able to make mistakes, even in arrests, without losing their jobs and careers. If they cannot, who will apply to become a police officer? More to the point, who will apply–that a rational public would want carrying a badge and gun–to be a police officer? In Police IQ and Police IQ 2, I wrote of current, dangerous trends in police hiring. The Payne case threatens to worsen an already worrying trend. As I noted in the original article, Payne’s punishment must take into account his total record, and the seriousness of the damage he caused to the relationship between the SLCPD and the medical community. I am not, at the moment, convinced his treatment of Wubbels, even though potentially a bit excessively rough, rises to the level of firing. His damage to the relationship, however, may.
There is one additional factor: the involvement of the FBI. Their only legitimate place would be investigating a civil rights violation. The law is quite clear on this, and I seriously doubt Payne’s actions rise to that level. In fact, the federal government generally stays out of matters that can be easily and correctly handled by the local courts and interdepartmental discipline. However, these days, Lord only knows what’s going on in the FBI, which appears almost entirely politicized. That said, Wubbels is a blonde, white person, not at all the sort of symbol a social justice leaning agency would normally be interested in propping up for virtue signaling. Additionally, no rational local politician wants the FBI investigating their police force. The federal government could easily end up running their police force and draining city coffers. This may be less likely under the Trump Administration, but is always a possibility.
There is, however, a more dangerous possibility: The Ferguson Effect. If police officers across the country discover they can expect federal prosecution whenever they make a mistake and it goes viral, the damage to our police agencies will be severe and long lasting. Intelligent, rational, even-tempered and dependable people will flee from the police profession, and such people will surely not want to join. What’s left, what will end up on the streets, will ensure a continuing deterioration in police/community relations and the rule of law. You think you’ve seen badge heavy? You haven’t seen anything yet.
The local prosecutor was a fool for invoking the FBI, a blatantly political stunt. The FBI would be wise to decline involvement in the case. Payne is probably toast, and likely, Tracy, a nearly 30-year veteran, too. The local authorities will have their pound of flesh, even if it is not entirely warranted, and that should be enough. that would be bad enough for the long term health of the nation’s police, but there could be worse.
Perhaps there is more information we don’t yet know; that’s likely. More as more becomes available, and thanks, as always, to readers for their tips on new information.
The Alex Wubbels Case Archive may be found here.
The detective, arguably, was acting on emotion and “emotions are … thought to be a kind of brute reflex, very often at odds with our rationality.
Of course, everyone is a general after the war…..police have the unenviable obligation to be the general before the war.
@Stevie – I understand the gist of your remark but the metaphor is definitely inapposite in this particular case. Where is the war? Not only was there not even a “regional conflict” or even a “local disturbance” here, but taking blood from a patient under hospital care pursuant to an investigation seems the epitome of a normal routine peacetime event.
There was apparently a treaty in affect and a discerned violation was the flashpoint for the conflict. The hospital evidently had a clause restricting said perceived hostilities such as drawing blood under certain circumstances, and prudence would have dictated a tactical retreat and that an immediate detent should have been established by the officer.
The officer in Ferguson did nothing wrong. That is not the case in this situation. Police departments do not need ego driven police officers. The officer in this case had an out of control ego and should be fired. He is too unstable to carry a badge.
The only thing I could think to as why Payne was so insistent on drawing the the truck drivers blood is he is a CDL holder. CDL regulations state that “post-accident testing is required for alcohol within eight hours of a crash and controlled substance testing must be done within 32 hours of the accident, regardless of fault, if there is loss of life.
But it is the employers responsibility to have the testing done, unless the police suspect the truck driver of being under the influence of drugs or alcohol. If the testing isn’t done in the allotted time frame the employer must keep a record of why the testing wasn’t done and have available upon Federal Motor Carrier Safety Administration (FMCSA) request.
In this case the truck driver was in a medically induced coma because of his burns so the company is covered for the testing not being done. If the police thought that the truck driver was under the influence a warrant could have been easily obtained but that surely wasn’t the case.
I’m wondering if the trucking company could have asked the hospital to add an alcohol test and drug panel to the tests they’re already doing.
Mike McDaniel said:
If so, Payne never mentioned it, nor has any media account raised that angle. It’s possible, but unlikely.
Tests can be added but they would not have any chain of custody established.
Mike McDaniel said:
Quite so. There is no known evidence the police so much as suspected Gray of any crime.
“Intelligent, rational, even-tempered and dependable people will flee from the police profession, and such people will surely not want to join it.”
Haven’t we already landed at such a place? Isn’t that how we get people like Payne and Tracy as cops? Does anyone believe that this is the first time either of them has behaved like this? Isn’t more likely that they have both been like this their entire time as cops and this is just the first time there have been consequences outside the police force? Or any consequences at all?
Mike McDaniel said:
We are indeed seeing this, in Baltimore, for instance. Good cops able to do so have fled the BPD, and they’re having a hell of a time recruiting replacements. Police agencies across the country are now actually relaxing drug standards, accepting people who have been heavy drug users, even people convicted of some drug offenses.
I’ve no idea of Payne and Tracy’s past, which is why I noted any discipline would have to take such things into account. It is also possible both simply had a very bad day in otherwise unremarkable careers, but it’s not looking like that at the moment.
James W Crawford said:
It occurs to me that the prosecutor involved the FBI because Wubbles is or was pregnant. If the detective inflicted enough physical and emotionsl trauma to cause a misscarriage, this case very definately becomes a civil rights issue.
Mike McDaniel said:
Dear James W Crawford:
Federal civil rights law is rather specific, and unless I’m overlooking a statute somewhere, simply does not apply to this situation. It didn’t apply in the Zimmerman case where the supposed “victim”–Trayvon Martin, was black. Here’s a source that might be helpful: http://civilrights.findlaw.com/enforcing-your-civil-rights/civil-rights-laws.html
James W Crawford said:
I need to clarify. I suspect that Wubbles is or was pregnant base on a waist line that isnot consistant with an Olimpic class skier, but I am not certain.
I looked her up in Wikipedia. https://en.m.wikipedia.org/wiki/Alex_Shaffer_(alpine_skier)
It seems that Mrs Wubbles was one of those eager young brides who managed a six month gestation, LoL. Let he who is without sin cast the first stone.
You are no doubt correct about the legal status, but given this PR FUBAR the local DA can be excused for his CYA ploy. If Mrs Wubbles is, or worse yet was pregnant and misscarried, that Police Detective is at risk of being linched.
I’ve got 8 years of experience as a law enforcement professional in one of the largest law enforcement agencies in the United States and I disagree with you on a couple of points. I believe that you are incorrect that Payne should not face criminal charges. I also happen to believe that the local prosecutor was correct to involve the FBI.
First, I will deal with the issue of why I believe that Payne should face criminal charges. In this case, it’s blatantly obvious that Payne arrested Wubbels because he told her that she was under arrest. If a police officer tells any person that he or she is under arrest, it’s entirely reasonable for the person to believe that. However, Payne knew or should have known that his arrest of Wubbels was unlawful.
We should also examine Utah statute 76-8-306 which deals with obstructing an investigation. I believe that the most applicable part of that statute is Section (1)(a) which requires that a person use, “force, intimidation, or deception” in order to prevent any person from doing something that would interfere with the police investigation. In this case, she did not use any force, deception, or intimidation. She simply stated the hospital’s policy’s and the detective did not like that. Of course, in order to analyze whether or not Wubbels was actually interfering with the investigation, we should also determine whether or not he obtained the blood that he sought or whether or not he sought another hospital staff member to obtain the blood sample that he sought. I have not seen any evidence to indicate he took either of those two actions. There’s also Utah statute 76-8-301 which covers interference with a public servant. If she was obstructing his investigation or his duties, why did he not continue his duties after affecting an arrest?
Let’s examine what Payne did not have. Payne did not have probable cause for the blood sample. We can infer that he did not have probable cause because the he did not obtain a search warrant. In Utah, it’s relatively easy to obtain a search warrant. Presumably this detective has a laptop computer with some sort of network connection and email access because from what I’ve seen most police officers even in smaller cities of 1100 people or so have such computers, then if he had probable cause, he could have completed an form on a secure internet website and obtained a warrant for a blood draw. Wubbels clearly indicated she was willing to allow the blood draw if Payne obtained a warrant. In this case, she offered him a legal route to obtain the evidence that he needed, but, he disregarded it and arrested her.
In order for Payne to affect a seizure, he also has to consider what are called “Graham factors.” In order to justify a 4th Amendment seizure (e.g. an arrest) Payne should have balanced the arrestee’s rights and the police rights in his head in order to justify his 4th Amendment seizure. In this case, there did not even exist probable cause to believe that the patient committed a crime. That justifies a minimal level of government intervention. Even for the truck driver to refuse the blood draw under the implied consent law justifies only a minimal level of intervention, because that also is not a crime.
This detective also had an option to secure the willing participation of Wubbels in securing observance of laws because she clearly indicated that had he obtained a warrant then she would have allowed the blood sample to be taken. Instead, this detective became frustrated and obviously allowed his emotions to get the better of him. He then arrested a nurse and as a result effectively destroyed the cordial relationship between that hospital and the SLCPD.
Second, I believe that this district attorney was entirely correct to involve the FBI. In this instance, SLCPD leaders have clearly dragged their feet over investigating this issue, and I suspect that they were waiting for it to go away so that they did not have to address it and deal with Detective Payne. The second principle of Peelian policing is that the police are dependent on public trust. In this case, the SLCPD effectively destroyed any trust that exists between this hospital and any police department. The district attorney requesting the FBI investigation could also have done so as a result of his distrust of the SLCPD.
I suspect that any police department upon which this DA could call would also have a conflict of interest investigating this case. SLCPD does not want a civil rights violation lawsuit and any of the other departments involved in the pursuit that led to the injuries of Wubbels’ patient would also likely welcome any evidence that the patient was impaired, and are likely to gloss over an investigation.
The FBI also has the authority to investigation federal civil rights crimes, and an inappropriate 4th Amendment seizure clearly falls into that category.
Mike, in this instance, I believe that it would this would be an 18 US Code 242 violation because this detective was acting in his authority as a police officer.
Mike McDaniel said:
Interesting suggestions. I’d argue only that if the FBI investigated every local case where an officer, acting in good faith or not, made a false arrest that was remedied within a half hour, that’s pretty much all they’d be doing.I’d only hope the Sessions DOJ would not want to involve themselves in such matters. The local criminal justice system can be sufficient, to say nothing of civil torts.
Thanks for your interest and great comment!
Thanks for the reply. I feel famous now.
I doubt most people would notice if the FBI devoted their 1811s to investigating civil rights violations. I’m pretty sure that HSI and the FBI have turf wars over some things. I work for a law enforcement agency that gets lots of negative feedback from the FBI, so, I don’t have a lot of positive feelings toward the Bureau.
I think that Payne arrested Wubbels for “contempt of cop” because in this case, based on his own statements in the relatively limited portions of the video that I’ve seen, it’s obvious that he didn’t have probable cause to make the blood draw in the first place. I can infer this because Wubbels offered him the opportunity to obtain the blood sample that he wanted — with either an arrest or a warrant. That’s what jumps out at me in this case. Wubbels essentially told Payne, “Come back with a warrant.” Payne said, “You will respect mah authoritah,” and then arrested her. It’s akin to the police knocking on your door. You can tell them to come back with a warrant. If they go before a judge (or in Payne’s case, send an email to a judge) and demonstrate probable cause and the items to be searched. Absent probable cause, they can’t just invade your home. Payne arrested Wubbels for not letting the police invade her (metaphorical) home.
Another thing that makes me thing this is not a good faith arrest is that after he arrested Wubbels, I don’t think that he made any further efforts to actually carry out the investigation she was supposedly obstructing.
Mike McDaniel said:
Famous? Oh dear. Any fame achieved by riding on my coattails is fleeting indeed. I wouldn’t quit my day job.
You’re quite right, though. This was a ridiculously obvious contempt of cop arrest.
The Lord knows I have been a stupid, obstinate, bull headed idiot at times. But I like to think I would have listened to the voices of reason after three or more people told me the same thing, and they showed me written proof of my wrong headedness.
He never asked, “So I can’t get a sample this way? What can WE do to get a sample?” A judge granted the Justine Damond search warrant, does anyone think a Utah judge would not grant a blood draw warrant on an accident patient in the hospital?
Sorry, my sympathy for Payne is non-existent. Anything that happens to him is exactly what he asked for. Ditto his bull headed idiot supervisor.
There were other uniformed police officers present during this fiasco. Why didn’t any of them speak up, and try to defuse the situation? Why didn’t they or one of the senior hospital administrators call the Chief of Police, or at least the senior police officer on duty and have him or her counsel Payne to back off, and work with the hospital?
I welcome the “Ferguson effect.” I am 71 y.o. never been arrested, but because so many of my friends and associates are Black, I have had honorary Black status conferred on me by the local sheriff’s department. That means being “Terry stopped” for insignificant violations (the ticket is never written), just so the deputy can check me out and run my license for warrants, maybe find a way to get inside my vehicle.
It also means your Black passengers get removed from the vehicle and frisked, and the vehicle searched without PC and over my objections.
They never find anything, but that’s not because they don’t WANT to bust me, or care about the Fourth Amendment.
Pocket video and YouTube have been the most important development in law enforcement ever. Now the world knows what only poor and Black people used to know, that the “good” police never take a stand against the “bad” police, and that “bad” police far outnumber the good ones.
Utah Chris said:
Salt Lake PD went “radio silent” after both officers lawyered up – SL Tribune comments imply they are still working on the story. I was thinking the search warrant may pop up this week for the truck driver but I’ve had no success.
Mike McDaniel said:
Dear Utah Chris:
Any warrant at this point would be for the blood analysis results from the hospital. Politically, that would look like the police were trying to take at least some of the heat of themselves, so they may choose not to do it, but I don’t know the political currents in the area well enough to make a prediction.
Harambe's ghost said:
Mike- while I appreciate many of your points in this article, it does appear to me that you are reconsidering your position as to whether Payne should face criminal charges (in your comments in your previous article, you seemed pretty clear that he should). It (whether charges are filed) is not a decision that I would like to have to make, and, in my own job, I don’t get to make decisions like that, anyway. But, anyway, there are some things about this case that make it so much worse than even a typical unlawful arrest case (a typical unlawful arrest case would be a situation, for example, of a sassy driver mouthing off to an officer and being arrested for disorderly conduct when the rude behavior doesn’t quite rise to the level of disorderly conduct).
Sentenza made some excellent points, and I pretty much agree with his entire post, and won’t repeat. Here are a couple of things that I would add.
First, while he is correct that it is questionable at best that the nurse even committed any criminal offense at all, it appears to me that she was 100% correct insofar as the legality, or lack thereof, of the officer’s request to draw blood in the first place. Unless there is some theory (can’t imagine what it would be) to show that this was going to be a legal blood draw, she was justified in her refusal to assist. And, as Sentenza notes, even if she wasn’t, it’s hard to see how she committed a crime here.
Second, while you make a good point about the damage this case has done to medical staff and law enforcement relations, it goes way beyond that. This particular situation has done a great deal of damage to civilian and law enforcement relations, period.
What personally bothers me about this case the most (aside from the terrible way that the nurse was treated like a dog, before, during, and after her arrest), and what separates this case from the more “typical” unlawful arrest situation that I mentioned before, is that the order from the officer goes well beyond “Ma’am, I need to you to put out that cigarette”. This officer put this nurse in a TERRIBLE situation. She was given two choices. She could either stick to her guns and be arrested, an absolutely terrifying prospect for an ethical, decent person who was AT WORK, doing her job, a law abiding citizen with presumably no prior arrests. Or she could comply. And risk her job. Violate her ethics. Risk a civil lawsuit. Face discipline from the nursing board. Possibly even be charged criminally (unlikely, but not completely out of the question). This is NOT a case where she was being a true believer, a person trying to be the patient’s lawyer, or trying to be difficult. She was trying to do her job the right way and she was basically told to choose between doing her job and going to jail, or not doing her job, and not go to jail. She chose to stand her ground and she paid the price. Most people probably would have caved. She didn’t. She’s a true heroine. It was so unjust of the officer to force into the position that he put her in.
There are other things about this case that are very bothersome (e.g, it’s not good, at all, to arrest a on-duty nurse in a critical care unit), but I’m not going to keep ranting and ranting. I will guarantee that any officer who is under scrutiny at this point will end up with excellent legal counsel. If there’s a justification for what appears to be indefensible, I have little doubt that it will come to light. It also may be the case that it is determined that it is no one’s best interests to pursue criminal charges. But, with all that said, this is a very, very bad situation.
Thanks for the compliment.
It goes beyond simple discipline by the nursing board in Utah. I suspect that she could have lost her license entirely had she complied with the police request. That doesn’t just put her job at this hospital on the line, that puts the entire remainder of her career on the line. She’s 41 years old, now, so, assuming that she works another 24 years to reach the Social Security retirement age at 65, and that she makes around $80,000 a year, that is close to $2,000,000 in lost earnings. This cop also put the hospital on the hook for a lawsuit had she caved to the cop’s demands, so, she’s doubly a hero for that.
I don’t doubt that she enjoys her work, so, if as a result of this cop’s actions, she lost her license, that’s on the line, too.
Mike McDaniel said:
Dear Harambe’s Ghost:
My only position regarding charges in this case is I am unsure what Payne did rises to the level of a felony. I’m not sufficiently familiar with Utah law on this matter to understand the elements. I speak merely about the apparent severity of Payne’s mistake versus the severity of a felony conviction.
As you noted, and as I also noted, Payne has done great damage here, not only to local police/community/medical personnel relations, but he has contributed to the national distrust of the police, unearned in many respects. Most police officers continue to be honorable men and women doing a good job under increasingly difficult circumstances. For that reason, he’s probably going to lose his job, and may face criminal charges, though I think the former more likely than the latter.
This, of course, is subject to change. The latest information out of SLC, which I’ll include in my next update on the case, makes Payne and his controlling Lt. look even worse and more malicious, if such a thing were possible.
I think that what Payne did actually rises to the level of a felony. You should take a look at 76-5-302. I think that 302 fits because Payne likely had in his possession a dangerous weapon–his police issue handgun. 302 only requires 2 elements: an unlawful detention and possession of a dangerous weapon.
76-5-304 is the unlawful detention statute. It requires that Payne have “intentionally or knowingly, without the authority of law detain or restrain the victim. It’s obvious that he did that.
Mike McDaniel said:
As to the unlawful detention element, any competent defense attorney would argue that Payne was not acting as a criminal with criminal intent, but in the admittedly mistaken belief he had a duty to draw blood. He would follow this up by arguing that as soon as Payne realized he was wrong, he released Wubbels. This might not work so well, but their argument on the second element would. Payne was carrying a handgun not because he was a criminal, but because his job demanded it. It would be like claiming a fireman was armed because he was carrying an ax.
Payne was acting under color of law, but all he’d need to do is introduce sufficient doubt in one juror.
I’ve no idea of the intent of the Utah Legislature in writing this statute, but to interpret it as you suggest would set a precedent for the arrest and potential conviction of any police officer making an honest mistake. I doubt the mistake was honest in this case, but the precedent would be set nonetheless.
It seems to me that the statute is written that way. I’m not sure why the Utah state legislature did what they did, but, it seems that the law is worded that way. Perhaps the Utah legislature intended for that law to serve as a vehicle to prosecute a police officer who unlawfully arrests someone.
Introducing sufficient doubt in one juror is enough to acquit any criminal defendant in any trial. That’s the risk that a prosecutor takes in any case.
In this case, though, I would argue that Payne erred in such an egregious fashion that he deserves a criminal conviction because his actions not only impacted the life of Wubbels they also potentially impacted the lives of every single patient under Wubbels’ care should an event arise in the course of their treatment that required her attention as a charge nurse. His boorish behavior also disrupted the medical care and workflow of the hospital unit.
I also had another thought about the trial, too. A jury is probably going to be made up of members of the community which Payne polices. Why not put the question to them about whether or not they want to tolerate this sort of behavior from a police officer?
Mike McDaniel said:
That may sound warm and fuzzy, but we don’t arrest people without probable cause, and we don’t prosecute them unless we’re sure we can prove their guilt beyond a reasonable doubt. Absent both, it’s not a jury’s business.
Yeah, I should have thought of that.
This is kind of personal for me because my sister is a nurse and this guy has anger management issues. A felony conviction is an easy and foolproof way to ensure that he never works for any law enforcement agency ever again because it’s a bar to possession of a firearm.
Of course this arrest is also potential Brady material for any defense attorney, so, hopefully is career is over.
Harambe's ghost said:
Something else that struck me about this whole situation. Imagine, for sake of argument, that the officer was actually correct insofar as that he had a right to the blood draw, and that her refusal to permit it, or to tell the officer the location of the patient, was, in fact, criminal. In this hypothetical, the arrest would have been lawful. Even so, to make an on the spot physical arrest, of a professional, in a professional setting, seems unbelievably unwise. If I was a police officer, I would not even THINK about making that arrest in that situation. She’s not a flight risk, and she’s not a danger to society. A summons or citation is a much better idea, and in this type of situation, I wouldn’t even go that far until I talked with an experienced prosecuting attorney (I have a feeling that Payne had talked to a prosecutor and not his clueless boss before making that arrest, this whole thing never happens). If an officer is going to arrest a nurse in mid-shift, absent probable cause for something on the level of abusing a patient, he damn well better be right, and even then, he’s likely to have some major headaches on the way. I honestly don’t what this guy was thinking.
So, even if this arrest is somehow later proven justified (can’t imagine how!), it was still…dumb.
Mike McDaniel said:
Dear Harambe’s Ghost:
Interference with a police officer requires affirmative action. The person arrested must have been doing more than merely declining to tell the officer where someone was or declining to do some task for them. This is particularly so when the person she was shielding was not a criminal. You’re absolutely right: the proper way to handle this would have been to send it to the top of the chain of both organizations, involve the top local prosecutor, and let them handle it. Taking Wubbels into physical custody was idiotic.
Trust me on this: this arrest was never justified, and will never be made so retroactively.
You’re once again entirely correct. I don’t think that you go far enough, though. In this case, Wubbels was acting as a charge nurse which is something of a supervisory and subject matter expert role in a hospital. So, she was responsible for the care of all of the patients in her units and she would have served as a resource for the rest of the nursing team in her unit because of her experience. If while she was in police custody a patient at the hospital suffered an adverse event at that hospital and she was unable to deliver care as a result of being in police custody, then I suspect that the hospital and the patient or survivors of the patient would have an excellent cause of action for a lawsuit against the SLCPD.
On the other hand, I think you’re wrong about it being a valid arrest even if Defective Fail McFailFace had the authority to make it because of one key fact. As far as I know, he never got the blood sample that he wanted. How can he claim that she’s obstructing his investigation if he removes her obstruction but then never actually bothers to collect the evidence that he needs for his investigation?
Harambe, Sentenza, and Mike (as usual) all have some excellent analysis on this post. This brings up a couple questions for me.
If you were the underwriter for the SLCPD liability insurance, what would you charge to leave this guy on the street with a gun and a badge? Could he ever have a defense incident that would not cost the city a settlement?
If you were the local DA, would you ever rely on this officer’s testimony in a jury trial? What defense attorney would not raise questions about his behavior, tainting evidence, or other professional misbehavior to put doubt into the jurors?
I found another story on this that might change your mind, too. According to Wubbels’ attorney, Payne is on video admitting that he knew there was no probable cause for a warrant.
Wubbels’ attorney, Karra Porter, said the state’s implied-consent law “has no relevance in this case whatsoever under anyone’s interpretation. … The officer here admitted on the video and to another officer on the scene that he knew there was no probable cause for a warrant.”
Utah Chris said:
Civilian Review Board released their report today – Officers violated 6 distinct policies. The full report is linked inside the KSL story.
Mike McDaniel said:
Dear Utah Chris:
Saw that. Followup story soon.
James W Crawford said:
“Conduct unbecoming a police officer?”
How about false arrest and assault? Wubbel’s saying “sir, you’re hurting me,” while obviously NOT resisting in a situation where the officer had zero justification to use physical force or handcuff her justifies a sanction.
Mike McDaniel said:
Dear James W Crawford:
The interdepartmental findings might be prelude to criminal charges. As quickly as things are moving, I suspect we’ll see shortly.
It could be worse. If the incident had happened in Minneapolis, and the cop had been a Muslim quota hire, the nurse would have been shot dead. And the mayor would respond by promising to protect the immigrant “community” from retaliation.
Mike McDaniel said:
Unfortunately, what you suggest is all too possible.
IANAL or a LEO, but, in every case that I ever heard of where the FBI/DOJ investigated a use-of-force incident by local law enforcement, the situation was cross-racial (e.g., Rodney King, Michael Brown), and there were claims that the alleged crime was racially motivated. That does not appear to be the case in this incident, so I don’t see any reason for a federal civil rights investigation.
The cop will almost certainly be fired for some violation of department regulations (abuse of authority, unnecessary use of force). He can probably be prosecuted under state law for assault or for illegally restraining the victim. And the nurse can sue for false arrest. After all of that, an additional federal case, IMHO, would seem unnecessary.
If the DA wants an outside agency to investigate, to avoid the appearance of a cover-up, then couldn’t he ask the state bureau of investigation or state attorney general to handle it?
Mike McDaniel said:
The overwhelming majority, certainly, particularly during the Obama era. The Obamites in the DOJ firmly believe white people’s civil rights could not be violated, and acted on that belief. As you suggest, the State Police or an outside police department could certainly handle such an investigation, but as I note in Bloodletting 3, just posted, that won’t be necessary.
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