University of Utah Hosptial, 2009. Photo courtesy UofUHealthCare at English Wikipedia.
An old adage holds that wise doctors listen to their nurses. After some unsettling video footage from Utah became public, we might amend it: Wise cops listen to them too.
According to all reports, as well as the body camera footage in question, Nurse Alex Wubbels was simply but firmly doing her job at the University of Utah Hospital when she told Detective Jeff Payne that he could not draw blood from an injured patient in her care. Wubbels told Payne that he could only draw blood if the patient was under arrest, if he had a warrant or if the patient gave consent. There was no doubt that the first two conditions were not met; as for the third, the badly injured patient was unconscious and thus incapable of consenting.
Payne insisted that Wubbels allow him to draw the blood anyway, even after the nurse called her supervisor to confirm her explanation of the hospital’s position to Payne. Payne, evidently losing his temper, subsequently seized Wubbels and accused her of interfering with an investigation. Despite her loud protests that she’d done nothing wrong, Payne handcuffed Wubbels and forced her into an unmarked car, over the objections of her coworkers. (Wubbels was not criminally charged.)
It should be clear to anyone who watched the footage that Payne’s treatment of Wubbels was out of line. The minority of cops who take “I am the law” too literally and personally seems, in this case, to have graduated from manhandling or abusing suspects and the occasional passer-by to on-the-job medical professionals who get in their way.
I don’t think we should necessarily make too much of this case just yet. It may simply represent an isolated incident. But this misconduct should have severe personal consequences for the detective involved, as well as for his supervisor, who should have told Payne to leave the building but who reportedly did just the opposite. Payne later said that Lt. James Tracy explicitly advised him to arrest Wubbels if she refused to allow him to draw blood. At a minimum, assuming initial reports are accurate, Payne and Tracy should never work in law enforcement again. As of this writing, Payne has been placed on administrative leave. But just as with malicious prosecutions, it will take personal financial liability to effectively deter this sort of deliberate misconduct.
Salt Lake City Mayor Jackie Biskupski and Salt Lake City Police Department Chief Mike Brown both issued statements after the video of the incident became public. Both extended apologies to Wubbels, and Brown said his department has opened an internal affairs investigation. The police department also updated its blood draw policy, though Brown’s statement did not specify what was changed.
In Utah, cops could have legally taken blood from an unconscious driver if – and it is a big if – that driver was under arrest or in custody. That wasn’t the case in this incident. According to reports, the police did not believe the injured driver was the party at fault for the accident that killed the other driver. So why the big push to get evidence from him? The reported goal of protecting the patient does not explain Payne’s extreme reaction.
In arguing with Wubbels, Payne cited a Utah law allowing him to draw the sample with the unconscious driver’s “implied consent.” But Karra Porter, Wubbels’ attorney, later countered that implied consent hasn’t been state law since 2007. In addition, the U.S. Supreme Court ruled in 2016 that warrantless blood tests for drunken driving arrests are unconstitutional, even had the patient been suspected of any wrongdoing (which, again, he was not).
There is almost surely more to the story than we know. Even Porter said, at a news conference, “I don’t know what was driving this situation.” We might make guesses, and those guesses might have something to do with cops wanting to do a favor for someone in anticipation of future civil litigation. The Salt Lake Tribune reported that the truck driver is a reserve officer in the Rigby, Idaho police department. But we may never know the full truth about the detective’s seemingly irrational behavior. Since more than one officer, both at the scene and elsewhere, was involved, I’m not betting that the truth is that the incident was purely irrational. That doesn’t excuse Wubbels’ treatment, and it does not change the need for an investigation. But it may affect how much, or how little, we extrapolate from this incident about police misbehavior.
Legislatures need to take a good look at the personal immunities provided to law enforcement and prosecutors. Those are difficult jobs that require a lot of judgment calls, and broad immunity is warranted – but not total immunity. Not when misconduct is deliberate and egregious, and especially not when it targets other professionals who are doing their jobs correctly on private property where the police had no right to remain in the first place.
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