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Title: Warrantless Blood Draw Stopped by Utah Nurse Was Legal in Another Reality (The facts and the law are on Alex Wubbels' side.)
Source:
Reason
URL Source: https://reason.com/blog/2017/09/06/ ... s-nurse-who-stopped-warrantles
Published: Sep 6, 2017
Author: Jacob Sullum
Post Date: 2017-09-07 07:01:56 by Deckard
Keywords: None
Views: 13191
Comments: 85
Alex Wubbels, the Salt Lake City nurse who was arrested on video after she refused to let a cop draw blood from an unconscious patient without consent or a warrant, has been widely praised for taking a stand against unconstitutional invasions of privacy. Her admirers do not include Gregg Re, a lawyer who argues in a recent Daily Caller piece, provocatively headlined "Arrested Utah Nurse Had It Coming," that "Wubbels was likely legally wrong under federal law." But Re cannot back up that contrarian claim without resorting to hypotheticals that do not bear any resemblance to this case. Suppose "your neighbor bursts through your front door with a pile of drugs in his hands," Re says. The neighbor is trailed by cops who demand entry as he flushes the drugs down your toilet. If you refuse to let the cops in, Re says, they would be justified in entering anyway and might even arrest you if you tried to interfere. The point, he says, is that "police simply do not need a warrant if exigent circumstances justify an urgent search and seizure of evidence." That scenario is a red herring, because Re never explains how Wubbels resembles the drug dealer's uncooperative neighbor. In particular, he fails to describe the exigent circumstances that supposedly justified Det. Jeff Payne's demand for her patient's blood, relying unstead on inapplicable generalities. "The imminent loss of blood evidence, which would be useful in a drunk-driving case, qualifies as a potentially exigent circumstance," Re writes. Potentially, yes. Necessarily, no. In the 2013 case Missouri v. McNeely, the Supreme Court said "the natural dissipation of blood alcohol" does not automatically provide the "exigent circumstances" that would justify a nonconsensual, warrantless blood draw in a drunk driving case. "When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so," the Court said. "While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case...it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Re suggests the totality of the circumstances in the Utah case might have justified Payne's attempt to draw blood from William Gray, a truck driver who was critically injured in a crash with a vehicle driven by a man who was fleeing police. But as Scott Greenfield notes, "there was no attempt to obtain a warrant for the blood draw or reason why a warrant could not be obtained within a time frame sufficient to preserve the evidence." What's more, Gray was not a suspect in a drunk driving case; he was the victim of the other driver, who was killed in the crash. That fact, Re concedes, "raises questions as to whether it was legally reasonable for the police to obtain his blood sample if he was, in fact, a victim not suspected of any crime." Payne reportedly wanted Gray's blood to help show that he bore no responsibility for the collision. That goal does not qualify as probable cause for a search and seizure, which requires a "fair probability" that evidence of a crime will be discovered. In short, although probable cause and exigent circumstances can justify a nonconsensual, warrantless blood draw, there is no evidence that either existed in this case. Presumably that's why, although Payne handcuffed Wubbels while accusing her of interfering with his investigation, no charges were filed against the nurse. It is also why Payne, who is on administrative leave while his department conducts an investigation of his behavior, could face criminal charges instead. Re aims to throw cold water on the "near-universal outrage" provoked by Wubbels' arrrest and correct "reams of inaccurate reporting on the incident." Instead he muddies the issue by arguing that Payne's actions could have been legal if the facts were different. 
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Begin Trace Mode for Comment # 19.
#1. To: Deckard (#0)
(Edited)
Re aims to draw attention to himself, which he did. As far as the issue itself goes, he threw gasoline on a fire that just made the whole case that much worse for the cop and his supervisor. Legal sophistry is not going to save Payne or his supervisor, it is just going to make those who want to get him willing to engage in their own blunt force legal sophistry, and power is decided not by right, but by politicians - who answer to voters, not cops. Re's article, if it does anything at all, will merely succeed in enhancing the punishment of the cop. When you have to resort to storytelling to argue for somebody's egregious behavior - when you have to essentially make up an entirely new case and set of facts, because the real case and facts are so bad for you - you're better off throwing yourself on the mercy of the court. Payne and his supervisor are going to have to rely on mercy, because the law is going to nail them both to a cross. If they stand on law, they die: they broke it, and the nurse upheld it. Every judge will see it that way. Every politician will see it that way. The cops don't have a pot to piss in. The police chief KNOWS THAT, which is why he is not standing with his officers. They are to be cut away and thrown to the public to be torn apart, in order to protect the department. This wasn't some black thug who was abused on camera. It was an elite white professional in medicine, which is held in greater trust and higher esteem than cops. The police chief knows that. Payne and his supervisor are going to be broken men, and nobody will have any sympathy for them. They're scapegoats.
The police chief KNOWS THAT, which is why he is not standing with his officers. The chief did try. He only took Payne off blood-draw duty initially. It was only after nurse Wubbels obtained and released the video that Payne and his supervisor (seen in the video talking to Wubbels in the cop car) were suspended. So that blue line held firm for over a month until the public exploded after seeing the video.
But now it's out - because the nurse was angry, self-righteous and knew she was right, and her employer was angry and self-righteous also, and was right. And because the public worries about bully cops when they bully white professionals: THAT is not what the cops exist to do. When they bully blacks and illegals, most people really don't care. But when they start bullying white medical professionals, well, that means that the cops are getting too big for their britches. We all worry about that, and this crystallizes it. So, she brought it forward, and has an economic incentive to do so as well. She's angry, and she can win money in court if she presses it. A white jury will side with her, and a black jury will too. Mr. White won't, but he'll be voir dired off the jury. Now that it's out there, it crystallizes the zeitgeist. The case law is utterly terrible for the cops. Neo-Confederates care about the states- rights issue concerning Utah law. And they are a sliver of the population. Everybody else knows that the Supreme Court is the law of the land, and what they've said is clear and congenial to the attitudes of most people. The cops don't have a pot to piss in. Sure, as long as the cops are able to keep this stuff sub rosa, people don't see, and don't get riled. But they can't stop this nurse, she's got a huge head of steam, she's right, the public is aware and aroused. It's sort of like Pearl Harbor, really, what Payne did here. There was no path back for the Japanese after that: the people were riled. Now, if the police force itself resists, then the hits will keep coming until they have their Appomattox moment. It's so much EASIER for them to claim that Payne was a rogue, unstable ass, publicly crucify him and hang his bloody pelt in the public square as an offering to the public, and then be allowed to return to their usual quiet and secretive ways. That's what they'll do, too. When the only people who are standing up and defending it is a neo-Confederate fascist like Mr. White, they've already lost. Importantly, law enforcement and prosecutors are not even attempting to defend Payne. He's going to the scapegoat, all of the fury will be focused on him. He'll be thrown to the mob, receive political justice and will be a poor and broken man thereafter, a horror at whom people wag their heads. The police will move on. They will not defend this guy, and the unions are smart enough not to destroy themselves trying to stand against an aroused public. It all seems pretty just to me. Bullies should be bullied.
Even if a juror tries to nullify, a hung jury would result in a second trial where it is very unlikely there would be a second juror to nullify. The police can hardly claim ignorance of the law after two big USSC cases. Certainly, the courts don't accept that excuse from anyone else, let alone those who are charged with enforcing the law on the public. It could be that the prosecutors will weasel around, trying to find a way to let these two cops off the hook after the public has moved on. But I think the heat is very high on this one and the local media will follow it closely. So the cops are screwed, I think. I think, much as in any jurisdiction, they will look for ways to let Payne off. But the heat is high and the public will likely remain aroused. The hospital imposing restrictions on cops on the premises (access to emergency rooms, unable to speak to nurses) just ratchets the pressure higher. The judge, the prosecutors, the rest of the cops, all have to wonder how they will be treated the next time they get shot or hurt. Or a family member. So I don't think this one just goes down the memory hole months from now.
Ignorance? They were FOLLOWING state law. Your retort is that those are old laws that haven't been cleaned up yet. Give me a f**king break. "I think, much as in any jurisdiction, they will look for ways to let Payne off." Hah! Let him off what? Being rude? What's he charged with? I hope he sues them for $10 million (plus back pay).
It's quite common for superceded laws to remain on the books. Let's look at one example. Wiki: Sodomy laws in the United States . . . As of April 2014, 17 states either have not yet formally repealed their laws against sexual activity among consenting adults, or have not revised them to accurately reflect their true scope in the aftermath of Lawrence v. Texas. Often, the sodomy law was drafted to also encompass other forms of sexual conduct such as bestiality, and no attempt has subsequently succeeded in separating them. Thirteen states' statutes purport to ban all forms of sodomy, some including oral intercourse, regardless of the participants' genders: Alabama, Florida, Georgia, Idaho, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, Oklahoma, South Carolina, and Utah. Three states specifically target their statutes at same-sex relations only: Kansas,[16][17] Kentucky, and Texas. Alabama (Alab. Code 13A-6-65.) Of the 14 states which still had sodomy laws on the books, only Montana and Virginia repealed their sodomy laws legislatively. So is Utah still banning sodomy today? Hell, yes, it is. Utah.gov: Utah 76-5-402, Sodomy -- Forcible sodomy So we see that 14 years after the USSC struck down these sodomy laws entirely, Utah has yet to repeal their sodomy law declaring all sodomy to be a Class B misdemeanor. They hide, legislatively, behind their forcible sodomy law (which is irrational but another kettle of fish). Notice that the Utah legislature last revisited this sodomy law in their 2013 General Session. So they chose quite deliberately, 10 years after the sodomy law was struck down by USSC, to amend their sodomy law in 2013 but not to repeal sodomy between consenting adults. Naturally, prosecutors in the state will be careful not to actually charge anyone for a Class B misdemeanor sodomy charge or that portion of the law goes poof the second a defendant goes to a federal judge, even pro se. And that will happen at some point, just a matter of time.
The separation of powers doctrine makes it quite obvious that courts, even the USSC, cannot order even state legislatures to repeal any law, even ones they declare unconstitutional.
There are no replies to Comment # 19. End Trace Mode for Comment # 19.
Top • Page Up • Full Thread • Page Down • Bottom/LatestRe aims to throw cold water on the "near-universal outrage" provoked by Wubbels' arrrest and correct "reams of inaccurate reporting on the incident."
#6. To: Vicomte13 (#1)
Every judge will see it that way. Every politician will see it that way. The cops don't have a pot to piss in.
#10. To: Tooconservative (#6)
So that blue line held firm for over a month until the public exploded after seeing the video.
#13. To: Vicomte13 (#10)
Now that it's out there, it crystallizes the zeitgeist. The case law is utterly terrible for the cops. Neo-Confederates care about the states- rights issue concerning Utah law. And they are a sliver of the population. Everybody else knows that the Supreme Court is the law of the land, and what they've said is clear and congenial to the attitudes of most people.
Now, if the police force itself resists, then the hits will keep coming until they have their Appomattox moment. It's so much EASIER for them to claim that Payne was a rogue, unstable ass, publicly crucify him and hang his bloody pelt in the public square as an offering to the public, and then be allowed to return to their usual quiet and secretive ways.
#15. To: Tooconservative (#13)
The police can hardly claim ignorance of the law after two big USSC cases.
#16. To: misterwhite, Vicomte13, nolu chan, hondo68, Pinguinite, A K A Stone, kenh (#15)
(Edited)
Ignorance? They were FOLLOWING state law. Your retort is that those are old laws that haven't been cleaned up yet. Give me a f**king break.
On June 26, 2003, the U.S. Supreme Court in a 6–3 decision in Lawrence v. Texas struck down the Texas same-sex sodomy law, ruling that this private sexual conduct is protected by the liberty rights implicit in the due process clause of the United States Constitution. This decision invalidated all state sodomy laws insofar as they applied to noncommercial conduct in private between consenting civilians and reversed the Court's 1986 ruling in Bowers v. Hardwick that upheld Georgia's sodomy law.
Florida (Fld. Stat. 800.02.)
Georgia (Ga. Stat. 16-6-18.) (Ga. Stat. 16-6-18.)
Idaho (I.C. § 18-6605.) (I.C. § 18-6605.)
Kansas (Kan. Stat. 21-3505.)
Kentucky (KY Rev Stat § 510.100.)
Louisiana (R.S. 14:89.)
Maryland (Md. Code Ann. § 3-321.) (Md. Code Ann. § 3-322.)
Massachusetts (MGL Ch. 272, § 34.) (MGL Ch. 272, § 35.)
Michigan (MCL § 750.158.) (MCL § 750.338.) (MCL § 750.338a.) (MCL § 750.338b.)
Minnesota (Minn. Stat. 609.293.) (Minn. Stat. 609.34.)
Mississippi (Miss. Code § 97-29-59.)
North Carolina (G.S. § 14-177.) (G.S. § 14-184.) (G.S. § 14-186.)
Oklahoma (Okla. Stat. § 21-886.)
South Carolina (S.C. Code § 16-15-60.) (S.C. Code § 16-15-120.)
Texas (Tx. Code § 21.06.)
Utah (Ut. Code 76-5-403.) 76-5-403. Sodomy -- Forcible sodomy. (1) A person commits sodomy when the actor engages in any sexual act with a person who is 14 years of age or older involving the genitals of one person and mouth or anus of another person, regardless of the sex of either participant. (2) A person commits forcible sodomy when the actor commits sodomy upon another without the other's consent. (3) Sodomy is a class B misdemeanor. (4) Forcible sodomy is a first degree felony, punishable by a term of imprisonment of: (a) except as provided in Subsection (4)(b) or (c), not less than five years and which may be for life; (b) except as provided in Subsection (4)(c) or (5), 15 years and which may be for life, if the trier of fact finds that: (i) during the course of the commission of the forcible sodomy the defendant caused serious bodily injury to another; or (ii) at the time of the commission of the rape, the defendant was younger than 18 years of age and was previously convicted of a grievous sexual offense; or (c) life without parole, if the trier of fact finds that at the time of the commission of the forcible sodomy the defendant was previously convicted of a grievous sexual offense. (5) If, when imposing a sentence under Subsection (4)(b), a court finds that a lesser term than the term described in Subsection (4)(b) is in the interests of justice and states the reasons for this finding on the record, the court may impose a term of imprisonment of not less than: (a) 10 years and which may be for life; or (b) six years and which may be for life. (6) The provisions of Subsection (5) do not apply when a person is sentenced under Subsection (4)(a) or (c). (7) Imprisonment under Subsection (4)(b), (4)(c), or (5) is mandatory in accordance with Section 76-3-406.
Amended by Chapter 81, 2013 General Session
#19. To: Tooconservative (#16)
It's quite common for superceded laws to remain on the books. Let's look at one example.
Replies to Comment # 19.
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