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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: 13357
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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#27. To: Pinguinite (#26)
Exactly. Was he going to have the blood processed at the expense of the SLC PD when they had no interest in the case and could not do anything about it? Or was he going to deliver the blood to Logan PD or the Utah highway patrol? I can't get away from this question: who wanted this blood and why? And why was it important enough to assault and arrest a nurse? If the trucker or the nurse sues, it won't be just the SLCPD on the hook. It will likely be Logan PD and/or UHP as well. The discovery process and subpeonas will make for interesting reading.
But at this stage, all the cop tried to do was draw the blood. Nope. There's no procedural requirement that the cops be permitted to get what they want, and the defendant can sort it out at trial. The cops don't have the right to take what they have no right to take. The cops had no right at all to arrest that woman. Now THEY'RE the defendants, so THEY can argue at THEIR trials that they DID have the right to do what they did. There's no reason to let the process that the cops would prefer be the one that governs. Rather, the process that holds them accountable seems to be the better one.
You're thinking logically. Payne was using a different logic: I AM A FUCKING COP, I HAVE COMMANDED YOU, A LITTLE PERSON, TO DO SOMETHING THAT I SAY IS NECESSARY. YOU HAVE DARED TO DEFY ME. MY SUPERVISOR AND I BOTH AGREE: NOBODY SAYS NO TO THE COPS. I WARNED YOU, YOU STOOD UP TO ME AND DARED ME TO DO THIS. THE LAW WILL ALWAYS PROTECT ME, YOU STUPID BITCH. NOW KNEEL AND SUBMIT! THAT was what he was thinking. It was pure RAGE at having his "authoritah" questioned. Trouble is, this guy just ran into the end of the road. Yep, that usually works for cops. Not this time. This one goes to the cross, a sacrificial victim that will be thrown to the mob to satisfy their hatred for abuse by the cops. He deserves it, of course, as does his supervisor. He's an arrogant prick who has never been called to the mat before, because that never happens. But he had his little "Respect ma authoritah!" meltdown on camera in a hospital with an intelligent former Olympian, and the victim lying in bed was also a cop - something Payne could not have known. Essentially, he pulled the pin on a grenade and then dropped it into his own pants. There is no escape for him.
Other than the current State of Utah law, no. "and the defendant can sort it out at trial." Correct. If it had gone that far. "The cops don't have the right to take what they have no right to take." Sure they do. State law and police procedures said they did. NOW, whether or not that evidence would be admissable is another story. "The cops had no right at all to arrest that woman." You might argue that they shouldn't have, but they did have the power to arrest her for interfering with an investigation, obstruction, and resisting arrest.
What's the penalty if he gets convicted for being rude? Because that's the only charge I see.
Yeah but who was he going to deliver the blood to? That's my obsession. SLCPD had no jurisdiction at all. The accident did not occur in their territory. They could only be acting as the agents of Logan PD or Utah highway patrol. They couldn't even test the blood and submit the results in a court because they were not party to anything (except assaulting and arresting a burn unit head nurse).
You DO love a mystery, don't you? He might have been the only police phlebologist available at the time, and he worked in this capacity for all law enforcement agencies. Mystery solved.
False arrest, for one thing. Whether she was charged or not. The same laws that protect police from interference also protect EMTs and medical personnel. So those were violated as well.
Utah law is irrelevant. It does not exist on the subject matter here. There is only federal law. Utah law broke it. So Utah law ceased to exist.
Loss of two jobs, no pension, no eligibility for retirement or unemployment benefits, poverty, despair.
That's the best case scenario, but the potential is there for the motive to be more than simply a cop who went off on a power trip. Not long ago, a cop accidentally videoed himself planting drug evidence to frame an innocent person, or perhaps more accurately, someone the cop believed was not innocent but for whom insufficient evidence existed to justify and arrest and charging. That event was not simply a cop losing his cool one day, but was instead an indication of an intentional criminal act meant to destroy the life of a person he did not care for, and strongly suggests it was one corrupt incident of many committed against a great many people. In this case with Payne, maybe it was a case of a cop losing his cool, but I would point out that the cop certainly didn't decide 2 minutes before the arrest that he wanted the blood sample. There is little doubt he traveled whatever distance it was to the hospital with the intent of getting the blood sample, and it's safe to say that decision was made long before he lost his cool with the nurse. He had a premeditated intent to get the blood sample before he arrived there, and it was for some reason that obviously had no lawful authority. So the reason Payne and his supervisor wanted the blood sample should be explored and should not be considered trite.
Loss of two jobs, no pension, no eligibility for retirement or unemployment benefits, poverty, despair. Well, Payne lost his paramedic job. So it's one down, one to go.
He said on the video, "I'm leaving here with those blood vials or a body in tow." I think those were his orders, no matter what his supervisor may say contrary to that. The FBI will likely sort it out pretty quickly, even with cops who know their interrogation techniques.
I agree with you. Investigate that - and if you find the conspiracy, round them all up and send them to prison for the maximum term. Also round up everybody who covers for them. They may have to hire a new police force as a result, and if so, then good. That's what prisons are for - to open up jobs to other people. But to keep the public interested, keep focusing on the wild abuse. That whips up the hatred for the cop and his supervisor, and prevents the authorities from closing ranks. Whip the hate to a white hot fury, so they can't let these guys off. Even if they cover for the rest, the public MUST have its blood, and hauling these guys before a public trial, stripping them of everything, and then tracking their beatings and torment, and probably eventual murder, in prison, will be very satisfying for the public, and very troubling for the police, and act to keep them in check. Since people won't rule themselves as Christian, then rule them as Satan.
So it's one down, one to go. Four to go: He has to lose his cop job, his property, his liberty and, in prison, his anal virginity. At a minimum. He is hated. He must be made an example of through public crucifixion, modern style. That involves prison, prison beatings, prison rape and early death. We need his head on a pike. Nothing short of that will do.
I'd point as well to the timeline here. Wubbels was dragged out under arrest but that only lasted for about 20 minutes before she was released. According to the videos we have of the arrest, less than 15 minutes into the arrest, the supervisor who Rotten Cop says ordered him to return with "blood vials or a body in tow" was already on the scene, trying to get Wubbels to give in or forget the matter. This supervisor is a watch commander with responsibility for hundreds of on-duty SLCPD officers around the city. But, busy as he was with supervising hundreds of cops minute to minute, he was on the scene talking to Wubbels and Rotten Cop in less than 15 minutes after Rotten Cop arrested her. So that timeline suggests the conspiracy I have outlined previously and that Rotten Cop was telling the truth when he said he was ordered to return "with blood vials or a body in tow (Wubbels)". Rotten Cop also said that they were doing this all to "protect" the trucker who was injured in Logan (81 miles outside the SLCPD jurisdiction) and that he "had never gone this far before" and that "they don't have PC (probable cause)" when another cop asked why they didn't just get a warrant for the blood, meaning he knew they were well outside any normal and legal procedure. And still he went ahead and assaulted and arrested the nurse. And who is this "they" who didn't have probable cause to get a legal warrant for the blood draw? It could not possibly be the SLCPD. It could only be Logan PD or the Utah highway patrol. Or both. Remember, Rotten Cop said blood vials. Not blood vial. Why would he need more than one blood vial if not to send it to more than one other police agency? I know I'm repeating myself a bit but I just don't see any way this isn't a conspiracy to deprive the trucker of his 4th Amendment rights and that someone at the Utah highway patrol was behind it all, using the Logan PD and the SLCPD as their agents to get that trucker's blood, come hell or high water. Nothing else makes any sense.
You may be right about that. Looks like LOTS of folks to be burnt alive. Let's do in Pay-Per-View and pay off the national debt from the proceeds!
Works for me. I just know that something stinks royally in SLC. And none of the offered explanations sound like anything more than an attempted coverup so far. Obviously, I think the SLC Mormon elite has been trying to protect the Utah highway patrol from any exposure of their involvement in this mess. Well, they stalled long enough for them to get their stories straight. They'll try to offer up Rotten Cop and possibly his supervisor as the scapegoats, despite the fact that SLC PD had no direct interest in the case whatsoever.
She clearly obstructed and interfered. And she resisted arrest. Nothing false about that.
He had the power to take the blood under State of Utah law and police department policy. If the law is outdated or police policies are wrong, that's not his fault. The fact that the police department changed their policies after this incident is telling. Yet you still blame the cop. Idiot.
Your Right of Defense Against Unlawful Arrest “Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.” “An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621. Really? Then why did they release her after only 20 minutes? Even if she was wrong about allowing the blood draw (as you insist), resisting arrest would still be a lawful charge. But they didn't charge her, did they? And they released her after 20 minutes. You're about at the end of your rope, I'd say. Mostly reduced to bleating out repetitions of your previous discredited talking points.
Rarely applied in real life but a great find anyway.
Ignorance of the law is no excuse. Isn't that what you badge bunnies always say? Or does that just apply to the serfs? The fact that the police department changed their policies after this incident is telling. Yet you still blame the cop. Idiot. I do blame the cop, you dumb prick. And the reason I do is because a cop is not simply charged with knowing the local and state laws. Ignorance of the federal law is no excuse, and it is certainly no excuse for a cop. He had no power to take that blood, because the State of Utah law to the contrary, and police department policy to the contrary, are illegal, because they are unconstitutional. The Supreme Law of the Land is the Constitution, not local laws and police procedures. Where state law and police procedure contradict federal law, they are illegal, and it's illegal for a cop to follow illegal law. Ignorance of the law - and federal supremacy IS the law - is no excuse. The cop acted illegally, following illegal Utah law and illegal Utah police procedure. It was his legal obligation to know the law, and he didn't. The law is outdated and police policies are wrong, and ignorance of the law is no excuse: it is the cop's personal responsibilty to know the law and enforce it, just as it is everybody else's personal responsibility to know the law. Ignorance of the law is no excuse for anybody, including cops and police departments. ESPECIALLY cops and police departments. It was his fault and their fault for having illegal laws and procedures. By enforcing them, they committed federal crimes and are criminals. His JOB was to enforce the law, and that MEANS enforcing federal law and not state law, where federal law has erased local law. It's his duty to KNOW THAT federal law and to enforce IT, and not the state law or department procedure. He was ignorant of the law, broke it, made a false arrest, so he is a criminal. I would be willing to grant mercy if he admitted he was wrong and was ignorant of the law. But to the extent that there is doubling down on his right to enforce illegal law - nope - he's defiant in his criminality, he is resisting the law. He must, therefore, be destroyed as an example. Of course the police department realized they were being criminals and changed their policies immediately. Ignorance of the law was no excuse, they realized their ignorance, and they changed. Of course I blame the cop, prick. Of course I blame you for thinking like the cop, prick. Of course if you insult me I will insult you. I recognize that you're a Jack Chick, writing inflammatory things to rouse the rabble. Insulting me is fun. Insulting you is fun. But I'm not an idiot - even the people who know me here and hate me know that I'm not stupid - but you are a prick. Everybody knows that too. Even you.
Do you believe they released her only because the charge was bogus? Then you're an idiot.
Meaning that states do not have the right to legalize marijuana for medical or recreational use? Do we agree on that?
Exactly so. If cops can't be expected to know the law to enforce it, then how can the citizenry possibly know and obey the laws? The Court spoke strongly on this subject twice in the last 4 years. How plain do the justices have to make it about warrantless involuntary blood draws?
They had no pressure to release her. None of this news about Wubbels reached the press or public until weeks later, when Wubbels's attorney secured all the camera footage and she got so mad watching it that she released to the public via YouTube.
I don't know about blood draws for alcohol or drug testing, but sometimes a draw for medical screening involves taking more than one vial of blood. Each one is tested in different ways, so.... Whether police crime labs would need more than one, I don't know.
Would not apply in this case. If the nurse killed the cop to resist this unlawful arrest, she would be prosecuted as a killer. And really, people should not play "Sola Scriptura" with the Bible, let alone the law. The problem with doing it with the Bible, where it doesn't really matter, is that you end up believing untrue nonsense because you've read God wrong. The problem with doing it with law is that it DOES matter - in the sense that you'll really end up in jail or dead if you use your wrong knowledge of the law. Look at that cite: 136 Ind. 306. That is a case by the Supreme Court of the State of Indiana. Which means only that - if that's still good law in Indiana - that in INDIANA you could resist an unlawful arrest by taking the arresting officer's life. If you tried that outside of Indiana, that case is NOT LAW AT ALL. It's a mere opinion by the courts of another state. You may as well cite the British courts. It's not law. A more complete citation would be 136 Ind. 306 (1893). Yep: EIGHTEEN Ninety Three. Is that still law, even in Indiana? I don't know. What I DO know is that it was NEVER, EVER the law OUTSIDE of Indiana, and NEVER APPLIED FOR ONE SECOND to anything that occurred in Salt Lake City. It's NOT LAW. And this is why we have laws in the United States that people are not permitted to practice law without a license. Law school teaches you how to understand law, how to read law, what IS law and what is NOT law. The problem with that citation of an 1893 case in Indiana is that people in this Protestant country think of law the same way they think of the Bible: that anybody and everybody, even the plowbow, is entitled to pick up the law book and understand it, just like the Bible. Truth is, the plowboy who picks up the Bible and reads it doesn't understand it at all (though he might think he does) - but it doesn't really MATTER because nobody enforces the Bible the way people read it - not even God. But the plowboy who picks up a piece of law and reads it and thinks: I can carry my gun downtown because the Second Amendment says, and "I can even kill the cops if they try to unlawfully arrest me!" is probably going to end up dead in a pool of blood, shot down like a rabid dog. Individuals have asserted their right to read and interpret the Bible for themselves. Individuals have no right whatever to read and interpret the law for themselves. Or rather, they have the right to read it, but they have no right to expect that their interpretation of the law will be the law actually applied to them. The law means what the Supreme Courts with jurisdiction SAY it means. It doesn't mean what anybody thinks it says on the page. It doesn't mean what the cop says it means (but you'd better do as he says, because he can arrest you - the nurse in our case DID let him arrest her - thank God she didn't think she had rights under Plummer! She did not. If you violently resist false arrest by the cops, they can kill you to defend their lives, and they are not criminals if they do so. Plummer is not law. Once upon a time, over a hundred years ago, it was law in one state. It's not law at all today. And the Second Amendment does not mean that you have the right to keep and bear arms however you please. If you try to be a Sola Scripturalist with the Bible, God won't kill you. If you do that with the law, the police will. Everybody should remember that. The law does not mean what it says. It means what the Supreme Courts say it means. And the Supreme Courts change their minds. So you cannot read the law and think you are acting legally. You also have to read the judicial opinions, and you have to properly understand the hierarchy of authorities. And no, the written Constitution is not the Supreme Law of the Land. It SAYS it is, but it is not. The Supreme Court's interpretation of what the Constitution MEANS is the Supreme Law of the Land. It is men in the top institutions who decide what the law is and what the written law means. This is true whether that is the Constitution or the Bible we are talking about. In a Protestant country, individuals reject that latter fact and assert that each man is his own supreme court regarding the Bible. Fine. Whatever. Nobody and nothing enforces the Bible in this life. But the law is enforced by the guns of the cops and the Army, and they'll kill you if you don't follow it as THEY interpret it. Whether they then get sued by your survivors and lose or win that lawsuit will depend on how a lesser court interprets the law - which is to saw, the controlling opinions of the courts above them. American law is ultimately made by judges sitting on supreme courts. Your civics class may have told you otherwise. Your civics class lied to you. Plummer is bad law. You cannot kill the police to resist an unlawful arrest. You have to submit to the arrest and work it out in court. Similarly, if you are a landlord and you go in and evict a non-paying tenant yourself, chances are you are a criminal. It may be your land, but you have no right to use force on a tenant. The monopoly of force belongs to the police. You have to get a court order, and the sheriff will do the eviction - not you. Similarly, if you carry a pistol in Times Square, the Second Amendment does not protect you at all from going to jail. The Second Amendment means what the New York Court of Appeals say it means - in Times Square - as the US Supreme Court has not given a ruling on those facts. Similarly, you can shoot somebody who breaks into your house and is threatening you. But you cannot shoot the thief who is running away with your lamp after he's already broken into your house in the back as he goes. If you do, you're going to jail. It doesn't matter what you think about those things. It doesn't matter if you "agree". Our opinions are that: opinions. There is hard, binding law on those things, whether you agree or not. If the nurse had shot the cop unlawfully arresting her, she would be going to prison for murder or attempted murder EVEN THOUGH he was violating her civil rights and acting criminally. Her dignity was in danger, not her life, as long as she did not violently resist arrest. THAT's the law. Plummer? That once was law, for a time, in Indiana. Don't believe for a moment that it is law now. It isn't.
I can't imagine they need more than a very small sample of blood for routine police testing purposes. Most, perhaps all, of their tests will be performed on only a few drops of blood.
If he really believed that, then he would/should have booked the nurse. He instead was "nice" enough to put her not in the back seat of the cruiser as is normal, but the front seat where it would not be safe to drive. He made no attempt to go anywhere and released her after 20 mins. He knew he was wrong. And the department did about nothing until after Wubbels made the event public. That's telling indeed!
No doubt. I've never said otherwise. Of course, we civilians do not have access to legal databases and legal libraries like a lawyer does. It is not lack of understanding that impedes as much as it is the lack of legal resources available to non-lawyers. So when was the last time a defense succeeded using Plummer as justification? Hard for me to look up but it shouldn't be difficult for you. For that matter, how many times was it used in Indiana? And do you have any case law to cite that it has been overruled as a precedent in Indiana courts?
So by not booking her, your conclusion is that he knew he was wrong. You believe that.
Or to keep her. Officer discretion. Yet you want to turn that into "he knew he was wrong so he released her". That's why you're an idiot.
And extremely dangerous to rely on while suffering a false arrest, as the police have immediate and exclusive access to the crime scene and can easily plant evidence to attempt to show any harm they suffer was NOT due to a false arrest. But with the advent of body cams and more proliferation of both security cams and phone cameras, perhaps is at least a harder, and more dangerous (if they get caught) for corrupt cops to do.
I certainly don't as it's a completely false statement. #1) State legislatures have a sovereign right to pass whatever laws they want, whether in line or opposition to any federal law or USSC ruling, even if completely and obviously unconstitutional on it's face. And if a law they pass is signed into law is declared unconstitutional, they are under zero obligation to remove it from their books. They are sovereign. Now enforcement of said laws is another matter entirely, but legislatures do not enforce laws, as that's out of their jurisdiction. #2) Just because the feds want something illegal does not mean states are obligated to consider the same thing illegal and expend state resources to prosecute and punish those engaging in said act. If the feds want to prosecute what they want to be illegal, they may do so in federal court. But states are not obligated to prosecute in state court at all. So no, we don't agree, and you are completely wrong, as you so often are, unfortunately.
Well, they have the power to pass unconstitutional statutes, sure. They can put illegal laws on the books just like they can take them off. What they can't do is enforce the illegal laws, because federal supremacy applies. In the case of marijuana use, the issue is that when the state legalizes it, and tells its officers and courts to stop enforcing the state laws, and not enforce the federal laws, it is much like the sanctuary cities. It's unconstitutional, but the thing being ordered is a negative act. Prosecutors and police have always had the discretion to decide how to allocate their resources. So you end up in a weird situation where the police and prosecutors have state laws that are unconstitutional on their face (because contrary to federal law that is supreme on the issue), but those state laws tell them NOT to arrest people. The police are funded by the state and locality, and if they disobey, they will be unfunded. They don't work for the federal government, and the federal government never did have the authority to set their priorities for them. So, on these marijuana and immigration cases, what the states are doing is defying federal law by removing a state statute and telling their officials that, if they want to keep their jobs, they are not to enforce the federal law. The police, for their part, have not attempted to fight the states on this, because they would be fighting their paymasters, and how do you do that? Work for free? Get fired? Even if a cop is wrongly fired, he's still not a cop, and he still won't enforce the law. Similarly, just before the Civil War there was a federal Fugitive Slave law, but the Freesoil States systematically refused to enforce those laws, turning a blind eye to slaves moving through their areas. As Trump is finding, when you are facing a state or a city that defies a federal law through NON-enforcement of a statute, it is very difficult to do anything about it. It's really easy to shut down something like enforced segregation - the feds can release the prisoners and quash the trials. But when a polity takes a passive, non-enforcement stance, they are indeed in philosophical violation of the federal law and constitutional logic, but it's very hard to actually DO anything about it - a bit like enforcing the laws against suicide: how do you punish the person who succeeded? The instruments available to the federal government are very blunt: they can send in FEDERAL agents to enforce the federal law, and they do. But there are only so many federal agents, and funding more of them is a political matter for Congress to decide. Cutting off federal funds is a largely idle threat. For to do that, elected Republican and Democrat officials have to vote to do that, and by doing so they alienate most of the voters of the state or city that is defying the federal law (through inactivity - it's easy to stop an aggressive positive act, but it's very difficult indeed to "punish" the lazy non-enforcement of something. So, do states have the RIGHT to legalize marijuana? No. But if they do, what REMEDY is there against them? None good. The feds would have to take various politically difficult and unpopular measures against the state, further alienating the state and its voters, who also vote in federal elections. In a democratic system, the law as written does not always prevail. The will of the masses is a law of its own. 46 states have legalized medical marijuana and won't enforce the federal law. What is the federal government to do now? Increase federal law enforcement personnel 46-fold. You might be willing to pay for that, but are the Democrats or Republicans willing to do that? In four states, perhaps. Which means NO. There is an old axiom of the Common Law: No remedy, no right. So, one can assert that one has a "right" because of goodness or legal logic, but if there is no means to bring the force to bear through the legal or political or other systems to make that right a reality on the ground, then you really don't have the right. You have the assertion of the right, but it doesn't really exist, because too few people acknowledge it for it to be able to be enforced. This nurse, by contrast, was legally right on paper, because of the federal Supreme Court decision: the officer had no right to get the blood without a warrant. Full stop. Therefore, he had no right to arrest her. He thought he did, so he did. But she has remedies. Authorities higher than the cop looked, said "Whoa!", undid the arrest, did not attempt to prosecute her, and are now looking to prosecute the cop and his supervisor. She has a clear remedy, a whole set of them, and therefore clearly has a right. But against the states that legalize marijuana, what can the federal government effectively do? They can enforce the law themselves, without state cooperation. They're already doing that. It wastes a lot of resources and the federal officials don't want to do it. They could try some heavy-handed collective punishment things, like cutting off funds - the equivalent of the British Crown closing Boston Harbor and sending Redcoats. But those are very harsh and aggressive acts, and there is always the distinct possibility that, if you do that, you might find the whole of the people turning against the government itself, as the American colonists did. Sending the Redcoats was within the rights of the British King, but it so incensed the populace that he ended up losing even the appearance of authority. Neither Trump nor the Congress want to risk directly taking on 46 American states over an issue on which the majority of the people in all 46 of those states have spoken at the ballot box. The "rights" of the authorities in the minority opinion may be what the law says, but that was equally true for King George III - legally, the British were always right in the American Revolution: people never have the "right" to rebel and kill the cops. But if you vex them enough and they do it, and they win, well, then the Crown's rights have evaporated, because there is nothing they can do to enforce them. No remedy, no right. There is no remedy to the state defiance of the marijuana laws. Trump may have the political support to punish the sanctuary cities over immigration, because a huge portion of the population, probably the majority of likely voters, want illegal immigration stopped. But the majority of voters in 46 states have decided that marijuana is going to be legal. So which political party is going to try to enforce federal power on the matter over the overwhelming, express desires of the American people? None. Philosophically, the states have no right to legalize, but in practical reality, they do, because they have been able to do so and there is no real remedy. Philosophically, cities have no right to be sanctuary cities, in practical reality they have nevertheless done it, and it's an open question as to whether Trump and the Republicans at the federal or state level are willing to take the political damage they will take if they decide to go King George on the matter. They might assess that they can win that fight, so they will do it. If they assess they can't win it, they won't. And once against, no remedy, no right. The nurse has a remedy for the violation of her rights, so her rights are real and the cop loses. No remedy, no right. If there is a remedy, then there is a right. This is DESCRIPTIVE, not PROSCRIPTIVE. Since all law is nothing more than the opinion of the lawmaker, what I really think is that laws I agree with should be enforced, laws I oppose should be repealed, and that if the political power of one part of government is too strong to repeal them, then if a political method can be found to disregard the law and override it through other means, such as local democratic action, then do so. But where local democratic action is trying to override a law I agree with - example: the racists trying to locally uphold segregation against federal law, then I am more than ready to unleash the Redcoats to go bully the locality into submission, as we did in the civil rights cases. Law is opinion. I'm fond of mine. So, I believe that my opinion should be the Law of the Land. Where it is, I support the authorities in upholding it to the hilt, and using armed force to crush opposition and lawbreaking. But where I disagree with it, then if the political opinion cannot be changed through persuasion, if I don't care enough I will shrug my shoulders and accept the bad law. But if I find the bad law really odious morally - as, I do the historical slavery, Fugitive Slave and segregation laws, also alcohol prohibition - then of course I want to see those laws defied and undermined, and the government put in the position where it has to yield to reality. But if I don't personally care all that much - such as the gay marriage laws, or the drug laws - then I am content to watch passively, will accept whichever outcome prevails politically. I will be watching for what I do care about, and I care about excessive police force. THAT is threatening to me and everybody else. So if the law cannot be upheld without crushing out huge numbers of lives (alcohol and drug prohibition, for example), then I will gradually align against continuing to have the law, because I am unwilling to let the police kill and abuse people just to enforce a law I don't care about. It teaches them bad habits. Law is just human opinion. It is not sacred. It's what people can enforce on other people. If you're looking for blockheaded consistency in law, you can find all sorts of unrealistic pundits all over the place who will fill the bill - people ready to unleash legions of hell on jaywalkers - because "The Law", and people ready to tell people they can do whatever they please on their own property - because "Natural Law". Etc. All of those various rigid, idolatrous forms of law-worship fail in reality, and are not realistic ways to even attempt to run a country or the world. People only really care about the laws they care about. Including me.
You said the facts succinctly. I supplied a philosophical analysis of the marrow of it.
Would not apply in this case. If the nurse killed the cop to resist this unlawful arrest, she would be prosecuted as a killer. Judging from the public reaction, in this case, the prosecution would do no more than attempt to reach a plea deal. And if that failed, I don't think they'd attempt prosecution knowing that no jury would take more than 10 minutes to acquit her completely.
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Top • Page Up • Full Thread • Page Down • Bottom/Latest Who, and why. Given there was no lawful reason to obtain the sample, the investigation should definitely try to get at the reason *why* Payne was so hot under the collar to get it.
#28. To: misterwhite (#20)
Maybe. I mean, the defense can certainly bring it up at trial and the judge may or may not agree.
#29. To: Tooconservative (#27)
I can't get away from this question: who wanted this blood and why? And why was it important enough to assault and arrest a nurse?
#30. To: Vicomte13 (#28)
There's no procedural requirement that the cops be permitted to get what they want,
#31. To: Vicomte13 (#29)
(Edited)
There is no escape for him.
#32. To: Vicomte13 (#29)
THAT was what he was thinking. It was pure RAGE at having his "authoritah" questioned.
#33. To: Tooconservative (#24)
So where was Payne's probable cause for anything?
#34. To: misterwhite (#31)
What's the penalty if he gets convicted for being rude? Because that's the only charge I see.
#35. To: misterwhite (#30)
Other than the current State of Utah law, no.
#36. To: misterwhite (#31)
What's the penalty if he gets convicted for being rude?
#37. To: Vicomte13 (#29)
You're thinking logically. Payne was using a different logic: I AM A FUCKING COP, I HAVE COMMANDED YOU, A LITTLE PERSON, TO DO SOMETHING THAT I SAY IS NECESSARY. YOU HAVE DARED TO DEFY ME. MY SUPERVISOR AND I BOTH AGREE: NOBODY SAYS NO TO THE COPS. I WARNED YOU, YOU STOOD UP TO ME AND DARED ME TO DO THIS. THE LAW WILL ALWAYS PROTECT ME, YOU STUPID BITCH. NOW KNEEL AND SUBMIT!
THAT was what he was thinking. It was pure RAGE at having his "authoritah" questioned.
#38. To: Vicomte13 (#36)
#39. To: Pinguinite (#37)
He had a premeditated intent to get the blood sample before he arrived there, and it was for some reason that obviously had no lawful authority.
#40. To: Pinguinite (#37)
So the reason Payne and his supervisor wanted the blood sample should be explored and should not be considered trite.
#41. To: Pinguinite (#38)
Well, Payne lost his paramedic job.
#42. To: Pinguinite (#39)
(Edited)
He had a premeditated intent to get the blood sample before he arrived there, and it was for some reason that obviously had no lawful authority.
#43. To: Tooconservative (#42)
#44. To: Vicomte13, Pinguinite, A K A Stone (#43)
#45. To: Tooconservative (#34)
False arrest, for one thing.
#46. To: Vicomte13 (#28)
The cops don't have the right to take what they have no right to take.
#47. To: misterwhite (#45)
She clearly obstructed and interfered. And she resisted arrest.
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#48. To: misterwhite (#45)
She clearly obstructed and interfered. And she resisted arrest. Nothing false about that.
#49. To: Deckard (#47)
“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306.
#50. To: misterwhite (#46)
If the law is outdated or police policies are wrong, that's not his fault.
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#51. To: misterwhite (#46)
He had the power to take the blood under State of Utah law and police department policy. If the law is outdated or police policies are wrong, that's not his fault.
#52. To: Tooconservative (#48)
Really? Then why did they release her after only 20 minutes?
#53. To: Vicomte13 (#51)
Ignorance of the law - and federal supremacy IS the law - is no excuse.
#54. To: Vicomte13 (#51)
Ignorance of the law is no excuse for anybody, including cops and police departments. ESPECIALLY cops and police departments.
#55. To: misterwhite (#52)
Do you believe they released her only because the charge was bogus? Then you're an idiot.
#56. To: Tooconservative (#42)
Or both. Remember, Rotten Cop said blood vials. Not blood vial. Why would he need more than one blood vial if not to send it to more than one other police agency?
#57. To: Tooconservative (#49)
“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. Rarely applied in real life but a great find anyway.
#58. To: Pinguinite (#56)
Whether police crime labs would need more than one, I don't know.
#59. To: misterwhite (#46)
He had the power to take the blood under State of Utah law and police department policy. If the law is outdated or police policies are wrong, that's not his fault.
#60. To: Vicomte13, Deckard (#57)
The law does not mean what it says. It means what the Supreme Courts say it means. And the Supreme Courts change their minds. So you cannot read the law and think you are acting legally. You also have to read the judicial opinions, and you have to properly understand the hierarchy of authorities.
THAT's the law. Plummer? That once was law, for a time, in Indiana. Don't believe for a moment that it is law now. It isn't.
#61. To: Pinguinite (#59)
If he really believed that, then he would/should have booked the nurse.
#62. To: Tooconservative (#55)
They had no pressure to release her.
#63. To: Tooconservative (#49)
“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306.
Rarely applied in real life but a great find anyway.
#64. To: misterwhite (#53)
Meaning that states do not have the right to legalize marijuana for medical or recreational use? Do we agree on that?
#65. To: misterwhite (#53)
(Edited)
Meaning that states do not have the right to legalize marijuana for medical or recreational use? Do we agree on that?
#66. To: Pinguinite (#64)
#67. To: Vicomte13 (#57)
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