Blog on the Run: Reloaded

Sunday, September 3, 2017 3:57 pm

Blood and dirt; or, Why one cop’s illegal attempt to draw blood suggests a culture of corruption

The case of the Salt Lake City cop who arrested a nurse who refused to break the law for him looks bad on the surface.

Underneath the surface, it looks a lot worse.

Detective Jeff Payne of the Salt Lake City Police Department demanded that blood be drawn from an unconscious patient at the University of Utah medical-center burn unit. Burn-unit nurse Alex Wubbels correctly refused because the patient had not given (and, being unconscious, could not give) consent and because Payne did not have a search warrant for the blood sample.

On the police body-cam video, portions of which were played Friday by an attorney for Wubbels, Payne appears to lose his temper, grab Wubbels and take her into custody. The video shows University of Utah police, who provide security for the hospital, doing nothing to stop Payne.

(While this shouldn’t matter, the video also captures the fact that Wubbels is an attractive, blonde, white lady; she’s also fairly well-known in the area by virtue of having been an Olympic skier in 1998 and 2002.)

As a trained phlebotomist and someone who draws blood as part of his job, Payne should have known that just more than a year ago, the Supreme Court ruled 7-1 that drawing blood without a warrant is unconstitutional unless the patient is under arrest, which this patient was not, or (correction: EVEN IF patient is under arrest, a warrant is still required; h/t Amy Crittenden) consents, which this patient had not and could not.

Payne has been temporarily relieved of his phlebotomist duties with the department but otherwise remains on the job with pay.

That’s bad enough. But there’s more.

The patient from whom Payne wanted blood was William Gray, an off-duty reserve police officer for the Rigby, Idaho, Police Department who drives tractor-trailers when not working as a cop. He had been in a head-on collision in which he was not at fault; a pickup truck being pursued at high speed by the Utah Highway Patrol crashed into Gray’s rig, causing an explosion and fire. The driver of the pickup died at the scene; the Highway Patrol had begun pursuing him after other drivers reported him driving recklessly.

So if Gray was not at fault, why did a detective with the Salt Lake City P.D. want a sample of his blood? Payne says he received a request from the Logan, Utah, P.D. to obtain a sample of Gray’s blood to test for controlled substances. I haven’t been able to find anything one way or another as to whether that request actually was made. But even if it had been, the law is the law. Payne argued that Gray had given implied consent, which has not been the law in Utah since 2007 — another fact Payne should have known.

The Rigby P.D. issued a statement thanking Wubbels for trying to protect Gray’s rights. And she wasn’t just doing that. She also was upholding the law — indeed, had she complied with Payne’s request she might well have lost her nursing license.

There may be another reason why Payne wanted Gray’s blood badly enough to break the law to get it. Owen Barcala, a Massachusetts litigator, argues in a thread on Twitter that the cops hoped to find something in Gray’s blood that would allow them to disparage or discredit Gray — and thus get the Highway Patrol off the hook for instigating a high-speed chase that ended up seriously injuring an innocent person.

It’s not clear whether that pursuit was within Highway Patrol policy. This 2007 article in the Salt Lake Tribune suggests that state troopers there have pretty wide latitude to start a chase, and I couldn’t find anything more recent. But given that the Highway Patrol began pursuing a suspect wanted for the relatively minor charge of reckless driving, and that Gray ended up seriously injured as a result, Gray might well be in position to sue the Highway Patrol and win big — UNLESS, Barcala points out, the Highway Patrol could somehow prove that Gray had in some way contributed to the wreck through his own negligence, such as driving while impaired. Then, any award Gray might receive from a court might be reduced by a percentage equivalent to the percentage to which Gray “contributed” to the accident — or Gray might not recover anything at all. And Barcala points out that Payne might have intended to use whatever showed up in Gray’s blood to dissuade him from filing suit at all.

In all fairness to Payne, the Salt Lake City P.D.’s investigation is ongoing, and there may be more to this story than seems apparent right now.

But what is clear is that the public almost certainly will never know the whole truth, because almost no states or localities in this country have wrapped their heads around the fact that law enforcement officers — and public employees generally — are not morally entitled to any expectation of privacy with respect to performance of their professional duties. Salt Lake City’s civilian police review board’s role is merely advisory to the police chief, and while the board is assigned a full-time investigator, that investigator is from the police department. The board does not appear to have subpoena power.

Law enforcement needs public trust to be able to operate with the public’s confidence and support. Behavior like that of Payne undermines that trust and confidence, making the job of other cops harder.

And police departments aren’t even acting in their own best interests. Consider that this incident happened on July 26, and the department reviewed the relevant body-cam video within 12 hours, according to the Tribune. But the department did nothing about it until the video went viral five weeks later. That tells us that this isn’t just one rogue cop. At best, it is a gross misservice to Wubbels, Gray, and the larger public the department serves. At worst, the events and delay in responding to them suggest that this is a department whose culture is corrupt to the core.

Update 9/6: Payne has been fired from his part-time paramedic job after he said on the video that he’d bring transient patients to the hospital and take the “good patients” elsewhere to retaliate against nurse Alex Wubbels.

Update 9/8: Local prosecutors have asked the FBI to join the investigation into the cops.

 

 

 

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