EDITORIAL: Keep Watching the Wubbels/Payne Tape – It Gets Worse

Curtis Haring – Editor in Chief

At this point, the names University of Utah nurse Alex Wubbels and Salt Lake City Police Department Detective Jeff Payne have become inexorably intertwined after The Salt Lake Tribune released a two-minute video showing the final moments between Wubbels and Payne before Payne snaps and throws Wubbels under arrest for failing to turn over evidence – the blood of a crash victim.

Wubbels’ cries for help are disturbing, and you would be hard pressed to find an individual who thought that Payne was acting appropriately. But something even more disturbing and inappropriate occurs if you view the longer version of the interaction. I am speaking of the interaction that takes between Wubbels and Watch Commander, Lieutenant James Tracy, at the 11:30 mark of a longer version of video taken that day:

The interaction, which starts at the 11:00 timestamp, shows Tracy approaching a handcuffed Wubbels in the front seat of an unmarked police car. The entire time Wubbels insists that she was the messenger of the University of Utah Hosptial policy that prevented her from handing over blood because police lacked victim consent or a warrant; since the patient was a victim and not a suspect, the patent also was not under arrest, the third condition that would have required the hand over of the patient’s fluids. This policy, it turns out, is based on state law.

Though obviously shaken and scared, Wubbels does a commendable job maintaining her composure and thoughts – something we should hope to expect from any nurse. Ironically, we also expect the same of police officers, and that isn’t what we saw next.

The interaction between Tracy and Wubbels should send a shiver down the spine of any person who values the 4th Amendment right preventing illegal search and seizure (emphasis added):

Wubblels: I am obligated to my patients and to protect them.
Tracy: Okay, the patient you are trying to protect is the victim, Okay? We are trying – if he has anything to do…
Wubbels: [inaudable] he has already been given medication to be made comfortable, so any of that information would be a moot point.
Tracy: No, no, no. The hospital records will clear that up at the levels they are given. You are trying [Wubbels inttrupts] to give a legal defense…
Wubbels: No I am not trying to do anything, I am being told what to do.
Tracy: And what I am trying to tell you is we wanted blood from this guy. Now, I have talked to people and there is probably a bunch of other solutions we could have come to, okay, but, but, all we had to [inaudable]. And my point is: there are civil – if we are breaking the law, if we are doing wrong, okay, listen to me, if we are doing wrong there are civil remedies, okay? It’s called [inaudable]. If we took this blood illegally, it all goes away, alright? So there are civil remedies. [inaudable]. What I am telling you is [inaudable] I have done this for 20 plus years, I know what the law is for illegal search and seizure, alright. And what you have done, because [inaudable], has been to prevent this officer – who is called out to do a job – to do his job. That’s obstruction of justice.
Wubbels: [inaudable]
Tracy: I understand you’re not trying, but you are succeeding.

First, let’s clear up the fact that, no, neither Payne or Tracy could legally obtain a blood sample from the patient. Former US District Judge and University of Utah Law Professor Paul Cassell provided a fantastic review of Utah’s consent laws as they relate to this case on Friday in the Tribune. The short version is this: Utah’s laws state that a driver inherently gives consent to have their bodily fluids tested only if they are driving in the state AND the officer is trying to prove a law was broken.

Tracy, who was given Payne specific orders to obtain the blood sample, says in the video that the patient in question is a victim. With that, it was reasonable to assume that no criminal investigation was taking place against the patient who, as it turns out, is an officer in Idaho, a fact Tracy may or may not have known at the time. Keep in mind, this was not a potential suspect in a DUI case that was just brought into the ER whose liver is actively working to remove alcohol from their system and each minute evidence is literally dissolving away, this was a known victim who had been presumably been pumped full of pain medication, antibiotics, and steroids in an attempt to treat injuries in that time.

In short, the blood would have been illegally obtained. Tracy’s claim that he knows the illegal search and seizure laws appear to be inaccurate.

But I can excuse this; it is easy, in the heat of the moment, to incorrectly believe that you know the law that you have worked around for 20 plus years under such a fairly unique situation. Utah’s criminal code is long and complicated – because of this a vast web of law enforcement officers, defense attornies, prosecutors, judges, and juries are employed in an attempt to ensure that proper facts are used through legally obtained evidence. We all know that the system isn’t perfect and neither are the people in it – at the end of the day, we have to have faith that, overall, the system finds the truth.

What I can not excuse is Tracy’s use of threats to obtain evidence combined with what appears to be a fundamental disrespect for the 4th Amendment.

Tracy is right – there are “other solutions” that a veteran officer would have known to deploy in order to obtain the evidence the officers requested – number one would be obtaining a warrant. I can’t speak to the circumstances that stopped either Tracy or Payne from obtaining the warrant and meeting one of the conditions of the hospital policy/state law, but it appears that neither were willing to explore this option when Wubbles stood up for her unconscious patient.

In an age where search warrants can be obtained through a phone call and an electronic signature, it is disturbing that both officers were willing to sidestep this common sense solution and instead chose to buffalo a nurse who was just trying to do her job and balance the rights of her patient, the requirements of her job, and the demands of law enforcement.

The idea that “the courts will figure it out” is a dangerous one for a police officer to have. It is essentially saying that law enforcement is allowed to do and say whatever they please to obtain evidence and a convention – even if it runs afoul of Constitutional protections. Don’t like it? Well, we hope you have a good enough lawyer, a jury that is able to actually forget constitutionally dismissed evidence, and the time to attend initial hearings, a trial, and an appeal. That didn’t work? Well, we hope that you have a parole officer who is understanding or a parole board that lets out of prison for time served. Made it out of the justice system unscathed? Well, we hope you have an understanding employer and a social network that won’t look at you with a side eye.

There were so many points where both Tracy and Payne could have stopped and evaluated the situation for what it was. I don’t know what their day was like prior to this, but even with that in mind, it is no justification for their actions.

What particularly concerns me is this thought: If these officers are willing to treat an inherently trusted professional in an inherently safe location, one has to wonder how they have treated less respected individuals in less than ideal situations. With recent discussions about police brutality and militarization of police forces across the country, we must also wonder if these officers actions really are isolated incidents.

I, for one, want to believe that most officers really want to do the right thing – but we can’t ignore the fact that police officers are in a position of power and that it is quite easy for them to abuse that power through intimidation and the threat of lost liberty (even putting someone in cuffs and placing them in a car is a show of this kind force and the willingness to exercise it).

Though Salt Lake City Police Chief MIke Brown’s statements regarding the incident were pleasant, actions speak louder than words. Though Payne was pulled from the team that would be able to legally obtain blood draws, he remained a detective until Friday when the video was released. Similarly, the SLC PD has only alluded to the fact that Tracy has been put on administrative leave, and only after the video was released to the public. Such thinking tells me that there is a culture of closing ranks and hoping that problems go away, rather than addressing important issues related to poor personnel. That may be poor form for most businesses, but it is one that puts people’s fundamental rights at risk when we are talking about police officers.

Police officers have a very, very hard job – one that causes them to be pushed and pulled by politicians, budgets, community leaders, government bureaucracy, internal politics, and even internal conflicts against some very base emotions. But that doesn’t make the words of Tracy or the actions of Payne any more excusable. It is time for us, all of us, to have an honest conversation about the role police officers play in our society and the role we want them to play.

I could write whole articles about the school to prison pipeline and the role resource officers play in establishing norms; how police militarization causes fear and mistrust among citizens while distancing officers from the public; how the failed war on drugs creates criminals out of people who need help, further straining officers; how increased surveillance makes people less willing to speak up when their rights are violated; how our gun culture puts officers on edge at all times; how poor mental health treatments force officers to be both an officer and an emergency psychologist; or how the federal government’s increased reliance on local police forces to serve as wings of Homeland Security or Immigration and Naturalization place an undue burden on officers. But, for now, let’s start small.

Police chiefs must find ways to fight the urge to circle the wagons whenever they are criticized – instead, they should welcome things like citizen review boards and be active participants on those boards. Increased interactions between the public in formal settings will make administrators and the officer on the street more open to opportunities for positive informal interactions. We, as lay citizens, should also do our part – though we absolutely should guard our rights with fierce resistance, throwing a fit over a speeding ticket and being disrespectful to an officer just doing their job does no good and is likely to put the person behind the badge more on edge when they are on the next call.

Ultimately, it comes down to communication and respect from all sides.

What Payne and Tracy did was wrong, and a serious discussion should take place about their future role as police officers – but the actions of these two officers is a symptom of something greater. We must, all of us, citizen and officer alike, must have an open, honest, painful, and critical discussion about tough issues. If we fail to do so, we will see more Wubbels come forward.

Correction: When first published it was erroneously implied that the attempted blood draw was taking place days after the accident, however, this was not the case. The illegally attempted blood draw seen in the video took place the same day.

5 Replies to “EDITORIAL: Keep Watching the Wubbels/Payne Tape – It Gets Worse

  1. The officer must be terminated.
    The Salt Lake City Police Chief removed.
    The Salt Lake City Mayor must be recalled or resign.
    There is an obvious corrupt culture with a complete disrespect and disregard for the public that all three are sworn to protect and serve.
    Remove them now.

  2. AGAIN: FIRE THIS MAN WHO THINKS HE IS GOD.. HE NEEDS IN DEPTH counselling, doubt if this will help…..”this ” nurse was following hospital procedures.

  3. It’s also worth noting that the department of the original blood draw request was not SLC, but Logan, and once they discovered that the patient was unconscious, immediately (and correctly) told Payne to “forget it”. My belief is that Payne fully knew what he was doing was wrong but, at that point since he had his superior’s tacit consent, simply ‘went for it’ and manhandled Wubbels as retaliation for her absolutely legal refusal to do what a cop was telling her to do.

    That aside, this is a great write-up of the real issue, and that was Payne’s superior (using the good old ‘good cop/bad cop’ routine) by calmly, but quite wrongly, trying to buffalo a cuffed, isolated, distraught Wubbels into agreeing to the cops’ quite illegal demand for the unconscious patient’s blood with the rationale of ‘do what we’re telling you to do and we’ll work it out later’.

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