From the Salt Lake City Tribune:
A nurse says she was assaulted and illegally arrested by a Salt Lake City police detective for following a hospital policy that does not allow blood draws from unconscious patients.
Footage from University Hospital and officer body cameras shows Detective Jeff Payne and nurse Alex Wubbels in a standoff over whether the policeman should be allowed to get a blood sample from a patient who had been injured in a July 26 collision in northern Utah that left another driver dead.
Wubbels says blood cannot be taken from an unconscious patient unless the patient is under arrest, unless there is a warrant allowing the draw or unless the patient consents. The detective acknowledges in the footage that none of those requirements is in place, but he insists that he has the authority to obtain the draw, according to the footage.
At one point, Payne threatens to take Wubbels to jail if he doesn’t get the sample, and he accuses her of interfering with a criminal case.
“I either go away with blood in vials or body in tow,” Payne says.
After Wubbels consults with several hospital officials and repeats the policy, Payne tells her she is under arrest and grabs her, pulling her arms behind her back and handcuffing her. The footage shows the detective dragging Wubbels out of the hospital and putting her inside a patrol car as she screams, “Help! Help! Somebody help me! Stop! Stop! I did nothing wrong!”
Actually the hospital is correct. It is a violation of the 4th amendment to do so without a warrant. He should just get the warrant.
Not with implied consent.
how can there be implied consent if the person is unconscious?
Implied consent is just that, you give consent for a blood / breath test when you obtain a license or operate a motor vehicle on a roadway…it applies if you are unconscious as you are already deemed to have consented. If you are awake you can refuse but the refusal is a violation. Then a warrant would be required. That being said state laws vary on the process, he could have handled this much better.
Give to a lawyer… I hope this gets to court under a 1983 violation for both the patient and the nurse. These are the cops that give us all a bad reputation.
What Pete said. Driving with a license form a state is a privilege, not a right. You give implied consent to attain said license.
Implied consent is for non-invasive searches. Blood draw, cavity search, requires a warrant. THe subject, in this case, is not a suspect, but a victim. The suspect died in a crash with a truck, which the subject was driving.
Why are so many LEO’s so eager to commit career suicide, by doing stupid things?
Wrong. Effective 5/9/2017
41-6a-520. Implied consent to chemical tests for alcohol or drug — Number of tests — Refusal — Warning, report.
(1)(a)A person operating a motor vehicle in this state is considered to have given the person’s consent to a chemical test or tests of the person’s breath, blood, urine, or oral fluids for the purpose of determining whether the person was operating or in actual physical control of a motor vehicle while:(i)having a blood or breath alcohol content statutorily prohibited under Section 41-6a-502, 41-6a-530, or 53-3-231;(ii)under the influence of alcohol, any drug, or combination of alcohol and any drug under Section 41-6a-502; or(iii)having any measurable controlled substance or metabolite of a controlled substance in the person’s body in violation of Section 41-6a-517.(b)A test or tests authorized under this Subsection (1) must be administered at the direction of a peace officer having grounds to believe that person to have been operating or in actual physical control of a motor vehicle while in violation of any provision under Subsections (1)(a)(i)through (iii).
That applies to a suspect, a concious one. The subject was a victim, not suspect, and unconscious . Warrant was a required.
I am certain on this one, as SLC DA, SLCPD , and even PD where the victim was a reserve officer, all agree that nurse was in the right, and SLCPD detective and his superior were in a wrong, to a point of commuting assault on a citizen. Expect retirement , resignation or termination , as end result.
I’m reading and re-reading and can find nothing listed to lead you or anyone to believe this applies only to a conscious suspect. In fact, if you read, it says it applies to a person (not suspect or arrestee)
operating a motor vehicle in the state to determine if they were under the influence. it further states that a test authorized under this section MUST be administered under the direction of a peace officer…. Nothing here says anything you mentioned.
It doesn’t, but none of that overrides the Fourth Amendment and in Birchfield v. North Dakota the Supreme Court clearly and unambiguously said the state needs a warrant to compel a blood draw.
Further, if you read the law you cited, the “peace officer” has to have “grounds to believe that person to have been operating or in actual
physical control of a motor vehicle while in violation of any provision
under Subsections (1)(a)(i)through (iii).” Getting rammed into head on by a perp fleeing the police isn’t probable cause to believe someone was operating a motor vehicle under the influence.
That ruling applies to states that have criminal penalties attached to refusing of a specimen under implied consent. Utah does not have a criminal penalty.
That doesn’t change the fact they need a warrant or consent to get the blood draw.
SCOTUS said they had to have a warrant or consent. Arguing that penalties for refusing to allow a blood draw without a warrant would only be civil penalties doesn’t evade the warrant requirement.
The specific issue was whether blood drawn without a warrant under the threat of criminal prosecution could be used as evidence. SCOTUS said no because either a warrant or consent has to be had to draw the blood.
Even without the SCOTUS ruling, moreover, the policy she read to them was an agreement between Payne’s police department and the hospital. It wasn’t just the hospital policy he was ignoring, but the policy of his own police department.
They had consent… That he gave when he received his license. That he gave to drive in the state. He did not withdraw his consent.
No, they didn’t. That law changed back in ’07 in Utah. The Salt Lake City Police Chief in his press conference explained that it didn’t imply in this situation.
The law is in the law books now and is current. Go to the Utah legislature site. Laws that are no longer in use are typically removed or redacted, not left in place. Plus the date for the implied consent stuff is 2017.
The law, as you cited, requires probable cause the person they want the blood draw from was operating impaired. The cop says clearly to another cop he doesn’t have PC. That’s why they aren’t getting a warrant. As I pointed out upthread, it requires the cop having
Basically, Utah’s standard is that you have to have enough to get a warrant in order to draw blood. Arguably, they don’t require a warrant. In effect, it’s like the standard for a cop to search someone’s car when they haven’t arrested them. SCOTUS has allowed law enforcement to search cars without a warrant, but they still need probable cause to do so.
Further, that law isn’t valid to the point it conflicts with Birchfield, which clearly says the police need a warrant. Arguing that Utah only contemplates civil remedies doesn’t evade the warrant requirement. Utah would be free to pull his license for not consenting to the blood draw, but they can’t compel the blood draw absent a warrant.
The policy the nurse read to him was agreed to between the hospital and the police department. I doubt the latter agreed to a policy more restrictive than the law.
The law isn’t from 2017. It was amended in 2017. I don’t see in the legislative history of the bill which parts of that section were amendment, I’m not going to go digging through past versions of the law to figure it out.
Typically a crash that involves a fatality does not require probable cause. I know in Texas the blood is mandatory in such cases, I’m just too tired to look for the law in Utah. Even if I did, you won’t believe it. You don’t get to apply supreme court decisions to something even they did not apply it to.
Amended in 2017 would mean that the law is good now and applies to this case.
Yet the cop’s boss says it doesn’t apply in this case.
There’s no fact in this case that distinguishes it from the core ruling of Birchfield, which is that consent or a warrant is required to effect a blood draw. You’re basically arguing that a victim has less rights than a suspect.
And we go back to the law that says consent was given when he chose to drive in Utah and that he did not withdraw his consent. Yep, implied consent…without criminal penalties….which is what the Supreme court case is NOT about.
Just say it: you don’t think a victim has any rights a cop needs to respect…
Why would I say that. I just follow the law that is put into place by the legislature that the voters put into place. To not follow laws leads to anarchy. We don’t get to choose to not follow laws when we want.
The legislature doesn’t override the Constitution. Further, you’re reading the Utah law in a manner convenient to what you want, which makes it pretty much no different than you choosing to follow- or not- the laws when you want.
This incident happened mostly because people who are supposed to be investigating can’t be bothered to listen to anyone else.
It’s not what I want. I don’t live anywhere near there and this case doesn’t affect me at all. I’m reading the law as it is written. Cops enforce written laws, that’s their job. If people want the law enforced differently, then get the law written differently. Some of those laws say SHALL and WILL and MUST. Just because you don’t agree with it doesn’t make the law a bad law.
Aside from that, I have never said that this particular case wasn’t handled well, from the cop making the arrest of the nurse to the nurse resisting.
Actually, as I describe above, that is not relevant – the state law has no impact on the consent issue. Federal law applies in this circumstance because he was driving a commercial motor vehicle.
Federal law on commercial vehicles wouldn’t give them the authority to make a blood draw without consent and without a warrant. It certainly doesn’t justify arresting the nurse, who, again, was following the law where she was and an agreement between the hospital and police department both Payne and Tracy worked for.
SCOTUS has been quite clear about when state officials may enforce Federal law. Congress has to authorize it. They have, both generally and with more specific delegations. The state also has to authorize it.
At best, they’d be able to report his unconscious refusal to whoever tracks that sort of thing to have his commercial license revoked or suspended. Further, unless Utah has passed a law giving them the authority to enforce that provision they wouldn’t have any authority at all relative to it. Not even to report a supposed refusal.
“Maybe”. It depends on how Utah does motor carrier enforcement. I have lived and worked in a state in which only the State Police could do such activities; I have also lived and worked in one in which any LE could so (after the 4 weeks of training). I have no idea what the state law is in Utah. Reporting a refusal is almost certainly authorized, if there is any authority to do motor carrier stuff. Federal law does authorize it; the question is state law. I also do not advocate that anyone does either DUI or motor carrier enforcement stuff unless they specialize in them – there are a lot of details and nuances that have to be considered and like many other complex tasks has to be done regularly in order to maintain proficiency.
Remember that the hospital policy is not relevant if at all in conflict with the law. (And I am not claiming that the law is perfectly clear on who could do what here – just that the issue is a lot more complex as to the situation than it appears.) I’d bet a lot of money that both the PD and the hospital were completely wrong in their policies; senior managers at both needs some pretty brutal discipline (months off at a minimum), and we all know that won’t happen. I have dealt with such things on a regular basis; hospitals and schools are complete crapfests when it comes to legal research and policy development. I’ve had to educate a few people in those settings about their exposure, and their lawyers were not part of the solution, or even close.
The irony here is that the PD was almost trying to protect the victim in this collision by getting the results showing he was not under the influence.
It wasn’t just a hospital policy. It wasn’t just a hospital policy. It wasn’t just a hospital policy. Can we put that throwaway nonsense away for good, please? What she read them was an agreement between the police department and the hospital, one that indubitably was crafted by lawyers on both sides.
The hospital is also bound to follow the law, and the law is not whatever some Johnny Constable decides it is on a given moment. The civil regulations on an employer imposed by the Federal government, moreover, present no delegation of authority to state and local law enforcement. CFR § 382.303 imposes a requirement on *employers.* It allows *employers* to use post-accident testing by state and local law enforcement. It grants no authority to those state or local law enforcement officers to compel or require testing. It does not rid them of the obligation to obtain a warrant or to have probable cause and a qualifying exigent circumstance.
That “trying to protect the victim” thing might be true for the Logan PD, who requested the blood draw. It is most certainly not true of Payne and Tracy. Neither mentions it. It’s at no point any part of their consideration in any of this, and, even if true, does not justify not getting a warrant. There is no “we’re only trying to help” exception to the Fourth Amendment.
I do not, however, see any circumstance in which drawing his blood and testing it aids him at all. It looks and smells like an ex post facto excuse for their conduct.
Don’t count on lawyers for both entities being involved, or on them being correct. I’ve dealt with so many policies of this type that are simply wrong that it is truly frightening. Schools and hospitals are among the worst. While there was an agreement of some sorts, I do not recall anything about the agreement being what was referred to in any source.
Other delegations of authority would bring 49 FCR 382.303 into play, and as I said, I do not know how Utah does this. As for the warrant assertion, MAYBE. The case law being thrown about for this fact pattern (the McNeeley/Birchfield line) does not apply. There is a 4th amendment question, but it is very narrow under Skinner.
I disagree: I think we can count on lawyers having been involved, especially on the hospital side. Based on what she read, that was very much about making sure the hospital couldn’t be sued over a search done at the behest of law enforcement, such as happened in Denning, New Mexico (where, speaking of LEO’s who don’t get held accountable, no cops were harmed in the process).
This is a Fourth Amendment issue. It’s not a narrow one, either. There’s no authority for the police to compel a search here. 382.202 is the one I spoke about: it’s a requirement on *employers,* not a grant of authority to law enforcement. It allows *employers* to use a chemical test made by law enforcement as a substitute for their own testing. It doesn’t give law enforcement any authority to conduct a test, let alone provide implied consent for such a search/test by law enforcement.
Had Payne shown up with a representative of Mr. Gray’s trucking company in tow, there’d be a reasonable argument that gave him the authority to conduct the blood draw separate from any Fourth Amendment considerations. It wouldn’t have given him any reason to arrest her for interfering with a law enforcement officer, but it could have put the blood draw outside Fourth Amendment considerations. But that’s not the situation we’re looking at here.
Given my experiences with such policies, and those of my peers in LE legal across the country, I am not at all confident that there were lawyers in involved, and if they were, that they were competent (or listened to – client control is sometimes very unpleasant). (If I recall the Denning case correctly, your description and outrage are correct.) The 4th amendment issue is not as portrayed; it is not a McNeeley/Birchfield analysis as this has nothing to do with using the results against the patient. (And Birchfield is more about making refusals to submit to testing a distinct crime, anyway.)
What angers me here is that to the extent that there was a policy in place, and assuming for the moment that it was sound, it appears that the police department completely failed to train on it or even distribute it effectively. That does not excuse the questionable conduct of the detective and Lt., at least some which is indefensible (like the comments made regarding transporting transients to this hospital), but it does provide at least some defense and more importantly, shows that the core problem is well above their ranks. I suspect that if a sound IA and other review is done, very high level officers are going to have serious exposure problems and that they should already be on administrative leave, too. I fear that will not be done, if ever, until all the litigation from this is over and their misconduct is exposed.
It’s still a Fourth Amendment issue even if they aren’t going to use it against the patient. That’s one of the problems with our current Fourth Amendment jurisprudence: it’s as if violating peoples’ rights is okay provided the government doesn’t use it against the person violated. The Denning case I was specifically referring to is the Eckhardt (sp?) incident, where cops took the suspect outside the time frame and jurisdiction of the warrant and had doctors perform multiple invasions of his body. None of the cops involved suffered any personal consequences for their actions, but the hospital and the taxpayers got to pay. That would be wrong and a violation of the Fourth Amendment even if they never intended to use anything against the suspect in court.
Exclusion as evidence is a remedy for Fourth Amendment violations, not the defining rule of what constitutes a lawful search (let alone a reasonable one). Further, the police don’t have any authority to compel a “helpful” search of someone. Birchfield does apply, just as the Fourth Amendment does.
With respect to the training issue: on that we agree. I think it’s quite likely both officers and hospital staff were largely ignorant of the policy, and other statements made by Payne and (IIRC) Tracy indicate they’ve not had such resistance by hospital staff in the past. Perhaps those other circumstances were different and they weren’t recognizing that, or perhaps other hospital staff weren’t inclined to question their authority in those instances. Whatever the reason, their stated experience in similar situations argues that few people were aware of or following the policy the nurse read to Payne. Being ignorant of the policy may not be their fault, but it’s certainly a leadership problem. However, once she pointed out that the policy was an agreement between the hospital and the police Payne should have notified Tracy of that before proceeding to arrest her.
There is a 4th amendment issue, as I acknowledge, but it is a Skinner analysis, not Birchfield. Birchfield is about cases in which the defendant is being prosecuted for refusing the test, which is not what happened here. (I just read it when this blew up, after refreshing my memory on McNeeley; I stay as far as possible from DUI enforcement as I can. Even when I doing criminal prosecution I didn’t touch that stuff and the one time it impacted a felony case, one of our traffic prosecutors did that part of the case. Other than that, I am 30 years out from trying one and I do not miss it.)
I truly have not done the real research needed to conclude one way or another if the Federal laws/regs would mandate testing the unconscious CMV driver who is apparently not the causing driver. Pretty clearly it should, and I think it would survive 4th amendment scrutiny. I sure as hell would want to be tested in such a situation, and would prefer to be unconscious as I am closer to a needle sissy than not.
It’s not a Skinner analysis with respect to law enforcement. Skinner involved an employer testing employees. It gave law enforcement no authority to compel testing. It isn’t relevant in this case because Payne, Tracy, and the Logan PD had no authority to enforce whatever mandates were on Mr. Gray’s employer.
Skinner gives a constitutional imprimatur to the Feds to create a regulation like 382.303. It doesn’t do anything to empower cops to ignore the warrant requirement in Birchfield.
Utah’s state law requires probable cause. The Federal regulation doesn’t give state law enforcement any authority to bypass the Fourth Amendment. Payne and Tracy don’t have a leg to stand on.
Go with facts on the ground. She was not arrested, the paperwork, if any, would be voided. SLC PD issued apology, and DA began criminal investigation into actions of detective and his supervisor, a Lt. It is hard for me to understand what goes through minds of cops who behave like that. Arrogance of the badge combined with ignorance of law, policy, and lack just plain human decency. This was not a ‘fluid rapidly evolving situation’. So quickly made poor decision cannot be excused by exigency and immediate need.
First, everything in the written law points to the fact that the blood draw itself is perfectly fine. The only thing I’m not seeing is a penalty for those refusing to do the blood draw. In a typical blood warrant there is a penalty. Perhaps the officer believed that penalty applied in this case. Mostly the department is back pedaling because they don’t like the attention. Nonetheless, the written law supports the taking of blood from an unconscious person believed to have been driving under the influence.
He was a tool, but she was in fact arrested; voiding the paperwork does not change that. However, the legal analysis more or less agreed upon by everyone here is not the applicable standard when the collision involved a commercial motor vehicles.
And there is this….Read # (3)
72-10-502. Implied consent to chemical tests for alcohol or drugs — Number of tests — Refusal — Person incapable of refusal — Results of test available — Who may give test — Evidence — Immunity from liability.
(1)
(a) A person operating an aircraft in this state consents to a chemical test or tests of the person’s breath, blood, urine, or oral fluids:
(i) for the purpose of determining whether the person was operating or in actual physical control of an aircraft while having a blood or breath alcohol content statutorily prohibited under Section 72-10-501, or while under the influence of alcohol, any drug, or combination of alcohol and any drug under Section 72-10-501, if the test is or tests are administered at the direction of a peace officer having grounds to believe that person to have been operating or in actual physical control of an aircraft in violation of Section 72-10-501; or
(ii) if the person operating the aircraft is involved in an accident that results in death, serious injury, or substantial aircraft damage.
(b)
(i) The peace officer determines which of the tests are administered and how many of them are administered.
(ii) The peace officer may order any or all tests of the person’s breath, blood, urine, or oral fluids.
(iii) If an officer requests more than one test, refusal by a person to take one or more requested tests, even though the person does submit to any other requested test or tests, is a refusal under this section.
(c)
(i) A person who has been requested under this section to submit to a chemical test or tests of the person’s breath, blood, urine, or oral fluids may not select the test or tests to be administered.
(ii) The failure or inability of a peace officer to arrange for any specific chemical test is not a defense to taking a test requested by a peace officer, and it is not a defense in any criminal, civil, or administrative proceeding resulting from a person’s refusal to submit to the requested test or tests.
(2)
(a) If the person has been placed under arrest and has then been requested by a peace officer to submit to any one or more of the chemical tests provided in Subsection (1) and refuses to submit to any chemical test, the person shall be warned by the peace officer requesting the test that a refusal to submit to the test is admissible in civil or criminal proceedings as provided under Subsection (8).
(b) Following this warning, unless the person immediately requests that the chemical test offered by a peace officer be administered, a test may not be given.
(3) Any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for in Subsection (1), and the test or tests may be administered whether the person has been arrested or not.
(4) Upon the request of the person who was tested, the results of the test or tests shall be made available to that person.
(5)
(a) Only the following, acting at the request of a peace officer, may draw blood to determine its alcohol or drug content:
(i) a physician;
(ii) a registered nurse;
(iii) a licensed practical nurse;
(iv) a paramedic;
(v) as provided in Subsection (5)(b), emergency medical service personnel other than paramedics; or
(vi) a person with a valid permit issued by the Department of Health under Section 26-1-30.
See: Birchfield v. North Dakota. Implied consent doesn’t give this cop the right to seize blood from an unconscious person without a warrant. Even the agreement between the hospital and police isn’t quite correct: it takes more than just an arrest to make a blood draw legal absent consent. An unconscious person can’t consent.
Moreover, the hospital had already drawn blood, and if the police needed his blood for their investigation they could get a warrant for that blood- or the results of any tox screen performed by the hospital.
There was nothing necessary about his arrest of her or his demands that led to his unlawfully arresting her.
Implied consent may be the rule of law (maybe), but in this day and age public perception can be a career-killer. What is right and legal does not always prevail in today’s PC approach to law enforcement. I think it could have been handled differently.
A person cannot consent to a bodily violation. Legally anyway. It was the case, roadside cavity searches would be legal.
She was released, without charges, after spending 20 minutes in a squad. Later SLCPD apologised, and SLC DA has opened criminal investigation against the detective and his super, who told (or ordered) the det. to cuff her. I think they were trying to intimidate her, and hospital staff, and issue has exploded in their faces. Now they are suspended, and under criminal investigation.
Here’s a question: suppose she hadn’t stood in the way. That she let them violate his Fourth Amendment rights while he was unconscious. What would have happened to them?
Nothing, most likely. The detectives would have chalked it up to good faith error, if it ever became an issue. Thats why I have such a low opinion of municipal level (county and below) of law enforcement. The arrogance, insolence, ignorance, and lack of empathy, and little good sence. They cops come into a situation and create chaos, where previously there was none. This situation is an example. So when they get fired, loose their careers, it is hard to feel sorry for them. What is amazing is how free of consequences , they feel their actions are, until the situation goes beyond their control. So when it explodes in their face, they go quiet, and let PBA lawyers do the yapping.
I am not sure if this funny or tragic. A tragiocomedy. Everyone has turned against this Detective. The press, the local government, his department, department of the victim, whose blood he wanted to draw, even his own chief. The part-time gig he had with ambulance company has been taken away, as he was fired. He is facing criminal investigation. Which means a possible jail stint, and goodbye his LEO certification, and possibly pension. All for 20-30 seconds of arrogance and poor judgement.
Why not just get a warrant? Can’t you write up an affidavit and submit it to an on call Judge to authorize? Clearly, she’s just trying to do her job. It doesn’t look like she’s willfully impeding an investigation. If you get the blood sample unlawfully you’re going to have the evidence thrown out.
No, because the patient was not a suspect, or even close to one.
This situation has multiple con current examples of police misconduct. The detective who conducted an illegal arrest. Detective’s supervisor, a Lt. not on scene. But most revolting of all, is the hospital police , and other LEO s from other departments, who stood by and did nothing to stop. The female victim was crying for help, and everyone stood by and let it happen. Some heroes! What the heck happened to the proffesion? It is in desperate need of regulatory smackdown. What needs to happen is for detective and his superior to be fired, arrested, prosecuted, found gulty, jailed, stripped of badge, certification, and pension. The remainder of their lives should be spent in destitution , and their cases displayed to all American law enforcement, as examples of what happens when police choose to abuse citizens.
Our other option is to meet illegal police UOF with citizen UOF.
Glad to see that no one with a clue has assessed this. As far as I can tell in a modest amount of research, (SO I ADMIT I COULD BE IN ERROR)
this is not a matter controlled by state law or the McNeeley/Birchfield line of cases. The Skinner case from 1987 controls the 4th amendment analysis, and the Federal Motor Carrier Regulations drive this because the patient was a truck driver involved in a collision. Regardless of who is at fault in the collision, there is a mandate for the employer to have the driver tested, and this is the only fact pattern under which the LE testing will satisfy the federal regs. (I knew where to look because I worked in the motor carrier industry way back then in the dark ages …) It may have been pointless because he had received pain meds due to his burns, but as I recall there are ways to at least potentially address part of that.
I’ve dealt with hospital administrators and their lawyers, and their skill and professionalism in those encounters have been abysmal. I’ll bet that the policies and training of both the hospital and PD were very badly flawed, and the detective’s conduct is … not impressive. However, the people responsible for those policies (in both entities) need some brutal discipline. Of course, to the extent that hospital policy is inconsistent with the law, it provides the nurse no defense, and there is no question she resisted the arrest. (I would not have made the arrest or directed it to be done; the juice is not worth the squeeze, but that’s over now.)
It would not be a 4th amendment violation, and there was no way (or need) to get a warrant.
Where did she resist arrest? Did she fight, kicked, bit, threatened, placed Det. Payne in jeopardy? No , she did none of that. She was scared, and pleaded for help. That is not ressistance. That is fear induced by arrogant overbearing cop, who forgot the oath he took.
I don’t think there is any real question she should not have been arrested, although there is some possibility that Utah law would support his actions. I truly don’t know. I have no exposure to Utah law and have only been in Utah .. once, I think. However, that is clearly resisting under any definition of which I am aware – one must as a matter of law comply completely. What you are describing would have been an assault on him, not merely resisting.
Again, where is the resistance? She was pleading for help, but otherwise submitted to his control. Your definition is kind of a little draconian.
Struggled, failed to submit. That’s resistance. If your instruction at the MP school was that bad, people need to be relieved for cause.
Where is the struggle? Again, 2nd time, where is the resistance? There was none! A cop that retentive would command her to “Stop resisting.” There was none of that. Crying and pleading for help is not resistance. If you identify it as such, then you and LE proffesion is in much worse state then I think it is. You throw around ‘resisting’ like provost and JAG throw “Conduct unbecoming”. So that there will be something left if all other charges are dropped. I am sorry, but there is nothing to change my views that law enforcement personell are just , well, a-holes and douchebags. You don’t deserve that flag patch on your shoulders.
Don’t start me on JAG; I just helped a friend with a brief in an appeal in which multiple JAGS appear to have lied to the Convening Authority, trial judge, and jury … just like DOJ OCR.
I watched the video again so I could detail her resisting. Starting at 1:19, after being told she under arrest, she backs away, pulls her hands away, and after backing into someone else in a blue uniform, turns to flee. The detective did in fact give her an appropriate command to stop at about 1:23, but she kept struggling. That’s more than ample under any resisting law with which I am familiar.
The scope of screw-up by Det. Payne and his watch commander Lt. James Tracy is snowballing. Those two are looking at disgraceful end to their so-called careers. I hope that this is one of results of the process, and some jail time for Det. Payne is in order. The sad state of their lives, after their LE careers end should be held as an example for incoming law enforcement officers. of what never to do. This type of bullying, using threat of arrest, and actual illegal detention, unnecessary force , to get their way, is not limited to SLCPD, it is a systemic issue across municipal law enforcement across U.S. It is part of the police culture. The inaction of hospital security (Hospital Protective Services), who are certified and may also be sworn, and are armed with firearms and TAZERS, to prevent and stop Det. Payne from assaulting the nurse, shows the corrosive effect of ‘thin blue line’ on law enforcement in United States. If Det. Payne felt that other security and LE personnel would stop him, he may not have elected to proceed with illegal arrest, and incident would not have occurred. In short police culture, and old fashioned cowardice, failed to prevent harm done to a citizen by a rogue cop. Shame, shame, shame.