Why we need civil rights lawyers!
Sept. 6, 2017
Why Police Officers Abuse Their Power
In my opinion, this police officer abused his power. There are a number of famous quotes that go to issue of abuse of power:
Power tends to corrupt and absolute power corrupts absolutely.
Liberty may be endangered by the abuse of liberty, but also by the abuse of power.
In my experience, the reason why some police officers abuse their power is because they are used to getting their way and if they are challenged they do not know how to handle the situation. Instead, it is easier to be a bully, especially, if you are never called on the carpet for your actions.
The Underlying Facts of this Case
There is an accident in Utah involving a semi-truck. The trucker driver is apparently unconscious and brought to the hospital. Many states, including Florida, have a law that blood testing has to be done when an accident involves serious injury or death.
Florida’s law reads like this:
If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person’s blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances.
So, the Utah detective goes to the hospital and comes into contact with Nurse Wubbels. The Nurse is concerned and gets an administrator or hospital attorney on the phone. The Nurse explains that there is a policy between the police department and hospital that blood can be taken of the unconscious patient if the patient is (1) under arrest; or (2) consents to the test.
The nurse repeatedly asks the officer if the patient was under arrest, and he said “no”. The patient is unable to consent because he is unconscious so the Nurse tells the cop that he needs a warrant.
It is clear that he didn’t like being challenged and so he gets frustrated and puts the Nurse under arrest. What transpires in captured on the Cop’s body camera.
Search and Seizure Law
In this case, the Fourth Amendment of Constitution is triggered for the Nurse and the Unconscious Driver. First, I will explain the Unconscious Driver’s rights.
THE POLICE OFFICER WANTS TO DRIVER’S BLOOD
Obtaining a blood sample is a search of the person. The Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Under the 4th Amendment, we are protected from unreasonable searches and seizures without probable cause.
In 2016, the US Supreme Court said that a “blood sample” required a warrant. A warrant is a piece of paper signed by a Judge that has found probable cause.
In this situation, the Cop would have to get consent from the driver, get a warrant, or have some basis to support a warrantless search.
Consent is out because the driver is unconscious.
He could have gotten a warrant. The accident happened mid-day. I’m sure there was a judge at the courthouse that would have heard the matter, and if probable cause, issued a warrant within an hour. The problem is that the truck driver was not under arrest because the Cop had no real basis to believe the guy was drunk or on drugs. If you read our law above, it requires probable cause that the cop believes alcohol or drugs are involved.
The only other basis the Cop would have had is a warrantless search. The typical argument for a warrantless search is exigent (immediate) circumstances. In alcohol situations, the argument is that the alcohol will change over time. But in this case, the Cop had no information that the guy may have been on drugs or alcohol.
My Verdict based on the information reported is that the Cop could not take the Driver’s blood.
NURSE WUBBELS’ ARREST
In the video, you see the Cop arrest the Nurse because she was discussing the hospital policy with him. He pulled his power card because he didn’t get his way. I’ve seen this in practice all the time. I citizen gets arrested because he/she asks the cop to many questions or asks the cop for his/her Name and ID.
In order for there to be a lawful arrest of the Nurse, we again have to ask whether the Cop had probable cause to believe that the Nurse committed a crime?
I don’t see any crime that the Nurse potentially committed. It may be a stretch to argue that she intentionally interfered with a criminal investigation or something along these lines.
Could Nurse Wubbels’ Sue the Cop?
The simple answer is yes. If this matter happened in Florida and the Nurse consulted me, this is the analysis that I would use.
First, is there an excessive force claim? Based on the video, there does not appear to be a valid excessive force claim. In this context, excessive force claims are analyzed under the Graham “objective reasonableness” standard.
Second, unlawful arrest. In this matter, it appears that the Nurse would have federal and state claims for “unlawful arrest”. The elements that the Nurse would have to prove for the federal claim are as follows:
No warrant; and
Without probable cause.
A Florida state law unlawful arrest claim has slightly different elements:
Against her will;
Without legal authority; and
Unreasonable and unwarranted under the circumstances.
If there was no video footing of this event, the Cop would have gotten away with his behavior. If you have any questions about your civil rights being violated, give me a call.
Quotes: John Alton & John Madison
Videos from YouTube and respective news stations identified in videos.