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Comment by cyberferret | Hacker News Reader

Saw this on earlier news reports and am flabbergasted at the police response to this.

IMO the nurse was trapped between a rock and a hard place - she had to comply with hospital policy, as well as HIPAA standards or risk losing her licence and/or her job versus complying with a police command.

I'm not a lawyer, so can't comment on whether the request from the police was legally valid or not, but the reaction to grab her and cuff her like that when she was not showing any signs of outward aggression or threats is beyond the pale.

I also heard that the officer has not been disciplined or stood down from duty, only been restricted from collecting blood at the hospital in person again, which doesn't go towards solving the power imbalance and ethical problems here.

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Well, the latest here is that the police department has placed the cop on leave, the city attorney general is calling for criminal charges, the mayor has called it unacceptable, both the police department and the citizen's review board are investigating the incident. So that seems like serious responses are happening. Justice might, just possibly, be done.

I think it's disappointing that all this action happened after the video surfaced, though. For a month after the incident, nothing happened. (Or, perhaps, nothing happened that the public heard about.)

Source: https://www.ksl.com/?sid=45637083&nid=148&title=sl-police-de...

The Supreme Court has clearly held that blood draws require a warrant (or consent obviously). Birxhfield v. North Dakota. It’s a 2015 case so the officer was probably just ignorant of it. But the hospital’s official policy should have clued him off. They don’t write those things for funsies.

The hospital administrator told him about the law in the conference call. Also, his stated job is blood collection, that ruling was directly relevant to his work, he should have known it. Also ignorance of the law is no excuse.

"Also ignorance of the law is no excuse."

Alas, it is an excuse for a police officer in the US. A cop performing official duties who acts unlawfully, but the law they're violating has not yet been "clearly established" (TBD), is immune from prosecution.

https://en.wikipedia.org/wiki/Qualified_immunity

The hospital's legal team would need to determine if her rights were probably violated, in which case there could be valid challenge to qualified immunity. Furthermore, the situation at present is untenable: cops are getting away with violating people's rights and murder, so reversing key decisions is necessary to preserve a civil society or it all comes crashing down when people are tired of jack-booted thugs running amok and throw it all away.

Whether a right is “clearly established” has nothing to do with the officer’s knowledge, but whether courts have clearly held that the right exists in novel scenarios. The (somewhat misguided, in my opinion) premise is that we don’t want officers philosophizing about abstract legal principles, but rather there has to be appellate or Supreme Court case law they can apply to the situation at hand.

I think the legality of his command is independent of his actions taken as a consequence of it not being followed.

I realize that this is exceptional but i wish we could ask (instead of "what's legal") -- "what do we expect the function of the police to be?"

I'm not criticizing you or HN commenters, Im referring to the community involved. I just can't understand why the police, their unions and their superiors and peers don't ask this.

I've asked this question myself over the last few years and agree that it really needs to be addressed. I believe the truth is that we've created a new tier of government legal authority. The military has become incredibly powerful, while the requirements and danger of of being an officer have skyrocketed. I have no doubt we have a need for both of these positions, but the idea a lower-level peacekeeper existing and taking some/many responsibilities from a modern and militarized police officer interests me.

At the same time, what functions should the police not fulfill that it currently is?

Does anyone know about the Stanford prison experiments?

> danger of of being an officer have skyrocketed

The danger of being a police officer are significantly lower than they have been in the past. The 70s was a high water mark, and 2013 was the lowest point in many years.

The militarized police officer role is not needed. Back in the 1970s and 1980s, mob hits were being carried out in midtown Manhattan at nice restaurants. We didn’t have militarized police back then, we certainly don’t need it now.

"while the requirements and danger of of being an officer have skyrocketed"

As mcphage pointed, this is untrue. You are more likely to die on the job collecting garbage or driving for a living. "Police officer" doesn't even break the top 10 most dangerous US jobs. It's about on a par with "groundskeeper".

It is important to note that the police officer arrested her because his supervisor ordered him to do so if she refuses.

Due to that it is possible that the officer, seeing his job threatened, did not feel he had another choice.

Source of this information: http://www.sltrib.com/news/2017/08/31/utah-nurse-arrested-af... - "Payne [...] said he was advised by Lt. James Tracy, the watch commander on duty that night, to arrest Wubbels for interfering with a police investigation if she refused to let him get the sample [...]"

Pretty sad that the washington post would fail to report such a crucial detail.

The cop's behavior was inexcusable. Even if he had those orders, he could have informed her and arrest her calmly without unecessarily escalating the situation. The loss of temper is a clear sign of him being unfit for duty.

In an ideal world, yes. In practice, in the USA? This is what your policy makers deem "good enough".

Then both him and his supervisor should be fired. It in no way excuses the actions of the officer who knew he was acting illegally, or if he didn't know was not competent to carry out his job duties in the first place.

If you're going to fire every police officer who doesn't know health privacy regulations, you're going to need a bigger line at the unemployment office.

I'd be amazed if there were more than 10 cops nationwide that can correctly answer simple questions about those laws.

When you're a trained phlebotomist as the article states, there is simply no excuse for any negligence surrounding blood withdrawal laws.

The police department would not send someone who is not trained in these laws and protocols or else the chief would be in hot water.

You are making apologies to protect people whose job it is to know how to draw blood according to appropriate health precautions and legal precedents.

Perhaps you're right. The officer certainly could have used a lot more grace in handling the situation.

Still you can't expect police officers to know the law. In western law it is more or less the case that nobody does. We just act, and check afterwards. We do that by attempting to create consensus between at least 3 people (2 -usually- lawyers and a judge). Getting arrested can happen to anyone and doesn't mean anything.

That's theoretical. Practically, I've actually seen the office of a lawyer that took pride in actually having the law in his office. 3 bookcases that each cover an entire wall in his extra-high office were to contain it. He ran out of space in 1993. That did not include either precedents or legal guidelines (the "little" books that are used in most, if not all, practical cases). Just started at constitution and add with whatever congress added.

>you can't expect police officers to know the law

That's a really sad statement. The people enforcing the law should know the law. There is no excuse.

We have very cheap digital storage now. There is no excuse.

Law does not exist outside of interpretation. So I'm not very sure how a storage device would help. For starters, in western (private) law, as long as you don't damage anyone (including the state) you're not doing anything illegal. Even if what you're doing has a law against it. Law only exists between parties that actually interact. Your neighbors do not get to complain to the court that you, say, offered an illegal contract to a tenant, or smoked in a room you agreed in writing not to smoke in. All these principles make law very hard to apply in practice.

You should read some "cases". That's what lawyers call law interpretation documents or legal decisions. The idea is that you get, in a text, all the elements needed to come to a correct legal conclusion, then the task is to find that correct legal conclusion. Simple cases have exactly what you need, more complex ones have a lot of details that are either irrelevant, or worse, need to be weighed against others. For instance, in contract law, the legal decision should always be minimal. An illegal contract will be minimally modified to become legal, not destroyed, for instance (which is why you should never sign a contract that you know is illegal, unless you know exact precedents, surprises will ensue). Good luck predicting what such changes will be, if brought before a court.

In any practical situation, you're not going to have all the facts, and the number of irrelevant facts is going to outnumber relevant facts by a dozen orders of magnitude.

>Law does not exist outside of interpretation. So I'm not very sure how a storage device would help.

You answer your own question with this line:

>You should read some "cases".

I assume you expect me to look these up on some digital storage medium.

>In any practical situation, you're not going to have all the facts

While true in the abstract, it's rather dishonest to apply this concept to the case in the article. Police departments won't send people totally nonversed in phlebotomy law to collect blood samples unless they are not doing their job correctly. If they are not doing their job correctly, they deserve reprimand and correction.

There's a reason that jurisdictions exist. It is to prevent those who have not studied the particulars of a subset of legal code to exercise power in the absence of comprehension of that subset.

> There's a reason that jurisdictions exist. It is to prevent those who have not studied the particulars of a subset of legal code to exercise power in the absence of comprehension of that subset.

I can see why you might think that but jurisdictions exist because law is power, and the ability to use power like the law does only exists in particular geographic locations.

It is an artifact of the fact that law has always been abused, and continues to be, first and foremost by the governments themselves (just try to get a judge to rule against an incumbent telco and compare the results with them ruling against a corner store or market stall. You'll be amazed). That such abuse exists makes it a necessity to fight over it. That, and of course the rewards that can be reaped by doing this.

> It is to prevent those who have not studied the particulars of a subset of legal code to exercise power in the absence of comprehension of that subset.

No police officer has more than a basic introduction to tiny parts of the law.

Just following orders, eh? Bypassing Gowdin for a second, police officers should independently know procedural and constitutional law if they are to execute or impede it.

That his supervisor and colleagues also didn't isn't an excuse.

They can bark out all the demands they want, there are laws to protect the innocent. We are heading down a scary road when a cop can run over The law , do whatever he wants without consequence and throw anyone in jail who gets in his way.. if they genuinely did not have the proper paperwork or formalities in order, then this cop should face disciplinary action. Every instance we overlook like this is seen as an agreement, validating bad behavior.

It was absolutely disgusting. They're acting like the local paramilitary mafia, where they can arrest and even kill people without consequences.

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