Utah Nurse Alex Wubbels’ Assault By Police Officer Proves Power of FOIA

ORLAND PARK, ILLINOIS (ECWd) –

The July 26th, 2017 violent physical assault on University of Utah Burn Center Nurse Alex Wubbels by out-of-control Salt Lake City Police Detective Jeff Payne proves the power of the Freedom of Information Act and its importance in holding public officials accountable for their actions.

If not for a FOIA request that Wubbels and her attorney Karra Porter made to obtain the police body camera footage that recorded Payne’s unlawful assault on her, the nation would not have been able to see this horrific abuse of power unfold on video. Not everyone who has his or her civil rights violated by the police is able to obtain body camera or dash camera footage recording such assaults. Often the footage doesn’t exist or is even destroyed before the public is even aware of its existence.

It should be noted that speed is of the essence when attempting to obtain such footage when it is indeed recorded by police cameras, as in Illinois most public bodies are able to routinely destroy video footage 30 days after it is recorded (without having to go through the motion of filing destruction of records paperwork for each video). Some public bodies have been given aproval for record destruction on a narrow timeline, so if someone is involved in an incident involving police or knows of a situation where the police have potentially violated someone’s civil rights, it is best to FOIA that video footage immediately. It also is a good idea to document the public’s interest in such footage and request that the public body avoid destroying any video footage of a particular event until such time as all footage has been reviewed by all interested parties.  Although a FOIA triggers a stop-destruction criteria, few follow that rule of law as was noted with the College of Dupage and their record destruction circus a few years ago.

Because Wubbels’ assault involved unlawful arrest and a myriad of civil rights violations, Salt Lake City District Attorney Sim Gill has now asked the FBI to investigate the matter, since his DA’s office cannot apparently prosecute constitutional violations (but the FBI can). All signs indicate that Detective Jeff Payne will likely face felony charges for what he did to this Utah nurse, after he demanded she break the law by illegally obtaining blood from an unconscious patient (and Wubbels protected that patient’s constitutional rights by refusing to draw blood from him without the patient’s consent or an electronic warrant from a judge, as the Supreme Court has required). If this was Illinois and 30 days had passed and the police had been allowed to delete that body camera footage, would Detective Payne have likely ever been held accountable for his actions? In our modern world, if something is not recorded then public bodies more often than not argue it never happened.

Another video obtained via the same FOIA request that Wubbels and her attorney made produced footage of Detective Payne and several other Salt Lake City police officers seemingly conspiring together to go back into the hospital and sneakily obtain the patient’s blood anyway, using whatever deceptive means necessary. This seems to have occurred while Wubbels was cuffed and under false arrest in the back of an unmarked police car. Payne was heard in that second video vowing to retaliate against the hospital for defying him, with him threatening to use his part-time job as an EMT for Gold Cross ambulance service to bring only non-paying “transient” patients to the hospital in the future. After seeing the FOIA-ed video obtained by Wubbels that included this threat against the hospital, Gold Cross promptly fired Payne. If not for her FOIA request, it is possible Payne could have continued his employment with Gold Cross and found opportunities to follow through on his retaliation scheme.

Here in Illinois, this incident in Utah calls to mind the bad behavior of the Orland Park Police Department a few years ago during the period of intense public criticism of that village’s out-of-control Library Board. Library Director Mary Weimar was caught in emails produced pursuant to FOIA requests asking Police Chief Timothy McCarthy to become involved on the side of the Library and implicitly against the Library’s critics. In my opinion, McCarthy allowed police resources to be misused as a weapon to intimidate the public and attempt to frighten the Library’s critics into silence. Internal documents produced pursuant to FOIA requests showed that library staffers had covered-up instances of child pornography being accessed and other sex crimes happening in that Library through the years. When confronted with this wrongdoing, Library staffers and the Library’s attorneys threatened critics, stymied FOIA production, and on several occasions enlisted the Orland Park Police as weapons to infringe on the public’s constitutional rights. In one memorable event, an Orland Park Police officer was caught on camera unlawfully stopping two of the Library’s critics while they were exercising their First Amendment right to pass out flyers door to door critical of the Library. The Library Director’s husband, John Weimar, instigated that incident by making a false police call against the Library’s critics in an effort to prevent them from passing out flyers critical of his wife.

A subsequent lawsuit in chancery court was required to obtain the dash camera footage of that officer involved in the unlawful police stop, as the Village appeared to tamper with the footage so that the officer’s audio cut-out and went silent for large parts of the tape. The Village then seemingly tampered with its email server to prevent the police department from receiving further FOIA requests. Ultimately, the Village was forced to pay $12,500 to settle the matter. It claimed the officer involved had the ability to turn his microphone off and on as he pleased during the unlawful stop.

(A similar situation involving campaign workers from the group “Working America” canvassing neighborhoods with political flyers in support of then-governor Pat Quinn (who were also harassed by Orland Park police) was also settled out of court, with the Village ultimately having to admit that police had no legal right to harass people who were engaged in First Amendment protected political activity such as canvassing door to door.)

In both Utah and in Illinois it appears that bad cops are only held accountable when they are caught on video. If the video is destroyed or tampered with, public bodies seem inclined to cover-up problems. Public officials tend to circle the wagons and enter into a siege mentality where they protect one another and view the public as a shared enemy. What breaks that wagon circle is cold, hard, irrefutable video.

The key to obtaining that video is knowing how to not only file a Freedom of Information Act request but to persevere with such an effort if a public body attempts to stonewall and stymie the request, perhaps hoping to run out a clock so it can destroy video evidence that is damaging to a public body. The public must know its rights and assert them when the police are out-of-control.
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