Ken White called in on the twitters.
Granted, it took a few days before the answer appeared, but the winner is . . . the Daily Caller.
Arrested Utah Nurse Had It Coming
It would be hard to come up with a worse headline, but that’s on whoever dreamed up this clickbait. But the post itself? That falls on the shoulders of the author.
The writer was a freelancer, Gregg Re, who says he’s a lawyer. What he wrote is borderline idiotic, demonstrating neither a basic comprehension of law nor of logic, which is unfortunate should he some day represent a client. Is he a lawyer? There is one named Gregg Re, admitted to the New York and California bars in 2016. He went to NYU for Law School, Georgetown undergrad, and spent 11 months working at the criminal defense clinic for the Federal Defenders in New York. There being no other lawyer by the name Gregg Re, it’s likely that this is the same guy.
The Daily Caller post is crap. So much so that it’s really unworthy of dicussion. But Gregg Re has quite a good resume, aside from his lack of experience. It’s hard to imagine Re could make it through NYU without the capacity to recognize the holding of a Supreme Court decision.
Despite reams of inaccurate reporting on the incident, Wubbels was likely legally wrong under federal law. The case is a much closer one than it appears.
To say that reporting has been “inaccurate” is not, in itself, particularly shocking. It usually is, at least to some extent. To say that the case is “much closer than it appears,” likewise, is usually the case, as reporting tends to be far more absolute than the law tends to be. But to say Wubbels was “likely legally wrong” demands more serious effort.
The hospital’s policy does not have the force of law, even if the local police department agreed to its terms. And crucially, the policy overlooks a well-established exception to the warrant requirement: Police simply do not need a warrant if exigent circumstances justify an urgent search and seizure of evidence. The imminent loss of blood evidence, which would be useful in a drunk-driving case, qualifies as a potentially exigent circumstance.
It’s correct to say that “hospital policy does not have the force of law.” but that adds nothing to what the law provides. And “exigent circumstances” is, indeed, an exception to the Fourth Amendment. His tossing in that such evidence “would be useful in a drunk-driving case” begs the question of whether this was a drunk-driving case. And his use of the qualifier, “potentially,” when referring to exigent circumstances wiggles him out of the hole he’s dug.
After a remarkably inapt analogy, he gets to a point:
In its reporting of this incident, The New York Times falsely claimed that “the United States Supreme Court ruled that the police do not have the right to draw blood in drunk driving investigations without a warrant.”
That the Times oversimplified McNeely is somewhat true. The Times is technically correct that police have no right to draw blood, but the word “right” does a lot of the heavy lifting. They have authority, never a right, to do so under certain circumstances according to the dicta of Justice Sotomayor’s opinion. But that’s dicta, a backdoor put into a decision so the Court can circumvent its holding in some other case with other facts.
But then came the part that can’t be explained.
But the case the Times cites, Missouri v. McNeely, does not stand for that proposition at all. The court explicitly held in McNeely that some drunk-driving cases could permit warrantless blood draws.
That’s completely inaccurate. There is no way to wiggle out of this assertion, that the Court “explicitly held.” Decisions have holdings that create precedent, and often dicta that don’t. This was not the holding, explicitly or otherwise.
This wasn’t an exigent-circumstances case. Even the exception requires probable cause under the Fourth Amendment and there was none here. Even if there was probable cause, it was not an exigent circumstances case because there was no attempt to obtain a warrant for the blood draw or reason why a warrant could not be obtained within a time frame sufficient to preserve the evidence. Blood alcohol does dissipate, and timing does matter, but this has been accommodated in the warrant process. Had there been a warrant, Alex Wubbels’ express position would have compelled her to back away.
None of this, however, is particularly controversial, or particularly hard to figure out for a lawyer. Even an inexperienced lawyer, especially one who worked at a clinic run by the Federal Defenders of New York and attended NYU Law.
That’s where it gets painful to explain why Gregg Re would want to put his name to a piece of writing that’s so legally unsound. The answer might be that he’s conservative, or perhaps a fan of cops, but to what end? Was he the same Gregg Re who was taken to task in 2012 for attacking a teenager in the Daily Caller and calling him a “douche” based on an anonymous source?
There is no inherent reason why a lawyer can’t, shouldn’t, hold whatever political leanings he wants. And since the DC post isn’t news, but opinion, Re isn’t to be chastised for expressing a contrarian view of the Wubbels arrest per se. But he’s a lawyer, and proffering wildly inaccurate assertions of law to support one’s politics cannot be justified. He’s using his cred to make people stupider for the purpose of furthering a political agenda.
This has become a weapon of choice, and it has undermined the credibility of individuals as well as the media. No matter how strongly they feel, they don’t get to make people stupider. In Re’s case, it’s hard to imagine he has much personally invested in the Wubbels story, such that he felt a passionate need to provide contrary commentary. Rather, he just wanted to get his name on a Daily Caller post. This is not acceptable from anyone, but particularly from a lawyer.