Police, The Fourth Amendment, Qualified Immunity

11th Circuit decides that it is a crime for a nurse to fail to follow order by policeman to draw blood

with 2 comments

Case: DEPALIS-LACHAUD v. NOEL, No. 12-12903 (Eleventh Circuit, January 30, 2013) (unpublished)

What happened: A suspected drunk driver was brought into a hospital by a police officer, and the police officer wanted a blood draw done on the suspect. The police officer alleges that the nurse on duty at the hospital did not quickly obey the police officer, so the police officer arrested the nurse for obstruction. The nurse sued.

Decision: It is acceptable to arrest a nurse for obstruction if he does not draw blood on police command. In this case, it is not clear whether the nurse, who was the plaintiff in this case, was trying to obey the police officer or not (he-said-she-said issues), so a trial is required.

Comment: It is disconcerting to me that police officers can order around doctors and nurses in a hospital setting, but this is how the Eleventh Circuit seems to see the world.

Criticism: On a legal issue of summary judgment law, the nurse testified that she told the police officer that she was seeking authorization to draw the blood. The Eleventh Circuit treated this testimony as controverted testimony for summary judgment purposes because the police officer was silent on the issue of whether the nurse told him that she was seeking authorization. This seems wrong to me — I would think that the nurse’s testimony on this point should have been considered as uncontrovrted fo sj purposes.

Related: https://police4aqi.wordpress.com/2012/05/23/police-cannot-force-nurse-to-do-warrantless-blood-draw-4-2/

Written by Burgers Allday

February 4, 2013 at 5:10 am

Posted in Uncategorized

2 Responses

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  1. You are misreading the decision slightly. First, the 11th Cir. affirmed the lower court’s decision that the Officer did NOT have QI. Second, the 11th Cir. reversed the lower court’s decision to grant summary judgment in favor of the Plaintiff nurse. Essentially, the 11th Cir. sent it back to the lower court to conduct a trial on the surviving claims holding that Summary Judgment in favor of the nurse was not appropriate.

    Also, it is not the 11th Circuits opinion that Police Officers can order around doctors and nurses. It was the 1th Circuits opinion that Florida can pass a law requiring that.


    February 5, 2013 at 2:34 pm

  2. @Glenn:

    What you say is generally correct, and I certainly understood these legal details when I made my post here.

    Nevertheless, nothing I wrote in the post is incorrect or misleading, I don’t think. Remember, I try to write the posts here for both lawyers and non-lawyers, so I don’t always explain everything as fully as I would if speaking to an audience made up exclusively of legal professionals.

    To spell it out, the Eleventh Circuit made it clear that the police could arrest the nurse for obstruction if it was reasonable for the police officer to believe that the nurse was refusing to do the draw. The fact issue is whether it was reasonable for this particular policeman to believe that this particular nurse was, indeed, refusing to do this particular blood draw. The fact issue is not interesting. What is interesting about the case is that the Eleventh Circuit (unlike the District Court) believes that refusal to do the draw (when it occurs, as it may, or may not, have in this case) is permissible for a state to criminalize.*


    * I don’t necessarily agree that Florida has criminalized refusal to do a blood draw, as you seem to think, and as the policeman thought when he arrested the nurse. Still, I think that this point is disputed. See, e.g., the second link in my post.

    Burgers Allday

    February 5, 2013 at 3:15 pm

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