Salt Lake Criminal Defense Attorney - Clayton Simms

new_clayton_about A criminal charge, whether it is a felony or misdemeanor, can be a life changing event. Clayton Simms is a fierce advocate for people who have been charged with misdemeanor and felony offenses. He represents clients who are facing charges in Salt Lake City and Greater Salt Lake County. In addition, he also represents clients along the Wasatch front. Clayton Simms represents defendants in other crimes Clayton has represented athletes, doctors, lawyers, and other notable people and has been featured on the news. Do you have a legal question? Contact Clayton Simms today!

Salt Lake City Police Department Code of Ethics

Utah residents have certain expectations from the Salt Lake City Police Department which can include: detecting and preventing criminal activity; answering calls from the public for assistance; and upholding their code of ethics when handling
any situation put before them.

Police conduct in question

Photo by: Dave Conner

A video was recently released showing a July incident involving a Salt Lake City police detective roughly and incorrectly handling a situation with a nurse from the University of Utah hospital. Detective Payne and officers with the Salt Lake Police Department arrived at the hospital, requesting a blood draw from Idaho reserve officer and truck driver William Gray, an innocent victim hurt by a suspect in a high speed chase. After speaking via phone to her supervisor, nurse Alex Wubbels calmly informed Detective Payne that pulling a blood sample from unconscious Gray was unethical, and violated the patient’s Fourth Amendment rights as well as hospital policy. She presented documentation that for police to obtain a blood draw from a patient, they must have either:

• Consent from the patient;
• A warrant from a judge; or
• Have already placed the patient under arrest.

After becoming visibly upset, Detective Payne forcefully removed the nurse from the hospital in handcuffs before placing her in his vehicle.

Protecting citizens from other officers

While Detective Payne’s actions were undoubtedly excessive and troubling, so was the inaction of other officers on scene. Multiple officers were seen present on the video of Payne and Wubbels confrontation however none of those officers stepped in when Payne had noticeably crossed the line and admit shouts of “help me” and “why is this happening” from scared and confused Wubbels. More troubling is why nothing was done within the department until after the video was shared more than a month later. What should Utah residents expect from police and did nurse Wubbels receive treatment from Payne and the police department that was in line with their posted Code of Ethics?

Salt Lake City Police Department Code of Ethics

Photo by: Mesa0789

According to the Salt Lake City Police Department Policies and Procedures Manual is a copy of the Constitution followed closely by the Law Enforcement Code of Ethics. This section states that “All law enforcement officers must be fully aware of the ethical responsibilities of their position and must strive constantly to live up to the highest possible standards of professional policing.” The Code of Ethics lists several areas in which they are to uphold these standards. These include: “Responsibilities of a Police Officer; Performance of the Duties of a Police Officer; Discretion; Use of Force; Confidentiality; Integrity; Cooperation with Other officers and Agencies; Personal/Professional Capabilities; and Private Life.

Violation of the Code of Ethics

Some of these “ethical mandates” above do not appear to be portrayed by any members of the police department present during the incident that took place at the University of Utah Hospital. These include:

Responsibilities of a Police officer. The first section of the Code of Ethics state “A police officer acts as an official representative of government who is required and trusted to work within the law. ( . . . ) The fundamental duties of a police officer include serving the community, safeguarding lives and property; protecting the innocent; keeping the peace; and ensuring the rights of all to liberty, equality and justice.”

Performance of the Duties of a Police Officer. According to the next section, “All citizens will be treated equally with courtesy, consideration and dignity. ( . . . ) Laws will be enforced appropriately and courteously and, in carrying out their responsibilities, officers will strive to obtain maximum cooperation from the public. They will conduct themselves in ( . . . ) such a manner as to inspire confidence and respect of the position of public trust they hold.”

Use of Force. Another section of the Code of Ethics explains that “[a] police officer will never employ unnecessary force or violence and will use only such force in the discharge of duty as is reasonable in all circumstances. Force should be used only with the greatest restraint and only after discussion, negotiation and persuasion have been found to be inappropriate or ineffective. While the use of force is occasionally unavoidable, every police officer will refrain from applying the unnecessary infliction of pain or suffering and will never engage in cruel, degrading or inhuman treatment of any person.”

Victims of police force

Nurse Wubbels was an innocent party to the incident at the hospital who was trying to keep the peace herself while protecting another innocent person- her patient William Gray. Not only was Detective Payne uncourteous in his performance, degrading Wubbels in front of her coworkers and other patients while using unnecessary force, the other officers on scene did nothing to protect her or her patient’s rights from Payne’s outrageous behavior. While unfortunate, this scene should encourage the department to increase their training regarding working with health care employees and treating citizens professionally and civilly.

Invoking Fifth Amendment Rights Involves Speaking After All

Prior to an arrest, the arrestee is read their Miranda rights which state they have the right to remain silent; however invoking their Fifth Amendment Rights prior to an arrest may actually involve speaking after all.

Cooperate without self-incrimination

Photo by: Cristian V.

When an individual is facing legal trouble, it is common for that person to either:

• Cooperate and communicate fully with law enforcement, often offering more information than they should, or
• Clam up, refusing to say a word because they have the “right to remain silent”, right?

Unfortunately, there is a fine line that persons facing arrest must tread between cooperating with police and protecting their Fifth Amendment Rights against self-incrimination. Although everyone has the right to remain silent, that doesn’t always mean it’s the best choice to be a stone wall. Complete silence could be seen as insubordination or even guilt. So when should a person remain silent and how can they do so without causing rifts with law enforcement?

Miranda Warning

The Miranda Warning is given to everyone prior to arrest and acknowledges the arrestee’s right to remain silent and to obtain counsel before being questioned. Once the Miranda Warning is read, it is wise to keep quiet until legal counsel is there to assist in the interrogation. What about the sometimes lengthy time before being arrested? What if an individual isn’t actually being arrested, just questioned?

Questioning or interrogation

If an individual is facing questioning from law enforcement without an attorney present and they feel wary about answering any questions, they can politely ask police if they are being arrested or if they are free to go. If they are not being arrested, then they have no legal obligation to stay and answer questions from officers on scene. If officers state that they are being arrested or detained, that is when the individuals should have the Miranda Warning read to them. If the questions persist without a warning given, the arrestee should then invoke their right to remain silent, by verbally informing officers they:

• Are invoking their Fifth Amendment Rights (or Miranda Rights);
• Wish to remain silent; or
• Would like their attorney present.

According to the United States Supreme Court in Davis v. United States, “If the suspect invokes that right at any time, the police must immediately cease questioning him until an attorney is present.” Once a person has invoked their Fifth Amendment Right to remain silent, they are encouraged to contact a reputable criminal defense attorney to be present in all future interrogations.

Spanking – Parental Discipline or Child Abuse?

Spanking has a long history of being used as a form of discipline and while still a prevalent form of punishment in several homes throughout the United States, is mistakenly considered by many to be a form of child abuse.

Corporal punishment

Photo by: Wesley Fryer

Spanking is a way in which parents and other authority figures have used to punish children and minors into submission by inflicting physical pain to their body; usually the buttocks. This type of discipline is known as corporal punishment. Corporal punishment was used freely by any adult wishing to discipline a child up until the late 1970’s when spanking by anyone other than parents, such as teachers or school staff, started to receive criticism. 31 states have now banned corporal punishment in schools while the other 19 including Idaho and Arizona are either for it, or not openly against it. Corporal punishment at home is still allowed in all states to some degree.

Parental discipline

Although the number of adults who approve of spanking is on a steady decline nationwide, many parents and guardians still respond to their children’s unruly behavior by giving them a swat on the behind. Spanking is often done with an open hand but can also be done using items such as a belt or a switch, which usually inflicts more severe pain than a hand alone. While not all parents agree on spanking, a large number of adults believe spanking with an object is most certainly unlawful.

Belts and switches

The use of belts, switches and the like in carrying out corporal punishment at home may seem harsh, but they aren’t against the law. In B.T. and S.T. v State of Utah (2017), the parents of four children under the age of 18 were said to have been abused after the parents used belts to spank their children. The courts concurred with the abuse charges, stating “the court cannot envision a scenario where striking or hitting a child of any age, would be appropriate or reasonable discipline.” They also acknowledged that the use of spanking was decreasing in popularity stating that “[w]e’ve evolved beyond it being appropriate to strike a child with an object” and “[t]he simple striking of the child with a belt caused pain and is abuse.”

Justification as defense

Contrary to the court’s original ruling, spanking children with or without a belt is not illegal under Utah law. In fact, Utah Code 76-2-401 states: “Conduct which is justified is a defense to prosecution for any offense based on the conduct. The defense of justification may be claimed: ( . . . ) when the actor’s conduct is reasonable discipline of minors by parents, guardians, teachers, or other persons in loco parentis [unless] the offense charged involved causing serious bodily injury.” The parents the above mentioned case admitted to using a belt to discipline their children, however there were no physical signs of abuse visible from their discipline. The court later reviewed their ruling in which they claimed that hitting a child with an object is abuse and deemed it too vague, giving the examples of how a pillow fight or playing with Nerf swords would fall into the same definition. Utah Code 76-5-109 reiterates that child abuse means “those offenses that cause physical injury to the child” and not for conduct that includes “the use of reasonable and necessary physical restraint or force on a child.”

Ineffective punishment

While spanking may be legal, pediatricians and researchers continue to discourage parents from using it as a form of punishment. Spanking is often done to stop unwanted behavior, such as disobedience and aggression, however current research has shown it to be ineffective, with unwanted behavior escalating instead of diminishing. The American Academy of Pediatrics has also done studies regarding the connection between children who are punished physically and future mental illnesses such as depression, anxiety, and substance abuse. For those parents who have failed to learn and put into practice a more effective way of disciplining their children, they should ensure that any corporal punishment used in the home does not escalate to the point of child abuse and to consult with an attorney should any charges arise.