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Did BYU police engage in ‘deception’ or are Utah’s efforts to decertify ‘politically motivated’?

State favors moving forward with decertification as university argues it’s not legal

BYU police vehicles are parked outside the department’s offices on the BYU campus in Provo on Thursday, Feb. 21, 2019.
BYU police vehicles are parked outside the department’s offices on the BYU campus in Provo on Thursday, Feb. 21, 2019.
Steve Griffin, Deseret News

PROVO — Attorneys fighting to prevent the state from decertifying the BYU Police Department say the state “has no lawful basis” to do so.

But the Utah Department of Public Safety contends that Brigham Young University police “repeatedly refused to be accountable to anyone or anything except BYU and engaged in a pattern of deception when confronted with its failures.”

The latest statements in the ongoing debate over decertification were made in court filings submitted last week.

In February 2019, the Utah Department of Public Safety administration announced a decision to decertify the campus police department for failing to comply with an investigative subpoena issued by Peace Officer Standards and Training, which sought information on any internal investigation conducted into former BYU Police Lt. Aaron Rhoades.

The decertification was to take effect Sept. 1, 2019, but BYU has been allowed to continue operating its police department as it appeals that decision.

On Oct. 27, attorneys for both sides made their cases before administrative law Judge Richard Catten. BYU asked for summary judgment, hoping Catten would rule in its favor and dismiss the state’s effort to decertify.

But when Catten issued his preliminary ruling, he noted that he would likely side with the state.

“Based on the pleadings, exhibits, statutes, rules and the arguments of the parties, it has been preliminarily determined that the undisputed facts set forth in BYUPD’s motion for summary judgment may not support judgment as a matter of law in BYUPD’s favor,” Catten wrote in his decision issued Nov. 4.

The judge gave each side until Nov. 25 to respond to his preliminary ruling.

BYU responded with a blistering 47-page objection to both the ruling and the state’s efforts to uphold its decision to decertify the police department.

In court documents, attorneys for BYU argue that Catten’s ruling ignores the facts of the case, “proposes clearly erroneous findings, including false allegations against BYU police and its officers,” and “improperly advocates” for the Department of Public Safety.

“DPS cannot decertify an entire police force simply because its attorneys raise a lawful objection, seek to comply with a government-requested secrecy order, or refuse to waive the attorney-client privilege. To hold otherwise would disregard the law on the procedural propriety of those objections, would violate due process and suggests DPS believes its authority is supreme and incontestable,” attorneys for BYU argued.

Their objection goes on to question why the state wants the BYU Police Department decertified, saying the effort is politically motivated.

“Moreover, legitimate questions must be asked about what is driving the effort by DPS to impose the most draconian and unprecedented sanction of decertification based on such thin and unreasonable grounds in denial of basic due process rights. If this case goes to trial, BYU will establish that the effort to decertify BYU police is and always has been pretextual and politically motivated, as reflected in DPS’ effort to ignore the undisputed facts and to make up laws that don’t exist,” according to court documents.

BYU contends that a lone officer — Rhoades — who retired and no longer holds a peace officer certification, was responsible for improperly accessing and sharing information from a police database. And that the department did properly investigate that officer as well as comply with subpoenas from the state.

BYU is asking Catten to either make a summary judgment in their favor, or allow BYU to present its arguments during a previously scheduled adjudicative hearing.

The state, meanwhile, believes Catten should issue a summary judgment in favor of the Department of Public Safety.

“A contrary result would render the applicable statutes and rules meaningless and would permit the law enforcement agency of a private college or university to be accountable only to its own university, rather than the commissioner of DPS,” the state wrote in its response.

In their response, attorneys for the public safety department argue that BYU should have just admitted that no internal investigation was conducted into Rhoades.

“BYUPD’s blanket failure to turn over any documents at all, or any information, including the officer’s telephone number and last known address, during the pendency of the POST investigation, is tangible evidence of BYUPD’s refusal to comply with the POST’s authority and therefore the authority of the commissioner of the Utah Department of Public Safety.

“The undisputed facts lead to the conclusion that BYUPD attempted to avoid transparency, accountability and candor: three qualities any law enforcement agency with the power and authority to arrest citizens throughout the state of Utah must possess in order to maintain public trust,” according to the state. “If the commissioner did not take action to decertify BYUPD in the face of these facts, it would suggest that BYUPD is free to operate, unlike other law enforcement agencies throughout the state, with impunity and under a shroud of secrecy without fear of repercussions.”

Attorneys for the Department of Public Safety argue that police departments of private colleges and universities that are certified by the state have the same authority as any other law enforcement agency in Utah, and are thus held to the same standards as all other police agencies.

A hearing on decertification was originally scheduled to begin on Wednesday. That hearing has been postponed pending the judge’s decision on summary judgment.