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PROVO — Attorneys for the Brigham Young University Police Department hoped that by requesting a summary judgment, a judge would dismiss the state's efforts to decertify the police department.
But according to a preliminary decision handed down by administrative law Judge Richard Catten, a summary judgment would likely go in favor of decertification.
"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.
"To the contrary, those undisputed facts may support the granting of summary judgment or partial summary judgment to the (Utah Department of Public Safety)."
BYU said it does not agree with the judge's ruling.
"BYU police respectfully disagrees with the preliminary ruling from DPS' administrative law judge. The issues regarding Lt. Aaron Rhoades have been thoroughly investigated and remediated. As the Utah Attorney General's Office said over two years ago, 'We are satisfied that the structure that allowed this to happen has been remedied,'" the university said in a prepared statement.
"BYU police will demonstrate in its supplemental filing why the preliminary ruling is incorrect on the law and the facts. In the meantime, BYU police remains a certified police agency protecting the BYU community of over 30,000 students."
The preliminary ruling is the latest chapter in the state's decision to decertify the BYU Police Department. The state's efforts began in February 2019 when it said the department failed to comply with an investigative subpoena issued by Peace Officer Standards and Training — the organization that certifies police officers in Utah — which sought information on any internal investigations conducted into Rhoades.
The decertification was to take effect Sept. 1, 2019, but the BYU Police Department has been allowed to continue operating as it appeals that decision.
Rhoades accessed approximately 16,000 records during a two-year period on a police database reserved only for police investigations, according to attorneys for the state. The database contains protected personal information of citizens. In 21 of those incidents, Rhoades took information gathered from that database and shared it with BYU's Honor Code Office or Title IX office — including 12 cases that weren't even investigated by BYU police. Most of the personal information illegally shared by Rhoades was of women who were victims of sexual assault.
The state ultimately decided not to charge Rhoades, who retired from the department in 2018 and later relinquished his peace officer certification. An internal affairs investigation into Rhoades was never conducted by former BYU Chief Larry Stott, who retired in 2019.
Tension between the state agency and the school's police force has been brewing for a few years.
In 2016, BYU came under public scrutiny after students claimed their efforts to report sexual assaults led to disciplinary investigations under the school's honor code, a set of standards and personal conduct requirements that students agree to adhere to in order to attend the school. Concerns were raised that the university's treatment of sexual assault victims created a climate that made students wary of reporting crimes for fear they themselves would be penalized.
Following a review that led to 23 recommendations for change from the Advisory Council on Campus Response to Sexual Assault in October 2016, BYU adopted an amnesty policy for students who report they are victims of crimes.
When the Utah Department of Public Safety sought to conduct an investigation into the BYU Police Department and issued a subpoena, it says BYU did not properly answer it.
BYU appealed the decision to decertify, calling the state's decision "factually and legally baseless." The school later filed a motion requesting summary judgment, hoping Catten would rule in its favor to dismiss the decertification effort.
In his preliminary decision, Catten noted BYU's argument that its officers have always been subject to Peace Officer Standards and Training certification requirements. Attorneys for BYU have argued that punishing an entire department for one officer's conduct is unprecedented.
"However, that argument misses the point by focusing on the individual officers, rather than BYUPD's certification. If the rule is read to only apply to individual officers and places no burden whatsoever on BYUPD to ensure compliance with the (certification act) as part of its own certification criteria, then the criteria is essentially rendered meaningless," the judge wrote.
If BYU police fail to take action against an officer or obstructs the Department of Public Safety from performing its duties, then the department is not meeting its criteria for certification, Catten wrote.
The judge said it is undisputed that Rhoades was accessing and sharing information from other agencies. Just because no criminal charges were filed does not relieve BYU police from their duty to report his conduct to Peace Officer Standards and Training, according to the preliminary decision.
In their oral arguments, attorneys for BYU contended that four investigations were conducted into the Rhoades matter, none of which concluded that his actions rose to the level of criminal prosecution. Catten, however, wrote in his preliminary decision that the department was still required to report the matter to the state if it was determined that the allegations against Rhoades were true.
"It is POST's responsibility, not BYUPD's, to investigate the matter further and determine, in accordance with the administrative process set out in the statute, if the conduct is a violation of (POST certification rules). The POST process set out by statute and rule differs significantly from the court process that determines criminal liability," Catten wrote.
"It is undisputed that BYUPD did not report the matter to POST as a result of Stott's investigation."
Catten also determined BYU police failed to "respond to an investigative subpoena issued by POST as part of its administrative investigation" and "obstructed that investigation."
"BYUPD's failure to respond to the subpoena interfered with POST's ability to perform an investigation," he wrote. "By taking action which interfered with or impaired (the Department of Public Safety) from administering a statute which is a specific criterion for BYUPD's certification, BYUPD has prevented its officer from being subject to the disciplinary provisions of (POST certification), a BYUPD certification criteria."
Each party now has until Nov. 25 to respond to the preliminary ruling. A hearing regarding the motion for summary judgment is scheduled for early December.