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As regular readers know, I’ve been following the case of Utah nurse Alex Wubbels for some time. The archive of that case is here.  Among the issues remaining are the disposition of Salt Lake City Police Department discipline for Det. Jeff Payne and Lt. James Tracy, charging decisions–locally and federally– on potential criminal charges against Payne and Tracy, and the disposition of any civil suit Wubbels may bring against the City, which could include Payne and Tracy. For the moment at least, the first issue is resolved, as The Salt Lake Tribune reports:

Det. Jeff Payne
SLCPD Photo

Detective Jeff Payne, who arrested Wubbels, was fired Tuesday. Payne’s watch commander the day of the confrontation, Lt. James Tracy, was demoted to police officer III effective Wednesday, according to the documents signed by Brown and sent to the men. [skip]

“In examining your conduct,’ Brown wrote to Payne, ‘I am deeply troubled by your lack of sound professional judgment and your discourteous, disrespectful, and unwarranted behavior, which unnecessarily escalated a situation that could and should have been resolved in a manner far different from the course of action you chose to pursue.

Lt. James Tracy
SLCPD Photo

Brown was similarly critical of Tracy, saying his lack of judgment and leadership was ‘unacceptable,’ and, ‘as a result, I no longer believe that you can retain a leadership position in the Department.

These conclusions are not unwarranted. The “notice of decision” regarding Payne may be found here.  The notice of decision regarding Tracy may be found here. 

Findings of the internal affairs investigation were released Sept. 13, showing that both officers violated several department policies during the confrontation. Payne and Tracy then had 20 days to respond; both men met with department officials in recent weeks to provide their sides of the story.

Brown was tasked with making a final decision on how they should be disciplined. Payne and Tracy have five days to file an appeal of the decision with the Salt Lake City Civil Service Commission. Both had been on paid administrative leave since Sept. 1, the day after the footage was released

This sounds like a normal, unremarkable disciplinary process, conducted at a normal pace.

Payne’s attorney, Greg Skordas, said Tuesday evening that he was disappointed with Brown’s decision and that his client wanted to appeal. He said Payne, who had been with the department for 27 years, was ‘devastated’ by the news, and that he wants his job back despite the fact that he has spent enough time with the department to retire.

While acknowledging that Payne made mistakes with the arrest, Skordas said he believes if the case had not been so high profile, Payne would have been disciplined but not terminated.

‘I‘m really frustrated by the way this case has been processed,’ Skordas said. ‘I do think that Salt Lake City did a fair job of doing the investigation, and I think that their findings are, by and large, accurate. But I think the chief reacted to a lot of public pressure and scrutiny in making a decision that doesn’t fit the conduct.

Skordas is making a reasonable argument. I’ll address it shortly, but keep in mind the Mayor has supported Brown’s decisions, and Wubbel’s attorney—Karra Porter–is likewise supportive, with some caveats:

She plans to meet with Salt Lake City officials to discuss what comes next, including a potential financial settlement. She also expects to meet with representatives of University of Utah police and security ‘because they facilitated this unlawful arrest and did nothing to protect Alex,’ Porter said.’ [skip]

She also said that ‘we’ll know by the end of the month whether we will be taking legal action’ against Salt Lake City or the university.

Throughout this situation, Alex Wubbels has been restrained and reasonable:

I will say that the level of scrutiny that this case received would not have been the case had there been no bodycam footage,’ Wubbels said. ‘It would have been a he-said, she-said or multiple he-saids against a she-said. I do not think the truth would have been told without the bodycam footage.

Analysis:

I’m not sure Wubbels is entirely correct. There were so many witnesses to the events any account Payne could make would likely be overwhelmed, even without a body camera. During my police years, with no body cameras, we never imagined improper behavior could be successfully covered up. I taught new officers under my charge there were always people witnessing what they did, so it was essential to act with that in mind.

Normally, a mere mistake in an arrest–essentially a false arrest–would not be grounds for firing, particularly if it was made in good faith. For example, an officer thinks he has sufficient probable cause for arrest based on what he knows at the time, but within minutes, he speaks with other officers and learns the information upon which he relied is not as clear cut as it seemed minutes earlier. As twenty minutes pass, he decides to release the person arrested, apologizes, explains the situation, and immediately informs his superiors. No real force was used on the arrestee, who cooperated.

In a case like that, there would be no discipline, nor should there be. Police officers are human, after all. Done properly by the officer(s), there would be no civil suit. But that’s not what happened in this case.

Det. Payne allowed his ego to become engaged and overpower his reason. Particularly when Nurse Wubbels showed him a copy of the agreement on blood draws in force between the hospital and the SLCPD, he should have backed down and honored that agreement. That he was told by Lt. Tracy to arrest Wubbels does not relieve him of the responsibility to follow the law, department policy, and to be careful with relations between agencies. On a number of occasions in my police career, I was given bad advice or unlawful orders by superior officers, and declined to obey, invoking agency rules that allowed me to question such orders. In every case, I was vindicated, but it’s not easy to do. In this case, Payne wanted to arrest Wubbels; he wanted to punish her, despite the fact he knew she was not denying him anything, but merely relaying messages from her superiors. William Gray, the man whose blood Payne sought, wasn’t even on the same floor where Wubbels worked. The only resistance offered Payne was the words of her superiors, relayed through her.

In effect, Wubbels was not in any way obstructing Payne, but was serving as a liaison between him and hospital management. She took no actual, affirmative action to prevent Payne from doing his job. Even so, Payne used unnecessary and aggressive force against Wubbels, whose cries she had done nothing wrong and Payne could not arrest her, while not stated in precise legal language, were correct.

Also very damaging is the fact Payne unmistakably violated SLCPD policy requiring citations for misdemeanor offenses of the kind Payne claimed Wubbels committed. There was no cause–none–for him to take her into physical custody. This was made even more obvious by the fact neither Payne, Tracy nor the Logan, Utah Police Department sought Gray’s blood after Wubbels was released.

Theoretically, any false arrest amounts to assault, and depending on the degree of force used, battery. Payne’s actions in this case arguably amount to assault and battery, and he may be charged with this, and perhaps other offenses.

Even this, however, might not be sufficient for firing. I do not know the totality of Payne’s service record, and substantial parts of the linked document are redacted. Based only on these issues, Payne would certainly be liable for substantial discipline: a month or more suspension, demotion, etc. But there is a greater problem, as this excerpt illustrates:

Payne damaged relations between the SLCPD, the hospital and other health care providers. This rift may never be entirely repaired. Shortly after the incident, the hospital put into place a policy preventing police officers from having any contact with nursing staff, putting the police in a position of conflict and distrust before any officer has contact with nurses. The extraordinarily negative publicity emanating from the incident is also damaging. The video and still photos of Payne’s manhandling of the sympathetic and anguished Wubbels, once seen, cannot be unseen.

Attorney Skordas is right: Payne should not receive greater punishment based only on the publicity this case has received, however, public interest, and political reality are always a part of such matters, and this is known to every police officer. The case had an immediate impact on the mayor, the Chief of Police, and likely, virtually every politician in the Salt Lake City area. The police union’s relative quiet on this matter also speaks volumes.

I do not know the political realities of internal disciplinary reviews in Salt Lake City, however, it is unlikely Payne will win reinstatement. He would be wise to focus his effort on avoiding being criminally charged and civilly sued.

It should be noted I wrote the text of this article before I read the decision documents and chose excerpts to illustrate it. It is no surprise Chief Brown came to the same conclusions, and in much the same language. Such things are known to all police officers with any real experience, as are the probable consequences of Payne’s behavior. Brown even used the terms “badge heavy” and “contempt of cop.”  Making matters worse for Payne is this excerpt:

Moreover, it appears you are sorry for the results of your actions, I am unpersuaded that you are remorseful for your actions themselves.

This single assertion from Chief Brown was likely the deciding factor. He obviously believes Payne is honestly sorry only that he got caught. We cannot be sure why Brown formed this opinion. That information is likely in the redacted portions of the document. There is a fine line for any officer between reasonably defending himself, and appearing to arrogantly refuse to accept full responsibility for his actions, particularly when he has already admitted fault, and particularly in a politically charged situation like Payne created. With what the public knows of Payne, I suspect most will have little difficulty agreeing with Chief Brown.

The case of Lt. Tracy may be slightly different. However, his involvement is equally serious because when one attains the position of Lieutenant in a law enforcement agency, they are expected to be highly experienced, wise, steeped in the law and procedure, and capable of diplomacy. This excerpt from Tracy’s decision notice illustrates the issue:

As with Payne, the damage done inter-agency relations obviously played a significant role in Chief Brown’s decision:

It is possible a review board may modify Brown’s decision, demoting Tracy only one rank to Sergeant, rather than Officer. Busting an administrator back to the street is an unusual step, and may be seen as unnecessarily harsh. It was Tracy, after all, who eventually told Payne he had no cause to arrest Wubbels and she should be released, though even then, he did not apologize to her, and told Payne to let her think charges might still be filed against her.

The University Police will also certainly undergo significant change in their dealings with the SLCPD. Most likely, there will be negotiated agreements, like those done with the hospital–and ignored by Payne–because absent changes in state law, SLCPD officers will retain jurisdiction over the hospital and similar places.

Final Thoughts:

Alex Wubbels will soon be a wealthy woman. How wealthy depends on how willing Salt Lake City officials–and less likely, university officials (they may not be a party to a suit)–are to be reasonable. They will surely offer a settlement, and if they’re smart, it will be substantial. The last thing they should want to do is take this case to trial, where a sympathetic jury–the public likes nurses a great deal more than cops–would almost certainly make the city pay through the nose. Attorney Porter has a strong hand with public and political winds at her back. The city does not.

If Jeff Payne avoids local criminal charges–I doubt there will be federal charges, particularly if there are local charges–he should count himself fortunate. There is no harm for him, at the moment, to appeal Brown’s decision, but his smartest course of action would be to take retirement and move somewhere quiet.

Lt. Tracy would be wise to play out his appeal, wait a short, decent interval, and if he can, retire. Particularly if his retirement is based on the amount he made his final three years of service, as is common, he’d be smart not to dilute that with a much lower officer’s salary.

It is, in some ways, sad two long-serving police officers have come to this end, but they had a choice–many choices–and they choose–poorly.