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The post-discipline phase of the Wubbels disaster continues apace. Det. Payne is appealing his termination, Lt. Tracy is appealing his demotion, and there is no news regarding the possibility of criminal charges, local or federal, though I think the former unlikely, and the latter, even more unlikely. However, local political self-flagellation continues, as The Deseret News reports:

Describing a need to balance public responsiveness with due process, Salt Lake officials say police body camera video from “critical incidents” will be released after 10 days.

Salt Lake City Mayor Jackie Biskupski and Salt Lake County District Attorney Sim Gill stood together Tuesday to announce the new policy for the Salt Lake City Police Department.

Effective immediately, all body camera video from an officer-involved critical incident — such as an officer-involved shooting, a fatal injury caused by an officer’s vehicle, the death of a person in law enforcement custody, or a person who dies while an officer is arresting that person or attempting to prevent that person from escaping — will be classified as a public record 10 business days after the incident barring any ‘unusual or unforeseen circumstances,’ according to the mayor.

After those 10 days, video can be released subject to conditions of the state’s public records laws.

Such “unusual or unforeseen circumstances” would also include the need to keep some information out of the public arena for investigative reasons, which is entirely legitimate as long as it is not a subterfuge for hiding embarrassing facts.

Government should always strive to be responsive to the needs of residents while holding to values such as due process. I believe this policy carefully balances the need for transparency while providing due process for investigations,’ Biskupski said of her new executive order.

And as we all know, there is nothing more sacred to government than transparency. Take the link for the rest of the article, which discusses the issues involved in more detail.

Lt. James Tracy
SLCPD Photo

There is now more information available in the case of former Lt. James Tracy who was demoted to officer for his role in the Wubbels affair. As expected, he is appealing that demotion. KSL.com reports:

The demotion from lieutenant to officer III is excessive discipline under the circumstances and given his lack of any discipline history,’ according to the official notice of appeal filed by Tracy and his attorney, Ed Brass.

Tracy is seeking to be reinstated to the rank of lieutenant and receive back pay and benefits from the time he was demoted.

This is expected, but does Tracy have a legal leg to stand on?

In his appeal, Tracy claims he never ordered Payne to arrest Wubbels, but rather told him to ‘consider arresting her.”

Furthermore, Tracy says he was never informed of the updated policy agreed upon by hospital officials and the police department regarding blood draws.

‘Lt. Tracy was operating under an outmoded policy and one that was clearly inconsistent with state law when it came to drawing blood from unconscious or deceased accident victims,’ his appeal states. ‘He had been given no training in the new policy and had no reason to believe he could deviate from the policy he believed to be in effect at the time.

The Salt Lake Tribune added:

Tracy also claims in the appeal that Brown’s letter of discipline did not address the fact that the blood draw policy agreed upon between the hospital and the police department was never made known to Tracy — or any officer his level or below.

‘Lt. Tracy was operating under an outmoded policy and one that was clearly inconsistent with state law when it came to drawing blood from unconscious or deceased accident victims,’ the appeal states. ‘He had been given no training in the new policy and had no reason to believe he could deviate from the policy he believed to be in effect at the time.’

Tracy believed blood needed to be drawn from the victim immediately, according to the appeal.

I’ll deal with all of this shortly, but the second argument may be compelling. Police agencies are paramilitary organizations. One doesn’t hold people accountable for acting in good faith on superseded procedures if they’ve never been made aware of different, newer procedures.

Later in the video, Tracy tells Payne that Wubbels’ arrest won’t stick and that they will let her go. But while talking to Wubbels before taking the handcuffs off, he tells her the case may be reviewed with prosecutors for criminal charges.

There are several pertinent issues that may be to Tracy’s advantage. At the beginning of the incident Tracy was relying entirely on Payne’s account, delivered over the phone. When he eventually arrived at the hospital—which was a good move on his part, not only professionally, but in terms of the appeal—he recognized Payne had no probable cause for arrest and so informed Payne, directing Wubbels’ release. However, he remained badge heavy enough to try to intimidate Wubbles a bit more, which will not be helpful.

One can argue—and I’m sure the City will—Tracy showed poor judgment overall in his actions, but that seems less compelling now—if the assertions of Tracy’s attorney are true.

What will help him is the procedure issue. It is the responsibility of leadership to ensure, when new procedures, particularly those brought about by changes in law, are made, everyone potentially affected by those new procedures not only be made aware of them, but given the necessary training to ensure they are properly carried out. If the assertion Tracy was never made aware of this is accurate, this is a strong issue.

Perhaps strongest is the issue of precedence. Have there been similar cases, or cases of relatively similar import, where a Lieutenant—essentially an administrator–was demoted back to officer? If not, and I suspect there probably have not been, that’s a significant issue in Tracy’s favor. What’s the historic, usual punishment for similar offenses? If that usual punishment has been exceeded—particularly greatly exceeded–there must generally be a compelling, nearly unassailable reason.

Officers have to know when facing discipline they will not be excessively and arbitrarily punished due to publicity, personal animus, or other improper influences surrounding their situation. As I’ve previously mentioned, Chief Brown may have erred in prescribing too severe a punishment for Tracy. Doubtless, Tracy made errors, but they may ultimately amount to no more than a written reprimand, unless the publicity involved in the Wubbels case is allowed to dictate matters, which would be a bad precedent for the Salt Lake City Police Department.

Tracy lists nearly all of the police department’s top brass, including Brown, as possible witnesses that he may call during his appeals hearing.

I’ll bet. The point being to prove no one told Tracy of the change in law/policy. Payne may argue the same point, but considering his specific assignment, it may be harder to prevail. He should have known such things as he dealt with them daily. There is another issue:

And given Tracy’s scant discipline history — a 1997 reprimand for when he transported two handcuffed people across the city and released them without documenting the event — the decision to demote him two steps to a ‘police officer III’ position was ‘excessive,’ according to the appeal.

This too may be compelling, particularly with consideration of precedence. Have there been cases of officers with essentially clean disciplinary records punished as severely as Tracy before? Again I suspect not, but have no way to know with certainty.

It will be interesting to see how the appeals process plays out. An appeals process that works as it should will be free of political influence and focused on labor law and precedence. There can be little doubt of the heavy political influence in this case thus far. Certainly, Payne’s actions were improper and badge heavy, but whether they rise to the level of termination is uncertain.

More as it develops.

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