After weeks of protests, D.A. expected to rule on high-profile police shooting this week

Kaitlyn Mahoney hangs a sign on the Salt Lake County District Attorney’s Office during a rally in Salt Lake City on Monday, June 22, 2020, denouncing the death of Bernardo Palacios-Carbajal, who was shot and killed by Salt Lake police in May. | Kristin Murphy, Deseret News

SALT LAKE CITY — For the past month, protesters have been calling for “Justice for Bernardo.”

Ever since body camera video of police officers shooting and killing Bernardo Palacios-Carbajal was released on June 5, protesters have been gathering at the Salt Lake City Police Department, the Salt Lake County District Attorney’s Office or the Salt Lake City-County Building, on nearly a daily basis calling on the police chief, the district attorney and the mayor to arrest the officers who shot Palacios more than 20 times in the back as he ran and stumbled away from them.

Flyers have been plastered all over those buildings calling for justice. A large mural of his face was painted on a building near where he was killed. The street in front of the district attorney’s office was painted red to protest police brutality while protesters chanted, “Too much blood.” Palacios’ name is routinely mentioned alongside George Floyd, who was killed by police in Minneapolis.

The Palacios shooting has even sparked reactions from Salt Lake City Mayor Erin Mendenhall, who called the video “genuinely disturbing and upsetting,” and Councilwoman Amy Fowler said she believes the man was “unlawfully killed and I am outraged.”

This week, Salt Lake County District Attorney Sim Gill is expected to announce the results of his investigation into whether the shooting was justified. If a decision is announced, it would be one of Gill’s fastest reviews of an officer-involved shooting in recent memory. Gill admits that because of the public sensitivity surrounding the case, he has made the case his office’s top priority.

But if history is any indicator, the officers’ actions could be determined to be legally justified and no criminal charges will be filed against them.

Even if the shooting is determined not to be legally justified, it does not mean criminal charges will automatically be filed. As uncommon as it is for police shootings to be found not justified, it is even rarer for a prosecutor to file criminal charges in Utah.

While Gill said he could not discuss the Palacios case with the Deseret News, he said he is bound in every investigation to apply the state statute for officer-involved critical incidents as it is written, even if people don’t agree with the law.

If the public wants a different outcome than how many of the other recent officer-involved shootings have been ruled on, then they need to call for a change to state statute, he said.

“If we want different outcomes, or the outcomes that we are getting do not align with the values or the ideals that we want — what our notion of justice is — then we need to change the law to have different outcomes. But that does not absolve me of my responsibility and duty to apply the law and to try to decipher in a factual way what the truth of this one particular incident happened.”

On May 23, officers responded just after 2 a.m. to the area of 300 West and 900 South on a report of someone making “threats with a weapon,” said Salt Lake Police Capt. Richard Lewis.

The first arriving officers spotted Palacios, 22, in a parking lot, and he immediately took off running. In body camera video released of the incident, he is seen stumbling to the ground a couple of times as he continues to run away from police — who are closing in — all while still holding onto a gun. Just as an officer is heard yelling at others to use their Tasers, Palacios was shot more than 20 times in the back by two officers.

The incident also comes at a time when police nationwide are under scrutiny for the way they do their jobs, prompting many members of the public to call for reforms in policing, including spending more money on social services such as mental health and drug treatment and education, and less on police.

Jeffrey D. Allred, Deseret News

Totality of situation

It’s rare for police shootings in Utah to be found legally unjustified and even more rare to have criminal charges filed against an officer.

In recent years, most of the police shootings that were declared legally unjustified involved officers firing at moving vehicles.

One of the most highly publicized incidents occurred in 2012 when Gill’s office determined that West Valley police detective Shaun Cowley was not legally justified in shooting and killing Danielle Willard, 21, during a drug investigation. Willard was shot as she attempted to drive away from Cowley. Cowley contended he fired his weapon when Willard put her car — that he was standing behind — in reverse and attempted to hit him. Gill, however, said Cowley was actually standing at the side of the car.

Cowley was charged with manslaughter. But the case didn’t make it past the preliminary hearing level — something that hardly ever happens. Instead of sending the case to trial for a jury to hear, a judge dismissed the charges and said prosecutors had not met their low burden of proving probable cause to show a crime was committed.

Some other police shootings determined to be legally unjustified:

• In 2011, Salt Lake police officer Shane Conrad fired five rounds into 19-year-old Dennzel Davis’ car, striking Davis once during an undercover drug bust. Gill ruled that Conrad’s first shot, which he used to try and gain entry into Davis’ car, was not justified.
• Also in 2011, Salt Lake police officer Matthew Giles fired eight times at a teenager in a stolen car who was attempting to flee police near 1600 West and 400 South. One bullet hit the boy. The teen had already purposely rammed a police car in an attempt to escape. But the officer’s account of what happened did not match the evidence, according to Gill. The driver was reportedly trying to avoid Giles, who put himself in the path of the moving vehicle.
• Again that same year, the actions of West Valley police officer Jared Cardon were found to be legally unjustified when he fired at a fleeing vehicle. In that situation, Gill said the fleeing suspect was clearly trying to avoid Cardon, whose life was not in imminent danger.
• In 2007, District Attorney Lohra Miller found three Salt Lake County sheriff’s deputies were not justified in using deadly force when they fired at least 10 rounds into a moving vehicle.

But in situations where a suspect appears to be running away from police, many times the use of deadly force has been found to be justified.

Gill has stated many times in the past that he reaches his conclusions based on the totality of the situation, which sometimes includes the suspect still being in possession of a weapon when they are shot, even if they appear to be fleeing.

In 2018, Zane Anthony James, 19, was shot twice in the back and paralyzed as he tried to flee from Cottonwood Heights police officer Casey Davies. James was suspected of committing a pair of armed robberies that morning.

As he was running away, “officers saw him reaching into and digging through his pockets and clothing,” according to Gill’s report on the incident. After he was shot, a realistic looking gun, that was later determined to be a pellet gun, was found in James’ pocket.

Doctors determined James risked being a quadriplegic for the rest of his life. His parents say for three days he communicated using a dry erase board and his eyes. After three days, James asked that he be taken off life support and no efforts be made to revive him, his parents said. His family later filed a lawsuit against Davies.

Another high-profile case of a man being shot in the back while running away from police was the 2014 fatal shooting of Darrien Hunt in Saratoga Springs.

During a confrontation on Sept. 10 that lasted 37 seconds, Saratoga Springs Police Cpl. Matt Schauerhamer and officer Nicholas Judson fired seven shots after Hunt “swung or swiped” a 3-foot-long katana sword at one or both of them and then took off running in the direction of several businesses where then-Utah County Attorney Jeffrey Buhman said he would have access to potentially hurt customers.

The confrontation started after a passerby spotted Hunt, a Black man, walking down the street carrying a sword, something Hunt’s family said he used for cosplay and which had a rounded edge that could not cut anything.

A casual conversation between Hunt and the officers took a sudden turn when police claim Hunt swung the sword at them. Hunt was shot twice in the shoulder and forearm before he took off running away. Schauerhamer told investigators that he feared Hunt would “hack the first person he saw” at another business and he fired several more rounds as Hunt was fleeing, killing him. He said he also felt he and Judson were still in danger “because he couldn’t let (Hunt) escape while he was still armed.”

Buhman determined the shooting was legally justified. When asked at the time whether his decision would have been different if Hunt had continued running but dropped the sword, Buhman said it isn’t reasonable to speculate on the “what-ifs.”

“What’s key here is the totality of what occurred. There’s no one particular thing that drives the decision. It’s the totality of Mr. Hunt’s actions from the beginning of the encounter through the end,” he said. “I don’t find it reasonable to require Cpl. Schauerhamer to permit a person who is armed, and who most immediately attempted to wound or kill police officers, to escape into a populated commercial or retail area.”

Gill has made the comparison of figuring out whether a shooting is justified to putting together a jigsaw puzzle. He has his investigators lay all the pieces on the table, and they put it together to see what it shows without any preconceived notions about how it will turn out.

Subjective components from the officer have to be balanced with an objective reality of the situation.

“Each incident has very unique facts and our analysis is always very fact-specific because we have a law that is very clear. Here’s the thing that most people I don’t think even in 2020 understand, that even in 2020 there is not yet a national standard in this country on the use of force. There is not a national standard and has never one been articulated in a statutory way or a legal way of what that standard ought to be,” he said.

Calls to review old cases

Since the Palacios shooting and the killing of Floyd in Minnesota, there has been renewed interest in the Hunt case. An online petition to reopen the Hunt case had received nearly 623,000 signatures as of Friday.

In addition, the names of other people shot and killed by police in recent years have been brought up again by protesters in recent weeks.

In 2017, Patrick Harmon, a Black man, was shot and killed by Salt Lake police officer Clinton Fox after Harmon threatened to “cut you” while holding a knife and facing three officers close by, according to a report from the district attorney’s office.

Harmon was initially stopped by police for riding his bicycle across six lanes of traffic on State Street near 1000 South and for not having a required tail light, the report states.

In scenes similar to today, dozens of protesters, — including Harmon’s family who drove to Salt Lake City from St. Louis and members of Black Lives Matter and Utah Against Police Brutality — stood outside the Salt Lake City Police Department prior to Gill’s decision, demanding the release of the body camera footage. The family filed a lawsuit in 2019 against police claiming the shooting “reflects a pattern of racial bias and use of excessive force.”

Similar allegations were raised in 2015 when the family of Dillon Taylor filed a lawsuit against Salt Lake police and contended that they “defy accountability and defy justice” and are “improperly trained and groomed through a vicious culture and cycle of shoot-to-kill-first, avoid questions and accountability later, beginning at the start of their careers and reinforced throughout,” according to the suit.

In 2014, police responded to a report of possible man with a gun near 2100 S. State. Officers arrived at a 7-Eleven parking lot where two of three men complied with police orders to stop. But Taylor, 20, kept walking away with his hands in his waistband and ignored orders from officer Bron Cruz to stop and show his hands, even though Cruz had his gun drawn. When Taylor did turn around, he continued to walk backward with his hands in his waistband. When he lifted his shift and took his hands out of his waistband, Cruz immediately fired, shooting Taylor twice, believing he was about to take out his own gun.

Taylor was not armed, and his family believes Taylor was trying to show that to the officer. The fatal shooting happened two days after 18-year-old Michael Brown was fatally shot by police in Ferguson, Missouri, and sparked protests in Salt Lake City. The shooting was determined to be justified, however, and the family’s lawsuit was dismissed by a federal judge in 2019.

Fast decision

If a decision on Palacios is announced by Gill’s office this week as expected, it would end up being a very fast decision compared to how long it traditionally takes for the district attorney’s office to conduct an officer-involved critical incident investigation.

Spenser Heaps, Deseret News

Gill acknowledged that he told his staff to put that case at the top of their list. Not because of public pressure, but because of public sensitivity.

“And what I mean by that is I know this is of great concern to our community. I know there are many people who are looking to this. We see the unrest that’s out there,” he said. “We need to be sensitive to the pain and grief and what our community is going through right now.”

There are other fatal officer-involved shootings that happened much longer ago that are still under review by Gill.

• The oldest case is the fatal shooting of Delorean Pikyavit, 32, on April, 18, 2018. Pikyavit was suicidal, according to police, and had just gotten into a domestic violence-related incident in which weapons were involved. Ultimately, a SWAT team confronted Pikyavit on the outside porch steps. He was armed with a knife and half a pair of scissors.

In body camera video, Pikyavit was told nine times to sit down and 11 times to drop his weapons. He is seen in the video swinging his arms as he teeters back and forth on the bottom step of the porch. When Pikyavit takes a step down off the porch, two officers — from several feet away — fire simultaneously. One officer fired a real rifle, the other a less lethal rubber bullet.

• Recently, supporters of Michael Chad Breinholt, 31, placed flyers around Liberty Park calling for a decision, and for justice in a fatal shooting that family members believe was unjustified.

In August, Breinholt had been arrested for investigation of DUI and was in a small room in the basement of the West Valley Police Department with his hands cuffed behind his back waiting to be processed.

In body camera video released by the department, Breinholt manages to take his shoe off and officers have him stand up so they can retrieve it. While standing, Breinholt lowers his head as a large officer gets close to him, and he then grabs the officer’s gun while still handcuffed.

Two officers attempted to pull Breinholt away as the third officer kept his hands on his gun, which did not come out of its holster. Just six seconds after the first officer yelled “He’s got my gun! He’s got my gun!” another officer shoots and kills Breinholt at point-blank range.

• Protesters in recent weeks have also brought up the names of Cody Paris Belgard, 30, of Salt Lake City, who in 2018 was shot twice and killed by Salt Lake police after disobeying orders to show his hands and to get on the ground. He then reached into his waistband, pulled out a cellphone and pointed it at officers, Gill said.

At a press conference announcing the shooting was legally justified, Gill again cited the totality of the circumstances.

“Even though officers subsequently discovered their mistaken belief, their decision to use deadly force must be evaluated on the information they had at the time as the facts unfolded before then, not against the additional facts that subsequent investigation eventually revealed,” Gill wrote in his final report.

“While some may focus on the fact that Mr. Belgard did not have a gun, it is not unreasonable, given the totality of the evidence, that Mr. Belgard acted in a manner that the officers reasonably perceived as having and pointing a gun. The question is not whether or not Mr. Belgrade actually had a gun; the question is whether the officers perceived Mr. Belgard was a threat,” the report states.

For several years, Salt Lake City has seen fatal police shootings that were found to be justified followed by protests by those who disagreed. But only now, Gill said lawmakers are paying attention.

“So this moment is much larger, and I find it deeply fascinating that I have policymakers who are waking up and saying, ‘Jeez, we have to do something.’ Well, where were they two years ago? Where were they six years ago? Where were they 10 years ago? This is not anything new,” Gill said.

State law

According to 76-2-404(1) of the Utah Code book, a police officer may use deadly force while making an arrest or preventing someone from escaping custody following an arrest, if “the officer reasonably believes that deadly force is necessary to prevent the arrest from being defeated by escape” and “the officer has probable cause to believe that the suspect has committed a felony offense involving the infliction or threatened infliction of death or serious bodily injury” or “the officer has probable cause to believe the suspect poses a threat of death or serious bodily injury to the officer or to others if apprehension is delayed” or “the officer reasonably believes that the use of deadly force is necessary to prevent death or serious bodily injury to the officer or another person.” An officer is also required, if possible, to issue a verbal warning prior to using deadly force.

Gill said under Utah law, if these conditions are met, they can be used as a defense from criminal prosecution. If a prosecutor is going to file charges, that person must show beyond reasonable doubt that the conditions leading up to a shooting were not met.

“The bar, whether you agree with it or not ... the reality is the bar that is set for what constitutes reasonable force and under what conditions is fairly low. That’s a policy decision that our Legislature has made. And the bar for prosecution is really high. And so that is sort of the reality that we have to acknowledge,” he said.

Jeffrey D. Allred, Deseret News

Gill said his job in reviewing officer-involved shootings is to find the truth and apply the law to it. And that doesn’t always make people happy.

“One week I am brilliant to half of the population and I am a cad to the other half. And next week I’m brilliant to the other side and I’m a cad to the other side. So our goal as public prosecutors is not to please one side or another, but to create a transparent process that we can commit ourselves to in an open way to show the unvarnished truth, warts and all, whether it meets the expectations and the ideals and where it fails us,” Gill said.

But that doesn't mean the district attorney agrees with the law he’s been given to work with.

“I have reached a decision that the law requires me to make. But if your question is, ‘Should the law be changed?’ Yes, absolutely it should be changed. Because it is not meeting the expectations that our community says that it wants,” he said. “I have said that if we want different outcomes we need to change the law. But I have not said it forcefully enough.”

Gill said the weeks of protests the city has seen show that “there is a disconnect between the expectations and the ideals that our citizens have about the criminal justice system as a whole.”

Investigations into the use of force, in particular, he said, are not are not always reaching conclusions that the public wants.

“It is not meeting their ideals. So the law has to be changed. And it needs to be changed. But that is a legislative process,” Gill said.

He compared it to the hate crime statute. For years, he publicly said he could not prosecute certain incidents as a “hate crime” because the law did not give him the proper tools to work with. That changed in 2019 when Utah lawmakers passed a new hate crime statute.

If protesters want to see real change in the criminal justice system, similar action will be required for officer-involved shootings, he said.

But criminal justice reform is just the tip of what is being protested, according to Gill.

“It is not only an indictment of the criminal justice system and the use of force by officers, but it is an indictment of our entire political system. It is an indictment of public policy failure, which has been unseen, unheard and been unresponded to an entire community of citizens who feel disconnected and alienated from the policy and the power of this country,” he said.

“I can bring the truth. I can state the law. I can actually demonstrate where the deficits are. And if it makes you angry, then the next step is for us to go to the Legislature, to the policymakers, to say, give us the standard under which we can hold these conditions, this conduct, accountable.”

Once his decision on the Palacios shooting is released, Gill said he intends to become more vocal about how change can be made on the state’s statutes, and how lawmakers can go about making change.

He expects any change proposals will come with opposition, particularly from police themselves who are opposed to the calls of defunding the police, and who worry that an officer won’t use deadly force when necessary out of fear of being prosecuted.

The Utah Fraternal Order of Police — which has stated in the past that officers don’t trust Gill based on some of his decisions it didn’t agree with — presented its own proposals for change in early June.

The nonprofit organization consisting of more than 4,000 law enforcers statewide that advocates for the safety and overall working conditions of police officers is recommending all uses of deadly force by an officer be reviewed by the Peace Officer Standards and Training Council, and that all criminal investigations into an officer’s use of a deadly force be overseen by the Utah Attorney General’s Office. Furthermore, the union would like to see a member of the NAACP and from one other minority group appointed to the training council.

Gill believes that lawmakers need to change the code so it spells out specifically what officers can and can’t do, such as the recent ban on using chokeholds. Whether every side agrees on whether a law is good or bad, Gill said by changing the law, police training, culture and practices will also be changed because there will no longer be a gray area for prosecutors.

“I have no doubt in my mind that if we set a different standard ... over time, law enforcement officers will rise to meet that standard because that’s what the law will become. But if we never change that standard and we want a different outcome, law enforcement is meeting the standard that they set. So that’s our challenge.”