Utah prosecutor says new self-defense law makes it harder to charge problematic police officers

Reacting to calls for police reform, some states have made it easier for prosecutors to criminally charge officers accused of using deadly force when they shouldn’t have.

Utah, on the other hand, made it harder.

Legislators here passed a new law earlier this year that didn’t address police directly, but Salt Lake County District Attorney Sim Gill said it adds a “new hurdle” for any prosecutor attempting to charge an officer.

“Our job was difficult to begin with,” Gill said. “Is it impossible to charge a police officer who has violated the law? Theoretically, it’s not. Is it probable to be able to charge a police officer under the current structure? No.”

The new law allows those accused of a crime to ask for an extra court hearing if they believe they acted in self-defense. At that hearing, prosecutors have to prove with “clear and convincing” evidence that the accused weren’t defending themselves.

Those charged with a felony or class A misdemeanor can ask for this hearing. That is, unless they are accused of attacking a police officer. The legislation says they are barred from this process.

In committee hearings in January, the conversation centered around regular people — not police — being forced to fight off an attacker.

“All these victims want to do, when forced into protecting themselves and their family, is to get back home,” said Clark Aposhian, a well-known gun lobbyist with the Utah Shooting Sports Council. “Yet time and time again, if they fail afterward in their ability to articulate their innocence, they may be imprisoned or at the very least endure an immensely costly and emotionally devastating trial.”

But Gill said police officers can also ask for this extra self-defense hearing if he charges them with a crime after a shooting or another deadly use of force.

It’s rare for Gill to do so. He’s filed charges against three officers who fired in the more than 100 shootings he’s reviewed in the past decade. In those three cases, prosecutors eventually dropped two and a judge dismissed the third at the preliminary hearing stage. This is a hearing at the beginning of the court process in which a judge decides whether there is probable cause that an officer committed the crime. That means the judge is deciding whether it’s more likely than not that a crime was committed.

To get a conviction, prosecutors must prove their case beyond a reasonable doubt.

But in this new hearing, prosecutors must show “clear and convincing” evidence that the person wasn’t acting in self-defense. That standard is higher than prosecutors normally have to reach to get a case to trial. If they don’t reach that, a judge tosses the case, and it can’t be refiled.

“This just throws one more additional impediment in the way which is going to have a fiscal impact unnecessarily and make the job that much more difficult,” Gill said. “I don’t want to take anybody’s defense away from them. But we don’t need to make it overly burdensome to do the people’s work either.”

And even if prosecutors can show someone didn’t act in self-defense, Gill said, that work is essentially erased at trial. The defendant can still bring it up and Gill said prosecutors aren’t allowed to tell a jury the judge already sided with them on that issue.

The self-defense legislation passed early this year with little debate. Gill raised his concerns in recent weeks when he ruled that a West Valley City sergeant was justified when he shot and killed a handcuffed man inside the police station. Gill called the shooting of Michael Chad Breinholt “disturbing,” but said he found Sgt. Tyler Longman was justified after two experts reviewed the case and said Longman acted within the law.

The new self-defense hearing, he said, complicated that review. Gill felt he had to decide if Longman’s shooting was legally justified and then whether he’d prevail at the self-defense hearing. He said prosecutors didn’t believe they had enough to file charges.

“My point in bringing this up in the Breinholt matter was because there is always this perception [of], ‘Why aren’t you just charging people?’ And the reason I’m not charging people has nothing to do with my personal preference,” he said. “It has everything to do with the contours of the law, what is legally justified or not. Regardless, even if you could file charges, that’s not a slam dunk. It’s a very difficult process within this structure that we have. My point was, here’s yet another hurdle in the process that makes it step-by-step more difficult.”

But policing groups were surprised to hear Gill link the new law to officer shootings. West Jordan Chief Ken Wallentine, who is president of the Utah Chiefs of Police Association, said he recalled the bill being discussed as a homeowner issue and was “a little surprised” when Gill referenced it at the news conference. Ian Adams, executive director of the Utah Fraternal Order of Police, said it “didn’t hit my radar” as a police issue.

Adams called it a “red herring” for Gill to criticize the law when discussing a controversial shooting. He said the Utah FOP has had concerns about due process for officers before the law passed and noted that Gill’s office has never successfully prosecuted an officer after a shooting.

“These officers, in every single case, have been found to be noncriminal,” Adams said. “They were doing what we were asking them to do. If the Legislature wants to consider changes, the end goal should not be so we can charge more police officers. That seems like a silly public policy goal.”

Rep. Karianne Lisonbee, R-Clearfield, sponsored the bill and said she talked to prosecutors and law enforcement during the process. She said in a recent statement that the legislation was intended to avoid unnecessary prosecutions.

“That way an officer, or any other citizen, can’t be put through months, if not years, of mental anguish waiting for a trial where criminal charges shouldn’t have been brought in the first place (e.g., being brought solely because of political pressure),” she wrote.

Lisonbee dismissed Gill’s criticism of this “new hurdle.”

“This applies whether the accused is a civilian or a police officer,” she added. “Both have an inalienable right to self-defense.”

Police have the legal ability to use deadly force in certain encounters. Over the past few years, states have grappled with when that is appropriate and a handful have raised the legal standard.

California, in 2019, passed a law that said an officer can shoot someone “only when necessary in defense of human life.”

Minnesota changed its use-of-force law in 2020 requiring officers to be able to articulate an imminent threat. That law is now the subject of a lawsuit by law enforcement organizations.

Washington, D.C., Virginia and Connecticut have adopted a version of a proposal drafted by Cynthia Lee, a law professor at George Washington University. Her model law has three parts. First, an officer can’t use deadly force unless the officer reasonably believes it is necessary to prevent harm to themselves or others. Second, the officer’s actions must be deemed reasonable under the circumstances. Third, the officer exhausted all other options.

“So in other words, just like the law of self-defense that applies to civilians, the new legislation that applies to police officers requires necessity, immediacy and proportionality with an overlay of reasonableness,” Lee told NPR news this May.

Utah’s existing law has only the first prong of Lee’s proposal. Officers here can use deadly force if they reasonably fear for their safety or the safety of another person.

In his news conference, Gill said there is “no political will” in the Utah Legislature to raise the bar for when police can use force.

That’s true, said Rep. Jennifer Dailey-Provost, D-Salt Lake City, “I experienced that firsthand.”

Earlier this year, she pushed a bill that would allow police to use deadly force when it was “reasonable and necessary,” rather than just “reasonable.”

Dailey-Provost spent weeks in negotiation with law enforcement groups and got nowhere. She shifted her attention to legislation that would limit when police can shoot someone who is suicidal. That bill became law.

“My perception is we are never going to get to the point where legislators and advocates will agree on how these should be prosecuted,” she said.

Still, Dailey-Provost has hope. She said the Legislature does control how police officers are trained, and she’s interested in exploring ways to reduce the number of times police shoot.

“It is more about prevention than reaction,” she said.

Dailey-Provost also voted against Lisonbee’s self-defense bill, worried that it would provide cover for a driver to ram a protester the motorist disagreed with because the driver felt threatened. She hadn’t considered that the bill could be used by police officers as a defense for when they use force.

Gill argues that Lisonbee’s bill is not just problematic for attempts to hold police officers accountable in questionable shootings. He’s concerned it could complicate homicide prosecutions, gang shootings or any other violent crimes if people want to argue they acted in self-defense.

This story is part of a collaboration with FRONTLINE’s Local Journalism Initiative, which is funded by the John S. and James L. Knight Foundation and the Corporation for Public Broadcasting.