Black and white pictures cover a large poster board that’s coated with red paint and handprints, as if illustrated in blood. It’s so big that two protesters have to hold it. On a recent Saturday, they’re standing outside the Salt Lake County District Attorney’s Office, demonstrating against police brutality and chanting for accountability from cops.
On the sign, there’s a photo of Diamonte Riviore, Dillon Taylor, Patrick Harmon, Zane James, Elijah Smith and Cody Belgard — all killed in police shootings where District Attorney Sim Gill reviewed what happened and decided against charging the officers involved.
“Sim Gill,” it reads, “their blood is on your hands.”
The sign also features two more names: Bryan Pena Valencia and Bernardo Palacios-Carbajal, and a series of red question marks, asking what will Gill’s office decide in those cases?
Valencia was killed March 21, after police were called to investigate a report of shots fired. He was driving a car, and police tried to stop it, but he kept going. He crashed soon after, got out of the car and tried to run. Police have released few details about what happened next, but he was killed by Unified police during some kind of confrontation in a vacant home’s backyard.
Palacios-Carbajal was killed May 23, when police investigating a gun threat saw him in the area, chased him and shot him in the back as he ran away, believing he had a gun. His death has sparked numerous protests in Salt Lake City, including demonstrations held each night in front of the district attorney’s office, where protesters vow to rally until the release of the investigative report into his death, which prosecutors have said could come in the next two weeks.
If history’s a guide, the officers involved in both of these shootings will avoid any felony or misdemeanor counts. In the past decade, only three police officers in Utah have been charged after shooting at someone while on duty — and none has been convicted. Gill’s office has been involved in charging police in those three cases, which is a statistic that draws criticism: Activists argue three isn’t enough. Police advocates counter that it’s three too many.
Gill faces a decision in a highly charged time, after weeks of protests in Salt Lake City and throughout the nation. He says he’ll set all of that aside and simply follow the law. Here is a look at what that legal standard is, what it takes to charge officers, and why it so rarely happens.
The legal standard
Utah law says officers can legally kill someone if they “reasonably believe” they must do so to prevent death or serious bodily injury to an officer or someone else.
It’s hardly a unique standard. It is used in other states — rooted in a unanimous U.S. Supreme Court ruling from 1989 that found “reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
When a police officer kills someone in Utah, it prompts an investigation from a county attorney or review board to determine whether an officer’s use of deadly force was justified or whether it violated the law.
The Salt Lake Tribune has tracked 185 cases in which police in Utah have shot at someone since 2010, and 92% of those cases were determined to be legally justified. Nearly a dozen cases are still pending.
In six cases, prosecutors determined that while an officer wasn’t legally justified in using deadly force, they opted to not charge him or her with a crime — deciding that it was unlikely that a jury would convict an officer based on the available evidence.
That happened in 2013, when Davis County Attorney Troy Rawlings ruled that an officer wasn’t justified when he shot a woman in the eye who led police on a drunken car chase, and again a few years later when the Iron County Critical Incident Task Force found in 2018 that a shooting wasn’t justified when an officer injured a burglary suspect who was neither fleeing nor threatening anyone.
But in those rare instances when an officer is charged — that’s happened in 0.01% of cases — prosecutors haven’t netted a conviction. Twice Gill’s office has filed charges against an officer only to later drop the case.
In a third case, Gill in 2014 charged former West Valley City Officer Shaun Cowley with second-degree felony manslaughter for shooting and killing 21-year-old Danielle Willard during an undercover drug operation as she backed out of a parking spot. Cowley had asserted that he feared for his life as her car backed toward him.
A judge dismissed the case after a preliminary hearing, finding that prosecutors did not have enough evidence to show that Cowley committed a crime. That’s a rare ruling at that stage, when all testimony must be considered in the state’s favor.
“The prosecution had a small, low bar to get over,” Fraternal Order of Police Executive Director Ian Adams said then. “And they tripped.”
Gill said if Utahns want police officers to be charged more often, it’ll require changing the state’s law. There have been no recent proposals for such legislation in Utah.
Federal lawmakers have debated two recent police bills, including the Justice in Policing Act. The House passed this Democratic-led bill Thursday, which proposes sweeping reform to how officers do their jobs and how they are held accountable. The bill changes the “reasonable” standard, so instead of prosecutors determining whether the officer’s force was “reasonable,” they’d have to determine if it was “necessary.” A Senate Republican bill that was blocked from consideration doesn’t include this proposal.
In light of the nightly protests against police brutality — many focused on the fatal police shooting of Palacios-Carbajal — Salt Lake City Mayor Erin Mendenhall has said she’d support changes to define what reasonable means. In a tweet, she listed changes Salt Lake City officials were considering and one of them was “support changes to state code on the use of deadly force and the legal standard for what is ‘reasonable.’”
Gill said he, too, would support a change in the law. Other prosecutors in the state weren’t eager to speak out — several did not respond to a request for comment. Utah’s Statewide Association of Prosecutors did not want to weigh in.
Many of Utah’s cops oppose changing the law.
Orem Police Chief Gary Giles said he hasn’t seen issues with how the law has been applied through the years. He worries about adding more processes in which people who might not fully understand policing are weighing in on whether an officer did the right thing.
“If an officer does something egregious, they need to be charged,” he said. “But the problem is, who do we want to have out protecting us? We want the best of the best. If, 28 years ago, I was told there was a really good chance I go to work and I’m going to be forced into a situation to decide whether I’m going to go home tonight or I go to prison, I don’t know if I would want to be a police officer.”
Adams, with Utah’s Fraternal Order of Police, said he believes the statute is appropriate as is, and warned that changing it could create a law that doesn’t understand the “chaotic and fluid and very dynamic situations” officers encounter.
This kind of tweak could create a situation “where you’re expecting a police officer to get shot before they can take any action,” he said, “and that’s not reasonable.”
Adams said that while the FOP wouldn’t support changing the “reasonable” standard, there is room for reform in policing. For instance, he said, the group is lobbying to add more voices to the Peace Officer Standards and Training board, which handles officer discipline, including reserving a seat for the NAACP.
“We think increasing representativeness in that body makes a lot of sense,” Adams said.
Complicated investigations
(Francisco Kjolseth | The Salt Lake Tribune) District Attorney Sim Gill speaks with organizers from Utah Against Police Brutality (UAPB) during a sit down meeting at his office on Monday, Oct. 1, 2018, where he discusses his decision to not file charges against a West Valley officer who shot and killed Elijah Smith. The decision has been widely criticized and rejected by UAPB.
Gill said that even when prosecutors believe charging an officer is appropriate, they face another barrier: collecting evidence.
Sometimes officers involved in the investigation don’t give clear statements about what they’ve seen, he said. In many cases, the officer who shot the person has chosen not to speak with Gill’s team at all.
It’s that officer’s constitutional right, Gill conceded, but added that it makes it hard for prosecutors to do their jobs and sows distrust between law enforcement and those they police.
Adams sees it differently. He said he hasn’t yet seen a Utah case where the officer deserved to be charged. When it happens, Adams said it seems to be because it’s politically motivated.
Recently, when a FOP attorney takes on an officer’s police shooting case, he has advised the officers not to speak to Gill’s prosecutors. It’s not policy, Adams said, but he understands why an officer might choose to invoke the Fifth Amendment in those interviews.
”If an officer or their attorney believes there’s political bias on behalf of a prosecutor to disadvantage them,” he said, “then I don’t blame them.”
Adams said he has seen two videos of police use of force that have disgusted him, where he’d say an officer obviously acted improperly: this year when an officer in Minneapolis kneeled on George Floyd’s neck for almost nine minutes until he died and a 2015 shooting in South Carolina where an officer got prison time for shooting a man in the back as he ran away.
Reforms
At this time, as anger at the Floyd killing has spread nationwide, state legislators and city leaders are feeling pressure to take funding from police departments and implement other reforms.
Utah lawmakers have already taken some actions. Rep. Sandra Hollins, D-Salt Lake City, proposed a bill in a special session that bans the Utah police academy from training officers in chokeholds. That bill passed to cheers and has been signed into law. Hollins, Utah’s only Black lawmaker, is working with Black Lives Matter supporters on a number of other measures, too.
Sen. Daniel Thatcher, R-West Valley City, said he is also getting input from police and the NAACP for some reform bills.
He’s not looking at the reasonableness standard in Utah’s use of force law, but he said creating a statewide standard for use of force — like lawmakers have done for police pursuits — is on the table.
Thatcher said there’s also some talk about adding punishments for instances when a police officer’s use of force involves the “pure and deliberate, ad hoc infliction of pain for no reasonable purpose” like is seen in the Floyd video. He’s also looking at a way to make use-of-force complaint findings more transparent.
Currently, there’s no standard. Gill’s office routinely posts its findings online. No other county attorney in the state does this.
So far, protesters demonstrating for Palacios-Carbajal have called these incremental changes and reforms “scraps,” lip service to the movement without any teeth.
As they’ve marched downtown streets each night for more than a week, they’ve made their demands clear: They want murder charges filed against the officers who shot Palacios-Carbajal. They want an overhaul of a system that they feel favors the cops. They want a revolution or, at least, a paradigm shift.
“D.A. what’s your play?” they chant. “Put these killer cops away!”
Gill has promised a decision by the end of this week and he intends to announce it the week after that.
