A parole agent who fired five shots at a man under his supervision — hitting and wounding him three times — while stopped at a Murray traffic light last May was charged Monday with aggravated assault after the Salt Lake County District Attorney’s Office found his use of force not justified.
The agent, Andrew Reed O’Gwin, 38, who works for the Utah Division of Adult Probations & Parole, was stopped for a red light on 4500 S. Main Street about 12:50 a.m. on May 13, when the car in which a parolee, whom he did not recognize, was riding pulled up next to him in a lane to his left, according to documents from the district attorney’s office. The two vehicles were in a double left-turn lane to go onto Main Street.
The parolee, Joe Alvin Gomez, 30, got out of the passenger side of his vehicle and was next to or near O’Gwin’s driver side window when the agent fired five rounds at him. Three of O’Gwin’s rounds hit Gomez, who got back into his vehicle and was driven to the hospital.
Gomez survived his injuries but is still recovering, according to his attorney, Karra Porter. Her client was hit squarely in the chest, in the left arm and on his left side, she said at a Monday news conference.
“It’s a miracle he’s still alive,” Porter said.
In addition to the wounds from the bullets, spraying glass from the car window caused serious damage to Gomez’s eyes, she said.
Gomez — who was not at the news conference — has said he didn’t recognize the agent, and Porter said it was a coincidence that they both had pulled up to the same stoplight.
O’Gwin and Gomez had met face-to-face only once, at the AP&P offices when Gomez was paroled in April 2017, according to the district attorney’s report.
Two witnesses said Gomez’s arms were raised when he exited his vehicle and that he yelled something. They thought there was going to be a fight, according to the district attorney’s report, but instead the agent shot Gomez through his window.
Shortly after the shooting, O’Gwin reported via his police radio that an “individual just jumped out of the vehicle, threw something at me, tried to attack me.”
In interviews with police after the incident, O’Gwin said Gomez had pounded on his car window three times as “hard as he could.” O’Gwin told investigators that he believed Gomez had something in his hand that “made a loud, metallic sound” when he hit the car, though O’Gwin said he didn’t see anything in Gomez’s hands.
Though Gomez never tried to open the car door with the door handle, O’Gwin said, he believed Gomez was “not going to stop hitting the window until he got in.” O’Gwin believed his life was in danger, he said.
“By the time the third hit happened, I just remembered I was pulling my trigger,” O’Gwin told investigators. He estimated that he had fired three shots.
No other witnesses said they saw Gomez touch the car, and one witness — who was the passenger of a car stopped behind Gomez’s — said that Gomez had not touched the car, according to the district attorney’s report.
O’Gwin told investigators that even though he was Gomez’s parole supervisor, he didn’t know it was Gomez at the time and thought the suspect may be a gang member parolee.
Gomez told officers that when he and his friend pulled up to the stoplight, he was smoking a cigarette and threw it out the car window. The cigarette’s burning ember landed in his lap and began to burn him, Gomez said, so he opened the car door and got out, facing O’Gwin’s window.
“Gomez said he came out of his car kind of ‘crazy’ because the cigarette ‘cherry’ was burning him,” according to the district attorney’s report. The man said he was yelling because of the burning ember.
While he was brushing off his pants, O’Gwin shot him, Gomez told police.
After the episode, Gomez said, he was confused as to why he’d been shot. Gomez denied having a gun or any other weapon during the incident, denied touching O’Gwin’s car and denied throwing anything at it.
A doctor at the hospital found no injuries on Gomez’s hands, investigators noted, and the window of O’Gwin’s car was intact, despite the bullet holes the agent had fired through it. Because of this and statements from witnesses, investigators wrote that they could not corroborate O’Gwin’s report that Gomez touched his vehicle.
Earlier in the day on May 12, O’Gwin had attempted to visit Gomez at his home, but Gomez was apparently not there. O’Gwin also said that later that day, but before the shooting, Gomez called him on the phone and the two had a “brief, pleasant conversation,” during which Gomez had answered O’Gwin’s questions appropriately.
When police spoke to Gomez, he appeared not to know that O’Gwin was the one who shot him, and he said he found that to be “ironic,” documents say.
Gomez also told police that “he had no problems with O’Gwin and that he was not angry that O’Gwin had visited his residence earlier that day.” The man driving the car Gomez was in told investigators that Gomez had made a comment to him that his parole officer was “pretty cool.”
On Monday, O’Gwin was charged with aggravated assault, a second-degree felony, in 3rd District Court. O’Gwin has been summoned for an initial court appearance May 11.
Utah Department of Corrections Executive Director Rollin Cook said Monday that his department has “concerns” and disagrees with the district attorney’s determination in the case. Now that it has access to all the evidence gathered in the district attorney’s investigation, Cook said his department will conduct its own administrative investigation into the incident.
“Based on the briefing from the district attorney’s office, we support our officer,” Cook said. One concern Cook noted is that it took nearly a year for the district attorney to make a determination.
In the meantime, Corrections has placed O’Gwin on paid administrative leave. O’Gwin was originally hired by the department in 2006, but left to work for the Utah Highway Patrol from 2013 to 2016. He returned to work for Corrections in 2016.
At the time of the shooting, Corrections said in a news release that Gomez “initiated an aggressive confrontation.” Porter called that statement a lie.
To back up her assertion, Porter pointed to the witness statements, including one that said Gomez had his hands up at “half-mast” and was moving slowly, taking just one or two steps before O’Gwin began firing within seconds.
She is grateful for the district attorney’s long and thorough review that led to the charge against O’Gwin, Porter said, but has concerns about how an Officer Involved Critical Incident investigation was conducted.
She listed a number of alleged disparities in the way Gomez and O’Gwin were treated by investigators, including labeling Gomez the “suspect” and referring to O’Gwin as “officer”; putting a Gomez family member and a friend who were at the hospital in the back of police cars for more than an hour and then taking them to the Salt Lake City Police Department for questioning but not detaining or questioning O’Gwin; and obtaining medical information about Gomez but not requesting blood or urine tests of O’Gwin.
“They didn’t even search the shooter,” Porter said.
The agent, who was allowed to voluntarily give a statement five days later, said he had taken a “stay awake” medication at the beginning of his shift, according to Porter.
“We will explore the effect of that,” Porter said, adding that O’Gwin also has said he was “kind of zoning out” at the red light.
“If you’re zoning out and I don’t know what effect this stay awake medication has on anything, but if you’re zoning out and then something happens that you’re not used to seeing, like somebody gets out of their car, then maybe you overreact, five times,” she said.
When asked if Gomez was going to file a civil lawsuit, Porter answered that she is recommending he seek compensation for his injuries, but they are hoping to work things out short of litigation. She also wants changes in how shootings such as his are investigated.
Gomez has a felony record beginning in 2010, when he pleaded guilty to third-degree felony attempted possession of a controlled substance, for which he was sent to prison, according to Utah court records.
Since then, Gomez has pleaded guilty in four other drug-related cases (one in which he also illegally possessed a weapon) for which he has been in and out of prison.
His most recent conviction, in February 2016, was for being a felon in possession of a handgun. He was arrested in January 2016 after he ran from Salt Lake City police, who were investigating Gomez for alleged shoplifting, and a gun fell to th ground.
At the time he was shot, Gomez was on parole for his fourth time, after being released on April 4, 2017, according to Utah Board of Pardons and Parole spokesman Greg Johnson.
He was returned to the prison on May 15, 2017. He is currently free, having been most recently paroled on Jan. 2.
In October, Murray City charged Gomez with disorderly conduct stemming from the encounter with O’Gwin. He was found guilty by a judge in March of the infraction and is appealing the conviction.
The last Utah police officer believed to have been charged with unjustifiably shooting someone was West Valley City Officer Shaun Cowley. He was charged with second-degree felony manslaughter for the November 2012 death of 21-year-old Danielle Willard, following an alleged drug buy.
A 3rd District Court judge dismissed the case following an October 2014 preliminary hearing, finding that prosecutors presented no evidence that Cowley’s “conduct was not legally justifiable.”