After shooting suspects, three Salt Lake County officers refused to talk to prosecutors. Their attorney says it is a matter of trust.

(Screenshot) West Valley City officers confronted theft suspect Elijah James Smith in a home's garage, where Officer Nicholaus Green fired three shots at Smith and killed him April 8. Green is one of three officers in 2018 who did not give statements to prosecutors reviewing their decisions to shoot suspects. Salt Lake County District Attorney Sim Gill decided Green would not face charges for the shooting.

Police had been chasing the motorcyclist for about three minutes when the driver crashed and took off running. Officers chased after him. It was just after 6 a.m.

The man fit the description of someone who’d robbed two Sandy grocery stores at gunpoint earlier that May morning. If he was the same guy, officers thought, he could still have the gun.

As he fled, officers reportedly saw him reaching into his pockets. They told him to stop and show them his hands. He didn’t, and Cottonwood Heights Officer Casey Davies fired twice. The man, 18-year-old Zane James, died.

On Tuesday, Salt Lake County District Attorney Sim Gill announced he wouldn’t file charges against Davies. As far as prosecutors could tell, Gill said, Davies reasonably believed that using deadly force was necessary to prevent death or serious injuries to officers or others — the standard for such a police shooting to be considered justified in Utah.

But Davies didn’t tell police that. In the seven use-of-force investigations completed by Gill this year, Davies was the third officer who invoked the Fifth Amendment, the right against self-incrimination. He did not give Gill a statement to consider as the prosecutor weighed body camera footage and testimony from other officers.

Across the country, officers have been refusing to give these types of statements for years. It’s standard practice in some departments. Local law enforcement officials, including Gill, believe the trend is generally a response to increasing public criticism of police.

But in Salt Lake County, according to the attorney who has represented those three officers, “This is a Sim Gill problem.”

Remaining silent

Historically, Utah police officers have cooperated in use-of-force investigations — and have gone “against their Fifth Amendment interests” in doing so, said Utah Fraternal Order of Police attorney Bret Rawson.

Recently, though, Rawson has been advising clients in Salt Lake County not to speak, he said, because he and others in law enforcement don’t think Gill is “capable of rendering judgment over these officers in an unbiased fashion.”

Especially, Rawson said, during an election year, when he fears Gill, a Democrat, might charge an officer to bolster support for his re-election. The FOP has endorsed Gill’s opponent, Republican Nathan Evershed.

Gill denies his decisions have been politically motivated. He said he is an independent elected official who decides cases based on facts and the law.

“My responsibility is to work with law enforcement, not work for law enforcement,” he said. “I work for the citizens of Salt Lake County.”

During Gill’s nearly eight-year tenure as district attorney, he’s evaluated about 65 police shootings, he estimated. He has found four shootings by police to be unjustified; he filed charges against three of those four officers.

The first was 39-year-old former West Valley City officer, Jared Cardon, who was charged in 2012 with a misdemeanor count of reckless endangerment for shooting at Jose Contreras as he fled from a crash in May 2011. The charge was later dismissed.

Next was ex-West Valley City Officer Shaun Cowley, who was charged with second-degree felony manslaughter in the 2012 death of 21-year-old Danielle Willard. A 3rd District Court judge dismissed the case two years later, citing a lack of evidence.

This year, Gill charged Adult Probation and Parole Agent Andrew O’Gwin with second-degree felony aggravated assault in the shooting of Joe Alvin Gomez, 30. Gomez survived the May 2017 shooting.

Cottonwood Heights Police Chief Robby Russo, who is Davies’ boss and also has endorsed Evershed, said be believes Rawson is telling officers not to talk to Gill as retribution for the charges filed against O’Gwin.

He said that advice goes against the best interests of officers and pointed to Davies’ case as an example, saying the law would have been on Davies’ side.

“You’ve got a guy who’s done some armed robberies. He’s fleeing from the officer. He runs. He’s a known criminal, a violent criminal. He reaches and pulls a gun out of his pocket,” Russo said. “I mean, why would you not talk?”

(Documents from the district attorney’s investigation say James was reaching into his pockets and waistline. He never pulled a gun, although officers found a pistol-style pellet gun on his body.)

But Rawson said his advice isn’t retribution, and law enforcement’s concern about Gill isn’t based on how many officers are charged. Instead, he said, it’s about Gill’s timing — Cowley was charged in 2014, when Gill was running against FOP-endorsed Republican candidate Steve Nelson, and O’Gwin was charged as Gill runs for re-election this year.

Rawson also pushes back against the claim that he could be harming officers. “It would be malpractice for me to not explain what the possibilities are with this district attorney,” he said.

A chilling effect

Gill said he understands that officers have the same constitutional rights as anyone else and that they’re acting within the law when they decline to give statements. But that doesn’t prevent their silence from having a chilling effect on communities, he added.

Gill said he saw it, for example, as he spoke with the parents of Elijah Smith, and separately with members of Utah Against Police Brutality, about his decision to not charge West Valley City Officer Nicholaus Green in Smith’s April death.

Fleeing police who suspected him of theft, Smith had gone into the garage of a West Valley City home, where officers confronted him.

Green did not give a statement about his decision to fire; Gill said he used testimony and evidence to infer Green shot Smith because the officer reasonably believed he needed to protect himself or others.

But having only an inference, rather than an explanation from the officer, is hard on the family, he said, who will never know exactly why their son was killed, at least not with the certainty they’d hoped. And it could foster distrust in the community at large.

“I’m trying to answer that question for our community. They have every right to ask the institutions of power about why they shot somebody,” Gill said.

Utah Against Police Brutality rejected Gill’s decision to not charge Green; members advocated for Gill’s firing after he opted to not file charges against the Salt Lake City officer who fatally shot bicyclist Patrick Harmon in 2017.

Russo said he agrees that officers’ refusals to explain decisions to use force have an impact on the community.

“It doesn’t serve the officer. It doesn’t serve the public. It doesn’t serve the municipality,” Russo said. “To be honest, it’s just a pissing match between those two [Rawson and Gill]. It’s shameful.”

But Rawson said communities also deserve a district attorney who doesn’t make decisions “mired in politics” and whom police can trust to support them.

He said tensions have reached the point that “it’s causing officers to fear for their safety, because they’re now second-guessing themselves in critical incidences where their training should kick in — and their training should be the only factor with respect to how they encounter deadly force.”

West Valley City Police Chief Colleen Jacobs declined through a spokeswoman to be interviewed. In a statement, she said: “Our response would be that the officer’s constitutionally protected rights are theirs to exercise if they choose to or if they choose not to. We do not interfere with or influence the protocol investigation.”

Granite School District Officer Jonathan Sidhu also declined to give a statement after he shot and injured a teenage driver near Hunter High School in March. Gill decided his use of force was justified based on evidence at the scene and witness accounts.

“There’s value in having the officer speak, but we also respect their Fifth Amendment rights,” school district spokesman Ben Horsley said. “If they choose not to speak with the attorney’s office, they certainly have that right.”

Questions of trust

Bill Johnson, executive director of the Washington D.C.-based National Association of Police Organizations, said he’s been advising his clients against giving statements in use-of-force investigations since 1993. He said he was surprised officers in a metropolitan area as large as Salt Lake County were still giving statements after shootings.

Johnson said he could see officers talking to district attorneys after shootings if there was an understanding that prosecutors would support them unless there was “clear evidence they’ve done wrong.”

“Maybe in the past it’s been a good relationship that’s worked on trust, but in today’s political climate — and I’m not saying this about your prosecutor — some prosecutors find it politically expedient to charge police or bully police,” Johnson said. “You just have to be careful if you’re the officer or you’re representing the officer.”

If Gill is re-elected, Rawson said, he doesn’t immediately have any ideas for how to build trust between the district attorney’s office and law enforcement.

Gill pointed out that he supports police through fundraising and providing training, such as the training simulator he and then-Salt Lake County Sheriff Jim Winder lobbied the county council to purchase in 2013 and more recent training to teach female law enforcement officers leadership skills.

Officers can continue choosing to not speak during use-of-force investigations, he said, but he cautioned that could hurt their relationships with the communities they police.

He said he can also see a scenario where not speaking to prosecutors might be detrimental to officers. If an officer is alone, not wearing a body camera, and no other witness statements are available, Gill said, he would not have evidence to support an inference about the officer’s decision.

“That would mean, that based on the evidence or lack of evidence, that I can’t give a justification,” Gill said. And that, he said, could mean charges.