Robert Gehrke: If we want police held accountable for unjustified acts of violence, we should make these changes

(Trent Nelson | Tribune file photo) Protesters paint the street in front of the Salt Lake County District Attorney's office while marching against police brutality in Salt Lake City on Saturday, June 27, 2020.

By now, the red paint spread across the road in front of District Attorney Sim Gill’s office, intended to represent the blood of victims of police shootings that protesters said is on Gill’s hands, is gone.

As my colleagues Jessica Miller and Paighten Harkins wrote last week, since 2010, police in Utah have shot at people 185 times and in almost every case — 92% of them — the shooting was found to be legally justified.

Six shootings were deemed unjustified, but prosecutors opted not to file charges. In the three cases where officers have been charged with a crime, two were dropped and a third was dismissed at the preliminary hearing — an unusual rebuke to the prosecution.

Robert Gehrke

Currently, Gill is weighing two high-profile cases that have been a focal point of protesters — Bryan Pena Valencia, who was killed after he allegedly fled from officers responding to a report of shots being fired, and Bernardo Palacios-Carbajal, who was shown on bodycam footage running from police who shot at him more than 20 times, believing he was armed.

The protests have created an intensely charged environment that is not conducive to justice. Gill is in a no-win situation. No matter his decision in the two cases, a group of people will be furious. That’s especially true if he opts against charges, as I fully expect he will have to do.

Utah law says officers can use lethal force to prevent the escape of a suspected felon who they believe has injured or threatened to injure someone and could pose a threat. More broadly, state and federal law gives broad protection to officers who shoot or otherwise use lethal force against a suspect.

The 1989 U.S. Supreme Court case of Tennessee v. Garner set the bar unrealistically low: If an officer reasonably believes a suspect poses an imminent threat to anyone, he or she is allowed to use lethal force.

It forces a prosecutor to climb inside an officer’s head and prove to a jury the officer didn’t reasonably believe there was a threat, but shot anyway. It’s practically impossible.

“A lot of times you have a situation where, on its face, people say, ‘Oh, that looks bad. They shouldn’t be able to do that,’ " Davis County Attorney Troy Rawlings told me. “More often than not, when you apply that unique statute that is pretty broad, it becomes difficult. Even in factual situations we don’t like … is it a crime under the statute? Usually the answer is no, a jury isn’t going to convict them.”

Let’s be clear here: Most officer-involved shootings are tragic but justified and in those circumstances police deserve protection under the law. We’ve seen body camera in some of these instances too, when people clearly have a gun and point it at officers.

But in those cases where the officer’s actions are not justified — the six in Utah — the victims, their families and the public deserve some measure of accountability, which is nearly impossible under the current structure.

Here’s a case that Gill’s office is currently reviewing: In May 2019, Chad Breinholt was arrested for driving under the influence and was being held in the processing room at the West Valley City police station. Five officers were nearby.

The handcuffed and clearly intoxicated Breinholt managed to take off his shoe and slurred that there was a gun in it — which is obviously nonsense. The officer tried to take the shoe, Breinholt resisted and in the struggle appears to have reached for the officer’s gun. The officer shouts that Breinholt has his weapon and three officers wrestle the smaller, handcuffed man onto a desk where the third pulls his firearm and says, “You’re gonna die today, my friend,” and shoots him in the head at close range.

Breinholt’s actions were stupid and indefensible. But was this handcuffed suspect really going to wrestle a weapon from the officer’s holster with three men on top of him and get off a shot with his hands cuffed behind his back? Did he still pose a threat prone over a desk?

And if this was a split-second decision, why take the time to utter a macho movie line, “You’re gonna die today, my friend”?

It gnaws at me. But I also recognize that it is highly unlikely there will be any accountability.

How do we rebalance the scales without penalizing police who absolutely have to make life-or-death decisions, often under pressures we can’t comprehend?

“I think we’re doing quite well,” West Jordan Police Chief Ken Wallentine, who has been an instructor and expert witness on use of force, told me. “But I think there is room for improvement.”

Here are a few suggestions:

• Change the current legal standard to take into account the circumstances that led up to the shooting and whether other measures were available.

Right now, an officer can violate protocol, pursue a suspect, instigate and escalate a conflict and justifiably shoot the suspect because he or she reasonably believed the suspect might be reaching for a weapon.

Prosecutors and jurors should be allowed, as has been permitted to some extent in the 9th Circuit, to consider the context in which the shooting occurred, not just the officer’s state of mind at that split second he or she pulls the trigger.

• Narrow the qualified immunity protections extended to officers. Qualified immunity shields a department or officer from civil liability in federal court. Generally, it makes sense, but is overbroad to the point that it now protects everyone who isn’t a knowing lawbreaker or grossly incompetent.

• Create a state-level task force to investigate times when police use force. Those cases are currently reviewed by officers from neighboring jurisdictions, people who might know or work alongside the cops involved, particularly in rural counties. Rawlings said he has never seen an investigation he felt was deficient, but an outside investigative body would instill public confidence in the objectivity of the review.

• Make records of proven misconduct more transparent. The only current way to access those records is if the state’s Police Officer Standards and Training opts to discipline an officer. Moreover, Wallentine suggests, once started, internal investigations should be completed, to keep officers from quitting and going to another force to avoid an adverse finding.

“We in Utah could lead out in making serious misconduct more transparent,” Wallentine said.

• Create a lower-level crime, unauthorized use of force, with a lower standard of proof for those whose actions are unjustified but a homicide conviction is difficult, if not impossible.

• Invest in social programs. Increasingly officers are put in a position where they have to be mental health therapists, social workers, homeless resource coordinators, truancy officers and everything else under the sun. Nearly a quarter of police shooting victims suffer from a mental illness. Someone with an untreated mental illness is 16 times more likely to be shot by an officer. I agree with Wallentine who said, “Don’t defund the police, re-fund the social safety net.”

• Pay officers more. This is a no-brainer, but if you want the best people on the force you can’t pay them terrible wages.

None of this is intended as an attack on police officers (although surely the police unions will see it as such). As Wallentine says, “Nobody in the world dislikes a bad cop more than a good cop.”

The climate now is ripe to rebalance the scales, so we can protect those officers doing their job, but ensure bad cops are held accountable and the families of their victims get justice.

None of these changes will come come fast enough for Gill and his decision in the Palacios-Carbajal case, which he says he’ll announce this week.