The police killing of Bernardo Palacios-Carbajal: Where prosecutors and the family’s lawyers disagree.

(Screenshot via Salt Lake City Police Department) Bodycam video released by the Salt Lake City Police Department shows officers discharging their weapons at Bernardo Palacios, Saturday, May 23, 2020. Palacios was killed as he attempted to evade police as more than 20 gunshots were fired. The footage was released by police Friday, June 5, 2020.

For more than an hour, the Salt Lake County district attorney laid out the case for why two officers who shot and killed Bernardo Palacios-Carbajal did not violate Utah law.

Sim Gill showed multiple videos from different camera angles, using a laser pointer to highlight details. He provided protracted explanations for his thinking, taking reporters and the public step-by-step through the decision. He seized on a set of what he characterized as unavoidable facts: Palacios-Carbajal was a suspect in a violent crime, he had a gun and he did eventually point the weapon at officers.

That’s reason enough to believe officers’ statements that they feared for their life, one of the standards that justifies police shootings. Gill declined to file charges.

A few hours later, attorneys for Palacios-Carbajal’s family explained why they’re convinced the district attorney is wrong — and announced their plan to file a civil lawsuit and take the case to a courtroom.

Both parties are operating with the same set of facts and the same video evidence. Palacios-Carbajal was killed May 23 as he ran from police. Officers were called to the area near 900 South and 300 West on a report that a man had walked into a hotel room and robbed the occupant at gunpoint. When police spotted Palacios-Carbajal, he took off. Officers gave chase, and the man fell three times, each time dropping and then picking up a handgun. He was killed moments after the last fall, when two officers emptied their clips, firing some rounds after Palacios-Carbajal was already wounded and lying on the ground.

Yet, they came to vastly different conclusions. Here’s a look at where they disagree.

(Rick Egan | The Salt Lake Tribune) Salt Lake County District Attorney Sim Gill describes the details of the shooting of Bernardo Palacios-Carbajal during a news conference on Thursday, July 9, 2020.

Did officers make the right decision to shoot and why so many times?

The Palacios-Carbjal family’s lawyers, Nathan Morris and Brian Webber, take issue with “the decision to shoot a fleeing suspect in the first place,” as he was running away. The first rounds struck the man in the back.

But the officers who fired their weapons told investigators that they didn’t consider using less lethal force because they’d already seen Palacios-Carbajal with a gun. Officers are trained to bring “equal to or greater force” than the suspect they are pursuing, Gill said.

Morris doubts that, he told The Salt Lake Tribune in an interview, because another officer can be heard in the body camera footage asking for someone to use a less-than-lethal option.

“There was a disagreement between one officer who said, ‘Tase him! Tase him! Tase him!” and the other officers who defaulted to the use of lethal force, shooting 34 times,” Morris said. “That right there makes me think that there’s an issue relating to the training and what is actually the default when it comes to chasing a fleeing suspect.”

He added that bodycam and security footage shows that “at all times, [Palacios-Carbajal] was running away from” police officers.

“There was plenty of opportunity to default to less violent situations,” Morris said.

But Gill noted in his presentation that Palacios-Carbajal seemed intent on keeping the gun with him — which was concerning for the officers who were chasing him.

“What we can’t ignore is the number of times Mr. Palacios-Carbajal dropped the weapon,” Gill said. “The desire to retrieve the gun was greater than the desire to run away.”

The second “major issue” that the Palacios legal team raises is that the “amount of force that was used on Bernardo was way excessive” after he was “down and disabled.”

(Rick Egan | The Salt Lake Tribune) Nathan Morris attorney for the Bernardo Palacios-Carbajal family speaks during a news conference in reaction to Salt Lake District Attorney Sim Gill's decision to not charge the Salt Lake City Police Officers that killed Bernardo Palacios-Carbajal, Thursday, July 9, 2020.

“Courts have held that after even one bullet, bullets two through six can be clearly excessive and a violation of established rights — let alone 34 bullets,” Morris said. “What I didn’t hear [from Gill or Salt Lake City Police Chief Mike Brown] was any concern about the number of bullets that were shot.”

Gill said the officers told investigators that they continued to fire because they saw Palacios-Carbajal begin to point his gun at them, and reasonably believed their lives were in danger. He added police are trained to keep shooting until the threat is gone.

Did Palacios-Carbajal point his gun at officers?

The district attorney made much of the fact that, after he was shot and killed, Palacios-Carbajal’s handgun was resting on his waist. Gill argued that this was further evidence the man had been pointing the gun at officers just before they shot at him a second time. If it had merely been in Palacios-Carbajal’s hand, Gill said, it likely would have fallen near him on the asphalt.

But Morris said “there’s any number of ways” the gun could have ended up on top of him, suggesting it landed there as Palacios-Carbajal fell after he was first shot.

“I’m speculating, just the way Mr. Gill would have to speculate,” he said. “The fact that it was there, to me does not indicate one way or the other what Mr. Palacios’ intentions were.”

He also disagreed that there is any evidence to suggest Palacios-Carbajal posed a threat to turn his gun on the officers, which was a concern the officers later recounted to investigators.

“One clear possibility in that situation is that Bernardo was turning, looking at them and putting his hand up to tell them to stop shooting,” Morris said. “There’s not only one possibility here. And the video that we saw does not show at any point that Bernado lifted a gun and pointed it at the officers.”

And on the audio from one of the officer’s bodycams “you could hear Bernardo’s voice saying, ‘Officer, I don’t want to die.’ And continuing to run away.” Salt Lake Tribune journalists reviewing the footage also hear the phrase.

“That wasn’t brought up by Mr. Gill. He brought up things to help his case and help the police.”

The district attorney’s office said Friday they found no evidence of Palacios-Carbajal saying that.

Should charges have been filed against the officers?

Morris believes that since Officers Neil Iversen and Kevin Fortuna fired so many rounds at Palacios-Carbajal when he was already wounded, Gill could have filed charges.

“He had every opportunity and every right under the wording of the law to say the threat of harm had abated. That it was removed,” Morris said. “And yet they continued to shoot him while he was on the ground.”

The video shows Iverson and Fortuna continuing to fire for nine seconds after Palacios-Carbajal was down. While they fired 34 rounds, it is not clear how many of them hit Palacios-Carbajal. He had roughly 15 injuries, but some bullets may have caused entry and exit wounds.

“Maybe the initial shooting was justified,” Morris said, “… but to continue shooting after, clearly, there was no threat, was unreasonable and can and should be prosecuted.”

But Gill believes there was a threat. He spent several minutes going over body camera footage, stopping it frame-by-frame to show what he said was video showing the man raising the weapon toward officers and then afterward the gun visibly resting on Palacios-Carbajal’s waist. Gill said there was no other explanation for the gun ending up there, unless Palacios-Carbajal had previously been pointing it at officers.

Gill also focused on the “autonomical response” of officers to Palacios-Carbajal’s actions. At one point in security camera footage, all the officers move in tandem in the same direction, as they try to to avoid potential gunfire, GIll said.

But even as he said that, Gill was critical of Utah’s use-of-force laws, as he has been multiple times in recents weeks. He said Thursday that his office will release proposals for how to change it.

But Morris called Gill’s assertion that current law precluded him from filing charges a “glaring contradiction.”

“What that shows me is that they don’t truly believe in their statement that this was reasonable and justified. They just believe that they don’t need to prosecute under this circumstance,” he said. “And that’s entirely different than saying this is the right decision.”

Why file a civil lawsuit?

Morris said he and Palacios-Carbajal’s family are frustrated not just with Gill’s decision, but with the way he looked at the evidence.

“It’s not just that Mr. Gill decided that it was a justified shooting, but that at every turn he answered all of these unknown questions [by] giving the benefit of the doubt to the officers as opposed to leaving that as a question that a jury or a judge would need to ultimately decide.”

Asked what a trial would have looked like if Gill had filed charges against the officers, Morris quickly replied, “Well, we’re going to find out.”

That battle will take place in a civil court where the burden of proof is much lower. Instead of prosecutors proving “beyond a reasonable doubt” that the officer’s actions were criminal, Palacios-Carbajal’s attorneys will need to persuade jurors that it is more probable than not that excessive force was used.

The Palacios-Carbajal attorneys are looking at other possible violations and working with the American Civil Liberties Union of Utah and other social justice groups in their plan to file suit against Salt Lake City, the police department and possibly the officers.

The family’s legal team will “continue to engage the city” before filing, Morris said, “but it sounds like a lawsuit is going to be the only option we have to attempt to get justice for this family.”

The police department is still conducting its own investigation, and Mayor Erin Mendenhall asked for an expedited review. A civilian review board will also look into the case.