Saying Utah’s laws are “more generous to law enforcement officers than to other members of our community,” Salt Lake County District Attorney Sim Gill on Monday released a list of proposed changes to when police are justified in using deadly force.
His 22 recommendations come just days after he ruled that two Salt Lake City police officers were legally justified in shooting at Bernardo Palacios-Carbajal as the 22-year-old man ran away from them. Palacios-Carbajal died of his injuries. Gill’s decision lead to a protest in front of his office that turned violent after police and marchers clashed.
He wrote in the letter — which was sent to state lawmakers, the attorney general, the governor and candidates for governor — that the time has come to reexamine and change those use-of-force laws.
“The use of deadly force by law enforcement has been under scrutiny for years,” he wrote. “As the last two months of protests both here and across the country demonstrate, application of the current legal standards for officers’ use of force has produced outcomes that are questioned, reasonably, by many in our communities. When expectations of the community collide so strongly with what the law requires, a reexamination of what the law is, and a fulsome discussion of where it might go, is not just timely but crucial.”
He’s one of several local leaders who have proposed changing the laws after protesters have taken to the streets almost every day for two months since the May 25 death of George Floyd, a 46-year-old Black man who was killed in Minneapolis during an arrest. Salt Lake City Mayor Erin Mendenhall has said she would “support changes to state code on the use of deadly force and the legal standard for what is ‘reasonable.’”
On Monday, she thanked Gill for what she called a “thoughtful review and first step” in the use-of-force question.
“He’s absolutely correct: If we want different outcomes, we need different laws,” the mayor said. “I look forward to digesting these proposals and discussing them with our stakeholders, including the Commission on Racial Equity and our law enforcement officers.”
Utah legislators have already banned knee-on-neck chokeholds — like what was used by the officer who killed Floyd — and have promised further reforms. Six state legislators, who identify as racial or ethnic minorities, said last week that they continue to have “grave concerns” about Palacios-Carbajal’s death, but recognize prosecutors are operating under a restrictive law, one that makes “it highly unlikely that police officer-involved shootings are ever criminally prosecuted, even if they unjustifiably use deadly force.”
Gill said that he hopes his suggestions created discussion and engagement among stakeholders. Here are a few of the changes that he proposes.
For those who aren’t police officers, the law differs: A citizen can claim self-defense only if there is reasonable belief that the other person’s “imminent use” of force could cause death or serious injury.
Gill suggested that the law be changed so that officers, like citizens, need to observe an “imminent danger” before using deadly force.
Gill suggests amending the laws so that prosecutors and courts could consider whether less-than-lethal force was reasonably available and would have been effective, rather than deadly force. He also suggested that law enforcement be required to attempt to deescalate or not escalate whenever reasonably possible — and make a justification defense unavailable if the officer escalates the situation.
“Many law enforcement uses of deadly force involve mentally ill suspects who are threatening harm to themselves, are alone in a location without reasonable possibility of escape, or are threatening harm to third parties with unlikely or unavailable means (e.g., threats of cutting with a butter knife, threats from a significant distance, threats of serious harm with no means to effect it),” he wrote. “In those cases, both common sense and human empathy dictate that deescalation and self-restraint should be used whenever possible.”
The district attorney further suggested that the law be changed to prohibit the use of deadly force when individuals pose a danger only to themselves.
Gill suggested several changes that would make police disciplinary records more publicly available. Noting that some police officers retire or quit before internal investigations are completed, he suggested requiring police agencies to complete those investigations — even if the officer has left the department. He also suggested that those investigations be considered public records if the allegations are sustained.
He further proposed creating a searchable statewide database that is publicly available for officers who have sustained charges of excessive force, dishonesty, discrimination or misconduct toward others based on any protected class.
Current law says that police should give an oral warning prior to using deadly force “if feasible.” Gill suggested changing the law so officers are required to identify themselves as police and warn that he or she intends to use firearms or other deadly physical force before doing so.
He also suggested improving officers’ physical training on the value and effective uses of less-than-lethal force.
“Where split-second decisions are concerned, as there often are when law enforcement is protecting the public, there is significant evidence that muscle memory plays a crucial part — perhaps the crucial part — in how officers respond,” he wrote. “This means an officer’s practical, physical training, both for certification and for years thereafter, likely plays a far greater role than, for example, classroom instruction.”
He also suggested that police departments mandate meaningful, evidence-based implicit bias training.
Reaction to Gill’s proposed changes
Nathan Morris, a lawyer representing Palacios-Carbajal’s family, endorsed many of Gill’s proposals, such as imposing the “imminent danger” standard on police and narrowing the scope of crimes that would justify their use of deadly force. Were they in place, he reasoned, such reforms might have given officers pause before firing repeatedly at the fleeing Palacios-Carbajal in May.
“Legislation, policy reform and training is really important. Mr. Gill has been very thorough in his analysis, so we [are] appreciative of the work he has put into this,” Morris said. “While it is welcomed, we continued to maintain that even under the standards set forth in current Utah law for use of deadly force, Mr. Gill had every right and opportunity to bring charges against the officers.”
Current law allows officers to shoot at a suspect attempting to evade arrest if the person is suspected of committing a felony that involved a threat to inflict death or serious injury. Morris singled out Gill’s proposal to limit use of force in these situations to crimes “involving extreme violence.”
“That is truly valuing life over property,” Morris said. He also liked Gill’s proposal to convene grand juries to weigh possible charges against police officers, a move that would take prosecutors off the hook for making these tough, politically fraught decisions and put it in the hands of citizens.
"We want the public to look at what happened," Morris said. "We take solace in the fact Mr. Gill says changes need to be made."
One representative of a police officer organization was much more guarded in his reaction to the district attorney's suggested use-of-force reforms.
“There is a big national conversation and a robust local conversation underway between police, legislators, civic rights organizations. This is just another entry that has to be considered,” said Ian Adams, executive director of the Utah State Fraternal Order of Police. “Redefining ‘imminent threat’ unilaterally isn’t going to work. We have to have a broader conversation about the legal structures governing use of force and how they interplay with community expectations.”
Police officers want to be part of any debate about changing the legal parameters for deadly force, and don’t want to see it highjacked by any single official or driven by a single high-profile case, according to Adams, who had not had a chance to fully read Gill’s 22 proposals Monday night.
“Policing is a responsive industry. It is constantly being challenged. It’s a healthy conversation to have, but it has to be more than a single D.A. and his vision,” he said. “We should not approach reforming use-of-force as a way to make [a specific officer-involved] shooting unlawful. That’s shortsighted.”
Tribune reporter Brian Maffly contributed to this report.