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Salt Lake County prosecutor says police shooting is unjustified but won’t file criminal charges

A Salt Lake Tribune database shows Utah prosecutors have made this rare determination eight times in the past decade.

(Rick Egan | The Salt Lake Tribune) Salt Lake County District Attorney Sim Gill, on Monday, March 1, 2021.

Salt Lake County District Attorney Sim Gill took the rare step Friday of declaring that a police officer was not justified in shooting a suspect. And he said this could happen more often going forward if officers shoot someone and don’t give a reason why they felt threatened.

The lack of evidence is a key issue in Bryan Pena-Valencia’s death last March. All prosecutors had to go on to make their determination was statements from the involved officers and a couple of people who heard (but didn’t see) the shooting, Salt Lake County District Attorney Sim Gill wrote in a finding letter.

Gill said Friday that’s what made this case so difficult — and why it took nearly a year from the shooting date to make a ruling.

“This is something we went over and over, and struggled over,” Gill said, “and I think we reached the difficult but right decision, under both the law and the facts that were presented to us.”

Prosecutors in Utah have made that decision — calling the shooting unjustified but declining to file charges — in eight police shootings over the past decade, according to a Salt Lake Tribune database of police shooting. They’ve ruled nearly 200 shootings justified in that time period. In three other cases, prosecutors filed charges, though no officers have been convicted.

Gill last made this sort of decision in 2019, when he said Officer Brandon Rammell made the incorrect decision to shoot at Robert Craig Ortega as he drove away in a car. Ortega was uninjured.

“I give value to what I believe his perception is,” Gill told reporters at the time. “But it cannot be supported by the observable facts.”

Unlike the Ortega shooting, there is no body camera footage showing Unified Officer Omar Flores shooting Pena-Valencia. Also, no one besides the officers involved saw the shooting, and Flores declined to be interviewed, instead giving a written statement. Officer Shane Scrivner did answer investigator’s questions.

Gill wrote in the letter to Salt Lake County Sheriff Rosie Rivera, “We conclude that Officer Flores’ articulated belief that deadly force was necessary to prevent the death or serious bodily injury of another was not a reasonable belief.”

“However,” he continued, “... we believe the facts of this case do not support a criminal charge against Officer Flores because we believe they give rise to a reasonable doubt that Officer Flores acted with a criminal intent.”

Rivera said in a statement that it has begun an internal affairs investigation into this shooting. She also noted that Flores was wearing a body camera during the shooting, but it became disconnected during the chase. Scrivner, like approximately two-thirds of UPD officers, didn’t have a body camera.

“In the published findings the DA acknowledged that law enforcement confronts very real dangers and officers are expected to be able to anticipate a threat of death of serious bodily injury,” Rivera said. “I have faith that our UPD officers take this responsibility seriously and understand that review and investigation of the use of deadly force is a critical part of this responsibility.”

The shooting

Flores and Scrivner came across Pena-Valencia early in the morning on March 21.

The officers were searching for someone reported to have shot a gun and sped away. They were looking for a “dark colored vehicle, possibly a truck.”

Flores and Scrivner drove into a parking lot at Lodestone Park near 6252 W. 6200 South, and saw a dark-colored car. They drove through the park and attempted to pull the car over, but the driver sped away.

The officers chased the car and found it crashed, with the drivers’ side door open, about a block away near 6300 South.

Pena-Valencia then climbed a fence into a backyard and Flores followed, cornering Pena-Valencia.

Pena-Valencia told Flores, according to the DA letter, “OK, OK, I give up,” but kept trying to climb the fence. Flores fired his Taser at Pena-Valencia, but it didn’t work, and Flores fired it again soon after when Pena-Valencia took a step toward him.

“I felt as though the suspect was trying to manipulate me and catch me off guard by being verbally compliant in saying ‘OK. I give up.’ etc., while being noncompliant with his physical actions to my commands, in order to harm me or my partner,” Flores wrote his statement.

Flores wrote that Pena-Valencia was “motioning towards his waistband” and wouldn’t listen to his commands to get on the ground. Pena-Valencia then grabbed “something” from his hoodie pocket and threw it over the fence. That something turned out to be Pena-Valencia’s wallet.

Scrivner arrived about this time, the letter says, and both said they pointed their guns at Pena-Valencia and yelled for him to show his hands, but he didn’t.

The officers described Pena-Valencia as swaying from side-to-side before turning his attention to Scrivner in what Flores called “a very fast movement of his head,” adding that Pena-Valencia’s “eyes were wide.”

Flores said he “immediately felt an overwhelming fear for my partner’s life and my own,” and told Pena-Valencia to show his hands and not to reach for his waistband or he’d be shot.

He said that Pena-Valencia “did not comply and quickly moved both of his hands down towards the left side of his waist.” In an interview with investigators, Scrivner said the same thing, adding he thought Pena-Valencia might have been in mental crisis or intoxicated because of his “thousand-yard stare.”

Flores then fired at Pena-Valencia six times, and the man fell down. He didn’t have a gun or any other weapon.

Flores said he was scared for his and Scrivner’s safety, as well as the neighbor’s. Another officer, who did have a body camera equipped and recording, soon came to the backyard and performed CPR on Pena-Valencia about fice minutes after he arrived, the letter said. Pena-Valencia ultimately died.

Legal analysis

“This is a challenging case,” Gill wrote.

He added, “We cannot say that this shooting and killing of an unarmed man, who never presented even a facsimile of a weapon or even an object which could have been mistaken for a weapon, or in a manner in which a fair inference would suggest a weapon, is a justified use of deadly force.”

However, he said, investigators believe Flores when he talked about his decision making that night even though “he was nevertheless factually, objectively wrong about the necessity for him to use deadly force.”

Because of that, Gill said he doesn’t think a jury would convict Flores in the shooting. Nor does his office have reason to believe that Flores and Scrivner lied about what happened.

“Although we don’t conclude that Officer Flores’ use of deadly force satisfies the elements of a justified use of deadly force,” Gill wrote, “we nevertheless decline to file a criminal charge against him in this case.”.

In his letter, Gill spends a lot of time discussing the role of a police officer and the decision to use deadly force. He wrote that policing is a dangerous and difficult job, especially in making the decision to shoot someone or not. That decision falls wholly on the officer, he said.

“To some, this may seem an unfair burden to place on an officer; but one can fairly ask: Who should bear this burden — the officer who is trained, equipped, and authorized in certain circumstances to use that force?” Gill asked. “Or the citizen who the state is obliged to protect and from whom the state ultimately derives its authority?”

He said that in this shooting, Flores made the wrong decision. He perceived a threat when there was no rationale to.

Gill said police had no reason to think Pena-Valencia was involved in the shots fired call, nor that he had a gun anytime between running from his car to the yard where he was ultimately shot and killed.

“Anticipatory shootings such as this — shootings which anticipate the threat of death of seriously bodily injury before the likelihood of the realization of the threat can be assessed — cannot be sustained when the officer guesses wrong under circumstances in which (mistaken) inferences are not supported by the facts,” he said.

Calling a shooting unjustified may allow for an administrative response or a potential action in civil court, even if criminal charges are not filed.

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