Lawsuit claims UPD officer who shot and killed an unarmed Utah man fired 5 times after man had fallen to the ground

Attorney Bob Sykes wrote that the shooting was unreasonable and those last 5 shots were “egregious.”

(Rick Egan | The Salt Lake Tribune) Luciano Pena-Valencia, Bryan Pena-Valencia's son, poses with Mario Herrera at the memorial for Bryan Pena-Valencia on Saturday, March 20, 2021. Bryan Pena-Valencia was killed in March 2020 by Unified police officer Omar Flores. He was unarmed. Herrera filed a lawsuit on behalf of Bryan Pena-Valencia on Wednesday, May 5, 2021, alleging Flores unnecessarily used deadly force.

The family of an unarmed man shot and killed by police last March filed a federal lawsuit Wednesday alleging the two Unified Police Department officers had no reason to chase after the man that night, much less shoot him.

The civil rights lawsuit comes two months after Salt Lake County prosecutors determined Unified Police Officer Omar Flores wasn’t legally justified in fatally shooting 28-year-old Bryan Pena-Valencia. The family’s case relies heavily on a Salt Lake County prosecutors’ report on the shooting.

“There was no basis to use deadly force,” Sykes said, “and that’s, by the way what [District Attorney] Sim Gill found when he did his investigation.”

A fatal end to an attempted traffic stop

Officers Flores and Shane Scrivner spotted Pena-Valencia while investigating a report of someone firing a gun on March 21, 2020. They were looking for a “blacked out” truck, meaning it was driving with no lights on. Pena-Valencia was driving a Cadillac sedan with working headlights and a broken taillight.

The pair spotted Pena-Valencia at Lodestone Park near 6252 W. 6200 South, and decided to investigate, but Pena-Valencia didn’t pull over when they tried to stop him. The officers chased him briefly but ended the pursuit. They found Pena-Valencia when he crashed about a block away and fled his car.

Flores followed Pena-Valencia into a backyard and cornered him at a fence. After Scrivner arrived, Flores shot Pena-Valencia when the 28-year-old allegedly reached toward his waistband. Police said there is no body camera footage of the shooting, and the lawsuit contends that Pena-Valencia was shot while listening to officers’ conflicting commands to put his hands up and to get on the ground.

Gill’s determination that the shooting was unjustified is rare — only eight other police shootings in the last decade have been called unjustified by Utah prosecutors who then decide not to file criminal charges, according to a Salt Lake Tribune database. In only three cases prosecutors found a case unjustified and filed charges against the officers.

Attorney Bob Sykes announced the the lawsuit, which was filed Wednesday in Utah’s U.S. District Court, in front of gathered reporters and Pena-Valencia’s family at a Granary District mural dedicated to Pena-Valencia and other people killed by police in Utah. Sykes and the family set up a folding table beneath the pink, red and white illustration of Pena-Valencia as they spoke.

Mario Herrera, Pena-Valencia’s cousin, said the whole family misses Pena-Valencia, especially Pena-Valencia’s now-12-year-old son.

“But I’m here to tell you that I feel like there’s no accountability,” Herrera said.

Herrera said he and his wife, Ana, are raising Pena-Valencia’s son, who is trying to emotionally grapple with his dad’s death. Herrera said the boy has developed a fear of police, something his family and professional therapists are trying to help with. Partly, he said, because they generally support law enforcement officers.

“We believe in justice. We believe that officers are not bad people, OK? They’re not here to hurt anybody, OK? We all know that,” Herrera said. “In this case, we feel there is a lack of training.”

The Unified Police Department has said it is conducting an internal investigation of the shooting. A department spokesperson didn’t immediately respond to The Tribune’s request for comment.

Sheriff Rosie Rivera, head of the department, commented on Gill’s ruling when she announced the internal investigation in March.

“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,” she 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.”

Sykes claims in the lawsuit that Flores first erred in pursuing Pena-Valencia that night.

“By chasing Bryan unnecessarily,” Sykes wrote, “Flores, through his own deliberate and reckless conduct, escalated a non-lethal situation into a lethal one in which he wrongfully used deadly force.”

The lawsuit also alleges that Pena-Valencia fell down after Flores shot him once, and that Flores fired five more shots. In a news release, Sykes said evidence will show those five shots caused his death.

Looking for hard evidence

Pena-Valencia’s family still hasn’t seen his autopsy report.

It’s one of the few pieces of evidence in this case that can offer definitive proof of what happened, since only the two officers saw the shooting take place.

Flores declined to be interviewed for the criminal investigation, instead giving a written statement. Scrivner did answer investigator’s questions.

Their interpretation of Pena-Valencia’s behavior that night, documented in Gill’s report on the shooting, differs significantly from Sykes’.

The officers said that Pena-Valencia kept repeating, “OK,” or “I give up,” to officers, and that he did raise his hands but not as high as they’d like.

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

Flores shot Pena-Valencia soon after, when he reached for the left side of his waistband, where Flores “thought or believed” there was a gun, he wrote in his statement to investigators.

Both officers told investigators they were scared Pena-Valencia would kill them or someone else, but neither Sykes nor Gill could see a reason for them to be.

Pena-Valencia had no ostensible connection to the reported gunfire the officers were investigating. He hadn’t made any threats and didn’t have gun, both Sykes and Gill’s report said.

“At most, Bryan may have committed a misdemeanor,” the lawsuit states.

Neither Sykes nor Pena-Valencia’s family said they knew why the officer fired. They hoped to learn that during this lawsuit, Sykes said. He mentioned Pena-Valencia was Hispanic.

“I don’t know if race had anything to do with this, but a lot of people on this wall,” Sykes said, referring to the mural behind him, “have been my clients or consulted with me, and a lot of them are people of color. It’s very disturbing to us as lawyers that this happens so often.”

Right now, no state entity in Utah is tracking police shooting, including demographic information about those shot. The Tribune and a few other groups do log these shootings, noting when they happened, who was shot at and whether or not prosecutors ruled the shooting justified.

In collaboration with PBS FRONTLINE’s Local Journalism Initiative, The Tribune is expanding its data gathering to move beyond what we know today. This will include an examination of the ethnicity of those shot at, where the shootings occurred, which officer fired their weapon and how many times, among other metrics.