Clearfield resident Arthur “Afa” Folasa Ah Loo was killed Saturday in Salt Lake City while peacefully protesting, according to police, but the person who fired the shot that killed Ah Loo is not being held by authorities.
The case is, as Utah defense attorney Steve Burton put it, “bizarre,” and presents a complicated legal situation after a “safety volunteer” for the protest fired into the crowd, killing Ah Loo and wounding their intended target, 24-year-old Arturo Gamboa, who was allegedly seen raising a rifle and running toward the crowd.
Burton has not been hired to work on the case.
Although he never fired a shot, police say, Gamboa is now being held on suspicion of murder. In a probable cause statement, one officer wrote that the suspect “knowingly engage[d] in conduct that create[d] a grave risk of death to another individual and thereby cause[d] the death of the other individual.”
In the days following the incident, the decision to shoot into the crowd in an alleged effort to stop Gamboa — who never fired a bullet, police said — has come under increased scrutiny, as video of Gamboa walking toward the protest crowd with a rifle circulates on social media.
“I think that the devil might be in the details with this one,” Burton said in an interview with The Salt Lake Tribune.
Following the shooting Saturday, Salt Lake police brought in both Gamboa and two people who police said self-identified as “peacekeepers” for the protest. A statement from the protest organizers released late Monday indirectly identified the person who fired the shot as a “safety volunteer.”
According to a statement from Utah 50501 — the organizers’ first since Saturday night — the “safety volunteer” said they saw someone acting suspicious, believed there was an “imminent threat to the protesters” and “took action.”
The volunteer fired three shots into the crowd at Gamboa, hitting and wounding him and killing Ah Loo in the process.
Authorities continue to hold Gamboa, while they’ve released both safety volunteers.
On Monday, the Salt Lake Police Department clarified in a statement that they were using the term “peacekeeper” because that was how the volunteers involved self-identified. The department said the “peacekeeper” is under investigation for their role in the shooting.
“For whatever reason, the police concluded that those [“safety volunteers”] were trying to stop the other guy from doing something bad, because they made a decision to arrest one and not arrest the other two,” Burton said. “The prosecutor’s office will have to do their own analysis and see if they agree with what the police officers thought at the moment.”
Salt Lake County District Attorney Sim Gill said in a statement Tuesday that the investigation is ongoing and that any comment would be “inappropriate.” The office did not immediately respond to a request for comment for this story on how they plan to approach the case.
‘Really, really complicated’
The probable cause statement filed by police as they hold Gamboa, Burton said, sounds like it contained “elements of possibly second-degree felony murder,” which the attorney said the suspect could be charged with under the law, even without having fired his gun, by potentially creating a situation in which another person was killed.
Mark Moffat, another Utah defense attorney who also hasn’t been hired to work on the case, called the events “really, really complicated” and said he thinks prosecutors have an “incredibly difficult job ahead of them” as they screen the case and decide who is liable, if anyone.
Both attorneys pointed to a piece of criminal code that allows for a “defensive justification” of the use of force, including lethal force, in self-defense or the defense of others.
What attorneys look at when analyzing cases like this, Burton said, is whether the person who killed another can assert a justification.
Under the law, in order to use lethal force and be defensively justified, Burton said, “you have to reasonably believe that it was necessary to prevent somebody from serious bodily injury or death” or to prevent a forcible felony.
The key to understanding this defensive justification, both attorneys said, is the idea of “imminent use of force” by another person and whether the person who fired the shots at Gamboa “reasonably” believed Gamboa’s use of force was imminent.
But that justification, Moffat said, is complicated by the fact that, in firing at Gamboa, the safety volunteer who fired the shot fatally injured Ah Loo, an innocent bystander. This, Moffat said, in cases he’s worked on, is “incredibly rare.”
“The defense has always been directed towards the harm caused by a person that was perceived to be putting others at risk, not a third party who was an unintended victim,” he said. “I’ve never dealt with that situation.”
Constitutional carry
Further complicating the situation, as both attorneys noted, is the fact that Utah allows for constitutional carry, meaning people have the right to both open and concealed carry without a permit.
“Just by carrying the gun, he was not necessarily presenting an imminent use of force against someone else,” Burton said of Gamboa.
Moffat agreed.
“I know that the gentleman who is being detained at present had an AR-style rifle, but possessing one of those things is not illegal, and removing it from a backpack is not illegal,” he said. “He never fired a shot at anybody, and it raises a whole bunch of questions about whether or not he’s criminally liable for anything.”
In their Monday statement, Utah 50501 said their team of “safety volunteers” was chosen due to their “military, first responder, and other relevant de-escalation experience” and that the volunteer questioned by police was a military veteran.
The important legal question, Burton said, is whether the suspect was “behaving in a certain way with a gun” that could have made the protest’s safety volunteers believe Gamboa was an imminent threat, including possibly running into the crowd with the gun in both hands or having a finger on the trigger.
Moffat also said he thinks there are important questions still to be answered about how the safety volunteers were trained or prepared ahead of the protest.
“Being a military veteran does not necessarily qualify you to be involved in crowd control or public safety,” he said. “Being in a war zone is very different than being in a civilian protest.”
As the case continues to unfold, he added, “There’s going to be a million questions like that.”
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