Salt Lake County DA Sim Gill outlines policy ideas for law enforcement’s use of deadly force

Salt Lake County District Attorney Sim Gill. File photo: Gephardt Daily

SALT LAKE COUNTY, Utah, July 13, 2020 (Gephardt Daily) — Salt Lake County District Attorney Sim Gill released a 15-page document Monday outlining policy ideas for law enforcement’s use of deadly force going forward.

Gill has faced criticism after he ruled Thursday that the May 23 fatal shooting of Bernardo Palacios-Carbajal, 22, was justified, and the involved officers will not face charges.

Gill quoted interviews in which the Salt Lake City Police officers involved said they feared for their lives after a prone Palacios-Carbajal appeared to raise a gun he had dropped  three times as he fell on slick surfaces on the rainy night.

Gill noted that as the officer was gaining on him, Palacios-Carbajal slowed down three times to retrieve the fallen gun.

The statement accompanying the 15-page document reads:

The laws justifying deadly force in Utah are more generous to law enforcement officers than to other members of our community. That was a policy decision made years ago, when Utah lawmakers determined that Utah’s use-of-force statute would permit an absolute defense and bar to prosecution of law enforcement officers whenever an officer, having used deadly force, reasonably believed the subject posed a serious threat to the officer or to any other individual.

The same standard applies in most states across the country. It is the very standard that is questioned by millions as the country mourns the tragic deaths of George Floyd, Breonna Taylor, and so many other Black and Brown men and women at the hands of law enforcement. Yet to use the legal standard itself as a basis to condemn individual officers is unfair. It is legislators, not law enforcement officers, who decide what our public policies and laws should be; the vast majority of officers nationwide comply with those laws consistently and with the honor their profession requires.

That said, the time has come to re-examine and, we hope, re-set the balance of justice in this state and in this country. Put another way, if we want different outcomes, we need different laws.

Our goal with this list of possible reforms is not to present “the answer” to deaths caused by law enforcement — as if only one answer exists — but instead to provide many alternatives and points for discussion and debate in support of a crucial and long-delayed examination by policy makers, at all levels of government, of the appropriate balance between the sworn obligation of law enforcement to protect the public, on the one hand, and the constitutional and human rights of our residents and communities, on the other hand.

We freely acknowledge the reform ideas listed below are both over-inclusive, in that adoption of one may render another unnecessary, and under-inclusive, in that many excellent reform ideas geared more generally to law enforcement and not specifically to law enforcement use of deadly force are not included. We also freely acknowledge there will be any number of important reforms we have not yet considered; no one person or institution, including ours, has a monopoly on good ideas.

We eagerly invite your input, discussion, and engagement in this effort. Differences of opinion are inevitable but not insurmountable. The conversation itself is long overdue and vital both to our very system of government and to the lives of all Utahns. This is the promise of democracy.

The use of deadly force by law enforcement has been under scrutiny for years. 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 re-examination of what the law is, and a fulsome discussion of where it might go, is not just timely but crucial.

Just as we in the criminal justice system owe it to our communities and stakeholders to seek justice under the law, policymakers owe it to their constituents to think carefully about what those laws should be.

The time is now.

The document includes 22 possible amendments to Utah state law, with more detail provided about each one.

  • Apply the same legal standards for self-defense to law enforcement officers as are applied to non-officers.
  • Require that law enforcement use the least lethal force that is reasonably available and effective, and make the defense of justification unavailable when an officer fails to do so.
  • Require that law enforcement attempt de-escalation or non-escalation whenever reasonably possible and make the defense of justification unavailable when an officer fails to do so.
  • Amend the use-of-force statute to define when deadly force is “necessary.”
  • Make the defense of justification unavailable when an officer’s own criminal negligence created the necessity for use of deadly force.
  • Make the defense of justification unavailable when the suspect does not pose “imminent” danger to an officer or a third party.
  • Prohibit the use of deadly force when individuals pose a danger only to themselves.
  • Limit the suspected criminal offenses for which the use of deadly force is justified.
  • Codify “imperfect self-defense” for an officer’s use of deadly force.
  • Create sentinel event review procedures in state law, including evidentiary protections for investigative work product.
  • Eliminate agency obligations for attorney fee reimbursement for excessive force claims if the officer was criminally charged, and the officer was fired based on the use of force, even if the officer is later acquitted or the charges dropped.
  • Authorize prosecutors to convene grand juries as an investigative tool when an officer uses deadly force.
  • Mandate that law enforcement agencies complete all internal investigations of alleged
    officer misconduct and require that sustained allegations are presumptively “public” under the Utah Governmental Records Access and Management Act.
  • Create a searchable statewide Brady/Giglio database for officers with sustained charges of excessive force, dishonesty, discrimination, or misconduct toward others based on any protected class, and make the underlying disciplinary records presumptively “public” under the Utah Governmental Records Access and Management Act.
  • Codify the duty to intervene when a law enforcement officer fails to intervene or report when faced with another officer’s use of excessive force.
  • Limit or eliminate qualified immunity for excessive force cases based on state law.
  • Always require an oral warning prior to the use of deadly force and consider mandating the warning be unambiguous or further defined.
  • Empower municipalities to implement civilian review boards as they see fit.
  • Improve and mandate extensive officer training on the value and effective uses of less than lethal force.
  • Improve and mandate extensive officer training on the value and effective uses of de-
    escalation techniques.
  • Develop policies addressing use of force when the suspect is fleeing and once the threat posed by a suspect is sufficiently abated.
  • Mandate meaningful, evidence-based implicit bias training, and implement tools for
    discretion-elimination where possible, for supervisory and human resources personnel in all law enforcement agencies.

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