Spenser Heaps, KSL

Police use of force: The KSL Investigators explore policy & law

By Mike Headrick, KSL TV | Posted - Jun. 18, 2020 at 4:01 p.m.



SALT LAKE CITY — It’s been more than 30 years since case law came out of the courts, dictating when an officer can use deadly force.

With the outcry for change surrounding race and complaints of police brutality in Utah and across the nation, the KSL Investigators looked into current state law and police policy to examine the death of Bernardo Palacios-Carbajal, killed by Salt Lake City police three weeks ago.

Fateful Night

Every minute of every hour of every day, people in this country have the freedom to make choices: Choices to speak their mind. Choices to call for change.

At 2 a.m. on May 23, a series of highly critical choices were made.

Choices which cost 22-year-old Palacios-Carbajal his life.

“Shock. Disbelief. Sadness.” Those are the emotions Salt Lake City Councilwoman Amy Fowler said she felt when she watched the violence recorded on Salt Lake City police body cameras from that night.

The video shows multiple officers, one suspect and at least 20 shots fired.

Related:

Every single one of those bullets, fired from a police officers’ handgun.

In a Facebook post, Fowler called what she watched “unlawful,” and demanded justice.

She elaborated her view in an interview with the KSL Investigators.

“To me as a person, it looks unlawful. I think what we saw was someone running away, and it seemed excessive,” said Fowler.

The rest of the Salt Lake City Council were quick to react as well.

In a joint statement they wrote they were “outraged” and “angry” Palacios-Carbajal was shot and killed and promised the existing process and system currently in place will be examined.

Those with a background in law enforcement caution there will be more to the investigation than the body camera video.

“It doesn’t look good. It’s never going to look good,” said retired Holladay Police Chief Chris Bertram. “No use of force looks good on camera.”

Bertram has 25 years’ experience in law enforcement.

While he agrees at first blush, what occurred that night looks concerning, Bertram says it does not mean these officers were unjustified in their actions.

“A police officer could have easily lost their life in this foot chase,” he said.

In fact, Bertram believes current police policy and current state law will find the officers were justified in their actions.

“Law enforcement officers are allowed to use deadly force under certain circumstance,” said Bertram. “The fact is, (Palacios-Carbajal) still has that gun in play.” In 1985, a decision by the United States Supreme Court in Tennessee v. Garner, ruled an officer “may use deadly force to prevent the escape of a fleeing suspect only if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others.” In 1989, the justices ruled in Graham v. Connor that an “objective reasonableness standard should apply to a civilian’s claim that law enforcement officials used excessive force.”

May 23

On the night of May 23, Palacios-Carbajal was on probation after being convicted of robbery. Court documents state he pulled a gun, racked it, and held it to another guy’s head during that incident. The law says he could have received 1-15 years in prison. The judge sentenced him to 30 days and probation.

Family and friends say his criminal history is not relevant to what happened, and police would not have known that information at the time of the chase and shooting.

But Bertram says that history likely influenced what Palacios-Carbajal did next.

“He’s a convicted felon,” said Bertram, “He’s old enough to understand having that firearm in his possession is a minimum of five years in federal prison.”

Which Bertram says could be the reason Palacios-Carbajal chose to run from police.

Officers were investigating a report of an aggravated robbery outside the Trails Gentlemen’s Club, 921 S. 300 West.

In the body camera video, officers spot a man in the parking lot who took off running when police arrived, ultimately leading police on a foot chase, in what would be the final 60 seconds of Palacios-Carbajal’s life.

A mural depicting George Floyd and Bernardo Palacios-Carbajal is pictured at the corner of 300 West and 800 South in Salt Lake City on Thursday, June 11, 2020. The death of George Floyd under the knee of a police officer in Minneapolis has sparked weeks of international protests of systemic racism and police brutality. Palacios-Carbajal was shot and killed by Salt Lake police officers on May 23 and has become a local focal-point of local protests. (Spenser Heaps, KSL)

From the moment officers engaged in the chase, their actions will be investigated, evaluated and scrutinized on whether they followed not only state law, but 22 pages of Salt Lake police policy, concerning “foot pursuits” and “use of force.”

In the video, police chase Palacios-Carbajal through alleys and across streets.

One officer can be heard warning the others, “He’s got a gun in his pocket! He’s reaching.”

According to police policy, “a verbal warning should precede the use of deadly force.”

You can hear audio from the body camera, with officers yelling, “show me your hands! Drop it! Drop it! Drop it! Show me your hands!”

Seventeen times, police say they ordered Palacios-Carbajal to give up.

He did not.

In the final moments as Palacios-Carbajal stumbles, and gets up, still trying to escape, one officer can be heard yelling to use non-lethal force, “Tase him! Tase him! Tase him!”

But within seconds of that plea, at least 20 rounds are fired, as officers shot Palacios-Carbajal in the back.

Body cam video again picking up audio of an officer saying, “Charlie 420 we got shots fired. Start medical rolling our way. Suspect down.”

Use of Deadly Force

“You have to put yourself in the position of that officer at that time,” said Bertram after watching the full video.

KSL Investigator Mike Headrick asked Bertram, “Do you believe, in light of everything that’s going on today, that this is a race issue or a police brutality issue?”

“With regards to this, I do not. Absolutely not,” said Bertram. “These are very dynamic situations and they change very quickly. And the fact that he has a gun, the gun is out, it’s not concealed, puts him at an advantage. And you have to keep in mind that his actions are going to be quicker than the police officers’ reaction.”

Section 300.5 of Salt Lake City Police policy states: “The use of deadly force is justified to stop a fleeing subject if the officer has probable cause to believe that there is an imminent risk of serious bodily injury or death to any other person if the subject is not immediately apprehended. An imminent danger may exist even if the suspect is not at the very moment pointing a weapon at someone.”

With that in mind, Bertram said, “Even if he peters out and falls down, he comes up and shoots and one of those officers is killed. How do we feel about that?”

The KSL Investigators got insight from another former police chief, Chris Burbank, who served nine years as the head of Salt Lake City’s department.

“When police respond and the situation becomes worse, do police need to be there?” he asked.

Burbank is now working with a civil rights organization, hoping to influence better policing policies and law in Utah and across the country.

He believes shootings, like this one, are a failure of the system, and says the quality of policing needs to improve.

“I’m not advocating do away with police officers,” said Burbank, “I’m advocating to educate them more, pay them more and have a higher expectation. It’s a privilege to be a police officer.”

A privilege, many protesters want to make sure comes with improved “use of force” policies for police.

They believe whether the shooting of Bernardo Palacios-Carbajal is found to be justified or not, the policies still need to change, the laws still need to change, and everyone wearing a badge needs to be held accountable.

“I want to make sure we’re clear on this,” KSL Investigator Mike Headrick asked Councilwoman Fowler, “Do you believe the way that the officers acted was unlawful? Or do you believe the law should be different?”

“I do believe that the law should be different,” responded Fowler, “I read this statute, and I do think that we need to look at changing the way that language is written.”

Justified or unjustified, it’s been more than 30 years since significant case law has come out of the courts, ruling on “use of force” in police shootings.

Until there is some degree of reform, it appears the choice of these protesting voices, are only going to get louder.

One thing all three people who spoke to the KSL Investigators about this case seem to agree on is the number of shots fired.

To different degrees, they all question whether 20 shots was justified and believe that is something that needs to be addressed.

The Salt Lake County District Attorney’s Office was presented with the findings from the Officer Involved Critical Incident Protocol Team on Tuesday afternoon.

The office says, over the next short while they will be diligently working to put together their findings and share them publicly.

Have you experienced something you think just isn’t right? The KSL Investigators want to help. Visit KSLInvestigates.com to submit your tip, so we can get working for you. You Ask. KSL Investigates.

Mike Headrick

KSL Weather Forecast