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Salt Lake police legally justified in killing Bernardo Palacios, DA says

By Pat Reavy, KSL | Updated - Jul. 9, 2020 at 3:02 p.m. | Posted - Jul. 9, 2020 at 11:45 a.m.



SALT LAKE CITY — Salt Lake County District Attorney Sim Gill said he was bound by state law.

The family of Bernardo Palacios-Carbajal believes justice was not served. And while they expressed disappointment over Gill’s decision, they were not surprised.

“I am very angry with Mr. Sim Gill. This is not a correct answer, this isn’t a correct decision he has made, and we’re going to keep fighting even though my son isn’t here,” a tearful Lucy Carbajal said.

Salt Lake police officers were legally justified when they shot and killed an armed Bernardo Palacios, 22, on May 23, Gill announced Thursday. Because of that finding, no criminal charges will be filed against the two officers in the high-profile case.

Palacios’ family and their attorneys, however, say Gill should have charged the officers and allowed a jury of their peers to decide whether their actions were justified. The attorneys also said they plan to file a civil lawsuit.

“I feel really angry. Really angry and sick to my stomach. I feel like they just get a pat on the back for what they did. And I don’t agree with any of it,” Freddie Palacios-Carbajal, Bernardo Palacio’s brother, said as he, his sister and mother fought back tears reacting to the district attorney’s decision.

During a press conference that lasted about 75 minutes, Gil methodically went over police body camera video, surveillance video not shown before in public and autopsy photos to explain how he reached his 34-page conclusion that also contained interviews with the officers involved.

Officers Neil Iversen and Kevin Fortuna reasonably believed that they were in imminent risk of being shot or killed by Palacios, who more than once made concerted efforts to pick up a gun he dropped rather than run away, Gill noted in his report.

The use of deadly force actually happened during two separate episodes, he said. The first was when officers were chasing Palacios. At that time, officers thought he had a gun, which is why they had their guns drawn as they were running after him, according to the report. But it wasn’t until Palacios dropped his weapon a third time and stopped to pick it up that they knew for sure that it was a gun.

At that point, the two officers fired six to eight rounds each from about 15 feet away, striking Palacios in the back. Both officers fired at nearly the same time, Gill said.

Gill said part of his decision was based on the fact that Palacios seemed very intent on keeping ahold of his gun, which he had plenty of opportunities to throw away or leave behind as he was being chased.

“I cannot ignore the fact that the urge and the desire and the need to hold onto the gun was greater than the desire to flee away from them. Because he wasted precious time ... looking for that gun. If he had left it, the officers said the imminence of that threat would have been abated for them and they would not have used that force. When they confirmed that gun is there, that is when the decision is made to fire,” Gill said.

The second episode was after Palacios had dropped to the ground after being shot. Gill showed several camera angles — and enhanced some of the video for a close-up look — which showed Palacios roll from his stomach to his back after being shot and pointing his gun directly at officers. Officers then fired an additional six to eight shots each.

A total of 34 shots were fired by police, though Palacios had 13 to 15 wounds. An autopsy could not determine whether all of those were from individual shots or if some injuries were through-and-through.

Attorneys for the Palacios’ family reacted strongly at their own press conference about two hours after Gill’s decision.

‘Scared for his life’

“Frankly, the press conference this morning sounded more like a defense criminal argument than it did the district attorney looking to protect the citizens of Salt Lake City and the surrounding areas,” attorney Brian Webber said.

He and attorney Nathan Morris said they were “deeply disappointed and grieved” over Gill’s decision; that the decision “reveals a deeply ingrained devaluation of human life, especially of minorities, and further erodes the trust in our system of justice;” and that Gill’s unwillingness to file charges against the officers “makes a mockery of the protesting public.”

Morris believes Gill could have charged the officers but chose instead to exonerate them.

“He did so by speculating on multiple key questions and giving every benefit of the doubt to officers,” he said.

According to Morris, Palacios “never once threatened police” and continued running because he was “scared for his life.”

“The officers’ unlawful, senseless and deeply disturbing decision to continue shooting Bernardo cannot be permitted in our society, regardless of the wrongs a person is accused of. Mr. Gill has placed a stamp of approval on these appalling actions,” he said.

Officers’ fears

The shooting occurred about 2:10 a.m. on May 23 when Salt Lake police responded to a report of someone making “threats with a weapon.” Gill said the victim reported that someone had pointed a gun to his head.

Officers arrived in the area of the Utah Village Motel, 271 W. 900 South, which is adjacent to the Trails Gentleman’s Club. In body camera video released by police on June 5, officers spotted a man in the parking lot who immediately ran from them.

As officers chased after him with guns drawn, one officer yelled over his police radio, “He’s got a gun in his pocket. He’s reaching in his right (inaudible). ...”

Officers chased him through an alley across 900 South. They yelled at him 17 times to either, “Stop,” “Show me your hands” or “Drop it,” referring to a gun, Lewis said.

As Palacios reached the parking lot of Granary Storage, 278 W. 900 South, he stumbled and fell, got up, then fell again as police closed in.

“Tase him, tase him, tase him!” an officer is heard yelling three times. Instead, just moments later after Palacios gets up a third time, a barrage of gunshots is heard.

When the police sergeant who yelled “tase him” was questioned about his commands, he said he gave those when he believed Palacios had dropped the gun.

As he was being chased, Palacios tripped on a curb, slipped on wet pavement and twice dropped his gun, Gill said. But each time, he stopped to pick it up. At one point, one of the pursuing officers would hear the sound of the metal gun hitting the pavement, Gill said. But it wasn’t until the third time Palacios fell that both officers could see the object he was holding was a gun.

By that point, the officers were very close to Palacios. Iversen said there was no doubt in his mind that the man was “getting ready to turn and use” the gun, according to the final report.

“There’s only one reason someone’s going to pick up a gun three times, being chased by the police, being told to drop it — he’s going to try and kill me,” he said in the district attorney’s final report.

Iversen said he intentionally did not shoot the first two times Palacios dropped his weapon because he could not confirm what he was holding. Likewise, Fortuna believed Palacios’ continued efforts to hold onto the gun made him a threat.

“If the handgun was left on the ground I would have most likely not have deemed him an imminent threat and it would have likely changed the outcome,” Fortuna told investigators.

After he fell to the ground in the parking lot, Palacios is seen in surveillance video from a nearby business raising both hands as if they were gripping a gun and pointing it at officers, Gill said. Even after his left hand appears to be wounded by either a shot or shrapnel and drops to his side, his right hand continued to make a motion as if he were holding and pointing a gun at officers.

Both officers said they saw Palacios point a gun at them while he was on the ground. Body camera video shows Palacios’ gun still laying on top of him after he was shot.

The man’s gun was fully loaded and a round was in the chamber when it was recovered, Gill said.

But attorneys for Palacios’ family dispute a gun was pointed at officers or that he would have hurt anyone.

“He never was a threat to the police. And to now go back weeks and weeks later and reconstruct the version of events, that at the last second he rolled over and was going to shoot them, we don’t believe is going to play out,” Webber said.

“Should he have been running? No. What do you do to a suspect who runs? You apprehend them, you bring them in, you charge them, they go to trial. You don’t kill them. You don’t shoot them in the back.”

“His clear intention that day was to run away as opposed to using force that the police officers did,” Morris added.

34 shots

Morris said even if the initial shots had been justified, police used excessive force after Palacios was already down.

“We only take solace in the fact, I suppose, that there were only 17 rounds per gun, otherwise we don’t know where this would have stopped,” he said.

When asked why officers fired so many rounds, Gill said police are trained to continue shooting until the threat is over.

“We are trained to continue shooting until the threat is eliminated. When the suspect went to the ground, it was dark and he was some distance away, but it appeared that he fell facing away from us, but as he rolled over toward us it appeared to me that he still had the gun in his right hand and brought the gun across his body pointing the gun toward us. I was concerned that he would fire at us from the ground,” Iversen said.

When asked whether less lethal force, such as a Taser, was considered, both Fortuna and Iversen said no. Both said when they confirmed Palacios had a gun, using a Taser was no longer a viable option.

The officers were also asked whether they considered just letting Palacios-Carbajal run away and catching him later. Again, both said no.

“No, for the fact that our job — and what the public expects — is that if an aggravated felony is committed, and we can capture the subject, we’re going to do what we can to prevent someone from terrorizing the neighborhood,” Fortuna said.

Palacios was already suspected in two armed robberies, and some late night bars were just getting out and more people were out in the area, Gill said.

“So allowing somebody to run into a house for hostages, to barricade himself, it really makes the entire situation extremely dangerous for everybody to just allow an armed man to run,” Iversen told investigators.

But attorneys for the family said the officers’ actions only show that police need improved training. They believe the officers had plenty of opportunities to use a Taser or other forms of less lethal or nonlethal force.

As for the shooting being broken down into two incidents, Webber disagreed.

“Whether you view it as one episode or two or multiple, break it down into whatever finer pieces you like, none of them were justified,” he said. “That situation never would have arisen in the first place if he hadn’t shot him a dozen times in the back already. So to us, it doesn’t really matter how small a piece you break the segments down into from when they first come on scene until it’s over, there was no reason to fire shot No. 1, let alone shot 34.”

After he was shot, police found in Palacios’ pockets the identification card and the cash that was taken from one of the men who originally reported to police that he had been robbed at gunpoint.

Gill also took time on Thursday to address rumors that had been circulating on social media that Palacios’ fingers were cut off by police. He showed autopsy photos of the man’s hands, which clearly showed injuries. But those injuries were believed to have been caused by being shot. A bullet hole could be seen in his left hand and severe injuries to his fingers on his right hand caused by possible shrapnel.

Palacios’ family wore face masks displaying the words “Justice for Bernardo” as they addressed the media. They held a large, framed portrait of Bernardo Palacios and recounted fond memories of him.

‘I feel like I’m dying’

Palacios’ mother became emotional as she spoke in Spanish about Gill’s decision and the “cowardly” actions of the officers.

“I feel very angry. This was not a just decision because my son is no longer with us, I won’t see him enter our home. I no longer have life. I feel like I’m not breathing. You can’t even imagine unless they have killed one of your sons like they killed my son,” Lucy Carbajal said.

“I feel like I’m dying, my bones hurt, everything, because I don’t see my son with me, I only see him in photos. I talk to him, I ask him to give me strength to keep going for my children and my grandchildren, because I love my children.”

That shooting, along with the killing of George Floyd in Minneapolis by police, has sparked almost daily protests from friends and family members demanding “Justice for Bernardo.” Flyers have been plastered all over the district attorney’s office, the Salt Lake City Public Safety Building and the Salt Lake City-County Building.

Political reactions

When the body camera video was first released, Salt Lake City Mayor Erin Mendenhall called it “genuinely disturbing and upsetting,” and Councilwoman Amy Fowler said she believed Palacios was “unlawfully killed and I am outraged.”

Mendenhall released a different statement Thursday after Gill’s announcement.

“I want to first offer my sincere condolences to the family of Bernardo Palacios-Carbajal. No matter the circumstances, the loss you have experienced is tragic. It’s something no parent or sibling should experience, and I am sorry.”

Mendenhall said that Gill’s investigation provided “significant evidence of the justifiable actions of Salt Lake City police officers. This evidence shows that our officers acted according to their training and the state law regarding use of lethal force.”

But the mayor also noted that to those still grieving Palacios’ loss, “today’s decision does not feel like justice. It has become increasingly apparent in our city and across the nation that there is a difference between what so many feel is morally correct, and what is considered appropriate and justified under the law.”

The Salt Lake City Council issued its own joint statement, saying that while Gill had made his decision based on the stranded established by state law, “the Salt Lake City Council believes that we deserve better.

“We do not accept these systems as they are. We commit to doing our part to improve our city systems while advocating for changes outside our purview at the state or federal level that will root out racism, dismantle systemic injustice, and lead the state of Utah in promoting equity and justice for all residents.”

Salt Lake Police Chief Mike Brown also released a statement saying he trusts the process of officer-involved shooting reviews. But he also defended the training of his officers.

“I trust our extensive training. It is second to none in the state. But more importantly, I trust our officers. I trust them to operate within the bounds of the laws and according to their use-of-force training. I trust that they can make the appropriate split-second, life or death decisions — weighing all factors and public safety — with the brevity required of them.”

The shooting now goes to the Salt Lake City Police Civilian Review Board and to internal affairs. The Palacios family is holding out hope that they will get some form of justice from the review board.

The mayor has requested both reviews be expedited and be conducted “by the middle of next week. I also ask for the public’s patience with these processes that require time and thoughtfulness in order to render due process, which these officers are entitled to under the law.”

Gill, too, said Thursday that although he found the shooting justified based on the statutes set by Utah law, there is room for discussions about criminal justice reform.

“We can have a second conversation about criminal justice reform. We can have a second conversation about police brutality and those concerns that are there. ... But in this case it is justified under the statute,” he said.

“If we want different outcomes then we need to change the law. … And it’s pretty abundantly clear to me we’re in a logjam of our policymakers. And in the very near future, my office will release a set of proposals to start the conversation of how those laws may be changed.”

Morris and Webber, however, said Gill had his chance Thursday to make change.

“History had its eye on Mr. Gill,” Webber said. “He had the opportunity to do something.”

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