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FOX 13 Investigates: Utah judge dismisses child abuse charge, warns he could dismiss more cases from one police department

Posted at 5:52 PM, Sep 09, 2021
and last updated 2021-09-10 10:40:44-04

MOAB, Utah — When Moab police received a 911 call about a boy left in a car, the responding officers activated their body cameras late.

Then, after about 2 ½ minutes, one officer turned off his audio. It’s from the second officer’s camera that you can hear the father receive a misdemeanor citation for child abuse.

“My experience with Moab PD is long and varied,” said state Judge Don M. Torgerson, according to audio from an Aug. 30 hearing, “There has been a history there with some officers who have quite a reputation of misusing their body camera equipment. And it’s been an institutional problem.”

“From my perspective, officers need to check their body cameras the same way they would check their firearms or their Tasers.”

Torgerson was weighing a defense motion to dismiss the charges because the body cameras failed to capture the entire episode. The judge’s decision – and warning – has caught the attention of law enforcement across southeast Utah.

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“If I do see these kinds of motions in the future where body cameras have been turned on and turned off and not charged and not activated, there’s likely to be some traction in my court for spoilation motions just because I think Moab PD has a history that lacks quality oversight.”

“I am going to dismiss the case.”

Torgerson sits on the bench in San Juan County, too. Its county attorney, Kendall Laws, said he’s shared the judge’s ruling and admonishment with the law enforcement he works with so they understand the importance of using body cameras properly.

“I have personally never seen a judge lump an entire [police] department into a category,” Laws said Wednesday.

Laws said peace officers from San Juan County sometimes must call Moab for backup, or vice versa.

“But as far as getting down to the bare bones of an investigation, I would much rather rely on the investigative skills of my departments as opposed to Moab PD,” Laws said.

Moab Police Chief Bret Edge declined an interview request. The father of the 6-year-old boy and the father’s attorney declined to make a statement.

The call arrived Feb. 23 from a passerby in a grocery store parking lot. It was about 6 p.m. and the temperature was approximately 48 degrees. Video shows the boy wearing a hooded sweatshirt.

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The father told police his son wanted to stay in the car.

“I don’t give a sh__ if he wanted to stay in there!” one officer is heard yelling. “He’s like 6 years old, dude.”

“Your son was screaming when I got here,” the officer also said.

You don’t hear screaming on the video. In fact, the two officers didn’t turn on their body cameras until the father comes back to the parking lot.

“I actually forgot to turn on my video until we stood right there, but at least I’ve got it on now,” the second officer says at one point.

After audio recording stops on the first officer’s camera, the second officer’s camera records him saying:

“I outta just haul his a__ to jail... Just out of spite.” Utah law says police are to turn on body cameras prior to any encounter or as soon as reasonably possible; recording is to continue “in an uninterrupted manner” until the encounter ends or for one of the handful of approved reasons, such as consulting with another officer.

“If I ever, ever come back on a call with one of your kids in a situation like this, I will take your kids to Christmas Box House myself and you will go to jail,” the first officer says near the end of the encounter.

Christmas Box House is the local children’s shelter.

While Torgerson didn’t specify what other Moab police cases concerned him, records show he presided over the drug case FOX 13 reported on earlier this year. In that episode, prosecutors dismissed the charges when an officer’s body camera didn’t match his written report. That officer has since resigned.

“Utah, in this case, is part of a trend across the country of judges trying to address concerns that video is missing,” said Mary Fan, a law professor at the University of Washington who has written a book on police cameras.

“If judges are starting to have a real concern about patterns and practices,” Fan said, “then I think it’s time for the department to sit down and figure out what’s going on.”

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