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Salt Lake County DA suggests changes to Utah laws for police use of force

Posted at 12:23 AM, Jul 14, 2020
and last updated 2020-07-14 02:23:47-04

SALT LAKE CITY — Salt Lake County District Attorney Sim Gill sent a letter to every state lawmaker, that included his ideas and suggestions for changing laws and police policy when it comes to use of force.

The letter, "Policy reform ideas for law enforcement use of deadly force," is 15 pages long and includes 22 suggestions of changes to specific Utah codes and/or police policies.

"These are a whole variety of suggestions," Gill explained. "They're not exhaustive, but they are geared toward starting that critical conversation-- which is long overdue."

It's a conversation that most recently landed itself at Gill's doorstep after last week's justified ruling of the police shooting death of Bernardo Palacios-Carbajal.

Protesters showed up to Gill's office to express anger at the ruling. Gill said during his announcement of the decision last week, that he planned to propose changes to Utah's officer-involved shooting laws.

"It's not just about just protesting and drawing attention to it," Gill said. "It's also about making sure that we change the laws, so that you can have the systemic institutional changes that you want."

Here are some of the suggested amendments to Utah law:

Limit when officers can claim self defense

Gill proposes applying, "the same legal standards for self-defense to law enforcement officers as are applied to non-officers." This could include limiting the crimes for which an officer can use deadly force in, requiring imminent danger, and not allowing officers to claim self-defense when the officer provoked the use of force or was the aggressor.

Require using the least lethal force available

Gill explains lawmakers could amend Utah Code to, "allow screening prosecutors and courts to consider whether less lethal force was reasonably available and would have been effective when determining whether the justification defense is available."

In another suggestion, Gill writes that the legislature could, "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."

On a separate point, Gill suggests, "always require an oral warning prior to the use of deadly force and consider mandating the warning be unambiguous or further defined."

Gill wrote about codifying the duty to intervene when a law enforcement officer fails to intervene or report when faced with another officer's use of excessive force. "The Utah Legislature could also, if it wishes, criminalize a failure of one officer to intervene or to report the misconduct of another officer," he stated.

Amend the use-of-force statute to define when deadly force is "necessary"

Gill said in his interview with Fox 13 that in Utah Code it's never defined what constitutes "necessity." He suggested in his letter a more specific definition of the term. He also suggests more clearly defining the word "imminent."

Limit when use of deadly force is considered justified

Gill writes a few points to this topic. In one, he proposes making "the defense of justification unavailable when an officer's own criminal negligence created the necessity for use of deadly force." Essentially, if an officer did something like identify the wrong person or suspect or unnecessarily escalate an encounter, they could be held accountable for using deadly force.

In another point, Gill states that lawmakers could "make the defense of justification unavailable when the suspect does not pose 'imminent' danger to an officer or a third-party." Gill also suggests prohibiting the use of deadly force when individuals pose a danger only to themselves.

Gill wrote a point about limiting the suspected criminal offenses for which the use of deadly force is justified. This addresses the "fleeing felon" law, which allows officers to use deadly force when someone is trying to escape or prevent an arrest, if the officer has probable cause to believe the suspect has committed a felony offense involving infliction or threatened infliction of death or serious bodily injury-- as Gill explained last week is believed to be the case with Palacios-Carbajal. In his suggestion, he writes that the legislature can limit the offenses to a narrower category.

Authorize prosecutors to convene grand juries as an investigative tool when an officer uses deadly force

"The power of a grand jury to subpoena witnesses to testify under oath can serve as an important investigative tool to find out what happened in cases where witnesses are hesitant to publicly share what they observed," Gill wrote. He stated that under current Utah law, prosecutors must ask the judicial branch for permission to convene a grand jury. His proposal would allow prosecutors to convene a grand jury without that permission.

Create a searchable statewide database for officers with sustained charges of excessive force, dishonesty, discrimination, or misconduct toward others, and make underlying disciplinary records presumptively "public"

Gill said during his interview that this makes it so "bad" officers can't go from one jurisdiction to another.

Limit or eliminate qualified immunity for excessive force cases based on state law

Gill explained that Colorado recently limited qualified immunity in a bill that included a number of reforms to law enforcement practices in the state. "The Utah Legislature could similarly decide to eliminate or limit qualified immunity in state courts," he stated.

Gill also laid out ideas for agency policies and training. Those include training on uses of less lethal force, de-escalation techniques, and implicit bias. Gill also suggested developing policies addressing the use of force when a suspect is fleeing and once the threat posed by a suspect is "sufficiently abated."

"These are broad issues, but they touch on different aspects," Gill said. "Which all sort of go back to the core issue of transparency, accountability, training-- and trying to fashion out the outcomes that we want as a society."

Some lawmakers who received the letter read it over Monday afternoon as soon as Gill sent the document.

Representative Lee Perry (R-Perry), a retired Utah Highway Patrol Lieutenant and Chair of the House Law Enforcement and Criminal Justice Committee, said there are some suggestions in the letter worthy of looking at.

"I think there's going to be some bills that encourage more training on the part of law enforcement," he said. "That's not a bad thing. Law enforcement is in support of more training, and that's a good thing."

He brought up that many police agencies already have some of Gill's ideas for policies and law in place-- though he said this would make it so that any smaller department that doesn't have it, will have to implement it.

Perry indicated that police reform will certainly be a topic in the upcoming legislative session.

"I think there are a few in there that will be talked about during the interim," he said. "And I think that there's several on that list that already have bill files that have been pre-filed by legislators, that will be dealt with during the next session."

When asked what sparked writing the letter, Gill said it's something they've discussed for the past couple of years. He indicated that he began working on the letter before the protests against his office began.

He said the ideas start a conversation, and that there needs to be a healthy debate on what constitutes policing.

"Police officers train to the standards that we give to them. To that extent, we have to own to that responsibility," Gill said. "If we want different outcomes, then we have to give them different standards."

Click here to read the full list of Gill's policy reform ideas.