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UPD officer was not justified in March 2020 use of deadly force, DA says

District Attorney Sim Gill declines to file charges
Posted at 12:38 PM, Mar 05, 2021
and last updated 2021-03-05 22:29:21-05

SALT LAKE CITY — A Unified Police Department officer was not justified in using deadly force in a March 21, 2020 incident that claimed a 28-year-old man's life, Salt Lake County District Attorney Sim Gill's office announced Friday.

According to a news release from Gill's office, Officer Omar Flores fired shots that killed Bryan Ulysses Pena-Valencia following a police pursuit in Taylorsville.

RELATED: 28-year-old man killed in officer-involved shooting in Taylorsville

Flores was wearing a body-worn camera that morning, but the camera did not record the shooting, a letter from Gill's office says. Investigators determined the camera became detached from Flores' uniform as he chased Pena-Valencia over a backyard fence.

"After determining the facts do not support the affirmative legal defense of justification, we reviewed the evidence and considered whether Officer Flores should be charged criminally for his use of deadly force. We determined we lacked proof of the required criminal intent to support a criminal charge. We also determined we lacked sufficient quantity and quality of evidence to support each element of a criminal charge. Therefore, consistent with the legal and ethical obligations to satisfy our burden of proof (which legal and ethical obligation govern our ability to file a criminal case) we declined to file charges against the officer," the release says.

The shooting happened early that morning after police received multiple reports of shots fired near 6200 S and Bangerter Hwy. The initial investigation led officers to a parking lot where they saw a dark Cadillac move away from them.

Police followed the Cadillac to 6200 S and 3200 W and momentarily lost sight of the vehicle, but soon observed the Cadillac had crashed near 6300 S.

Officers chased Pena-Valencia on foot into a nearby backyard, where Flores unsuccessfully attempted to use a Taser to subdue Pena-Valencia.

Flores and another officer formed a "Tactical L" and cornered Pena-Valencia at the intersection of two perpendicular fences.

The officers ordered Pena-Valencia to show his hands, and they both told investigators Pena-Valencia appeared to reach for something.

Flores told investigators he feared for his own life, for the life of the other officer and for the life and safety of the public, so he opened fire.

Other officers responded and attempted to revive Pena-Valencia with life-saving measures, but he died of his gunshot wounds.

The investigation, which was carried out by SLCPD detectives and others with no connection to the Unified Police Department, determined Pena-Valencia was unarmed and therefore could not have been reaching for a gun before he was shot.

Flores was found unjustified for shooting Pena-Valencia because investigators determined there was never any indication that Pena-Valencia may have been armed.

"[We] cannot say that this shooting and killing of an unarmed man, who never presented even a facsimile of a weapon or even an object which could have been mistaken for a weapon, or in a manner in which a fair inference would suggest a weapon, is a justified use of deadly force," a legal analysis from Gill's office says. "On the other hand, we believe Officer Flores' statements describing his thought process and decisions reflect his honest beliefs and likely would provide a jury a reasonable doubt of whether Officer Flores unlawfully caused the death of Mr. Valencia. We don't believe a jury would convict Officer Flores of murder or another criminal charge, the elements of which square with the facts of this case."

According to a statement from Salt Lake County Sheriff Rosie Rivera, Flores is subject to an internal affairs investigation now that the independent investigation is complete.

"IA will review this use of deadly force to determine if any internal policies were violated, the DA's published findings will be included in the review of evidence," a statement from Rivera says. "Their findings will be presented to command staff and the Major Incident Review Board (MIRB) for review. At this point, a final determination can be made; action can be taken up to, and including, termination."