JUSTICE CENTER TV cht, AQ "A aN COUNTY Ralph Chamness SIM GILL Jetrey Witlor Halt Chief Deputy DISTRICT ATTORNEY Chief Deputy Showin Jsiee Bucs Lisa Ashman Blake Nakamura panatove ‘hr Doty Spector Jisce Dion Sheriff Rosie Rivera Chief Mike Brown Unified Police Dept. of Greater Salt Lake Salt Lake City Police Department 3365 South 900 West 475 South 300 East Salt Lake City, Utah 84119 Salt Lake City, UT 84111 July 9, 2019 RE: Officer Iversen’s and Officer Fortuna’s Use of Deadly Force Incident Location: 900 South, 300 West, Salt Lake City, Utah Incident Date: May 23, 2020 DA Case Ni 20-A385 UPD Case No.: 20-55751 SLCPD Case No.: 20-89725 Dear Sheriff Rivera and Chief Brown: This letter addresses Salt Lake City Police Department (“SLCPD”) Officer Neil Iversen’s and Officer Kevin Fortuna’s use of deadly force against Bemardo Palacios-Carbajal on May 23, 2020'. Mr. Palacios-Carbajal died from the injuries he sustained as a result of the officers” use of deadly force. The officers’ discharge of their firearms constituted the “use of a dangerous weapon,” which is defined under Utah law as “a firearm or ... object that, in the manner of its use or intended use is capable of causing death or serious bodily injury.” Utah Code Ann. § 76-2- 408 (1)(@),(@). As a result, SLCPD initiated what is known in Utah as the “Officer Involved Critical Incident” (“OICT”) Protocol. See Utah Code Ann. § 76-2-408 (2)-(3). An investigative task force, led by members of the Unified Police Department of Greater Salt Lake (“UPD”), and comprising members of law enforcement officers employed by agencies other than SLCPD, was called in to investigate the officers’ use of deadly force. After the investigation, the task force's investigative findings were presented to the Salt Lake County District Attorney's Office (“D.A.’s Office”), which has the constitutional and statutory mandate to screen such matters for possible criminal charges”, * Claims on social media that SLCPD Officer Masters was involved in the use of deadly forve are categorically luntrue and not based in fact, Officer Masters had no involvement whatsoever in the above referenced matter. 2 Utah Const. Art. VIII seetion 16; Utah Code Ann, §§ 17-189-203; see also id, at § 77-2-2 (1) (defini “screening” as the “process used by a prosecuting attorney to terminate an investigative action, proceed with secution, move {0 dismiss a prosecution that has been commenced, or cause a prosecution to be diverted”). Jommencement of prosecution’ is further defined as “the filing of an information or an indictment.” Jd, at 35 East 800 South, Sal Lake City, Utah 84711 Telephone 385.468.7600 - Fax 385.468.7736 - www.distictattomey slco.orgJuly 9, 2020 SLCPD OICI Page 2 SUMMARY OF FACTS AND FINDINGS, ‘The following summary of facts was developed from the OICI protocol investigation, Should additional or different facts subsequently come to light, the opinions and conclusions contained in this letter may likewise be different. Early in the moming on May 23, 2020, a little after 2:00 a.m., SLCPD dispatchers received a 911 call from a person who reported that a man entered the caller’s motel room and robbed the caller at gunpoint. Police officers were dispatched to the Utah Village Motel at 271 West 900 South in Salt Lake City, Utah, As SLCPD Officer Iversen and SLCPD Officer Kilgore arrived, dispatchers advised the officers that another 911 call came in, this time reporting that two men’ had kicked in a motel room door and robbed the caller at gunpoint, The officers got out of their patrol cars and saw a man, later identified as Bemardo Palacios-Carbajal, standing outside the motel rooms looking through bags he was holding. The officers ordered the man to show his hands, but he ran. Officer Iversen followed. Officer Iversen pursued Mr. Palacios-Carbajal across a parking lot, through an alley, and across 900 South to a parking lot at the corner of 900 South and 300 West. As Mr, Palacios- Carbajal ran over the curb and sidewalk, he tripped and fell. In an interview with OICI Protocol investigators, Officer Iversen said he saw Mr. Palacios-Carbajal drop an object. Mr. Palacios- Carbajal picked up the object and started to run when he fell again, and, again, the object fell to the ground, Mr. Palacios-Carbajal picked up the object a second time, stood up, and started to run, Mr. Palacios-Carbajal ran a few steps when he fell a third time and dropped the object again, Officer Iversen saw Mr. Palacios-Carbajal fall three times. At the first fall, Officer Iversen heard a metallic sound as the object hit the ground. Officer Iversen couldn’t tell what it ‘was. Officer Iversen yelled: “Drop it! Drop it! Drop it! Drop it!” Mr. Palacios-Carbajal picked up the object, took a few more steps and fell, dropping the object a second time, Officer Iversen yelled: “Show me your hands! Show me your hands!” Officer Iversen saw Mr. Palacios-Carbajal pick up the thing he dropped a second time. Officer Iversen saw Mr. Palacios-Carbajal fall the third time and drop the object. Officer Iversen was about fifteen to twenty fect away. In his interview with protocol investigators, Officer Iversen said when the object fell the third time, he confirmed it was a gun. Mr. Palacios-Carbajal picked up the gun the third time and started to run, Officer Iversen fired his police weapon at Mr. Palacios-Carbajal. SLCPD Officer Fortuna had heard the radio traffic and drove to the parking lot. He pulled up to the parking lot in his police vehicle as Mr. Palacios-Carbajal fell the third time and dropped the gun. Officer Fortuna told protocol investigators that he saw it was a gun when it hit 2 (3). Also, “Upon review of all facts and testimony takcn concerning the death of a person, the district attorney or county attorney having criminal jurisdiction shall determine if the decedent died by unlavful means and shall also determine if criminal prosecution shall be institutes.” U.C.A. 26-4-21 (2) $ Because the other man has not yet been apprehended, and an active armed robbery investigation is ongoing, this leuter does not detail the second potential suspect or the investigation into his possible involvement. 3 East 500 South, Salt Loke City, UT 84111 Telephone 385.468.7600 - Fax 285.468.7736 - www. dstictattomey.sico.orgJuly 9, 2020 SLCPD OICI Page3 the ground, Officer Fortuna ordered Mr. Palacios-Carbajal: “Drop the gun! Drop the gun!” but Mr. Palacios-Carbajal picked up the gun and started to run away. As Officer Fortuna was about fifteen to tweaty feet away from Mr. Palacios-Carbajal, he aimed his police weapon and fired at him, Both officers described how, after Mr. Palacios-Carbajal was on the ground, he rolled over onto his back and raised his right arm with the gun in his hand, Officer Fortuna said he saw the gun pointed at the officers. Both officers later recounted they fired until they believed Mr, Palacios-Carbajal was no longer a threat, Officer Fortuna said Mr, Palacios-Carbajal’s arm dropped, his hand released the gun, and the gun Ianded on Mr. Palacios-Carbajal’s stomach, still pointed in the officers” direction. ‘The officers slowly approached Mr. Palacios-Carbajal, removed the gun, and began first aid. Mr. Palacios-Carbajal died from the gunshot wounds. As we discuss in more detail below, we conclude that Officer Fortuna’s and Officer Iversen’s use of deadly force satisfies Utah State law which sets forth the statutory elements of a justified use of deadly force, Deadly force that meets the statutory elements of a justified use of deadly force affords each of the officers a legal defense to a potential criminal charge. We conclude that Officer Fortuna’s and Officer Iversen’s belief that deadly force was necessary to prevent their death or serious bodily injury and/or the death or serious bodily injury of others was areasonable belief and one based in observable, objective facts. We also conclude that Officer Fortuna and Officer Iversen believed that deadly force was necessary to prevent Mr. Palacios- Carbajal’s escape, and that Officer Fortuna and Officer Iversen had probable cause to believe Mr. Palacios-Carbajal posed a threat of death or serious bodily injury to the officer ot to others if apprehension was delayed. We conclude that both those beliefs were reasonable and based on observable, objective facts. Consequently, because each officer is entitled to the legal defense of justification, we decline to file a criminal charge against either officer for his use of deadly force, RELEVANT LEGAL STANDARDS As relevant here, law enforcement officers who used deadly force are entitled to the legal defense of justification when (see Utah Code Ann. § 76-2-404 (1)): (b) effecting an arrest or preventing an escape from custody following an arrest, where the officer reasonably believes that deadly force is necessary to prevent the arrest from being defeated by escape; and () the officer has probable cause to believe that the suspect has committed a felony offense involving the infliction or threatened infliction of death or serious bodily injury; or (ii) the officer has probable cause to believe the suspect poses a threat of death or serious bodily injury to the officer or to others if apprehension is delayed; or ‘35 Fast 00 South, Sail Lake City, UT 84111 Telephone 285.468,7400 - Fax 385.468.7736 - www.districtatiomey sco.org,July 9, 2020 SLCPD OICI Page 4 (©) the officer reasonably believes that the use of deadly force is necessary to prevent death or serious bodily injury to the officer or another person. Based on this statute, the legal defense of justification may be available where a law enforcement officer “reasonably believes that the use of deadly force is necessary to prevent death or serious bodily injury ... to the officer or another person.” Utah Code § 76-2-404 (1)(c). ‘That affirmative defense may also be available where a law enforcement officer “reasonably believes that deadly force is necessary” to prevent a suspect’s escape and the officer had probable cause to believe the suspect posed “a threat of death or serious bodily injury to the officer or to others if apprehension is delayed.” Zd, at § 76-2-404 (1)(b). In determining whether the use of deadly force was justified under Utah law, courts may consider several factors, including: (i) the nature of the danger; (ii) the immediacy of the danger; and (iii) the probability that the unlawful force would result in death or serious bodily injury. See Utah Code Ann. § 76- 2-402 (5). Although Utah statutory law does not fully differentiate standards of “reasonableness” as between law enforcement officers and civitians (compare Utah Code § 76-2-402 (1) (universal application), with Utah Code § 76-2-404 (1) (application to law enforcement officers only)), the Supreme Court of the United States discussed measures of reasonableness in the use of force context in Graham v. Conner, 490 U.S. 386 (1989). In Graham, the Supreme Court instructed that “reasonableness” for law enforcement officers must be assessed in light of a “reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Jd, at 396 (internal citations omitted), The Supreme Court held that this determination “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests ... against the countervailing governmental interests at stake.” Id, Finally, the Graham court instructed (id. (internal citations omitted)): Because “{t}he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” . . . its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight. Prior to the Supreme Court’s decision in Graham, the Court considered a Tennessee law that authorized the police to use deadly force to apprehend fleeing felons without regard to the potential danger (or lack thereof) posed by the fleeing felon. In Tennessee v. Garner’, the Court held that the Tennessee statute was unconstitutional, saying: “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable, It is not better that all felony suspects dic than that they escape, Where the suspect poses no + The basic facts of the case are these: a Memphis Police Department officer responded fo & report of a burglary. ‘The officer saw a mar run through the backyard of a house, The officer ordered the man to stop but the maa, continued to nin, ‘The officer fired atthe man, killing him. The officer later testified that he didn’t believe the man (o be armed and the officer dida’t see a weapon, 35 Eas 500 South, Sol! Lake City, UT 84111 Telephone 385.468.7600 - Fox 385.468.7736 - wwrw.districtattemey sico.0rg)July 9, 2020 SLCPD OICI Page 5 immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” Tennessee v, Garner, 471 US. 1, 11 (1985). However, the Court went on to say: “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, cither to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force, Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has ‘committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warming has been given.” Id, 11-12. Utah’s law affording a legal defense to an officer who uses deadly force under these circumstances reflects and agrees with the principles set forth in Tennessee v. Garner, Tho Supreme Court’s findings are applicable to Officer Fortuna’s and Officer Iversen’s use of deadly force as outlined in more detail below. To overcome the legal defense of justification in a criminal case in which an officer is charged with a crime for his use of deadly force, the prosecution must show the legal defense does not apply and prove that beyond a reasonable doubt. The Utah Supreme Court held that a defendant charged with an unlawful killing “is not required to establish a defense of self-defense beyond a reasonable doubt, or even by a preponderance of the evidence. ... Thus, the jury may acquit even though the evidence of self-defense fell “far short of establishing the justification or excuse by a preponderance of the evidence upon the subject.”” State v, Knoll, 712 P.2d 211, 214 (1985) (citations omitted), quoting State v. Vacos, 120 P. 497, 502 (1911). The Supreme Court explained: “In sum, when there is a basis in the evidence, whether the evidence is produeed by the prosecution or by the defendant, which would provide some reasonable basis for the jury to conctude that a killing was done to protect the defendant from an imminent threat of death by another, an instruction on self-defense should be given the jury. And if the issue is raised, whether by the defendant’s or the prosecution’s evidence, the prosecution has the burden to prove beyond a reasonable doubt that the killing was not in self-defense.” 1d. (citations omitted). RELEVANT ETH CAL STANDARDS The D.A.’s Office files cases that satisfy ethical standards and considerations in addition to legal standards for filing. Honoring ethical standards ensures that everyone affected by the criminal justice system—suspects, defendants, victims, the community, and the system itself—is treated fairly, honorably, and respectfully, Among the ethical standards considered before the D.A.’s Office will commence a case is whether there is a reasonable likelihood of suecess at trial. It is not enough that the technical elements of crime may be met if, when presenting those facts to a jury, the prosecution strongly believes, and can point to objective, demonstrable reasons, that no reasonable jury would convict the defendant based on those facts. Every screening decision by the D.A.’s Office includes careful consideration of the various factors a jury may consider when weighing testimony, evaluating evidence, applying the law, and rendering a verdict. Particularly relevant in the context of a police officer's use of deadly force is a consideration of the legal defense of 35 East 500 South, Salt Loke City, UT 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www. disiicialtomey.sico.orgJuly 9, 2020 SLCPD OICI Page 6 justification as set forth in Utah State law, the application of which is guided by other legal principles, including those set forth by the United States Supreme Court. If it seems improbable that the facts of the case will overcome an affirmative legal defense of justification, then the case does not have a reasonable likelihood of suecess at trial, and ethical obligations prevent the filing of a criminal case, FACTS DEVELOPED DURING OICI INVESTIGATION As noted previously, after the use of deadly force by law enforcement officers from SLCPD, that agency properly initiated the OICI protocol. UPD members led a task force of protocol investigators, including members of the D.A.’s Office, to conduct an independent investigation of the officers’ discharge of their weapons. The protocol investigation’s independent investigative findings were presented to the D.A.’s Office to screen for possible criminal charges. The following facts were developed from the investigation of the matter, Should additional or different facts subsequently come to light, the opinions and conclusions contained in this letter may likewise be different. On May 23, 2020, around 2:00 a.m., a person called the police to report a man had pointed a gun at his head and robbed him. The caller described the robber as a Hispanic man who appeared to be in his twenties, wearing a black shirt and black pants with short hair and a beard. ‘The caller said there was another Hispanic man who also appeared to be in his twenties, ‘wearing a red hoodie sweatshirt with a red bandana and his hair in a ponytail. SLCPD. dispatchers sent officers to assist and investigate, SLCPD Officer Iversen and SLCPD Officer Kilgore arrived at the Utah Village Motel at 271 West 900 South in Salt Lake City, Utah, As they arrived, another person called police to report that two men came in their motel room with guns and robbed the caller at gunpoint, Dispatchers informed the officers that one of the suspects was @ Hispanic man who appeared to be in his thirties, about five feet, seven inches tall, wearing dark/black clothes. The caller said she believed the man might be standing out in front of Room 3. ‘The officers got out of their police vehicles and walked towards the motel rooms. Officer [versen saw a Hispanic man, later identified as Bernardo Palacios-Carbajal, standing near the motel rooms with bags in his hands, and looking through the bags. Officer Iversen shined his flashlight on the man and ordered him to show his hands. The man dropped the bags® and ran, Officer Iversen pursued Mr. Palacios-Carbajal as he ran south on 300 West. As he ran after Mr. Palacios-Carbajal, Officer Iversen unholstered his police handgun and held it in his hand. Mr. Palacios-Carbajal turned east and ran through the packing lot of Trails, a strip club that had just closed for the night and from which patrons were leaving, Officer Iversen broadcast the foot pursuit on the radio. SLCPD Sgt, Schneider had arrived in the arca and saw Mr. ® The robbery investigation conducted by SLCPD and UPD did not locate the bag or bags Mr. Palacios-Carbajal dropped. 35 Fast 500 South, Salt Lake Cily, UT 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www alstrictatiomey sico.orgJuly 9, 2020 SLCPD OICI Page 7 Palacios-Carbajal run past him, Sgt. Schnoider called out on the police radio that the man had a gun in his pocket and was reaching for it. Sgt. Schneider joined in the foot pursuit. Mr. Palacios-Carbajal continued to run north up an alleyway and out onto 900 South. Twice during the foot chase, as Mr. Palacios-Carbajal rounded the corners of buildings, Officer Iversen slowed to ensure Mr. Palacios-Carbajal had not stopped running and was not waiting for Officer Iversen around the comer, Officer Iversen told protocol investigators that he dida’t want fo come upon Mr. Palacios-Carbajal and be shot by him. Mr. Palacios-Carbajal crossed 900 South and ran northbound towards the small parking lot of Granary Storage at the intersection of 300 West and 900 South. Officer Iversen said he ran as hard as he could and closed the distance. Mr. Palacios-Carbajal tripped over the curb at the sidewalk next to the parking lot. Although he didn’t confirm it as a gun in the moment, Officer Iversen saw Mr. Palacios-Carbajal drop an object on the pavement, Officer Iversen later told protocol investigators that he heard something metal hit the asphalt, Officer Iversen said he was concerned, Officer Iversen stopped his approach to Mr. Palacios-Carbajal while he tried to figure out what Mr. Palacios-Carbajal had dropped. Officer Iversen yelled: “Drop it! Drop it! Drop it! Drop it!” Mr, Palacios-Carbajal picked up the object, took a few more steps and fell, dropping the object a second time. Officer Iversen yelled: “Show me your hands! Show me your hands!” Again, Officer Iversen saw something on the ground but couldn’t yet tell what it was. Officer Iversen maintained his distance from Mr. Palacios-Carbajal, Officer Iversen said he raised his police handgun and took the “slack out of the trigger” in case he needed to shoot; again, he tried to determine what Mr. Palacios-Carbajal had dropped. Mr. Palacios-Carbajal picked up the abject a second time and started to run. Officer Iversen again yelled: “Show me your hands! Show me your hands!" Officer Iversen said he was concemed about the item Mr. Palacios-Carbajal kept picking up. Officer Iversen took a few steps towards Mr. Palacios- Carbajal. Mr. Palacios-Carbajal fell a third time. As he fell, he dropped the object again, and this time, Officer Iversen saw and confirmed it was a gun. Officer Iversen was about fiftecn to twenty feet away. Mr. Palacios-Carbajal picked up the gun the third time. Officer Iversen said his concern tured to a fear for his life and the lives of the others in the area as he saw Mr. Palacios-Carbajal hold the gun in his hand end start to run again, Officer Iversen said he saw Mr, Palacios-Carbajal bring the gun up to his waist and bring his left hand in to the gun, Officer Iversen said he believed Mr. Palacios-Carbajal was about to use the gun against the officers Officer Iversen later explained: “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 to kill me.”” SLCPD Officer Fortuna was in his patrol car when he heard dispatchers broadcast the robberies at the motel and subsequent foot chase on the radio. Officer Fortuna drove to the location. Officer Fortuna arrived at the parking lot at the corner of 900 South and 300 West and saw Mr, Palacios-Carbaja! on the ground, having tripped, with a gun next to him, Officer Fortuna ordered Mr. Palacios-Carbajal: “Drop the gun! Drop the gun!” but Mr. Palacios-Carbajal picked up the gun and started to run away. Officer Fortuna said he believed Mr. Palacios- Carbajal was about to use the gun against the officers to kill them. Officer Fortuna said that he ‘was aware Mr, Palacios-Catbajal reportedly used a gun against at least two people very recently 85 East 500 South, Saif Lake City, UT 84111 Telephone 385.458.7400 - Fax 385.468.7736 - www.cistictellomeysico.orgJuly 9, 2020 SLCPD OICI Page 8 and was running with a gun away from officers towards a residential neighborhood and towards officers who were arriving to assist with the foot pursuit, Both Officer Fortuna and Officer Iversen fired their weapons at Mr. Palacios-Curbajal after he picked up the gun the third time and started to run. Each officer was about fifteen to twenty feet away. After being struck by bullets, Mr. Palacios-Carbajal fell to the ground and rolled over, raised his right arm, and lifted his head. Officer Iversen later recounted how he saw Mr, Palacios-Carbajal turn his body over and raise his arm with the gun in his hand pointed at the officers. Both officers continued to fire at Mr. Palacios-Carbajal until each believed Mr. Palacios-Carbajal no longer posed a threat to the officers. Officer Iversen said he saw Mr, Palacios-Carbajal’s arm drop and his hand release the gun with the gun on Mr. Palacios- Carbajal’s chest. The officers and other SLCPD personnel moved in to secure the scene and render first aid to Mr. Palacios-Carbajal, who died from the gunshot injuries. Witness Statements Officer Iversen On June 4, 2020, protocol investigators interviewed Officer Iversen with his attorneys present’, Officer Iversen said that, while on duty on May 23, 2020, dispatchers relayed that a person had called police to report a man had come into a motel room with a gun, Officer Iversen said he was the backup officer for the call. Officer Iversen said he drove towards the motel. As he did so, Officer Iversen said he noticed there were “tons of people” in the area as one of the nearby strip clubs had just closed. As officers arrived at the motel, dispatchers advised officers that another person called to report two men with guns had come in their motel room and robbed them. Officer Iversen said the computer in his car relayed information about the suspects, including a physical description. Officer Iversen said one of the suspects was described as a Hispanic male, After he parked his patrol vehicle in the motel parking lot and got out of the vehicle, Officer Iversen said he saw a ‘man outside the motel rooms, “messing around with some bags.” Officer Iversen said he illuminated the man with his flashlight so he could see him better. Officer Iversen said he and the other police officer next to him ordered the man to show his hands, Officer Iversen said the ‘man ran, ® Officer Iverscn and Officer Fortune sad that each had viewed their own body-worn camera recording prior to being interviewed. With regard to viewing an officer's own body-worn camera prior to an interview, the OICL Protocol agreement adopts the policy of each police department that governs whether and under whet circumstances an officer can view their own body-wom camera recording. SLCPD policy allows en officer to view their own body. worn camera recording prior to being interviewed, While we acknowledge no impropricty in doing so, and dou’t suggest anything inappropriate in this case, we express our preference that officers not view any body-worn camera recording prior tothe first interview. Once an initial interview is accomplished, a follow up interview conducted after viewing a body-wom camera recording may provide additional, helpful information. Conducting an interview prior to @ witness viewing recordings of an event removes the potential suggestion thatthe witness" ‘account may be contain information, even subconsciously and inadvertently, apart from that which aris solely from the witness’ memory. Rather than raising questions where none need to arise, we encourage # process free from the suggestion that a witness’ intial testimony comes from anything other than memory. 35 East 500 South, Sail Lake City, UT 84111 Telephone 385.468.7400 Fax 385.468.7736 - wwrw.cistrictatiomey sico.org,July 9, 2020 SLCPD OICI Page 9 Officer Iversen said he called out on the radio that he was in a foot pursuit with a man running away. Officer Iversen said that the man matched parts of the dispatcher’s description of the robbery suspects, but, in his interview, Officer Iversen couldn’t remember specifically which parts matched. Officer Iversen said he unholstered his gun as he ran because of the reports that a man had threatened people with a gun twice previously. Officer Iversen said the man ran down the street, around the front of the strip club, and around a corner. Officer Iversen said he hesitated a moment to make sure the man was still running and not waiting for Officer Iversen, Officer Iversen said he stopped based on his awareness that police officers have been shot by fleeing suspects who have then waited for the officer and killed the officer. Officer Iversen said he saw the man running towards a north-south alleyway. Officer Iversen said he hesitated again to make sure the man wasn’t waiting for him, and then followed. Officer Iversen said as he pursued the man, he found it difficult to get information out, over the radio due to the amount of radio traffie going on. Officer Iversen said he realized other police officers were involved in the chase, too, Officer Iversen said that as he was able, he broadcast a physical description of the man, his clothing, and their direction of travel. Officer Iversen said he ran as fast as he could and started to close the distance to the man as they approached 900 South. Officer Iversen said he saw the man fall down. Officer Iversen said he heard the sound of metal hitting the asphalt. Officer Iversen said he could sce a “black thing,” and he thought to himself: “What is that? What is that?” Officer Iversen said the man picked up the thing he had dropped. Officer Iversen said the man got up and started to run but fell down again. Officer Iversen said the man dropped the thing again, and Officer Iversen thought to himself again: “What is that? What is that?” Officer Iversen said he “took the slack out of the trigger” as he raised and pointed his gun, Officer Iversen said the man picked up the thing again, began to run, and tripped and fell a third time. Officer Iversen said the thing fell on the ground again. Officer Iversen said this time, he saw it was a gun. Officer Iversen said to himsclf: “He has a gun.” Officer Iversen said the man picked up the gun again, and stood up straight, and started to run again, Officer Iversen said that at that time, it was “kind of a weird run, like his hands were up in front of him almost like a high step.” Officer Iversen said: “But at that point when he picked [the gun] up and brought it in front of him again, | thought, ‘I have to shoot; he’s going to turn and shoot me.” Officer Iversen said he pulled the trigger on his gun and, as he did so, he heard a shot fire from right next to him, Officer Iversen said as he fired, he thought to himself: “Nothing’s happening.” Officer Iversen said he felt like time slowed down and he needed to focus. Officer Iversen said: “I said to myself, “If you don’t focus, this guy's going to shoot you."” Officer Iversen said that he saw the man’s gun come from his left side, and Officer Iversen said to himself “You have to focus, he’s tuning to kill you, to shoot [you.]” Officer Iversen said he saw the man on the ground and saw the man’s hand with the gun “come up in the air.” Officer Iversen said the man started to turn towards the officers. Officer Iversen said: “The gun’s pointing at me, and then his arm just falls and he lets go of the gun and his arm falls to his side, and the gun’s on his chest.” 36 East 500 South, Salf Lake Cily, UT 84111 Telephone 385.468.7600 «Fax 385.468.7736 - www.cishiclollomney.sico.ocgJuly 9, 2020 SLCPD OICT Page 10 Officer Iversen said he stopped shooting and reloaded his weapon and moved to the side. Officer Iversen said someone tapped him on the shoulder and he and other officers began to move up to the man. Officer Iversen said: “I was so focused on him, 1 was thinking, “if his hand comes up, I'm going to start shooting again.”” Officer Iversen said when he and the officers got to the man, it was clear he was not a threat Officer Iversen said he feared for his life as soon as he knew the object the man dropped and picked up was a gun, Officer Iversen said there was no doubt in his mind that the man “was preparing to or attempting to or getting ready to turn and to use it however he was able to,” Officer Iversen said, looking back, the only explanation for the man falling was the man “trying to get that gun working or loaded.” Officer Iversen said the first two times the man dropped the object, Officer Iversen was preparing to shoot but didn’t as he could not confirm what the man was picking up. Officer Iversen said he “took the trigger down to nothing, and then [the man would] pick it up and run” but Officer Iversen “didn’t identify what the item was ... I'm not going to shoot because somebody dropped something.” Officer Iversen said he was “extremely concerned what that was that he dropped.” Officer Iversen said: “As soon as | identified it—the third time that he dropped it and picked it up—I felt like he was going to shoot me.” Officer Iversen said: “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 to kill me.” Follow Up Questions Protocol investigators asked Officer Iversen some follow up questions through his, attomey. On June 9, 2020, Officer Iversen’s attorney provided Officer Iversen’s answers to protocol investigators, Officer Iversen was asked iff he saw the suspect pick up the gun, Officer Iversen replied that he had seen the suspect pick up the gun, as he had stated in his interview. Officer Iversen’s roply included quotes from his interview: “he had picked up his firearm three times and was in possession of it....” And: “He picks it up again, runs and trips and falls, and drops it a third time. ‘As soon as it hit the ground this time, however it was positioned, I don’t remember, I just remember immediately going, ‘that’s a gun. He has a gun,’ He picked it up again...” Officer Iversen was asked why he shot the suspect in the back. Officer Iversen replied that he was concerned that the suspect was going to tum and shoot me, other officers, or that the suspect was going to run for cover and shoot people. Officer Iversen said: “It is important to know that when T was called to the scene, I knew that people had been threatened with a gun.” Officer Iversen included passages from his interview, which are set forth above. Officer Iversen also explained: “With bringing both hands in front of him [after he picked up the gun the third time] I was concerned that he was preparing to shoot the gun, 1 believed that he intended to use the gun on me, other officers or civilians.” Officer Iversen was asked why he shot “so many times?” Officer Iversen replied that he “started shooting when he picked up the gun the third time because I feared for my safety, the safety of other officers and the safety of civilians in the area,” Officer Iversen referenced 35 East 500 South, Salt Lake City, UT 84111 Telephone 385.468.7600 - Fox 385.468.7734 www.cishictattomey sico.org)July 9, 2020 SLCPD OICI Page 11 statements in his interview, which are set forth above. Officer Iversen also said: “We are trained to continue shooting until the threat is eliminated. When the suspect went to 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 towards 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 towards us. 1 was concerned that he would fire at us from the ground.” Officer Iversen was asked: “Why did you move to your right?" Officer Iversen replied: “We are trained to shoot and move off of the location where we shot. Just so you are not in the same position where the suspect last saw you so that the suspect has to reacquire your new position. We are also trained that it is harder for a suspect to hit a moving target. I was moving because I was concerned the suspect was going to shoot at us.” Officer Iversen was asked: “Did you see the gun orient to you after the suspect was on the ground?” Officer Iversen replied: “As mentioned above, in response to Question 3: When the suspect went to 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 towards 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 towards us, Twas ‘concemed that he would fire at us from the ground.” Officer Iversen was asked: “Had he not picked up the gun when he ran, could that have possibly changed the outcome? Why?” Officer Iversen replied: “Yes, because the decision was ‘made to shoot based upon the suspect picking up the gun the third time,” Follow Up Interview On July 1, 2020, Officer Iversen answered follow up questions in an interview with his attomeys present. Officer Iversen was asked, after he arrived at the hotel, and as he started to pursue the subject, what were the circumstances that caused him to unholster his firearm? Officer Iversen said that he was only aware of one robbery call as he arrived at the motel, but, in waiting for another officer to arrive and preparing to walk to the motel, another robbery call came in. Officer Iversen said as the officers approached the motel, the second robbery call came in with additional information: “a lady in room fourteen, who, as we were walking up, had called in and said two armed men were just in her motel room.” Officer Iversen said: “At that point, we're walking up the property towards the motel, and we have a man in room three who called in and said that he was threatened with a gun or something with an armed suspect or armed men, And now, as we're approaching, what’s happening right now is in room fourteen, a woman’s called in and said two armed men were just in her motel room, Now it’s extremely concerning that, at this moment, there may be two armed men on the property.” Officer Iversen said: “And that’s why, instead of just walking up and meeting with people, I stopped short. And I stopped short so I can look and survey, because I believe that two armed men are somewhere there.” Officer Iversen said he stopped and paused “to orient [himself] to the motel and observe and make sure we're not walking into something blindly.” 35 Eas! 500 South, Saif Lake City, UT 8411] Telephone 385.468.7600 - Fax 385.468.7736 - www distiictatlorney.sico.orgJuly 9, 2020 SLCPD OICI Page 12 Officer Iversen explained he was “observing and I’m counting from room three up to fourteen, and I'm like ‘oh, there’s fourteen—that’s where two armed men were just alleged to be.’ Just to the right is a guy and he seems extremely agitated and I think he’s rummaging with some bags...at that moment, I believe that guy is a suspect.” Officer Iversen said he ordered the man to show his hands, but instead, the man took off running. Officer Iversen said he unholstered his weapon because he believed “he was an armed suspect.” Officer Iversen said he pursued, Officer Iversen was asked about unholstering his weapon as the foot pursuit began. Officer Iversen explained: “It’s not common—we go months without unholstering our firearm— it’s not a common thing.” Officer Iversen explained that chasing an armed suspect “at any ‘moment if he turns, or he doesn’t even have to turn, he can just put the gun under his side, put the gun over his shoulder and fire back at me—whatever he decided to do—I would have to perceive what’s happening to me and unholster my firearm and try to retum fire and that reaction time would probably be longer than one and a half seconds. And we know from studies and from training that a person can shoot two to three rounds a second. And so, if I was able to unholster my gun without being killed first, ’m already shot at or sbot six plus times, And so unhoistering that gun and having it out is taking time off my perception. .of what's happening to ‘me and allows me to respond to the threat faster.” Officer Iversen explained this was going. through his mind as he pursued Mr, Palacios-Carbajal. Officer Iversen explained the particular danger a gun, as distinguished from a knife or a club, presents. Officer Iversen said that with a gun, “we're taking our distance out of the equation... If I see somebody all the way across the parking lot, that fircarm is going to negate what we have between us, the space between us, If it was a pipe or a bat, we have distance which equals safety which equals time for us to react, where now, a gun just removes the distance, tales away the safety, and is an immediate threat,” Officer Iversen was asked to further explain his previously mentioned decision not to shoot the two times he saw Mr. Palacios-Carbajal drop an object and pick it up. Officer Iversen said he didn’t fire because, although he “knew it’s not a purse, it’s not a wallet, it’s not @ phone, it’s a heavy, metallic black object that’s hitting the ground, The first two times he drops it, know it’s @ gun—I can’t see it’s a gun, if that makes sense. knew it was a gun but I didn’t see it as a.gun, I didn’t want to be wrong. I don’t want to shoot somebody because—everything’s there, ninety-nine percent of the information that it’s a gun is there, other than seeing the gun completely.” Officer Iversen was asked whether letting Mr. Palacios-Carbajal run away was a viable option. Officer Iversen replied: “Absolutely not.” Officer Iversen explained: “I’m pursuing an armed suspect from at least two different crimes at two different motel rooms. He’s already used violence against these people, allegedly. As I approach, and I’m shining my light at people, the bar's letting out, there’s people in the parking lot, there’s people across the street, there’s traffic and cars, and so allowing an armed suspect to just run away, puts everybody getting into their car at tisk, puts people being out and about at risk, from him taking a hostage, carjacking somebody, making them drive somewhere, shooting another officer responding that have no idea what 35 East 500 South, Salt Lake Cily, UT 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www dishictottomey.sico.ogJuly 9, 2020 SLCPD OICI Page 13 they’re responding to, it puts them at risk. And then we have residences in that area, too, 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.” Officer Iversen was asked whether continuing to pursue Mr. Palacios-Carbajal was a viable option, instead of using deadly force. Officer Iversen replied: “When he picked up the gun the third time, after I told him not to—to drop it—and repeatedly picked it up and picked it up and picked it up that third time, and I finally put that last little piece together that that’s a gun that he’s continually [picking] up against my commands—every time he drops it I tell him to drop it, to leave it. Now, the third time he picks it up, he brings it up and I'm like ‘that’s a gun, for sure’ but he brings it up and his other hand comes up like he’s taking a more of a solid hold of the firearm, and at that moment I said, *he’s turning, he preparing, we're about to get in a gun fight and I'm going to have to shoot him.”” Officer Iversen explained he wasn’t going to continue to pursue or chase Mr. Palacios-Carbajal because at that moment, Officer Iversen said he was convinced that Mr. Palacios-Carbajal was preparing to “engage me, to shoot me, to kill me.” Officer Iversen was asked whether he heard Sgt. Schneider or anyone else yell: “Tase him!” Officer Iversen replied that he did not. Officer Iverson said he had already decided that he would not use the Taser in this situation, Officer Iversen explained: “I’m chasing an armed suspect that I believe has a gun...I’m chasing someone that has a deadly weapon, And so for me to be holstered with my firearm in the holster and pull my Taser out, and then attempt to Tase this man,..1 know, ‘cause my training department keeps records, last time I heard, we were around forty percent of Tasers actually being effective, And so I’m not going to shoot a non- lethal weapon. ..against someone with a lethal weapon...” Officer Iversen also explained he saw Mr, Palacios-Carbajal running with a loose, flowing jacket and thought: “there was no way he’s going to be Tased, with this loose, flowing jacket on.” Officer Iversen explained that heavy or loose fitting clothing often prevents both prongs from connecting, rendering the Taser ineffective, Officer Iversen was asked whether, during the events, Officer Iversen recognized that Mr. Palacios-Carbajal was not complying with any of Officer Iversen’s commands or orders and ‘whether that factored into his decision to use deadly force. Officer Iversen answered: “Absolutely, because, especially at the end of the pursuit and the shooting, I have an armed man that has picked up his gun three times, as I’m screaming at him to drop it, and he picks it up and he picks it up and he picks it up a third time and there’s for sure/no doubts in my mind that it’s a gun, and he picks it up that third time—he’s told me from the very beginning when I told him to show me his hands and he turns and makes a movement and takes off, all the way up until the end...he’s showing me that he'll never comply. And so to pick that gun up a third time and to bring it in is saying like ‘not only will I not comply, but I’m going to kill you, I’m going to shoot you.” Officer Iversen was asked: “If [Mr. Palacios-Carbajal], the third time, dropped the gun, and you know it’s a gun, and you shout ‘Drop the gun!’—if he had dropped the gun, would you hhave shot him?” Officer Iversen replied: “No, No, because that’s what I’m screaming at him to 36 East 500 South, Sail Lake Cily, UT 84111 Telephone 385.468.7600 - Fox 385,468,773 - www clstrickatlomey.sc0.0rgJuly 9, 2020 SLCPD OICI Page 14 do, is to drop it...if he were to leave it there and just take off running, and there's nothing in his hands, there’s no threat to me at that point.” Officer Fortuna On June 4, 2020, OIC! protocol investigators interviewed Officer Fortuna with his, attomey present. Officer Fortuna said he was working a patrol shift on May 23, 2020 when. dispatchers advised him of a call from someone at motel in the area of 1000 South 300 West in Salt Lake City, Utah, The caller reported that a person came into a motel room and pointed a gun at the caller, Officer Fortuna said dispatchers received a second phone call shortly thereafter stating that someone had kicked in the caller's motel door and robbed the ealler at gunpoint, Officer Fortuna said dispatchers told the officers that two males wearing dark clothing were involved. Officer Fortuna said that the nature of the second call about an armed robbery escalated his concer. Officer Fortuna said he had responded to several “man with a gun,” and armed robbery calls. Officer Fortuna said, in his experience, a suspect who had robbed someone at gunpoint usvally doesn’t remain at the scene to commit more crimes. Officer Fortuna said he Was more concemed about a man who had reportedly robbed two separate people. Officer Fortuna said he checked the area near the motel when the second call came in. Officer Fortuna said he heard Officer Iversen call out a foot pursuit in the area of 1000 South and 300 West. Officer Fortuna said as he drove towards the foot pursuit, he heard another officer (he believed it may have been Sgt. Schneider) on the police radio say that the man had a gun in his pocket, or that he was reaching for a gun in his pocket. Officer Fortuna said he pulled up into a parking lot on the northeast corner of 900 South 300 West, Officer Fortuna said he looked to the ‘west and saw aman running with Officer Iversen in pursuit, Officer Fortuna said he drove his police car up to the driveway to the parking lot as the maa, followed by Officer Iversen, approached. Officer Fortuna said he got out of his police car as the man stumbled over the curb next to the parking lot, Officer Fortuna said when the man fell, he saw a large, dark colored handgun next to him, Officer Fortuna said he ordered the man to drop the gun several times. Officer Fortuna said the man grabbed the gun as he stood up and started to run away, Officer Fortuna said he feared the man could have easily tumed around and started shooting at the officers that were nearby and arriving in the area. Officer Fortuna said he was concemed by the way the man held the gun. Officer Fortuna said it seemed as though he held the gun in a way that he would be ready to use it. Officer Fortuna said the man was “beelining it for the corner of the building” in the parking lot, Officer Fortuna said he believed the man could have used the comer of the building to his advantage to shoot back at the officers. Officer Fortuna said he was very concerned about the man being able to travel around the comer of the building, Officer Fortuna said he was also aware of other people in the area as well as a residential neighborhood nearby. Officer Fortuna said he worried that if the man rounded the corner, he could have gone into the neighborhood. 35 East 500 South, Sail Lake City, UT 64111 Telephone 385.488.7400 - Fax 385.468.7736 - www .cistictattomey-lco.orgJuly 9, 2020 SLCPD OICI Page 15 Officer Fortuna said the man’s actions caused him to fear of his life and the lives of the other officers around, Officer Fortuna said he had previously experienced people who, in the presence of police officers, typically want to distance themselves from a gun. Officer Fortuna said in this instance, the man had the opportunity to leave the gun on the ground. Officer Fortuna said when the man picked up the gun, he felt that the man “probably was going to use that gun.” Officer Fortuna said when he used deadly force, he was aware that the man was alleged to have committed two prior violent felonies, and an officer had reported he had seen the man reach for the gun during the foot pursuit, Officer Fortuna said he estimated he fired ten shots at the man. Officer Fortuna said he fired until he believed the man no longer posed a threat to the officers, by which he meant that the man was no longer moving. Officer Fortuna said that after the man fell to the ground, he rolled over onto his back and had the gun on his stomach, Officer Fortuna said he and other officers approached the man, Officer Fortuna said he saw the man’s gun lying on the man’s stomach. Officer Fortuna said a police officer pushed the gun off the man and Officer Fortuna kicked the gun away. Officer Fortuna said he and Officer Iversen separated themselves from the other officers who started to render first aid. Follow Up Questions Protocol investigators asked Officer Fortuna some follow up questions through his attorney. On June 9, 2020, Officer Fortuna’s attorney provided Officer Fortuna’s answers to protocol investigators. Officer Fortuna was asked: “Did you see the suspect pick up the gun?” Officer Fortuna replied: “Yes. This was answered in the interview: ‘The suspect had stumbled over the curb at that time, and I saw a large, dark colored handgun next to him, Gave commands to drop the gun several times. He proceeded to grab the gun, pick it up and statted fo run away.” Officer Fortuna was asked: “Why did you shoot the suspect in the back?” Officer Fortuna replied: “When the suspect picked up the gun the third time he was holding it in a way that mado me believe he was ready to use it and given everything else he had done and the information I had, I believed 1 was in immediate danger of being shot. Although he was facing away from me, he appeared to have the gun in a ready position and could quickly turn and shoot me or others.” Officer Fortuna then quoted passages from his interview, much of which is set forth above, Officer Fortuna was asked: “Why did you shoot so many times?” Officer Fortuna refésrenced passages of his previous interview, and added: “The suspect continued to move after he went to the ground. He started to roll towards us after he went down and it looked like to me that he still had the gun. I was concerned that he was going to shoot us from the ground. [ continued to shoot until the suspect stopped moving,” 85 East 500 South, Sait Lake City, UF 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www.clbtictattomey.sico.orgJuly 9, 2020 SLCPD OICT Page 16 Officer Fortuna was asked: “Why did you move to the right?” Officer Fortuna replied: “The way we train is that once we shoot we get off line so that if someone returns fire then you are not in the same position as when you started shooting. T moved to the right because the suspect was rolling to his left and so moving to the right increased the distance from his gun.” Officer Fortuna was asked: “Did you see the gun orient to you after the suspect was on the ground?” Officer Fortuna replied: “Ves. As 1 explained in the interview: “I know he fell forward, and then he rolled around onto his back and the gun was placed on his stomach. So he placed the gun on his stomach. You could probably infer thero was an attempt to kind of point it towards us again, and he just never had the chance to, Like I said, where it was, it was pointed in all of our direct...it had ended up on his stomach, facing in our direction.” Officer Fortuna was asked: “Had he not picked up the gun when he ran, could that have possibly changed the outcome? Why?” Officer Fortuna replied: “If the handgun was left on the ground I would have most likely not have deemed hin an imminent threat and it would have likely changed the outcome,” Officer Fortuna was asked: “Why did you continue to fire your weapon after the suspect fell to the ground?” Officer Fortuna replied: “I was concerned about the suspect shooting us from the ground given the behavior I observed.” Officer Fortuna referenced passages from his interview. Officer Fortuna also replied: “The suspect continued to move after he went to the ground. He started to roll towards us after he went down and it looked like to me that he still had the gun, I was concemed that he was going to shoot us from the ground, I continued to shoot until the suspect stopped moving.” Officer Fortuna was asked: “What did you see that made you continue shooting while you were moving laterally?” Officer Fortuna replied: “I continued shooting because I believed that he still had the gun in his hand. It appeared that he still had the gun in his hand when he went down to the ground and when he rolled over towards us and pointed the gun towards us. T was concemed that he could shoot me at any time, I feared for my safety and the safety of the other officers and other people who were in the area,” Follow Up Interview On July 1, 2020, Officer Fortuna was asked follow up questions in an interview with his attorneys present. Officer Fortuna was asked about what kind of mental list he made as he listened to the police radio while traveling to the scene, Officer Fortuna replied he heard radio traffic about two aggravated felonies that had just occurred. Officer Fortuna explained the significance in receiving a report about two aggravated felonies as distinguished from one: ‘it makes it seem a lot more legitimate, This person is now a danger to more than one person, it could be multiple people, we don't know what his mentality is at that point; he’s already shown the intent that he doesn’t really cure about other people’s safely or anything.” Officer Fortuna said he also noted Sgt. Schneider's report that the foot pursuit subject had a gun, Officer Fortuna said when he saw 85 East 800 South, Salt Lake City, UT 84111 Telephone 385.448.7600 : Fax 385.468.7736 - www.disticiattomey,sico.orgJuly 9, 2020 SLCPD OICI Page 17 Mr. Palacios-Carbajel stumble and “a large black handgun on the ground, it all pieces that together—that this is a very potentially dangerous subject.” Officer Fortuna said he unholstered his firearm when he got out of his car after he arrived at the parking lot. Officer Fortuna explained that he unholstered his weapon because he assessed the information he learned about the incident while en route. Officer Fortuna said: “the information I had arriving on scene is: two aggravated felonies with a gun had been committed; you have a subject fleeing from the scene of these two aggravated felonies; during that, another officer gets on the radio and says he sees the subject reaching for a gun in his waistband or pocket or whatever; and, when I arrived on scene, I see the handgun on the ground next to him.” Regarding the point in time when Officer Fortuna arrived at the parking lot and Sgt. Schneider yelled: “Tase him! Tase him!” Officer Fortuna was asked whether he heard Sgt. Schneider yell: “Tase him!” Officer Fortuna replied that he did not, Officer Fortuna was asked whether he heard anyone yell anything about a Taser; Officer Fortuna replied that he did not, Officer Fortuna was asked whether he considered using a Taser as he approached and interacted with Mr, Palacios-Carbajal. Officer Fortuna replied that he did not consider using a Taser because of several factors. Officer Fortuna explained that when he arrived at the parking lot, he saw Mr. Palacios-Carbajal pick up a “lange, black handgun.” Officer Fortuna said that “all [his] training and experience, on our use of force continuum...is, you meet whatever force is potentially used against you with greater or equal force. So I’m not going to step down in my continuum when someone has a gun.” Officer Fortuna explained that a Taser would be a “step down” in the use of foree continuum because a Taser is not a lethal weapon, and a handgun is, Officer Fortuna explained the other factors that caused him not to opt for a Taser in the situation. Officer Fortuna said that it was raining, and Mr. Palacios was wearing a jacket, Officer Fortuna said: “now you're shooting a Taser at a moving target, there’s cight degrees of ifference in the probes, so the further he gets away, the less accurate the Taser is, and the less likely itis that it would stick in his thick, wet clothing. So, it didn’t seem to me like a viable option.” Officer Fortuna was asked: “Was letting the subject run away a viable option, in your mind?” Officer Fortuna replied: “No, for the fact that our job, and what the public expects is, that, ifan aggravated felony is committed, and we can capture the subject, we're going to do what we can to prevent someone fiom terrorizing the neighborhood.” Officer Fortuna was asked: “How about, instead of using deadly force in the moment you decided to use deadly force, was continuing to pursue [Mr. Palacios-Carbajal] or close the distance or approach him—was that a viable option in your mind?” Officer Fortuna replied: “It was not. Like I said—the handgun’s within reach, so the closer I get, the more dangerous it is for me. We're always taught ‘distance is our friend’ in law enforcement; you have the subject basically running to the edge of a building which now, he has cover and we're in an open parking lot with no cover, and him, picking up a handgun, in my mind, he has every intent to use it at that point, ‘cause, why else would you pick up a handgun when police are pursuing you?” 35 East 00 South, Sail Lake City, UT 84111 Telephone 285.468.7400 » Fax 385.468.7736 - www.dishiclatiomey.sleo.orgJuly 9, 2020 SLCPD OICI Page 18 Officer Fortuna was asked, in the context of ordering Mr. Palacios-Carbajal to drop the gun: “Whats going through your mind if you're saying “Drop the gun!” You sce that it is a gun, the person picks up the gun—what does that mean to you?” Officer Fortuna replied: “To me, I felt that he was going to use it, a threat fo use that gun at that point.” Officer Fortuna was asked: “Was there anything else about [Mr. Palacios-Carbajal’s] actions, in addition to picking up the gun, that caused you to believe he may have used it against you?” Officer Fortuna replied: “The way, when he picked it up off the ground, he wasn’t running with it down, it wasn’t up, it was kind of up in his waist. Whether he was manipulating it or getting ready to turn around, I can’t speak as far as what his intentions were, but that seems like a pretty deliberate action to have it kind of up in a ready position.” Officer Anderson On May 23, 2020, protocol investigators interviewed SLCPD Officer I. Anderson. Officer Anderson said he heard the robbery call involving a gun on the police radio and responded because he knew the area and the complainant. Officer Anderson said he heard the second caller who reported that people entered her motel room and she had been robbed at gunpoint. Officer Anderson said he heard the first officers arrive at the motel and then heard the foot pursuit called out on the radio. Officer Anderson said as he arrived in the area, he saw a ‘man run across the road being pursued by a police officer. Officer Anderson said he saw the suspect fall or trip, Officer Anderson said he saw the man reach in his pockets or waistband, Officer Anderson said he saw a handgun in the suspect’s hand, Officer Anderson said he didn’t see actions the officers were taking; Officer Anderson said his focus was on the man with the gun. Officer Anderson said he heard other officers yelling commands to the man. Officer Anderson said as he got out of his car, the pursuing officers opened fire at the man, Officer Anderson said he saw the man lying on the ground with a gun. Officer Anderson said he and other officers approached the man lying on the ground. Officer Anderson said an officer moved the handgun away from the suspect and other officers started first aid. Officer Welch On May 23, 2020, protocol investigators interviewed SLCPD Officer C. Welch, Officer Welch said he heard police radio traffic about armed robberies at the motel and the foot pursuit. Officer Welch said he was a few blocks away on 300 West traveling southbound, Officer Welch said he drove towards the foot pursuit. Officer Welch said he arrived at the scene of the OICI from a different direction than other arriving officers. Officer Welch said he saw an officer running in the road on 900 South. Officer Welch said in his peripheral vision he thought he saw the suspect running when he heard the first shots fired. Officer Welch said he turned left on 900 South and moved out of the way of the shots being fired. 35 Fost 500 South, Sait Lake City, UT 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www.cistictatlomey.sleo.o1gJuly 9, 2020 SLCPD OICI Page 19 Officer Welch said he didn’t see the suspect’s actions. He said his focus was on the officer running in the road on 900 South. Officer Welch said his first opportunity to see the events of the OICI occurred when the first shots were fired, Officer Kilgore On May 23, 2020, protocol investigators interviewed SLCPD Officer Sarah Kilgore. Officer Kilgore said she was on duty when she was assigned as the main officer on a report of “threats in progress” against the residents at the Utah Village Motel, Officer Kilgore said police radio dispatchers said that a Hispanic male dressed in black threatened people with a gun. Officer Kilgore said she and Officer Iversen walked across the parking lot to make contact with the motel occupants. Officer Kilgore said she saw a man dressed in black standing near the motel rooms. Officer Kilgore said the man was pulling or tugging at something. Officer Kilgore said she yelled: “Hey, let me see your hands! Stop!” Officer Kilgore said Officer Iversen yelled: “Let me see your hands!” Officer Kilgore said the man started to run, Officer Kilgore said she started to look for the other man, as dispatchers reported that wo suspects were involved. Officer Kilgore said she and Officer Iversen ran after the man. Officer Kilgore said Sgt. Schneider arrived broadcast on the radio that the man who was running had a gun. Officer Kilgore said Sgt. Schneider started to run after the man, too, Officer Kilgore said they ran down an alleyway towards 900 South. Officer Kilgore said she heard Officer Iversen yelling commands to the suspect to stop and show his hands. Officer Kilgore said she ran out of the alleyway onto 900 South, Officer Kilgore said she saw many police cars with lights and sirens on arriving in the area, Officer Kilgore said she heard Sgt. Schneider broadcast on the radio that the suspect had a gun and was reaching for it, Officer Kilgore said several shots were fired as she arrived at 900 South. Officer Kilgore said she holstered her handgun and called out “shots fired” on the radio. Officer Kilgore said she went back to the Utah Village Motel and made contact with the initial complainants. Officer Kilgore said she talked with three people who had encountered the suspect dressed in black who had run from the motel. Officer Kilgore said she had the three people fill out witness statements. While doing so, Officer Kilgore said she was told there was another victim in another motel room. Officer Kilgore said she met with a man identified as Michael. Officer Kilgore said Michael was pistol whipped by the man with the gun in the robbery. Officer Kilgore said she saw injuries on Michael’s head but he didn’t want to be transported to the hospital due to the cost of the ambulance, Officer Kilgore said she transported Michael to the hospital to have his injuries treated, Officer Kilgore said while investigating the robberies at the motel, she was approached by a man from the Trails club who said he was looking for his friend. During the discussion, 35 Eas! 500 South, Sail Lake Cily, UT 64111 Telephone 385.448.7600 - Fax 385.468.7736 - www.distictattomey-sico.orgJuly 9, 2020 SLCPD OICI Page 20 Officer Kilgore said she learned of another robbery with a gun against a club patron in which a ‘man dressed in black held a gun to the patron’s stomach and robbed the patron. Sgt. Schneider On May 23, 2020, protocol investigators interviewed SLCPD Sgt. Schneider. Sgt. Schneider said he was near the motel when he heard a call about threats with a gun and a suspect dressed all in black. Sgt. Schneider said he arrived near the motel and pulled into the Trails club parking lot, Sgt. Schneider said he saw officers approaching a man at the front of the motel. Sgt. Schneider said he saw the man run right past him, Sgt. Schneider said as the man ran, he saw the man “messing around with his waistband,” Sgt. Schneider said he broadcast on the radio that the man was running eastbound and that the man might have a gun and that he was doing something with his waistband, Sgt, Schneider said as the man ran past him, it didn’t look like the man was listening to the police. Sat. Schneider said he followed the officer following the man, Sgt. Schneider said he saw the suspect and officer cross 900 South and run into the parking lot. Sgt. Schneider said he saw the suspect had tripped and fallen. Sgt, Schneider said he saw the man “scrambling for something on the ground.” Sgt. Schneider said he saw the man stand up and start running again but stopped and picked up something from the ground, Sgt. Schneider said he heard the officers yelling: “Drop the gun!” Sgt. Schneider said he moved to his right as the other officers opened fire. Sgt. Schneider said after the man fell, he was still moving. Sgt. Schneider said he saw the ‘man move in a way that he thought he was still reaching for the gun, Sgt. Schneider said he saw the man raise up and Sgt. Schneider said he was about to fire his own weapon at the man, Sgt. Schneider said the man’s head went down and the officers stopped firing, Follow Up Interview On July 1, 2020, Sgt. Schneider was interviewed and asked follow up questions. Sgt ‘Schneider was asked, in reference to running down the alley after Mr, Palacios-Carbajal had passed him, what he saw, specifically with regards to a gun. Sgt. Schneider said that he first saw Mr. Palacios-Carbajal rounding the corner of the motel and running towards him, Sgt. Schneider said, based on his training and experience, “when people run, they're usually running with their hands on their sides, pumping their arms, When he ran by me, he was focused on the front of his body, I'll say his waistband area. I observed his hand around what I perceived to be the butt of a gun, the handle of gun. Does that mean that I actually saw the gun: I cannot say « hundred percent...from all the indicators that { noticed from my fifteen years in SWAT and all the training that we've done, all the classes that I’ve taught, there was a gun, I believed to be, in that Sgt. Schneider was asked, as he approached the officers in the parking lot, what it was that he saw and heard that made him yell: “Tase him!” Sgt. Schneider replied: “When I was coming across the street, the individual fell in the parking lot and I heard what I believed to be the gun that fell on the coment. My thought process at that time was, ‘if he is, in any way, away 35 East 500 South, Sail Lake City, UF 84111 Telephone 285.468.7600 - Fox 385.468.7736 - www.cistrictattomeysico.o1gJuly 9, 2020 SLCPD OICI Page 21 from that gun, and he starts to leave, and we can get a Taser on him’—that was what my thought process was.” Sgt. Schneider further explained that if the gun was not near Mr. Palacios Carbajal, he thought a Taser might prevent Mr. Palacios-Carbajal from getting the gun agai Sgt. Schneider was asked about yelling “all right, all right” during the second volley of shots, Sgt. Schneider replied: “My thought process was: he was on the ground and, in that lighting, I couldn't tell if rounds were hitting him or not. My thought process was: I know there ‘was quite a few rounds that the officers were shooting and my thought process was, ‘I know we get into this tunnel vision and maybe by me saying something could maybe clear their head a little bit and realize, like, do you still need to be firing rounds or not.’ But whet I couldn’t see ‘was my vision, on my side—all I saw was the left side of the individual as he was on the ground.” Sgt. Schneider was asked, once the shooting stopped, what he saw. Sgt. Schneider replied: “As I moved up, I could see, in his right hand, that he was trying to bring a gun back up, As we started moving a little bit closer, and then it just kind of dropped. So the gun was there definitely on the right hand side.” Spt. Schneider was asked: “So was it a possibility that the shooting officers may have seen something that you didn’t?” Sgt. Schneider replied: “Oh, a hundred percent.” Officer Southworth On May 23, 2020, protocol investigators interviewed SLCPD Officer M. Southworth, Officer Southworth said he was on duty when he heard a report of a man pointing a gun at someone. Officer Southworth said he decided to take his police dog (K-9) to respond to the call. Officer Southworth said he heard the initial officers call out a foot pursuit and drove his police vehicle in that direction, Officer Southworth said he pulled onto 900 South, When he arrived near the parking lot at the comer of 300 West, he saw many police cars and officers in the area, Officer Southworth said he heard gunshots as he got out of his police vehicle. Officer Southworth said he saw the suspect on the ground, moving a little, and heard officers yelling commands. Officer Southworth said he saw a gun lying on the man’s waist. Officer Southworth said he saw the man’s hands were empty so he and other officers moved up towards the man, Officer Southworth said he kicked the gun off of the man’s body and started first aid on the man. Officer Southworth said he moved the man onto his side to clear his airway and started chest compressions on the man. Written Reports SLCPD Officer Melycher wrote that he assisted other SLCPD officers who were investigating the armed robberies at the Utah Village Motel. Officer Melycher wrote that he ‘made contact with two females in Room 6. Officer Melycher wrote that the women told him that aman entered their motel room and was bleeding from the head. ‘The women told Officer Melycher that they gave the man a towel to stop the bleeding and told him he needed to leave their room, 35 East 500 South, Salt Lake City, UT 84111 Telephone 385.468.7600 - Fx 385.468.7736 - www.cstictaltomey.skeo.o1gJuly 9, 2020 SLCPD OICI Page 22 SLCPD Officer Bitseedy wrote that he assisted Officer Kilgore with one of the armed robbery victims. Officer Bitseedy wrote that he and Officer Kilgore transported the victim to Salt Lake Regional Hospital for medical treatment, and then to the SLCPD Public Safety Building for an interview. SLCPD Officer Schneiter wrote that, after the OICI occurred and he responded to the area, he learned from other officers that Mr. Palacios-Carbajal may have been involved in an armed robbery in the parking lot of the Trails Club prior to the OICL. In his report, Officer Schneiter wrote that he went to the Trails’ parking lot and talked to three men sitting in a Ford Mustang in the parking lot, We refer to the two passengers as L. F. and M. E. Officer Schneiter wrote that L. F. and M. EB, told him that earlier that evening, they were at the Trails club with their friend we refer to as A. Z-G. L. F. and M. E. said that A. Z-G. left the club to use the restroom. L. F. said that A. Z-G. walked outside the club into the parking lot but did not return, L. F. and M, B, said that they became concerned for their friend and left the club to look for him, L. F. and M. E. said while outside, they heard gunshots, presumably coming from the OIC. Officer Schneiter wrote that as L. F. and M. E. recounted these events, SLCPD Officer Munoz approached the group escorting A. Z-G. Officer Schneiter wrote that A. Z-G. said after he left the club and walked into the parking lot, two Hispanic men, one with long hair in a ponytail wearing a red hoodie, and the other with short hair wearing a dark colored shirt, robbed A.Z-G. at gunpoint. A. Z-G. said as he was being robbed, he saw an opportunity to run away and did so, Officer Schneiter wrote that during his investigation, he determined that Mr. Palacios- Carbajal had been inside the Trails club earlier that day and had interacted with Mr. Palacios Carbajal and two other men in his company. Officer Schneiter wrote that he documented Mr, Palacios-Carbajal’s presence in the club through the electronic identification card reader at the club’s door that recorded Mr, Palacios-Carbajal’s identification being scanned, Officer Schneiter also wrote that he spoke with N. S., a Trails employee who worked the front door, N. S. told Officer Schneiter that Mr, Palacios-Carbajal “became argumentative over his bar tab and accused her of stealing his credit card.” N. S. provided Officer Schneiter with a copy of Mr. Palacios- Carbajal’s credit card receipt for his bar tab, and Officer Schneiter forwarded the receipt to protocol investigators. Physical Evidence Protocol investigators inspected and photographed the OICI scene, and reviewed body- worn camera recordings. Investigators also located and obtained surveillance camera recordings from a nearby building, Investigators sought, but could not obtain, surveillance camera recordings from inside Trails club. Although early in the investigation, investigators asked the club to preserve and provide recordings from the date of the incident, the club eventually informed investigators that the recordings made on the date of the incident were not accessible and not retrievable. 35 East 500 South, Soll Lake Cily, UT 84111 Telephone 385.468.7600 : Fax 385.468.7736 - www.dishictatlomey.sico.orgJuly 9, 2020 SLCPD OICI Page 23 Officer Iversen’s Body-Worn Camera Recording Officer Iversen and Officer Kilgore arrived at the Utah Village Motel and walked towards the motel rooms. As they walked across the motel parking lot, a man was standing by the rooms. Both officers ordered the man: “Show me your hands.” The male ran, Officer Iversen ran after him, Officer Iversen keyed his police radio microphone, identified himself and said: “We have a male on foot, running southbound.” Officer Iversen yelled at the man again: “Show me your hands! Show me your hands!” Officer Iversen drew his handgun and held it in his right hand. ‘The man continued to run. As he turned north into the alleyway, Officer Iversen broadcast a physical description of the man and their direction of travel; Officer Iversen said they were headed towards 900 South, Officer Iversen reached 900 South, still following the man, Officer Iversen yelled: “Drop it! Drop it! Drop it! Drop it!” and “Show me your hands! Show me your hands!” Officer Iversen's body-wom camera captured the man falling, rolling over, and getting up on his feet. ‘The man took a couple of steps, fell, dropped something and picked it up, Someone, out of the frame of Officer Iversen’s body-worn camera, is heard yelling: “Drop the gun!” Officer Fortuna entered the body-worn camera’s frame and is heard yelling: “Drop it! Drop it! Drop it!” Officer Iversen yelled: “Show me your hands!” Both officers fired at the man, Officer Fortuna’s Body-Worn Camera Reco ig Officer Fortuna’s body-worn camera recording began with him in his patrol car responding to Officer Iversen’s foot pursuit, Officer Fortuna arrived at the Granary Storage parking lot at 300 West 900 South. Officer Fortuna stopped his car, opened the door, and got out, Officer Fortuna’s body-wor camera captured a man running perpendicular to Officer Fortuna’s police car. Officer Iversen can be heard, off camera, yelling: “Show me your hands! Show me your hands!” ‘The man fell o the pavement and stood up. Officer Fortuna yelled: “Drop the gun! Drop the gun! Drop it! Drop it” The man started to run and both officers fired their weapons at him. Sgt. Schneider's Body-Worn Camera Recording. Sgt. Schneider's recording starts in his police car and depicts his travel to the motel, After about three minutes of video, Sgt. Schneider stopped his police vehicle and said to aman outside his car: “Hey, you work here, boss? Do you work here? Hey, uh, Police. Do you uh... Have you noticed anything going on up north of you? Any, anybody come running by? Looks like we have uh maybe somebody with a gun to the apartments just north of you? Have you seen anybody come running by or anything? Within the last like five minutes? Nothing? That perfect, ‘man, just figured I’d ask, appreciate it, thank you, appreciate it.” 25 East 500 South, Sait Lake City, UT 84111 Telephone 385.468.7400 - Fax 385.468.7736 - www distictattomeyslee.o1gJuly 9, 2020 SLCPD OICI Page 24 Sgt. Schneider continued to drive his patrol car and as he pulled up near the motel, he quickly put his car in park, opened the door, got out and yelled: “Hey! Drop it, drop it, drop it! He’s southbound, southbound! He’s got something in his pocket! Some, something in his pocket!” Sgt. Schneider keyed his police radio microphone and broadcast: “Four twenty, he’s running eastbound down the alley, heading back up north, towards, uh, nine hundred.” His camera recording captured Sgt. Schneider running after Officer Iversen. Sgt. Schneider keyed his microphone again and broadcast: “He’s got a gun in his pocket, he’s reaching in his [waistband).” At four minutes, forty-five seconds into our copy of the recording, Officer Fortuna’s patrol car came into view across 900 South as Sgt. Schneider ran north across the road. As he approached Officer Fortuna and the man getting up from off the ground, Sgt. Schneider yelled: “Tase him! Tase him! Tase him!” Mr. Palacios-Carbajal was seen running away as Officers Iversen and Fortuna fired their weapons. The recording showed Mr. Palacios-Carbajal falling down in the parking lot. Sgt. Schneider's video recorded someone yelling: “Show us your hands!” Sgt. Schneider yelled: “Drop it!” Other officers are recorded yelling: “Show us your hands!” Sgt. Schneider keyed his microphone and broadcast: “Charlie four twenty, we got shots fired, start medical rolling our way, suspect down.” SLCPD Dispatch Log Protocol investigators obtained and reviewed the computer printout and display from SLCPD dispatchers regarding the incident. On May 23, 2020, at 2:07 a.m., dispatchers sent police to the Utah Village Motel at 271 West 900 South and informed the officers that a caller reported that a Hispanic male who appeared to be in his thirties and was approximately five feet, seven inches tall pointed a gun at the caller. ‘The caller said that the man put a gun to the caller's head and robbed him. ‘The caller gave police a description of two men involved in the robbery: one, a Hispanic male who appeared to be in his twenties wearing a black tee shirt and black pants with “buzz cut” hair, and the other Hispanic male who also appeared to be in his twenties wearing a red hoodie, a red bandana with his hair in a ponytail. At2:11 am, dispatchers informed officers that a woman called police and reported that two males with guns came into her motel room. ‘The ealler reported that one of the males was Hispanic but very light skinned. Also at 2:11 a.m., dispatch logs reflected Officer Iversen’s arrival at the motel, A minute later, dispatchers told the officers that the woman who called police was reporting that the suspect may be outside the motel room three at that moment, One minute later, at 2:13 a.m., dispatch logs recorded Officer Iversen calling out a foot pursuit with a male running southbound, then eastbound down an alley and then turning north towards 900 West. At2:14 am., the logs reflect Sgt. Schneider’s report that the man had a gun in his pocket and he was reaching for it with his right hand, During the same time stamp at 2:14, a caller to the police reported hearing gunshots, and at 2:15 a.m., officers informed dispatchers 35 Fost 500 South, Sct Lake City, UT 84111 Telephone 385.468.7600 Fax 385.468.7736 - www cistrictatiomey sco.orgJuly 9, 2020 SLCPD OICI Page 25 that shots had been fired, the suspect was down, and requested dispatchers to start medical personnel to the scene, Radio Traffic Protocol investigators obtained the audio recordings of the police radio transmissions related to the OICI. The recordings contain the following transmissions: SLCPD Dispatcher: [three beeps] “Charlie five thirteen, Charlie five two one, we got a threats just occurred, two seventy one west, nine hundred south, male pointed a gun at him, units respond on Channel Two. Car thirty six, Charlie four twenty, copy?” C513: “Charlie five thirteen.” C521: “Five two one.” Unknown: [unintelligible transmission] C420: “Charlie four twenty, I’m in the area of that last one.” UNK: (Faint transmission, unintelligible] SLCPD: “Charlie five thirteen, four twenty, units, two thirty one west, nine hundred south: Utah Village Motel, Number Three, time elapsed three minutes, male Hispanic adult, thirty age, five foot seven, all black clothing, [garbled] said pointed a gun at him, left on foot, unknown direction.” C513: “Five thirteen, copy.” C420: “Four twenty in the area.” SLCPD: “Charlie four twenty at two oh nine.” C533: “Car 33 attached.” SLCPD: “Charlie five thirty three at two oh nine.” C420: “Four twenty I’m checking southbound on 300.” SLCPD: “Charlie four twenty at two oh nine.” C523: “Five twenty three attached [unintelligible.]” SLCPD: * Charlie five twenty three at two oh nine.” 35 East 500 South, Sail Lake City, UT 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www.cishictottomey sico.oraJuly 9, 2020 SLCPD OICI Page 26 SLCPD: “Motor nine two five, Code 4?" [Unrelated call] 925: “Code 4." SLCPD: “Motor nine two five [garbled]."” SLCPD: “Charlie seven one one, Charlie seven two one, suspicious [Radio traffic continues on an unrelated call.] C513: “Five thirteen arriving.” SLCPD: “Charlie five thirteen, two eleven.” C521: “Five wo one arrived.” SLCPD: “Charlie five two one at two eleven.” SLCPD: “All units be advised, priority traffic: we have a female stating two males with guns came into her room, believe she said room number fifteen, she immediately disconnected.” (C412 “Charlie four twelve can you attach me [to] that threat?” C521: “Five two one, is there a description of these guys?” SLCPD: “Charlie four twelve at two eleven, The description is: definitely Hispanic but very light skinned, the other two males, we did not get a description before the caller disconnected. Short, dark hair is a further description from the first caller, Thirties, five foot seven, all black.” C521; “Five two one and five thirteen, we're both at the motel.” SLCPD: “Copy at two thirteen, Complaining room number three is waiting for contact, they said the suspect may be outside of room number three now, but that could also be you guys. The windows are foggy.” C521: “[Unintelligible] we have a male on foot, running southbound.” C521: “Four twenty he’s running eastbound down the alley, headin’ back up north, towards, uh, nine hundred.” C521: “Five two one, [garbled, covered transmission] nine hundred south, westbound nine hundred south, westbound nine hundred south.” UNK: “I only wanna hear Nick Schneider on the radio.” 35 Eas 500 South, Soll Lake City, UT 84111 Telephone 585.468.7600 - Fox 385.468.7736 - www.cistictattomey.sico.orgJuly 9, 2020 SLCPD OICI Page 27 C420; “He's got a gun in his pocket, he’s reaching in his [right fist].” SLCPD: [three beeps] UNK: “Restrict the channel, priority traffic.” SLCPD: [long beep] C5212: {unintelligible] UNK: “Clear all traffic other [than] Charlie four twenty.” C420; “Charlie four twenty we got shots fired. Start medical rolling our way, suspect down.” SLCPD: “Four twenty at two fifteen.” Radio traffic continues, discussing location, medical personnel, other police action. OICI Scene Protocol investigators documented and collected a Rock Island brand, 1911 style, single action, A5ACP caliber semi-automatic handgun lying about five feet from Mr. Palacios- Carbajal’s body. The weapon has a distinetive muzzle with an ostensible flash suppressor affixed thereto, ‘The weapon also had a notable extended magazine that protruded significantly beyond the weapon's frame, UPD evidence technicians and protocol investigators inspected the handgun and noted that a hollow-point .45ACP cartridge was loaded in the weapon's chamber, ‘The handgun had a fully loaded magazine inserted into the weapon. Investigators compared the handgun recovered at the scene to the weapon observed on body-worn camera recordings as it lay in Mr. Palacios-Carbajal’s lap when officers approached him after the shooting. Investigators noted the handgun shown in the body-worn camera recordings is the same weapon investigators inspected and documented. Nearby, SLCPD Officer Matteau located a black air-gun pistol near the intersection of 900 South and Washington St. An SLCPD K-9 police dog attempted to acquire a scent to track but was unsuccessful. Officer Matteau waited by the air-gun pistol for crime lab technicians to arrive and collect the weapon. Officer Downloads OICI Protocol investigators examined Officer Iversen’s and Officer Fortuna’s weapons and police equipment they used and possessed during the OICI, Officer Iversen’s Glock 17, 9mm weapon and magazines were inspected. Officer Iverson's weapon had one 9mm cartridge foaded in the chamber and a magazine inserted 35 Fast 800 South, Sail Lake City, UT 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www.distictatlomey-slco.orgJuly 9, 2020 SLCPD OICI Page 28 containing sixteen 9mm cartridges. Officer Iversen had one empty magazine with a capacity of seventeen 9mm cartridges. From the download, it appeared Officer Iversen fired his weapon seventeen times. Officer Fortuna’s Glock 17, 9mm weapon and magazines were also inspected. Officer Fortuna’s weapon had one 9mm cartridge loaded in the chamber and a magazine inserted containing sixteen 9mm cartridges. Officer Fortuna had a full magazine with a capacity of seventeen 9mm cartridges on his vest. From the download, it appeared Officer Fortuna fired his weapon seventeen times. Office of the Medical Examiner’s Report, Autopsy The final report from the Utah Office of the Medical Examiner has not been completed, However, protocol investigators attended the autopsy of Mr, Palacios-Carbajal’s body conducted on May 25, 2020. Investigators noted that several of the officers” bullets hit Mr. Palacios- Carbajal in his back and right side. During the autopsy, the medical examiner told the protocol investigators it appeared Mr. Palacios-Carbajal had been shot between thirteen and fifteen times, ‘The medical examiner informed the investigators that Mr, Palacios-Carbajal’s aorta had been severed by a bullet, which resulted in his death, During Mr. Palacios-Carbajal’s autopsy, the medical examiner removed personal items from Mr. Palacios-Carbajal’s clothing pockets. Among the items removed from Mr. Palacios- Carbajal’s front left jacket pocket were A. Z-G.’s wallet, including A, Z-G.’s Utah driver livense and forty-five one-dollar bills. A. Z-G.’s wallet, driver license, and cash are consistent with the items A. Z-G. said he was robbed of when he described two Hispanic men, one with long hair in ponytail wearing a red hoodie, and the other with short hair wearing a datk colored shirt robbing A. Z-G. at gunpoint. LEGAL ANALYSIS This review, and the OICI Protocol investigation related to it, is narrow in its scope and purpose: to determine whether the facts of this case, when applied to the law, warrant the filing ‘ofa criminal charge against an officer who used deadly force, While there may be many ways fo consider the propriety of an officer's use of deadly force (j.¢., a tortious action, a civil rights review, a policy consideration, etc.), our review only considers one: do our legal and ethical obligations es a public prosecution office compel a criminal charge against the officer? In considering whether to charge law enforcement officers who use deadly force with a criminal offense, we try to ascertain whether Utah’s broad affirmative defense of justification, particularly as applied to law enforcement officers, effectively precludes criminai prosecution based on the facts before us. In other words, we ask whether an officer could establish at trial that he or she reasonably believed the use of deadly force was necessary to prevent death or serious bodily injury to the officer or another person. We also ask whether an officer could establish at trial that he or she reasonably believed that deadly force was necessaty to prevent a 35 East 500 South, Sail Lake City, UT 84111 Tolephone 285.468.7600 - Fax 385.468.7736 - www.cishictatlomey-sleo.orgJuly 9, 2020 SLCPD OICI Page 29 suspect's escape where the officer had probable cause to believe the suspect posed a threat of death or serious bodily injury to the officer or to others if apprehension was delayed. As we discuss in more detail below, we conclude that Officer Fortuna’s and Officer Iversen’s use of deadly force satisfies the statutory elements of a justified use of deadly force which affords cach of them a legal defense to a potential criminal charge. We conclude that Officer Fortuna’s and Officer Iversen’s belief that deadly force was necessary to prevent their death or serious bodily injury and/or the death or serious bodily injury of others was a reasonable belief. We also conclude that Officer Fortuna and Officer Iversen reasonably believed that deadly force was necessary to prevent Mr. Palacios-Carbajal’s escape and that Officer Fortuna and Officer Iversen had probable cause to reasonably believe that Mr. Palacios-Carbajal posed a threat of death or serious bodily injury to the officers or to others if apprehension was delayed, Mr. Palacios-Carbajal did not actually shoot at the officers or others in the area. This case deals with a potential outcome the officers sought to avoid. The law does not require officers to wait and see how things turn out when one of the outcomes has a probability of coming to pass, has a probability of death or serious bodily injury, and those probabilities arise based on objective, empirical facts. In the officers’ minds, the probability that Mr. Palacios- Carbajal could use a gun against the officers was based on the officers’ observation of Mr. Palacios-Carbajal dropping and picking up a gun, holding it in his hand, and running, coupled with what they believed they knew about Mr. Palacios-Carbajal’s alleged criminal activity? immediately prior to use of deadly force. Officer Iversen said he believed he was pursuing a man who had just committed two robberies, including at least one in which the man kicked in a motel root door and robbed the occupants at gunpoint. Officer Iversen explained that he was concemed enough that he drew his firearm and ran with it in his hand during the foot pursuit, Officer Iversen said he stopped twice uring the foot pursuit to make sure the man hadn’t stopped to wait for Officer Iversen. 7 We're not aware of any evidence that Officer Iversen or Officer Fortuna were privy to Mr, Palacios-Carbajal’s 2019 felony convietioa criminal history prior to or during the OICI. Neither Officer Iversen nor Officer Fortuna included Mr, Palacios-Carbajal’s court casein thei reasons for using deadly force against him during the OICI. $o, we mention Mr. Palacios-Carbajal’s criminal history to give some context to a possible reason for Mr. Palacios. Carbajal’s actions, including his fight from officers, but we do not consider his criminal history o fact related thereto for the puspose of analyzing the officers’ decisions to use deadly force. In State of Utah v. Bernardo Carbajal Palactos-Carbajal, Case No. 181908392, Mr. Palacios-Carbajl pled guilty on August 23, 2019 and was convicted of Robbery, a Second Degree Felony. On October 18, 2019, the Hon. Linda Jones, Third Judicial District Court Judge, sentenced Mr. Palneios-Carbajal to a suspended prison term of one to fifteen years at the Utah Siate Prison and ordered Mr. Palacios-Carbajal to serve thirty days inthe Salt Lake County Jail, Judge Jones placed Mr. Palacios-Carbajal on supervised probation with Adult Probation and Parole for forty-eight months. For the purpose ‘of providing a possible context for Mr. Palacios-Carbajal’s actions during the OICI, we note that if Mr. Palacios- ‘Caybajal had been arrested for his alleged role in the motel robberics andor possessing « firearm while on felony probation, Mr. Palacios-Carbajal risked revocation of his probation and imposition ofthe original sentence in case ‘no, 181908392, which could have resulted in a sanction up to and including a commitmzent tothe Utah Stato Prison forthe term of one to fifteen years. 85 East 500 South, Sait Lake City, UT 84111 Telephone 585.488.7600 - Fax 385.468.7736 - www.cishrictatlomeyslco.orgJuly 9, 2020 SLCPD OICI Page 30 Prior to his decision to use deadly force, Officer Iversen saw Mr. Palacios-Carbajal take the time to pick up the gun three times. Officer Iversen recounted he considered it significant that Mr. Palacios-Carbajal sacrificed time and distance—his potential ability to flee and evade capture—as he retrieved his gun three times. To Officer Iversen, Mr. Palacios-Carbajal demonstrated a determined connection to his gun that Officer Iversen. interpreted as a plausible intent to use the weapon against him and/or others. Nor did Mr. Palacios-Carbajal discard his gun at any time during the foot pursuit when it seemed he had an opportunity to do so. Indeed, rather than separate himself from the gun and reduce or eliminate a possible perception that he might use his gun against the police, Mr. Palacios-Carbajal took the time to stop and pick up the gun after dropping it, and he did that three times, in front of Officer Iversen. Officer Iversen testified: “At that point when he picked [the gun] up and brought it in front of him again, I thought, ‘I have to shoot; he’s going to turn and shoot me," Officer Iversen explained his mindset when he used deadly force: “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 to kill me.” Atno point in time, from the first encounter between Mr, Palacios-Carbajal and Officer Iversen, until the use of deadly force, does it appear Mr. Palacios-Carbajal complied with any of the officers” commands. Body-worn camera recordings do not capture any action or conduct by Mr. Palacios-Carbajal that gives any indication he was complying—or about to comply—with the officers’ commands. The body-worn camera recordings corroborate the officers’ testimony that Mr. Palacios-Carbajal never complied with any of their commands. While deadly force isn’t a lawful means to obtain a person’s compliance, strictly speaking, a subject's failure to comply is an appropriate element for an officer to consider when deciding to use deadly force. Anda subject’s lack of compliance likewise informs our analysis of whether the decision to use deadly force was reasonable*, In this instance, whether, and if so to what extent, Mr. Palacios-Carbajal posed a threat of death or serious bodily injury to the officers and others is indicated in part by his lack of compliance to repeated and relevant commands. Those orders, if followed, would have reduced the threat Mr. Palacios-Carbajal posed and reduced the extent to which the officers’ deadly force was necessary to prevent death or serious bodily injury and/or effect an arrest as per the elements set forth in Garner. Officer Fortuna said he heard the radio traffic about a man robbing people at gunpoint at the motel and drove to assist the police effort to apprehend the suspect, Officer Fortuna said he saw Mr, Palacios-Carbajal fall and drop a gun. Officer Fortuna said he ordered Mr. Palacios- Carbajal to drop the gun several times, Officer Fortuna said he saw Mr. Palacios-Carbajal pick up the gun, and hold it in his hand in a way that he could use the gun. Officer Fortuna said Mr. 8 We apply the facts of this case wo the principles elucidated inthe Suprome Court's decision in Graham explaining, that a reasonableness determination “requires careful attention tothe facts and circumstances of cach particular case, including the severity ofthe crime at issue, whether the suspect poses an immediate threat to the safety of the officors or others, and whether he is actively resisting arest or altering to evade atest by flight.” Graham, 490 USS, at 39, (referencing Tennessee v. Gamer, 471 US, at471 US. 8-9) 35 East §00 South, Soll Lake City, UT 8411 Telephone 385.468.7600 Fax 385.468.7736 - www cisttictatlomey sico.orgJuly 9, 2020 SLCPD OICI Page 31 Palacios-Carbajal was running towards the corer of the building in the parking lot. Officer Fortuna explained that if Mr. Palacios-Carbajal rounded the corner of the building, Mr. Palacios- Carbajal would have had a tactical advantage to shoot back at the officers. Officer Fortuna said he was very concerned about Mr. Palacios-Carbajal being able to go around the corner of the building and threaten other people in the residential neighborhood nearby. In this case, Officer Fortuna’s concern for other officers in the area and arriving to the Granary Storage parking lot was borne out by, for example, Officer Welch who arrived from the north and traveled towards Mr. Palacios-Carbajal as he continued to run from officers. Officer Kilgore recounted how multiple police cars and officers were converging on the parking lot and other officers recounted how there were other people in the area, some of whom were leaving the Trails Club as it had recently closed. Officer Fortuna said the man’s actions caused him to fear for his life and the lives of the other officers around, Officer Fortuna said in this instance, Mr. Palacios-Carbajal had the opportunity to leave the gun on the ground, but the fact that he didn’t caused Officer Fortuna great concem, Officer Fortuna said when Mr. Palacios-Carbajal picked up the gun, he felt Mr. Palacios-Carbajal “probably was going to use that gun.” Officer Fortuna said his decision to use deadly force included his awareness that Mr. Palacios-Carbajal was alleged to have committed ‘two violent felonies, and another officer had reported he had seen Mr. Palacios-Carbajal reach for the gun during the foot pursuit. Having decided to use deadly force, and, indeed having initially used deadly force against Mr. Palacios-Carbajal, Officer Fortuna continued to fire at Mr. Palacios-Carbajal after he fell to the ground. Officer Fortuna recounted how he saw Mr. Palacios-Carbajal move and tum his body towards the officers and raise his head. Officer Fortuna believed Mr. Palacios-Carbajel still held the gun that he saw Mr. Palacios-Carbajal pick up from the ground, Officer Fortuna ‘explained that he continued to fire at Mr. Palacios-Carbajal because Officer Fortuna was concerned that Mr, Palacios-Carbajal would shoot at them from the ground. Officer Fortuna said he fired until he believed the threat was stopped. In body-worn camera recordings, Officer Fortuna is observed moving to his right while firing. Officer Fortuna's movements captured on the body-worn camera recordings corroborate his statements about his articulated beliefs and perceptions in the moment: that Officer Fortuna said he saw Mr. Palacios-Carbajal still had the gun in his hand, and Officer Fortuna was concerned Mr. Palacios-Carbajal was about to use it. Officer Fortuna's statements are further corroborated by other body-worn camera recordings that show Mr, Palacios-Carbajal’s gun in his lap with the muzzle oriented towards the officers. Officer Fortuna’s stated belief and concem that Mr. Palacios-Carbajal could shoot at them at any time appears to be corroborated by the body-worn camera recordings, We conclude Officer Fortuna’s belicf that deadly force against Mr, Palacios-Carbajal was necessary to be a reasonable belief and one that is corroborated by the body-worn camera recordings of the event The United States Supreme Court’s holding in Tennessee v, Garner seems pasticularly applicable to this case. In its ruling, the Court held: “Where the officer has probable cause to believe that the suspect poses a threat of'serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the 35 Eassl 500 South, Soll Lake City, UT 84111 Telephone 305.468.7600 - Fax 385.468.7736 - www.dishictattomey sico.org,July 9, 2020 SLCPD OICI Page 32 suspect threatens the officer with a weapon or there is probable cause to beliove that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). As the Supreme Court instructed in Graham, assessing “teasonableness” of an officer’s use of force “requires careful attention to the facts and circumstances of each particular caso, including . .. whether the suspect poses an immediate threat to the safety of the officers or others.” Graham, 490 U.S. at 496. For the purposes of our review, and without any evidence to the contrary, we assume Officer Fortuna and Officer Iversen would testify at trial (if they testified at trial) consistently with their prior statements and interviews, and consistently with the facts and circumstances outlined above, We assume the officers’ trial testimony (consistent with their statements in their interviews) would articulate a fear for their life and safety and the lives and safety of their fellow officers (consistent with the fears expressed by other witness, including witness officers). We also assume that the officers’ trial testimony (consistent with their statements) would articulate the officers’ beliefs that deadly force was necessary to prevent Mr. Palacios-Carbajal’s escape and that Officer Fortuna and Officer Iversen had probable cause to believe Mr. Palacios-Carbajal posed a threat of death or serious bodily injury to the officer or to others if apprehension was delayed. We conclude that the fucts of the ease as we presently know them to be support a finding that the officers* belief that deadly force was necessary to be a reasonable belief. Also, we do not have evidence that would refute or rebut the officers’ beliefs. Because the statutory defense of justification is an affirmative legal defense, we, as the prosecution, bear the burden of refuting the affirmative defense by showing, beyond a reasonable doubt, that the affirmative defense does not apply. As applied in this case, we would have to prove, beyond a reasonable doubt, that the officers’ legal defense of justification did not apply to the facts at hand, ‘The Utah Supreme Court has plainly and repeatedly held that a defendant charged with an unlawful killing “is not required to establish a defense of self-defense beyond a reasonable doubt, or even by a preponderance of the evidence, ... Thus, the jury may acquit even though the evidence of self-defense fell ‘far short of establishing the justification or excuse by a preponderance of the evidence upon the subject.” State v. Knoll, 712 P.2d 211, 214 (1985) (citations omitted), quoting State v. Vacos, 120 P. 497, 502 (1911). To make the point clear, the Supreme Court wrote: “In sum, when there is a basis in the evidence, whether the evidence is produced by the prosecution or by the defendant, which would provide some reasonable basis for the jury to conclude that a killing was done to protect the defendant from an imminent threat of death by another, an instruction on self-defense should be given the jury, And if the issue is raised, whether by the defendant’s or the prosecution’s evidence, the prosecution has the burden to prove beyond a reasonable doubt that the killing was not in self-defense.” id, (citations omitted), In other words, to achieve a conviction against these officers for their use of deadly force, we would have to prove, beyond a reasonable doubt, that the officers” belief that deadly force ‘was necessary to prevent their death or serious bodily injury and/or the death ot serious bodily injury of others was not a reasonable belief. Also, to achieve a convietion against these officers 35 East 500 South, Salt Lake City, UT 84117 Telephone 385.468.7600 - Fax 385,468,736 - www.disiictattomey.skco.orgJuly 9, 2020 SLCPD OICI Page 33, for their use of deadly force, we would have to prove, beyond a reasonable doubt, that the officers’ belief that deadly force was necessary to prevent Mr. Palacios-Carbajal’s escape and that the officers had probable cause to believe Mr. Palacios-Carbajal posed a threat of death or serious bodily injury to the officer or to others if apprehension was delayed—that this belief was not a reasonable belief. Based on the evidence before us, we conclude that no reasonable jury would unanimously conclude that the officers’ beliefs were not reasonable. We conclude that we could not refute or overcome the affirmative legal defense of justification and therefore, we believe the officers are entitled to the legal defense, CONCLUSIONS As noted previously, the facts and conclusions set forth in this letter are based on the evidence of which we are currently aware. If additional facts become available, these conclusions may change. Based on the facts presented, as outlined in more detail above, we conclude Officer Iversen’s use of deadly force was justified under Utah State law and affords him a legal defense to a potential criminal charge for his use of deadly force. As we discussed, we conclude that Officer Iversen’s use of deadly force satisfies the statutory elements of a justified use of deadly force, which affords him a legal defense to a potential criminal charge, We conclude that Officer Iverson reasonably belived that deadly force was necessary to prevent his death or serious bodily injury and/or the death or serious bodily injury of others. We also conclude Officer Iversen reasonably believed that deadly force was necessary to prevent Mr, Palacios-Carbajal’s escape and that Officer Iversen had probable cause to reasonably believe Mr. Palacios-Carbajal posed a threat of death or serious bodily injury to himself or to others if apprehension was delayed. Consequently, because his use of force was justified, Officer Iversen legally is entitled to the affirmative defense of justification under Utah State law, and therefore we decline to file criminal charges against Officer Iversen for his use of deadly force in this matter. ‘We also conclude Officer Fortuna’s use of deadly force was justified under Utah State Jaw and affords him a legal defense to a potential criminal charge for his use of deadly force. As we discussed, we conclude that Officer Fortuna’s use of deadly force satisfies the statutory elements of a justified use of deadly force, which affords him a legal defense to a potential criminal charge. We conclude that Officer Fortuna reasonably believed that deadly force was necessary to prevent his death or scrious bodily injury and/or the death or serious bodily injury of others, We also conclude that Officer Fortuna reasonably believed that deadly force was necessary to prevent Mr, Palacios-Carbajal’s escape, and that Officer Fortuna had probable cause to reasonably believe Mr. Palacios-Carbajal posed a threat of death or serious bodily injury to himself or to others if apprehension was delayed, 45 Easst 500 South, Sail Lake City, UT 84111 Telephone 385.468.7600 Fax 385.468.7736 - www.cisticialtomey.skco.orgJuly 9, 2020 SLCPD OICI Page 34 Consequently, because his use of deadly force was justified, Officer Fortuna legally is entitled to the affirmative defense of justification under Utah State law, and therefore we decline to file criminal charges against Officer Fortuna for his use of deadly force in this matter. Very Truly Yours, Cr. Mur Sim Gill, Salt Lake County District Attorney 35 Fast 500 South, Soll Lake City, UT 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www.cistictaltomey.sico.org