Police shooting at McDonald's not legally justified, DA says

West Valley officers cleared in separate shooting

Published: Thursday, March 29 2012 3:00 p.m. MDT

A vehicle with window shot out, sits outside a Salt Lake City McDonalds after an officer involved shooting Friday evening, Oct. 28, 2011.

Pat Reavy, Deseret News

SALT LAKE CITY — The shooting of a man in front of a downtown Salt Lake McDonald's by an undercover Salt Lake drug officer was not legally justified, the Salt Lake County district attorney ruled Thursday.

It's the third officer-involved shooting determined to be unjustified in Salt Lake County in less than a year. Before these three, it had been eight years since there was a police shooting investigation in the county that didn't clear the officer.

The Salt Lake County District Attorney's Office released the results of two officer-involved shootings Thursday. In the other review, three West Valley police officers were cleared of shooting and killing Kent Ashworth, 49, after he showed a handgun on the street at 2805 S. 3600 West on Dec. 29, 2011.

The unjustified shooting involved Salt Lake police officer Shane Conrad. Conrad fired five rounds into Dennzel Davis' car, striking Davis once.

District Attorney Sim Gill determined that while four of the five shots may have otherwise been justified, the initial shot — the one used to try and gain entry into Davis' vehicle — was not justified, making the entire shooting illegal.

"You cannot use lethal force for the purpose of trying to make entry," Gill said Thursday. "What is justified on the back end cannot be used as a rationalization of justification of what was unjustified at its inception. … You can't bootstrap an unjustification on a justification later on."

On Oct. 28, 2011, Davis, 19, was shot by a plainclothes Conrad in the parking lot of McDonald's, 210 W. 500 South. At the time, police said Davis was the subject of an ongoing drug investigation. The DA's report said it was part of a prostitution case. He was shot in the stomach and was still inside his vehicle when he was hit.

Conrad and officer Richard Farnsworth approached Davis' vehicle with their guns drawn and badges hanging around their necks, and ordered Davis to get out of his car. Instead, Davis put his vehicle in reverse and drove through much of the parking lot backward.

When the vehicle stopped, the officers had caught up and were positioned in front of him. Conrad attempted to open Davis' door and then attempted to gain entry by breaking the driver's side window with the muzzle of his gun, the DA report states. When that didn't work, he shot one round through the window in an attempt to break the glass and open the door.

"The shot was angled sharply downward so as to fire directly into the passenger seat without danger to anyone around," Conrad told the DA's office. "My purpose for firing that shot was to gain entry into the vehicle to physically stop the suspect from escaping and possibly running over me, detective Farnsworth, or one of the many people at the restaurant. I knew the round wasn't going to hit the suspect in the vehicle, but was instead going to go safely into the seat."

After the first shot, Davis again threw his car into reverse and moved rapidly toward the fast food restaurant, prompting the officer to fire four more times, the report states.

In order for the use of deadly force to be justified, Gill wrote that "Conrad had to reasonably believe 'that deadly force (was) necessary to prevent the arrest from being defeated by escape' and Conrad had to have probable cause to believe that Davis has committed a felony offense that involved, or could have involved, death or serious injury if not stopped immediately."

"We have nothing before us to provide probable cause that Davis committed a felony offense involving the infliction or threatened infliction of death or serious bodily injury," Gill said in the report. He also noted that there were no witnesses who believed Davis posed such a threat.

"Conrad was not justified in using deadly force to break the window because the legal elements required for the use of deadly force were not present," Gill wrote.

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