Deputy shot man twice but didn't call paramedics, lawsuit claims

Published: Thursday, May 23 2013 2:35 p.m. MDT

SALT LAKE CITY — The family of a Sandy man has filed a federal lawsuit claiming a deputy used unnecessary force when he shot and killed a man following a low-speed chase.

The wrongful death lawsuit was filed Thursday in U.S. District Court by the family of Troy Burkinshaw, 52, who was shot twice in the chest on Oct. 26, 2012, in Corinne after police said he attempted to run over a Box Elder County sheriff's deputy. The suit also claims the deputy never called paramedics after shooting him.

For attorney Jim McConkie, the lawsuit represents what he perceives as a growing trend toward violence by some officers. He pointed to the cases of Brian Cardall, who died in the middle of a bipolar episode after a Hurricane police officer twice used a Taser to subdue him; Danielle Willard, who was shot twice by West Valley police officers who apparently said they saw the woman buying drugs and then shot her when she allegedly shifted her car into reverse as officers approached; and others.

"More and more it seems there is an increase of cases where police officers, who generally act carefully and within the prescribed rules and regulations, are using lethal force in situations where it's not justified," McConkie said. "These kinds of things simply shouldn't happen. It's never a good thing to shoot first and think later."

Deputy Austin Bowcutt first noticed Burkinshaw on state Route 13 around 7 p.m. when he believed he saw the man urinating on the side of the roadway, according to the lawsuit. Before the deputy had turned around, Burkinshaw got into his car and drove toward his home, prompting Bowcutt to pull behind the vehicle and turn on his overhead lights.

Burkinshaw pulled over, the lawsuit states, and Bowcutt reported smelling alcohol and seeing a brown paper bag in the back of Burkinshaw's vehicle. The deputy returned to his truck, though, and Burkinshaw started his car and drove away "at a low rate of speed."

The deputy responded by initiating a pursuit and call for backup. The pursuit only lasted about five minutes and never topped speeds of 40 mph, the suit states.

Burkinshaw turned onto a dead end road and the deputy allegedly blocked the exit with his police truck.

"Approximately four seconds later, defendant Bowcutt jumped out of his truck with his gun drawn and shouted at Troy to stop and get out of the car," the complaint states. "(Burkinshaw) attempted to drive around the truck, but was driving so slowly that defendant Bowcutt walked up to the Jetta, voluntarily stepped in front of it and continued to shout at Troy with his gun drawn and pointed at Troy through the windshield."

The deputy continued to shout for the driver to stop as the vehicle moved "at an extremely low rate of speed" before firing three shots toward the windshield, the lawsuit states. Burkinshaw was struck twice in the chest. His vehicle rolled off of the road and into a bush.

The officer is accused of walking to his vehicle, repositioning it behind Burkinshaw's vehicle, then waiting a minute before walking over to check on Burkinshaw. The deputy yelled, "Stay with me" repeatedly, but never called for paramedics or personally tried to render aid, the lawsuit states.

Additional officers did arrive about six minutes later, took Burkinshaw from the car and tried to administer first aid, the suit says. Burkinshaw was pronounced dead at the scene.

"At no point during these events did (Burkinshaw) drive in an aggressive manner or do anything that posed a risk of death or serious physical injury to defendant Bowcutt or the general public," the complaint states.

The lawsuit also claims that that deputy did not make any effort to de-escalate the situation, such as stopping the car by shooting its tires or initiating a PIT maneuver, or decide to follow up with Burkinshaw at his home.

McConkie said Burkinshaw "wasn't fully with it" likely due to alcohol use, but was near his home and was most likely trying to return there. Still, he said Bowcutt and other officers are trained to deal with people who are depressed, suicidal or under the influence.

"There are specific rules and regulations about how to handle these kinds of people and how to handle a situation where they are not endangering the community and not endangering the police officer's life," McConkie said. "The general public ought to know this — if we don't follow protocol in the use of deadly force, then this can happen. We trust police with use of deadly force. They should use it minimally to protect the loss of life."

The Box Elder County Attorney's Office determined that Bowcutt was legally justified in his use of force because he believed he was in danger of death or serious injury and was trying to keep Burkinshaw from escaping. McConkie said he disagrees with that decision.

"The police officers tried to claim this guy ran the officer down, but that's not in the video and also not in the incident report," McConkie said.

The complaint, filed by Burkinshaw's mother, Carolyn, on behalf of her son's estate names Box Elder County, the Box Elder County Sheriff's Office, Sheriff Lynn Yeates and Bowcutt.

Burkinshaw's family is claiming negligence on the part of Box Elder County for failing to adequately hire, train and supervise its employees and on the part of Bowcutt for failing "to exercise reasonable care" in the situation. They are also alleging willful misconduct on Bowcutt's part, claiming that the deputy intentionally disregarded "the laws, regulations, policies and procedures that govern automobile pursuits and the use of deadly force" and in so doing caused Burkinshaw's death.

The family is also pursuing claims of wrongful death, "unnecessary rigor" by the officer and unreasonable seizure and violations of Burkinshaw's due process rights. They are asking that the case go before a jury, where they will ask, among other things, for general and punitive damages, attorney fees and "further relief as the court may deem proper."

Box Elder County Attorney Stephen Hadfield could not be immediately reached for comment Thursday.

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