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Pat Reavy, Deseret News
A vehicle with window shot out, sits outside a Salt Lake City McDonalds after an officer involved shooting Friday evening, Oct. 28, 2011.
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. —District Attorney Sim Gill wrote

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.

Davis was hospitalized for several weeks and later booked into jail for investigation of an unrelated count of exploiting prostitution, a second-degree felony.

Gill said his office will now discuss whether criminal charges against Conrad are warranted.

Since Gill became district attorney 15 months ago, he has already had to review 19 incidents of officers firing their weapons in Salt Lake County. Two occurred in 2010, 14 in 2011 and three so far in 2012.

Two of those 19 shootings are still under investigation. In addition to the McDonald's shooting, two other officer-involved shootings have been deemed legally unjustified.

• Former West Valley police officer James Cardon was writing a traffic ticket on May 24 near 3500 South and 5275 West, when another vehicle came up too fast on the stopped traffic. The vehicle swerved to avoid hitting other vehicles and went into a front yard, hitting a fence.

Driver Jose Contreras got out of the vehicle and was confronted by bystanders. He then got back into his car and fled. Cardon saw Contreras driving toward him and held up his hand to try and get the vehicle to stop. He then drew his weapon and waved it in front of the vehicle to convince the driver to stop.

Saying he believed the vehicle was going to hit him, Cardon fired three shots at the vehicle's tires. But witnesses told investigators the vehicle was trying to avoid Cardon.

That shooting was determined to be legally unjustified. Cardon, who has since resigned from the department, was charged earlier this month in 3rd District Court with reckless endangerment, a class A misdemeanor, which is punishable by up to one year in jail.

• Salt Lake police officer Matthew Giles was also determined to be unjustified in the use of deadly force. But Gill declined to file any criminal charges against him.

On May 8, 2011, Giles fired eight times at a juvenile in a stolen car attempting to flee police near 1600 West and 400 South. The teen had already purposely rammed a police car in an attempt to escape.

Giles told prosecutors he feared for his life as the fleeing car sped toward him, so he fired his weapon. Logistically, however, the DA's office determined it would have been impossible for the officer to fire as many times as he did if everything happened the way he claimed.

The officer's statements and the factual evidence from the case did not match, and Gill determined the shooting was not legally justified.

Every time a law enforcer along the Wasatch Front fires their service weapon, the Salt Lake County District Attorney's Office is required to conduct a review. Not all of the 19 shootings Gill has investigated as DA has resulted in someone being shot.

Gill said 99 out of 100 times he will clear an officer of any wrongdoing. But he believes the integrity of the reviews are maintained by ones that are found to be unjustified.

"When we clear somebody, that clearance should mean something," he said. "If there's a perception the process is tainted and can't be trusted, it is a dishonor to them when they put their lives on the line in a justified shooting."

Prior to the Giles' shooting being ruled unjustified, Gill said the last unjustified officer-involved shooting was believed to be in 2004 or 2005.

"I can't speculate what a prior administration did or didn't do. All I can say is what our administration is doing. We are committed to an objective and transparent model," Gill said.

The DA said his administration is also the first to make all of its reports on officer-involved shootings available to the public.

"We have a responsibility to be objective, transparent in the clearances that we give. The worst thing that can happen is that if you don't have an objective and transparent process, what you end up doing is giving clearances to officers that deserve it but nobody trusts that," he said.

In the Ashworth shooting in West Valley City, Gill said Ashworth's blood-alcohol content was nearly four times the legal limit and he had already fired his gun once before advancing on officers aggressively.

"These officers showed remarkable restraint. They showed the utmost professionalism I have ever seen in these types of scenarios," he said.

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