SALT LAKE CITY — An officer was not legally justified when he fired five rounds at a man last year — striking him three times.
That's the conclusion of Salt Lake County District Attorney Sim Gill, who filed a criminal charge against the Adult Probation and Parole officer on Monday. He says the evidence does not match the officer's version of events.
Andrew Reed O'Gwin, 48, of American Fork, is charged in 3rd District Court with aggravated assault, a second-degree felony, in the shooting of Joe Alvin Gomez.
O'Gwin's attorney questioned Monday whether the criminal charge is politically motived. The officer's boss, Department of Corrections Executive Director Rollin Cook, said the department stands by O'Gwin.
"We don't agree and we have concerns with the D.A.'s determination in the case," Cook said.
On May 13, 2017, O'Gwin was stopped in an unmarked police car at the intersection of 4500 S. Main waiting to make a turn when he said Gomez "hopped out of the vehicle, threw something at my window … and he hit my vehicle again. I drew my weapon" and fired, charging documents say.
"According to O’Gwin, Gomez came around the front of his police vehicle and punched O’Gwin’s driver’s side window with significant force and energy. O’Gwin said Gomez struck his police car driver’s side window as 'hard as he could' with an 'object' in his hand. O’Gwin said Gomez did this three times. O’Gwin said that after Gomez punched the car window the third time, O’Gwin fired his gun at Gomez," investigators wrote in the charges.
O'Gwin got on his police radio after and called for help.
"I’m on 4500 South … shots just fired, (the) individual just jumped out of the vehicle, threw something/object at me, tried to attack me …” he said, according to the district attorney's final report of the incident.
When interviewed about the incident, O'Gwin "told investigators that he fired his weapon because he was 'in fear for (his) life.' O’Gwin said he believed Gomez was trying to 'end me,' or 'take my life,'" the charges state.
"This individual wanted to do extreme harm to me, I could see that from the get-go," O'Gwin told the district attorney's office. “To be honest with you man, like this guy is trying to breach my car, he’s trying to get inside my car, he’s trying to do harm to me, there’s no conversation.”
Gomez's attorney, Karra Porter, said she immediately saw red flags the first time she heard the officer's story.
"Frankly, the agent's story made no sense. It literally made no sense," she said Monday. "Plus, the story changed. … Initially, agent O'Gwin reported that Joe had thrown something at his window, breaking it. And then an officer who wrote the report mentioned, 'Those look like bullet holes.'
"(It was) so obvious to me it was a lie," she said. "You don't shoot five times unless you’re grossly overreacting."
Porter said her client was in a car stopped right next to O'Gwin's vehicle, which was to his right. Even though O'Gwin was Gomez's new parole agent, neither man recognized each other, she said.
When interviewed by investigators, Gomez claimed he was throwing a cigarette out the window, but part of it landed in his lap and began burning him, the charges state.
After the cigarette ash got on Gomez, witnesses saw him get out of his car and take a few steps with his hands "at half-mast," according to Porter, adding that he was shot "just seconds" later.
After being shot three times, Gomez, who was a passenger, got back into his vehicle and his friend drove him to the hospital. He was treated for a gunshot wound to his chest and his left arm, which still has limited mobility today, Porter said. Gomez also suffered a serious eye injury from flying glass.
"It's a miracle he's alive," she said.
"Gomez said he came out of the car kind of 'crazy' and was yelling because the cigarette was burning him," according to charging documents. "Gomez said that while he was brushing off his pants, he was shot."
It was only after he got to the hospital that Gomez found out he had been shot by his own parole officer.
"During his interview on June 12, 2017, Mr. Gomez asked: 'Was it my (parole officer) who shot me? Was it?' Mr. Gomez said it was 'ironic,'" according to the district attorney's report. "Mr. Gomez said he remained confused about why he had been shot when, at the hospital, he said he was informed that it was a police officer that shot him. Mr. Gomez said he could not understand why a police officer would have shot him."
Two witnesses in other vehicles told investigators that they saw Gomez get out of his car and walk to O'Gwin's window as if he wanted to have a word with him, and he raised his arms, according to the charges. But neither witness saw Gomez touch O'Gwin's vehicle or hold a weapon, the charges state.
"Investigators processed O’Gwin’s vehicle. Investigators observed and photographed O’Gwin’s driver’s side window. It appeared that O’Gwin fired through the closed window, as the window was still intact following the shooting and during the investigation. Investigators did not find evidence of damage to O’Gwin’s vehicle or window other than damage to the window caused by the shots fired through it," investigators wrote in the charges.
Doctors also checked Gomez's hands and did not find any injuries, the charges state.
In his his final report, Gill concluded that O'Gwin's account of that night "does not appear to be supported by the statements of other witnesses or the physical evidence presently known to us. Other than agent O’Gwin, none of the other witnesses said they saw Mr. Gomez strike agent O’Gwin’s vehicle.
"Other than agent O’Gwin’s statements, we cannot find a basis to conclude that the use of deadly force was necessary to prevent death or serious bodily injury to agent O’Gwin. And we cannot find any corroborating evidence to support agent O’Gwin’s statements; indeed, the evidence of which we’re aware seems to contradict agent O’Gwin’s statements," the report says.
O'Gwin also told investigators "he was 'kind of zoning out' at the red light," according to Gill's report. Porter believes this may have played a factor in O'Gwin impulsively shooting.
O'Gwin's attorney, Jeremy Jones, suggested the criminal charge is politically motivated at a time when Gill is running for re-election.
"This is a D.A. who doesn't apparently believe that law enforcement officers are permitted to use deadly force in the course of their jobs," Jones said. "I think maybe worse than that, beyond that, these charges tell me that this is a D.A. who doesn't believe that perhaps even citizens can deploy deadly force to protect themselves."
He questioned the credibility of Gomez, pointing to the man's criminal record. And he said his client's decision early on to not give a statement to authorities does not indicate any wrongdoing.
Cook said O'Gwin will remain on paid administrative leave as the Utah Department of Corrections now opens its own administrative investigation. Cook noted that he is frustrated by the fact the it has taken a year to get to this point, and O'Gwin has been on paid leave the entire time.
"We support our officer. That's where we're at today," he said.
O'Gwin first started working as a corrections officer in 2006 before working for the Utah Highway Patrol for about three years. He returned to the corrections department in October 2016.
While Porter said she is grateful for the criminal charge filed by Gill, she is concerned about what she believes is a "slanted" officer-involved shooting investigation by Salt Lake police.
"I don't know why this wasn't treated in the same way you would treat any other shooting," she said.27 comments on this story
Porter said from the beginning, the investigation treated the officer more favorably. Gomez, who had recently been released from prison, was sent back to the Utah State Prison for an alleged parole violation as authorities assumed that assault charges would be filed against him, she said.
He was released from prison about seven months later when no charges were filed. Recently, Porter said city prosecutors in Murray filed an infraction charge against Gomez for getting out of his vehicle during that incident when he was shot.
When asked about a possible civil lawsuit, Porter said she believes her client deserves some compensation for what happened, but plans to meet with the state first before taking any legal action.
Contributing: Mark Stevens, Annie Knox