Jacob Wiegand, Deseret News
FILE - Emergency personnel were on scene following an “officer involved critical incident” in which an adult male suspect was killed on Sunday, April 8, 2018, at near the intersection of 3580 S and 2140 W in West Valley City. In 2017, Utah police officers shot and killed six people. In 2018, there were six officer-involved shootings in just the first five months of the year.

SALT LAKE CITY — In 2017, Utah police officers shot and killed six people. In 2018, there were six officer-involved shootings in just the first five months of the year.

A total of 18 fatal officer-involved shootings were tallied during 2018 in Utah — three times more than the previous year. Eleven of those shootings happened in the final three months of the year.

A record number of "officer-involved critical incidents" — when officers use lethal but not necessarily deadly force — were also investigated in Salt Lake County. Thirteen of the 18 fatal officer-involved shootings happened in the county. District Attorney Sim Gill’s office conducted a total of 21 deadly force police investigations last year, a new record for Gill.

But as the number of investigations grew, so did a deep divide between the district attorney's office and police officers.

Gill says his job is to determine whether anyone, including police officers, is following the law. Some police officers say they don't trust Gill because they fear even when the evidence doesn't support it, he may determine that a shooting was not legally justified and then file criminal charges against the officer.

Because of this rift, more and more officers refuse to be interviewed by Gill's office as part of the district attorney's independent review.

Qiling Wang, Deseret News
FILE - District Attorney Sim Gill announces the formation of a Conviction Integrity Unit at Salt Lake County District Attorney’s Office in Salt Lake City on Monday, Oct. 8, 2018. Police say they don't trust Gill because they fear even when the evidence doesn't support it, he may determine that a shooting was not legally justified and then file criminal charges against the officer.

“There is a genuine and pervasive lack of trust between law enforcement … and this district attorney. And the reason for that is he’s shown time and time again a willingness to charge, even when probable cause does not exist,” said attorney Bret Rawson, whose law firm has represented most officers involved in shootings in Utah.

That distrust has apparently led Rawson and his team to instruct officers involved in shootings not to talk to the district attorney's office during its investigation of an officer-involved critical incident. Although officially Rawson said the advice he gives his clients is private information that he will not discuss, a pattern emerged during the second half of 2018 in Gill’s final officer-involved critical incident reports. In at least five reports, the officers who fatally shot a suspect did not answer questions, provide a statement or offer any information “on the advice of (their) attorney," according to Gill’s reports.

Without a statement from the officer explaining why he or she pulled the trigger, Gill said he has no way of knowing why an officer decided to use deadly force. He may be able to get an idea based on other evidence, such as body camera video. But without an explanation involving the officer's thought process, Gill is forced to conduct an investigation without that key piece of information.

Police in Utah used lethal force at least 27 times in 2018, according to statistics kept by the Deseret News. In 18 of those confrontations, a suspect was killed. The suspect was injured in five other scenarios. In four cases, an officer’s bullet missed the perceived threat and no one was injured.

Gill and police officers in the county agree that officer-involved shootings are the result of the actions of the suspect. The number of police shootings in a single year is dependent on each individual situation and not a law of averages, Gill said, adding that there is no “magic number” when determining if there have been too many shootings in a single year.

“Other than zero, you can’t say what the right number will be,” he said. “You can’t measure against one year to the other.”

But while an officer may perceive his or her life is at imminent risk, Gill has not always found the use of deadly force to be legally justified. And that is where a solid rift has been established between Gill and local police unions.

No position change

Despite the increase in the number of shootings his office has to investigate, Rawson said the advice he’ll give clients in 2019 won’t change, “as long as this district attorney shows a proclivity to disregard the training and experience of law enforcement officers who find themselves in critical incidents.

“Our position hasn’t changed on the concerns and difficulties that exist with this district attorney,” he said.

Some would argue that tensions between Gill’s office and law enforcement began in 2011 when in the span of less than a year, three officers’ use of deadly force were determined to be not legally justified.

• West Vally officer James Cardon was charged with reckless endangerment after shooting at a fleeing vehicle. The case was later dismissed in court.

• Salt Lake police officer Matthew Giles fired eight times at a fleeing vehicle that had rammed a police car. His shooting was determined to be not legally justified, but no criminal charges were filed.

• Then in 2012, West Valley police officer Shaun Cowley’s use of deadly force against Danielle Willard was ruled to be unjustified and Cowley was charged with manslaughter. The high-profile case, however, didn’t make it past the preliminary hearing stage in court.

In 2016, Unified police detective Cordell Whitmore’s shooting of a fleeing suspect in the shoulder was determined to be unjustified, but no criminal charges were filed.

As recently as April, Gill announced that Adult Probation and Parole officer Andrew Reed O'Gwin, 48, was not legally justified when he fired five rounds at a man, striking him three times. O'Gwin was charged with aggravated assault, a second-degree felony. That case was scheduled to be back in court on Jan. 14.

Mark Wetzel, Deseret News
FILE - Karra Porter, Joe Alvin Gomez's attorney, points to a picture of her client's car after an altercation with Adult Probation and Parole officer Andrew Reed O'Gwin, 48, of American Fork. During her press conference in Salt Lake City on Monday, April 9, 2018, Porter said she immediately saw red flags the first time she heard the officer's story.

Another complaint many officers have is the length of time it takes for the district attorney's office to complete an officer-involved critical incident investigation. Officers typically cannot go back to full active duty until that report is completed. O'Gwin was charged 11 months after his incident. A determination from an officer-involved shooting from April 2018 in Salt Lake City has yet to be decided.

Rawson said he doesn't want a district attorney with a rubber stamp. But officer-involved shootings in Utah are rare, he said, and “bad shoots” are even more rare.

“Now, having said that, do those things exist and has it occurred and will it occur? Certainly. And so, our role is to protect the interests of our clients, and I can foresee circumstances where if it was in fact not a justified shoot that we may have a very different type of discussion with any prosecutor,” he said.

“But the reality is we’ve seen this D.A. charge. And in the instances where he has, we’ve felt not only is it not a reasonable doubt case, we felt there hasn’t even been probable cause.”

Important role

Gill said his office has a role to play in the checks and balances of the system. And he is accountable to the public, even if the community doesn't always agree with his decisions.

“I’m going to find nine out of 10 shootings justified. You know why? Because the majority of officers are doing exactly what they’re trained to do,” he said. “But the integrity of a system is not measured by the nine out of 10 that I clear, it’s the ability to capture and recognize and acknowledge that one out of 10 — or that one out of 100 — or whatever that number is, when it’s not justified by an objective process and be willing to share that.

“What does that mean, when they say they can’t trust me?” Gill asked. “They can’t trust me to do my job? To follow the law? To apply the same law they want the sanctuary from? And when I apply it, look at my track record.

"I call it like I see it.”

Gill said there have been times he has determined an officer’s use of deadly force was justified, despite public outcry over his decision. Specifically, Gill points to the fatal shootings of Dillon Taylor in 2014 and Patrick Harmon in 2017.

“When those shootings were justified, and everybody out of the community wanted to hang those officers, it wasn’t the police union that was out there defending them. It was me. It was our office. Because that was the right thing to do. And by the same token, if that shooting is not justified, then we have the same obligation to uphold the law and call it like we see it,” he said.

When Salt Lake police fatally shot Harmon, 50, in 2017 near 1050 S. State, Gill said he received death threats when he determined that shooting was legally justified.

Declining interviews

As for officers not talking to his investigators following a shooting, Gill said he respects an officer’s Fifth Amendment right not to self-incriminate. Nationwide, he said it has become a trend for officers not to speak to those conducting an independent review.

But Gill believes that in order to earn the trust of the community, the best course of action is to be as transparent as possible. And without an officer's comments, Gill said he will never know what prompted an officer to shoot and kill someone.

Only the officer who pulled the trigger can say what was going through that officer’s mind at the time deadly forced was used, he said.

"Officer Green declined to be interviewed in connection with this incident, as is his constitutional right," Gill wrote in one report in 2018. "As such, it remains unclear what he was thinking or feeling, or even what he saw when he discharged his service weapon."

In September, Gill sat down with the family of Elijah James Smith, 20, in his office and had a "difficult conversation" with them as he explained that he was announcing the West Valley police officer's deadly use of force against their son was legally justified.

"I can tell you why I can’t charge him. I can tell you why, under our law, what would be available to him, but I cannot tell you why at the time he pulled that trigger and shot your son. We can make inferences about it, but only he can tell you that,” he told them.

FILE - Body camera footage shows Elijah James Smith, 20, of South Salt Lake, moments before he was shot and killed inside a garage at 3551 S. Jenelles Bay. West Valley City Police had been chasing Smith for a theft at a nearby phone store when Smith ran into a random house.

To date, Gill has had enough evidence from other areas — witnesses, body camera video, surveillance video, etc. — that he has been able to use to make determinations about an officer's use of deadly force without the officer’s testimony.

“Do I anticipate a scenario where I’ll say, ‘I don’t have enough information to rule this justified?' Absolutely,” Gill said.

But Rawson said it's not that officers don't want to talk. They just don't want to talk to Gill. Officers involved in shootings talk to their departments’ internal affairs teams, he said. And if Gill wants to take those officers to court to get their testimony, then so be it.

“Our feeling is if they are going to charge our officers, sometimes it’s best for that perspective to come out on the witness stand,” he said.

“Officers don’t have anything to hide. These officers want to tell their stories. They always are approached by their administration to have them provide that information. They’re compelled to provide that information by an internal process that requires that if they don’t provide that information, they actually lose their jobs and are decertified by the state of Utah,” he continued. “Where they are not necessarily voluntarily giving statements is in the criminal proceeding.

"It’s a homicide investigation. The public sometimes doesn’t understand that when an officer uses deadly force, they are investigated just like any other member of the public that uses deadly force.”

Rawson said officers are afraid that if they tell the district attorney something that doesn’t match other physical evidence, they’ll face criminal charges.

“They need to feel like they’re not targeted by the person who is ultimately making the decision. And there have been enough instances that have caused concern among the law enforcement community that the lack of trust that exists and continues to exists, I view, as an ongoing problem that has not been resolved,” he said.

“We feel this D.A. is intending to get these officers in kind of a ‘gotcha’ moment. It’s like, get in a fistfight and then tell the story exactly how it happened blow for blow. It’s a very difficult thing to do. And then if you’re asked to do it multiple times, that’s a very difficult thing to do. Nobody can be expected to perfectly articulate that given how complex and difficult those circumstances are.”

Gill said that’s not what his office is doing.

“We look for everything. It’s not just, ‘Oh geez, you used the wrong pronoun in the statement that you gave me, therefore you must have something to hide.’ That’s not what we’re doing,” he said. “It’s not about railroading anybody or discounting anybody or looking for a ‘gotcha’ moment, because it’s not about me doing a ‘gotcha’ moment. It’s still what we have to be able to prove to a court.”

Maybe the one area both sides have in common is that each believes the other's actions are politically motivated.

Gill said if officers and their attorneys are withholding interviews because of their Fifth Amendment right, that's fine. But if it's because of a personal grudge, he'd rather they just say so.

"You want to hold this D.A. or this office hostage to your political decision, that’s perfectly fine. But let’s not couch it into some constitutional framework. If it’s a political consideration, own it. Make it as such,” Gill said.

"If you’re making this purely as a political decision or a personal decision, then you’re not really serving the best interest of that police officer. Because that’s where a statement might clarify that and not have to go down that rabbit hole. But that’s a call that each lawyer, each client, has to make for themselves. And then we live by the consequences of those decisions.”

Gill proudly points out that his office has personally spent $1 million to help train local officers in de-escalation techniques and how to respond to the potential use of deadly force situations, including the purchase of a sophisticated machine — like a life-sized video game — that puts officers in realistic training scenarios.

"The majority of men and women in law enforcement do their job honorably, professionally and with great diligence, and they should be respected for that and I respect them for that. But wearing a uniform and having a badge is not an automatic immunity from the checks and balances, the expectations of our community, or the rule of law.

"Nobody is absolved from that responsibility. That’s why this office is an independent elected office,” he said.

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"If the issue is they want a rubber stamp, I am not that person. If the issue is they want 100 percent agreement, I am not that person. If the issue is that I am committed to a fair and just process and call it the way it is, because that’s the way the law requires us to do it, I will do it even if it’s against my personal best interest, my professional best interest, against the interest of this institution.

"I will do it with great pride in defending those officers when they do something right.”