The Lawful Use of Force 

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• Video still from video provided by Davis County Attorney's Office

Before Kristine Biggs took Morgan County deputies on a high-speed chase in November 2012, Davis County Attorney Troy Rawlings hadn’t had much trouble in ruling the seven officer-involved shootings that had landed on his desk during his six-year tenure as justified. “All have been clean, appropriate uses of deadly force,” he says.

But the night of Nov. 24 proved to be different. When a Morgan County deputy attempted to pull over Biggs for a broken tail light, she took off, leading deputies into Davis County, sparks flying from her rims after Utah Highway Patrol deployed spikes. When Biggs, who had an outstanding warrant, turned her truck around and tried to escape by forcing her way between two patrol cars, a deputy shot her through the windshield, the round destroying one of her eyes.

Initial press reports, gleaned from information passed to Davis County by Morgan County, described Biggs as having rammed the cars, and she was charged with two counts of aggravated assault against the deputies. But when Rawlings watched the deputies’ dash-cam videos, he saw Biggs’ car turning away from a deputy at slow speed, moments before he shot her.

“She continued to try to escape in a very disabled vehicle at a very slow speed,” Rawlings says. “The officer who used deadly force, he was in the open and exposed. She had a chance to gun it and ram him, but turned away from him.”

On Jan. 7, 2013, Davis County dropped the assault charges against Biggs, and she pleaded guilty to evading and to DUI.

The Morgan County Sheriff’s Office internal-affairs department determined that the shooting “was within state policy,” Sheriff Blaine Breshears says. But shortly before City Weekly went to press, Rawlings ruled the shooting unjustified.

In itself, that’s not a criminal charge. Rawlings won’t be prosecuting Morgan County Sgt. Daniel Scott Peay because, he says, Peay’s “gut-wrenching, emotional” interview about why he employed deadly force—supported by all the officers present at the incident, Rawlings says—indicated that at the moment of the shooting, Peay believed he had sufficient justification. To take the deputy to trial and convict him, Rawlings’ office would have to prove to an eight-person jury that Peay both knew he was unjustified and had sought to “knowingly” hurt or kill Biggs.

Deciding if an officer-involved shooting is justified “puts us in an interesting position,” Rawlings says. On one hand, he doesn’t want to be a rubber stamp for law enforcement, but nor does he want to “chill” law enforcement’s abilities to employ deadly force when they feel it is appropriate.

It’s a situation that his colleague, Salt Lake County District Attorney Sim Gill, has been struggling with for the past two years. As Gill looks for new ways to both train police officers in his district and deal fairly with officer-involved shootings, incidents such as the Nov. 22 killing of 21-year-old Danielle Willard by undercover West Valley City Police officers, and the subsequent lack of information released by the department, have raised questions of accountability, transparency and what defines the lawful use of force.

Since Gill became district attorney, his approach to officer-involved shootings has led to rising criticism from some rank & file officers. One long-serving officer spoke to City Weekly on condition of anonymity because he did not have permission from his chief to speak. “Things definitely changed when Sim Gill came in,” the officer said. “He believed he had a mandate to correct police shootings. I don’t know where he thought there was a problem.”

Gill rejects such a perception, saying that rather than a mandate, he has a responsibility as district attorney to screen officer-involved shootings for the lawful use of force. “The problem, historically, is there has been a perception that the process being used [to determine justification in police shootings] is neither objective nor transparent, and the analysis wasn’t thorough enough for the justifications.”

He continues, “The integrity of the model isn’t established by the 99 officers cleared, but [rather] when the one is identified who should not have used force.”

Gill has ruled three of the 25 or more shootings that have come before him since he took office in 2011 as unjustified. All three involved officers and vehicles.

Now, says the officer, “anyone who gets involved with a vehicle in a shooting, feels they did something wrong. That’s how it’s been portrayed. So, you’ve got officers thinking, ‘If I make one mistake, Sim Gill’s going to come after me.’ ”

Gill ruled one West Valley City officer shooting as unjustified, but later dropped charges against the officer. He also found two separate shootings by Salt Lake City Police Department officers unjustified. One involved a member of Salt Lake City Police Department’s since-disbanded vice squad shooting at a man in a car at a downtown McDonalds, the other an officer discharging eight rounds from his rifle at an oncoming car.

Gill says there’s “an inherent distrust by the community of how we review things.” Whether that perception is because “we tend to close ranks, are secretive in our analysis, or say, ‘Don’t question my actions because I’m inherently involved in a dangerous profession,’ ” he says, “we have an obligation to alleviate it.”

Whoever the district attorney is, Salt Lake City Police Department Chief Chris Burbank says, when it comes to an officer-involved shooting, “I never rely on them to make my employment decisions.” While neither of the Salt Lake City officers felt “they were outside of their scope of authority,” Burbank says, he did terminate one officer. The other resigned. “I do not believe there was intentional malice to do wrong, but, given the situation, they responded inappropriately.”

Burbank says he has prohibited officers from shooting at vehicles except under exceptional circumstances. “The officer’s first responsibility is to get out of the way of the vehicle, not to be pulling the trigger,” he says. “The danger we create [by] shooting at them or chasing these people is greater than the liability of letting them drive away and [then] look for them.”

Gill says he’s frustrated about how his attempts to “do more than pay lip service to protecting ... officers” have been perceived by some in law enforcement. He spent more than $250,000 on a new 360-degree simulator for shooting training, and has provided 600 officers free training related to the psychodynamics of being involved in a shooting. He plans to train another 600 officers in the next two years.

While Burbank says he’s not “uncomfortable with any training,” he adds, “it cannot be a substitute for teaching [our own] officers.” Gill says he’s not trying to substitute, but rather supplement.

Officer-involved shootings in Salt Lake County currently lead to a variety of potential scenarios where agencies, including the law-enforcement agency that employs the shooter, can conduct investigations alongside or in conjunction with the district attorney. This, Gill says, is far from ideal. He has asked four chiefs from Salt Lake City, West Valley City, Sandy and the Unified Police Department to help him create an independent task force to which each agency would contribute investigators.

That model is similar to the approach to officer-involved shootings used by Davis County. In the case of the Biggs incident, 12 investigators drawn from six different law-enforcement agencies in the county, under the lead of Davis County investigator Craig Webb, compiled an exhaustive report on the incident.

Burbank has his reservations, however, about Gill’s plan. “I’m not necessarily opposed,” he says, but adds that his own department has significant resources and veteran officers who have handled shooting investigations for more than 20 years. “I never want that someone else who has no experience gets to investigate my shooting.”

While fact and law drive the determination, Rawlings expects that his first unjustified ruling will please neither law enforcement nor those in the public who view the events as shown on the dash-cam videos as highly questionable and would wish him to go further. Ultimately, he says, “our decision will please only us.”