Davis County attorney won’t ‘rubber stamp’ police shootings if officers don’t talk to investigators
FARMINGTON — The prosecutorial review of a fatal police shooting in Farmington last year will remain open until one of the two officers who fired shots decides to speak to investigators, Davis County Attorney Troy Rawlings says.
A Utah Highway Patrol trooper and a Farmington police officer on Dec. 13, 2020, fired at a man who crashed his car into one of theirs and then got out and moved toward them with a knife, according to incident reports. Robert Joseph Evans, 27, died at the scene.
The Davis County critical incident team investigated the shooting, a process that occurs after any use of deadly force by law enforcement. The protocol team’s findings are reviewed by Rawlings’ office to determine whether use of force was appropriate. In the Evans case, Rawlings on May 6 ruled the Farmington officer’s actions were justified.
Asked for an update on the case Thursday, Rawlings said the Farmington officer agreed to speak to protocol team investigators but the UHP trooper declined, citing his Fifth Amendment right to avoid self-incrimination. “Unless and until he cooperates, that case (involving the UHP trooper) remains pending and open,” Rawlings said.
Officers who use deadly force deciding not to talk to investigators is a trend, one frustrating to Rawlings and other prosecutors, but a development that is another outgrowth of increased scrutiny of law enforcement since the Ferguson, Missouri, protests in 2014, a police advocate said. In the St. Louis suburb, the fatal shooting of a Black teenager by a white officer ignited weeks of unrest and helped fuel the Black Lives Matter movement.
“After Ferguson, things changed very rapidly. We started to see prosecutors more willing to charge officers,” said Bret Rawson, general counsel for the Utah State Fraternal Order of Police. “Generally speaking, in 2021 it is inadvisable for me to say to a client in a use of force case that he should give a statement voluntarily to the protocol team.”
But Rawlings said officers who decline protocol team interviews on the advice of their FOP lawyers also don’t write incident reports about their actions. Reports are a standard step in any police case. “It creates tension in their role as a police officer,” Rawlings said.
The problem for officers, Rawson said, is that in many deadly force cases, an officer gives two interviews in the aftermath. One is to the protocol team, and the other is for an internal investigation by his agency, called a “Garrity” interview. In a Garrity interview, officers are assured that their statements will not be used against them in a subsequent criminal prosecution, according to a 1967 Supreme Court decision. An officer who refuses to respond or fails to respond truthfully to questions after receiving a Garrity warning is subject to suspension or revocation of his peace officer certification.
After Ferguson, news media and others began obtaining Garrity interview transcripts via public records requests, creating a “legal whiplash” for officers and their attorneys, Rawson said. If an officer gives two interviews and they don’t match, an officer could have exposure to prosecution, loss of certification or civil liability.
“Imagine you’re in a fistfight and you are asked to tell the story again weeks later,” Rawson said. “Is it going to be the same story? It’s not a matter of deceit, it’s a matter of memory. Who can remember things perfectly in dynamic circumstances such as a life and death situation?”
Rawson is a reserve police officer. He said some other lawyers in his Sandy firm are former police officers or reserve officers and all are certified in use of force science.
“Officers almost always want to give statements,” Rawson said. “They want to tell their story. It’s very cathartic, even though it’s often difficult. These officers were the victims. Someone did something to them, somebody pointed a gun at them, and they feared for their own life or the lives of others, and they had to do this frankly terrible thing.”
Rawlings said that when an officer won’t be interviewed, his office still will file criminal charges against the officer “if there’s a clear cut and obvious reason to charge them.” In the absence of an interview, he said, “I’m not going to put our office in the position of rubber-stamping and justifying the use of force every time an officer does not cooperate with us and write his reports.”
Rawlings said he would never charge an officer for not submitting to an interview, because that would violate the officer’s constitutional rights. “Our only remedy is to keep the case open” regarding the question of use of force, he said.
Another issue, Rawlings said, is that when a suspect survives a police shooting, testimony from the officer who used force is needed for the prosecution.
Rawson said that while he and other FOP attorneys may advise against protocol interviews, it’s the client’s decision, and some go forward. He said in Salt Lake County in recent times, the only officers charged after use of force incidents were those who had submitted to protocol team interviews.
“There is exposure for an officer who has been involved in a use of force situation, no different than in a case of homicide by any individual, by an individual making statements” to police investigators, Rawson said.
A Woods Cross police officer was fired in August and later charged with aggravated assault. He had said two burglary suspects were trying to run him down, so he fired several shots at their vehicle. But police and prosecutors said an investigation showed the suspects’ vehicle was backing up, not moving toward the officer.
In the Farmington case, the names of the officers involved were not made public. Rawlings said the UHP trooper later left the state agency and now is a Farmington officer.
The county attorney’s investigation report in May said both officers involved in the shooting initially declined to speak to investigators. The Farmington officer, accompanied by his attorney, eventually met with county investigators on April 28.
The report said the two officers and a second Farmington officer were investigating a car theft at 121 S. 650 West when a southbound four-door sedan driven by Evans crashed into a Farmington police car.
The report said Evans, a Farmington resident, got out of the car, pulled a knife and advanced on the trooper, who began yelling commands at him. The trooper fired and the Farmington officer, standing to the right of the trooper, also fired. The officers both carried Glock handguns.
Investigators interviewed three neighboring residents about the shooting and also spoke to Evans’ father. The elder Evans told investigators his son had a history of mental illness.
About a year earlier, a South Ogden officer who fired a fatal shot as officers tried to stop a driver at the end of a chase declined to speak to investigators. The Weber County Attorney’s Office later cleared the officer of wrongdoing, saying available evidence demonstrated the officer feared for his life and that of another officer. The family of that driver has sued South Ogden City in a federal wrongful death action.