BEN DORGER, Standard-Examiner file photo

In their efforts to free four Ogden police officers of potential civil liability in the shooting death of a man holding a pocketknife, attorneys for Ogden City are citing a recent federal court decision on a West Valley City police use-of-force incident.

Attorneys filed papers Friday in U.S. District Court in Salt Lake City asking Judge Robert Shelby to consider the West Valley case in his pending ruling on the 2020 civil suit filed against Ogden and the officers after the death of Jovany Mercado, 26, on Aug. 16, 2019.

The suit by the man’s parents, Juan and Rosa Mercado, alleges police used excessive force when the officers fired on Mercado as he approached them while holding a knife at his side. The city argues police were retreating from a threatening suspect who refused repeated commands to stop.

The Mercado parents also said their son “obviously” was disoriented and either intoxicated or suffering from a mental illness, and that officers should have used nonlethal means.

In January, the 10th U.S. Circuit Court of Appeals in Denver ruled that two West Valley officers were justified when they fired stun guns at a man who turned on them at the climax of a SWAT standoff of several hours.

Image supplied, Ogden Police Department

Fernando Coronado and his wife, Tabetha, alleged in their suit that the West Valley officers used excessive force when they felled him with the stun guns. They argued Coronado was not a threat because he was unarmed.

But the Denver court ruled the officers’ actions were reasonable, given that Coronado was highly agitated, intoxicated, had turned toward them after disobeying other officers’ commands to get on the ground, and had threatened to kill family members or anyone who tried to get him out of his residence.

Ogden City cited the West Valley case as an example of the 10th Circuit backing the decisions of officers who perceived that a suspect “posed a serious threat of harm” to them.

In the Mercado case, his family’s suit argues that Ogden police should have done more to de-escalate the situation and should have used nonlethal means, such as stun guns. In a court filing last summer, the Mercado attorneys noted a different 10th Circuit ruling in which the court said police violate the Fourth Amendment “when the officers rely on lethal force unreasonably as a first resort in confronting an irrational suspect who is armed only with a weapon of short-range lethality and who has been confined on his own property.”

“This would suggest that there clearly are situations where the availability of less than lethal force must be considered as part of the ‘totality of the circumstances'” test, the Mercado legal team wrote.

JACOB SCHOLL, Standard-Examiner file photo

In the West Valley case, the two officers who fired stun guns had approached Coronado from the rear while other police on the opposite side were telling him to stop ignoring their commands, according to the court record. The two officers said they could see that Coronado was unarmed, so they slung their rifles over their backs and drew their stun guns.

Ogden’s attorneys said the Ogden officers had no such realistic option because Mercado was walking toward them with the knife and ignoring their commands.

During a hearing last year, Shelby signaled that he wanted attorneys in the case to file additional arguments on how the court should consider, if at all, the availability of less lethal means as it relates to granting the officers qualified immunity from civil liability.

The judge also was interested in the matter of elapsed time “in which officers can access the situation and evaluate less lethal means.”

Shelby is considering Ogden City’s motion to deny the Mercados’ claims.

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