Protest Jovany Mercado 01

Advocates and family of Jovany Mercado gather to protest Weber County Prosecutor Chris Allred on Thursday, March 12, 2020, outside the Weber Center in downtown Ogden. Allred cleared four Ogden police officers of wrongdoing in the shooting of Mercado on Aug. 16, 2019. Mercado was holding a knife at the time of the incident.

OGDEN — On Oct. 26, 2012, a Box Elder County sheriff’s deputy shot to death a man who was driving toward him. After a five-year court battle, a federal court exonerated the deputy of civil liability.

Attorneys representing Ogden City are now invoking the results of that case in their defense of four Ogden officers in a civil suit over the Aug. 16, 2019, shooting death of Jovany Mercado.

In both cases, police were retreating from a threatening suspect who refused repeated commands to stop, Ogden argued in documents filed March 9 in U.S. District Court in Salt Lake City.

The 26-year-old Mercado’s parents, Juan and Rosa Mercado, accuse the Ogden officers of unconstitutional use of deadly force. The city denies the allegations, and the Weber County attorney ruled the shooting justified.

The Ogden attorneys contend the case of Deputy Austin Bowcutt, who shot Troy Burkinshaw, 52, of Sandy, provides precedence justifying officers’ actions in Mercado’s shooting.

After a five-minute pursuit ending in a residential area, the deputy used his vehicle to block Burkinshaw from driving out of a cul de sac. Bowcutt drew his handgun and stepped in front of the man’s car. The man continued to drive forward slowly as the deputy stepped backward, with the vehicle inches from the deputy.

In analyzing whether the man posed an immediate threat, the U.S. 10th Circuit Court of Appeals determined police video showed it was “readily apparent” the man “posed an immediate threat to (the deputy’s) safety.”

Bowcutt ordered the man to stop, and he did not. Further, Bowcutt was in “a very confined area” and had “mere seconds to react,” the court said.

The court therefore found Bowcutt’s actions were reasonable and granted him qualified immunity from civil suit.

Ogden’s attorneys said the four Ogden officers were “a relatively close distance” from Mercado, he refused commands to stop, he flicked open a pocket knife and they were backing away from him.

They pointed out that the court determined Bowcutt “was under no obligation to take cover in order to discourage (Burkinshaw) from using his vehicle as a weapon to inflict potentially deadly force.”

Burkinshaw gave “no indication that he intended to stop,” and the deputy voiced at least eight commands for him to stop or get out of the vehicle, the court said.

“Similarly, Jovany ignored multiple commands to drop the knife and gave no indication that he would stop or drop the knife,” the Ogden attorneys wrote. “Like the man in the vehicle, he continued to advance towards the officers after flicking his knife open, and the officers retreated, trying to create distance between them and Jovany.”

Distances were “minimal at the moment the officers had to make the split-second decision to use deadly force to prevent harm to themselves and others,” the attorneys said.

Citing another appellate case, they said a “reasonable officer need not await the glint of steel before taking self-protective action; by then it is often too late to take safety precautions.”

The Mercados’ suit, on the other hand, contended the man was given “virtually no time to comply” and police offered “confusing and overlapping” commands.

Mercado’s death sparked protests in Ogden. Civil rights activists accused Ogden police of a pattern of excessive force.

Following a flurry of motions in the civil case over the past two months, Judge Robert Shelby has scheduled a May 19 hearing on the competing arguments.

You can reach reporter Mark Shenefelt at Follow him on Twitter at @mshenefelt.

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