Jovany Mercado

Jovany Mercado in an undated photo

SALT LAKE CITY — The parents of Jovany Mercado, shot and killed by police in a confrontation last year, are suing the city of Ogden and the four Ogden police officers involved, saying the incident constituted unconstitutional use of deadly force.

More generally, Juan and Rosa Mercado, Jovany Mercado’s parents, say in the suit, filed Thursday in U.S. District Court in Salt Lake City, that the force used was out of proportion to the circumstances. The suit — a significant sally in the simmering situation — describes the deadly encounter as quick and chaotic and Jovany Mercado’s actions preceding the shooting as innocuous.

“Jovany was obviously disoriented, intoxicated and/or mentally impaired or mentally ill. Jovany never threatened anyone. Jovany never assaulted anyone. Utah is an open-carry state and Jovany had a constitutional right to carry the pocket knife,” the suit reads, alluding to the folding knife the man had in his hand at the time the incident transpired.

It goes on, describing Mercado’s actions the evening of Aug. 16, 2019, in less ominous terms than what police and other officials have used. Mercado, 26, was shot and killed in the driveway of his parents’ Ogden home that evening by police responding to reports in the area of a suspicious man — Jovany Mercado, it turns out — walking around the neighborhood with a knife.

“Despite the fact Jovany is seen walking peacefully, and had committed no crime, officers demanded that Jovany put down his pocketknife,” the suit says. “The pocketknife was seen by the officers to be at Jovany’s side. He never raised or moved the pocketknife in an aggressive manner. Jovany was given virtually no time (just a few seconds) to comply with the confusing and overlapping ‘drop it’ and ‘come to them’ commands of the officers.”

Mercado family

The family of Jovany Mercado, killed in a 2019 confrontation with Ogden police, filed suit against the city of Ogden in U.S. District Court on Thursday, July 23, 2020. Pictured in a screen grab from a press conference on the matter held via an online platform, from left, are Jovany Mercado's father, Juan Mercado; his sister, Ruby Mercado; and his mother, Rosa Mercado. Juan and Rosa Mercado filed the suit.

The elder Mercados seek unspecified damages for pain and suffering in their suit, a declaration that the force used against their son was unconstitutional and punitive damages against the city and four officers. Furthermore, they call for change requiring Ogden officers to carry non-lethal weapons while on patrol and to get specialized training each year on dealing with mentally ill people, among other things.

The city has yet to file a court response. But its legal representatives were quick to come to the defense of the officers, holding a press conference on Thursday, issuing a press release on the matter and releasing a video featuring surveillance and police body cam footage of the incident. The statement and the city’s attorney, Heather White of Snow Christensen & Martineau in Salt Lake City, reiterated their contentions that Mercado posed a dire threat that August evening last year.

“Recordings leading up to and during the interaction with Jovany show he was a lethal threat to the officers and people nearby, and support the County Attorney’s conclusion,” says the city’s press release. Weber County Attorney Chris Allred cleared the four officers involved of wrongdoing earlier this year.

The city’s statement goes on, describing the encounter between Jovany and police as tense. Police repeatedly ordered Jovany to drop the knife in his hand, it notes, but he didn’t comply. He kept walking toward the officers in what they believed to be an “aggressive, challenging” way.

“The officers shot Jovany because he posed an immediate threat of death or serious harm to them and others. All he had to do was drop the knife, as the officers ordered him many times to do,” the city’s statement reads. “Because Jovany advanced toward the officers and did not drop the knife, he left the officers with no other choice but to shoot him.”

Officers are trained to respond to suspects wielding deadly weapons like knives with corresponding force, White said. If somebody with a knife gets too close, she noted, that can pose a deadly threat to an officer if the suspect charges or launches the weapon. The four officers involved, also named in the suit, are Brandon Sevenski, Nigil Bailey, Karson Garcia and John Poulsen. They fired on Mercado 20 times, hitting him 16 times, according to Allred’s report into the matter.

The incident has already been focus of plenty of discussion and debate. The Mercado family and their supporters have demonstrated against police and Allred and the shooting has spurred calls to the Ogden City Council for police reform, with a redefinition of when police may use deadly force. The Mercados also sought some sort of legal settlement with Ogden officials in the matter, but that didn’t yield results.

‘CAN’T CONTRADICT A VIDEO’Like the city’s attorneys, the Mercados held a press conference Thursday on the issue with their lawyer, Robert Sykes of Salt Lake City.

Sykes countered the city’s depiction of the confrontation, saying the police defenders “can’t contradict a video.” He also suggested police could have employed means other than deadly force against Mercado, perhaps used a Taser or pepper spray. White maintains such tools can be ineffective depending on the circumstance.

“They could’ve easily commanded him to stop,” Sykes said. “They had lots of options. They didn’t have to kill this young man.”

He also spoke in strong terms against the Ogden police department. “He didn’t deserve to be executed by the Ogden Police Department. They did wrong. They should admit it. There should be change in that department,” Sykes said.

The city of Ogden is likely to argue that the officers and the city have “qualified immunity” from legal action, Sykes said, and he also offered strong words at the prospects of that sort of defense. Qualified immunity is meant as a balance between holding government accountable and safeguarding governmental entities from lawsuits stemming from reasonable action.

“You don’t use deadly force unless you absolutely have to. We have to keep qualified immunity on a leash. Qualified immunity has killed (Mercado). That’s not right,” Sykes said.

Juan and Rosa Mercado as well as Jovany Mercado’s sister, Ruby Mercado, took part in the press conference with Sykes, held via an online platform. Ruby Mercado said her brother had been diagnosed with schizophrenia and described him as honest and forthright.

“He was not violent at all. He always did the right thing. He did not lie,” she said. The focus in this matter, she added, should be on the police and their actions, not her brother.

Her son’s death has spurred calls for police reform from Juan Mercado, which he voiced at Thursday’s press conference, along with a determination to see the lawsuit through.

“Hopefully you can sleep well tonight,” Juan Mercado said, referring to the four officers involved in the incident and Ogden Police Chief Randy Watt. “But I’m not going to sleep well until I get my justice.”

Contact reporter Tim Vandenack at tvandenack@standard.net, follow him on Twitter at @timvandenack or like him on Facebook at Facebook.com/timvandenackreporter.

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