SALT LAKE CITY — A police officer was not legally justified when he fired and hit a civilian while pursuing another man, an investigation has concluded.
But the Salt Lake County District Attorney's Office also announced Wednesday that it will not file any criminal charges against the officer.
In his 26-page report, District Attorney Sim Gill said the determination that the shooting wasn't justified should not be misconstrued as a "moral judgment" on the actions of Unified police officer Cory Tsouras.
"When police officers use deadly force, the risk of mistake cannot be borne by innocent civilians," Gill said. "Whether or not other remedies exist, and whether or not the risk of mistake is reconciled in other forums, we do not believe a criminal remedy is appropriate in this case."
Tsouras was pursuing Jeremy Michael Bowden, 33, on Oct. 30, 2015, near Rocket Express Car Wash, 150 W. 7200 South, in Midvale. As the officer drove alongside him in his car, Bowden fired at Tsouras in the driver's seat, police said, striking him in the chest of his bulletproof vest. Tsouras didn't realize he had been shot or discover the damage from the bullet until later.
In addition to the shot that struck Tsouras in the chest, a round pierced the headrest of the driver's seat in the car, charging documents state. Six shell casings were recovered from the scene.
Tsouras continued driving to get out of harm's way, then got out of his patrol car to look for the gunman. "Mr. Bowden fired more shots at officer Tsouras. Officer Tsouras retreated from his vehicle and while doing so, lost sight of the person shooting at him," the report states.
That's when the officer spotted a man matching an "extremely close" description of Bowden trying to get inside the car wash, Salt Lake County Sheriff Jim Winder said at the time.
In a statement provided as part of the investigation, Tsouras said the man did not comply with his commands to stop and appeared to be moving something in his hands, possibly a gun that had jammed or was being reloaded. Having just been shot at, the officer told investigators he believed the man in front of him posed a danger to himself and police.
Tsouras fired at the man, Dustin Evans, 30, as he attempted to take cover in the car wash, then fired again when Evans reached for something he had dropped. Evans was struck once in the arm and once in the leg.
When Tsouras approached Evans, demanding to know where his gun was, Evans told the officer he was "not the guy," and added, "You shot me," the report states. The object Evans had dropped, it was discovered, was a set of car keys.
Evans had not been involved in the incident but was just "a civilian trying to find safety from the violence around him," Gill wrote. He recovered from his injuries.
Evans told investigators he never heard Tsouras' commands, which were likely drowned out by the sound of a siren left running in the officer's patrol car, the report says.
Bowden, 33, escaped the area by scaling a brick wall, but he was later apprehended. He was charged in January with attempted aggravated murder, a first-degree felony. He pleaded not guilty to the charge last month.
Tsouras, who was placed on paid administrative leave when the investigation began, returned to work three weeks after the shooting. An internal policy investigation is ongoing, and it has not yet been determined whether the officer will face any disciplinary action.
Winder said that while he respects Gill and his role investigating officers' use of deadly force, he disagrees with the determination that the shooting was not justified, expressing "some concerns" about the district attorney's findings. Through a series of diagrams, photos and video footage, Winder illustrated the "beyond belief" timing and coincidences that led to Tsouras mistaking Evans for the suspect he was chasing.
Tsouras, Winder said, did not see Evans arrive, and happened upon the man whose dress and appearance matched Bowden in a logical place where the suspect could have fled. When the man raised something in his right hand and pointed off to the side, Tsouras fired, the sheriff said.
It turned out that Evans was pointing his key fob back to his vehicle to lock it.
"It was the most unfortunate of circumstances we or any other human being could be in," Winder said.
The officer's movements and actions were in accordance with his training, Winder said, characterizing his response as a "life-saving action" in response to being ambushed.
Winder also noted that he met with Evans' mother the night of the shooting and apologized for what happened. The department has not received any notice of claim from the family, but Winder did not say whether the department has given them any kind of compensation.
Tsouras, Winder said, has been "devastated" about the impact of the shooting on Evans and his family.
Winder asked the public to keep in mind the "unique circumstances" Tsouras faced as the violent scene, including an attack on his life, played out in less than three minutes.
However, Gill said that considering the facts Tsouras was presented with, his office couldn't back the officer's decision to use deadly force.
"Had officer Tsouras (or anyone else) used deadly force against Mr. Bowden, our analysis would probably be straightforward," Gill wrote. "The analysis is considerably more complicated since officer Tsouras used deadly force not against Mr. Bowden, but against Mr. Evans; a person who, as it turned out, had done nothing other than find himself amongst gunfire in a public place."
While Bowden and Evans are of similar height and build, and both wearing dark clothes with light shoes and some kind of a hat, Gill's review asserts that other factors should have alerted Tsouras that he might have the wrong man, including the fact that the scene played out in a public place with a high likelihood of running into civilians.
According to the investigation, an estimated 30 seconds passed between the time Tsouras lost sight of Bowden, off to the northeast from the officer. When Evans came into Tsouras' view, he was to the southeast. Before firing, Tsouras should have reassessed his target, the report states.
Additionally, while Tsouras saw something in Evans' hands, he did not confirm whether it was a weapon, according to the report.
"We cannot conclude that officer Tsouras reasonably believed that deadly force was necessary against Mr. Evans," the report concludes.
The decision not to file criminal charges was based on legal and ethical standards and a belief that it would be difficult to prove elements of any criminal intent to a jury.
"We believe officer Tsouras made a mistake when he used deadly force against Mr. Evans, but we do not believe that mistake supports a criminal charge," the report states.
The report also cites the actions of Utah Highway Patrol trooper Andrew O'Gwin, who was cleaning his vehicle at the car wash when shots rang out. Though O'Gwin saw Bowden firing at an unseen target as he moved through the parking lot and apparently ignoring commands to stop, the trooper said he did not fire at Bowden because he wasn't sure who he was.
"Trooper O'Gwin's reservations about his target informed his decision not to use deadly force under the circumstances and at the time," the report states. "In contrast to trooper O'Gwin, officer Tsouras didn't see Mr. Evans with a weapon; he didn't see Mr. Evans shooting a gun or otherwise threatening him or anyone else. … Officer Tsouras inferred both an identity and a threat to his target; however, there were was nothing visible to officer Tsouras that communicated Mr. Evans was a threat at the time officer Tsouras decided to use deadly force."