Editor’s note: This is the second in a two-part look at policing in Utah and America

SALT LAKE CITY — Chris Wharton decided it was time to speak out.

Two days after police in riot gear clashed with protesters on a street painted blood-red outside the district attorney’s office in Salt Lake City; after District Attorney Sim Gill ruled lethal force was justified in the killing of Bernardo Palacios-Carbajal by the city’s police officers in May; after images on social media showed one protester’s gruesome wounds and citizens tagged Wharton and other local government officials with calls for answers, the Salt Lake City Council chairman prepared his own emotional response.

The debate rages: How do you maintain law and order — and free assembly — in Utah?

“This has been a difficult 48 hours in Salt Lake City,” wrote Wharton, habitually an upbeat figure often sporting a trademark bow tie. “I’m struggling to find the words to tell you all that I’m feeling, but I see your messages and tags and I want you to know where I stand.”

For more than a month, Wharton — like many local officials across the country and around the West — had wrestled with calls for change on social media and in the streets, as a movement erupted against police brutality and systemic racism, inspired by the killing of George Floyd by Minneapolis police officers on May 25. Some asked for police reform, some for defunding the police and moving resources elsewhere, and others for abolition.

“Justice for Bernardo” became a rallying cry for local activists in Utah, who protested almost daily from May 29 — when the National Guard and numerous police departments converged on the city with tactical gear and military vehicles — until July 9, when Gill announced his decision.

In a press briefing, Gill played body camera footage that showed officers firing 34 shots at Palacios-Carbajal, a suspect in an armed robbery who was fleeing on foot, carrying a gun. Gill concluded that officers reasonably believed that they were in imminent risk of being shot or killed by Palacios, who more than once picked up a gun he dropped rather than run away. Palacios-Carbajal’s body was found to have 13-15 bullet wounds. 

Protesters unconvinced by Gill’s decision rallied around his office, painting the street and damaging the building, eventually incurring a series of first-degree felony charges that would put Utah in the international media spotlight, from CBS to the BBC.

In measured prose, Wharton wrote that his constituents had long favored a stronger police presence, but noted a shift in that attitude. He admitted that it bothered him to see police in riot gear and using military equipment. He explained that his background as a lawyer and activist had taught him both the power of ideas and the difficulty of turning them into policy. Yet he embraced what he saw as a new mandate: “It’s my job to lead our City in dismantling the systems that cause this and build something better.”

That statement, released July 11, put Wharton in a tight spot shared by policymakers in cities across the West — not just liberal strongholds like Portland, Oregon; Austin, Texas, and Seattle, but even Dallas and Aurora, Colorado — where constituents largely want some kind of police reform. A range of groups agree — from the various iterations of Black Lives Matter to some police officers themselves — but disagree on how to go about it.

The elected officials trying to do so must wrestle a daunting web of laws, legal precedent, union contracts, budgets and policies, where no single institution has final say.

Salt Lake City Council Chairman Chris Wharton poses for a photo outside of the Salt Lake City-County Building in Salt Lake City on Thursday, Aug. 13, 2020. | Steve Griffin, Deseret News

Appetite for change

Over the past decade, images of police violence against people of color have become part of the fabric of American life. The names are a haunting roll call: Floyd, Eric Garner, Philando Castile, Breonna Taylor. The pictures, videos and stories bring to life a dreadful data set.

According to FiveThirtyEight, “Black and Hispanic people are stopped more frequently, including traffic stops, and are more likely to be arrested. Once stopped, police are more likely to use force against, shoot and kill Black citizens.” According to a 2016 study by the American Journal of Preventive Medicine, Black people face a fatality rate in police encounters that is 2.8 times higher than white people. 

Critics of reform point to a larger number of overall deaths of white people at the hands of police. That’s true, because there is a much larger population of white people in the country. But the data show Black people are killed at a higher rate than their proportion to the national population. Misunderstanding or misrepresenting data has contributed to divisions in the national conversation as states wrestle with what to do next.

Politicians from both sides of the aisle have spoken out since Floyd’s death. Utah Sen. Mitt Romney marched with Black Lives Matter protesters in Washington, D.C., saying, “We need a voice against racism. We need many voices against racism and against brutality.”

“If we want our children to grow up in a nation that lives up to its highest ideals, we can and must be better,” former President Barack Obama said in a statement as protests grew.

The public largely agrees. A June poll conducted by the Associated Press-NORC Center for Public Affairs found that 79% of Americans consider police violence a very or somewhat serious problem. More specifically, according to a July study from the University of Maryland’s Program for Public Consultation, 73% of Americans favor banning chokeholds and carotid restraints, 65% favor ending no-knock warrants and 65% support amending qualified immunity, while 72% support training to address “officers’ implicit bias.”

That doesn’t mean there’s no opposition. In Utah, Black Lives Matter events are often met with counter-protests against police reform or simply in support of police. Still, Wharton has seen a change in his own district.

“When I ran in 2017, I canvassed the district 5x and knocked on 10,000++ doors,” he wrote on social media. “Up until last month, a large majority of D3 residents, including most people of color, wanted more police offers and resources because they perceived that it would make the city safer. The last 45 days changed all that...Disproportionate killings of Black and Brown folks by police is not new but perceptions are shifting.”

But what kind of change?

On Aug. 3, Salt Lake City Mayor Erin Mendenhall issued an executive order, requiring the city’s police officers to prioritize de-escalation over force, use proportionate force to the situation, and intervene if a colleague goes too far. The order also banned choke holds, “aggressive behavior” and using deadly force to prevent a person from “self-harming,” and announced “specific disciplinary considerations” when officers don’t properly activate their body cameras.

Before Floyd’s death, that might have seemed like sweeping reform, but now it pales next to more extreme measures that have entered the national discussion and in some places taken root. Additionally, the Salt Lake Police Association offered a stern rebuke of the executive order, saying that some of these “changes” were actually no changes at all.

“The order’s directed changes either already exist in department policy, Utah or federal law, or don’t materially change the policies,” officer Jon Fitisemanu said in a press conference. He said police are “already required to intercede if they observe a fellow officer using inappropriate force.”

Across the country, the call to “defund the police” has been a popular, yet controversial rallying cry at protests. The idea is to shift department funds — and perhaps certain responsibilities — to other measures believed to prevent crime. “We must cut the astronomical amount of money that our governments spend on law enforcement and give that money to more helpful services like job training, counseling and violence-prevention programs,” ACLU Policing Policy Advisor Paige Fernandez wrote.

In Minneapolis, where Floyd was killed, the city government has proposed a wholesale defunding of the police department, to be replaced with an overhauled “Department of Community Safety and Violence Prevention.” The city councils of Los Angeles, Baltimore, and Portland have also reallocated substantial portions of police budgets.

Activists also want more accountability for individual officers, most notably by ending qualified immunity. This legal doctrine shields not only police but other “government officials from being held personally liable for constitutional violations,” according to Lawfare. Established by the Supreme Court almost 40 years ago, qualified immunity has increasingly come under fire from all sides of the political spectrum, including a recent opinion from a federal judge in Mississippi, according to CNN.

In Colorado — where protests persist over the killing of Elijah McClain, an unarmed 23-year-old who died of a heart attack after he was injected with ketamine during an arrest in August 2019 — the legislature passed the Enhance Law Enforcement Integrity Act. Among other things, the law affords civilians the right to sue individual officers.

More moderate calls for reform often focus on training and use-of-force policies. Days after Gill announced his decision on Palacios-Carbajal, he sent state lawmakers a list of 22 recommended changes to Utah laws that govern policing, including one that would require “that law enforcement use the least lethal force that is reasonably available” and another that would mandate “extensive officer training on the value and effective uses of less than lethal force.”

Who has the decision-making power?

Mendenhall’s order didn’t stop protests in Salt Lake City. Urban centers are often where the force of public unrest is most keenly felt, but city governments don’t control every policy that affects policing. “There are a lot of assumptions about what the city can and can’t control, because you have issues that are cross-jurisdictional,” Wharton said. “There’s a learning curve when you get into public office about the limits of your power.”

For one, officials have to negotiate with police unions, who worry that reforms could put their members in danger or cost jobs. The Salt Lake Police Association is pushing back: “She’s trying to put an unreasonable layer in there that the officers have to work with,” said Steve Winters, the president of the association. “They’re only trying to do what they have been doing for the last 25 years.” Of an estimated 800,000 officers in the United States, 75%-80% belong to local unions, most of which fall under no national organization. 

Lee Kleinman — a city council member in Dallas, Texas — has called for candidates for elected office to refuse support from police unions, blaming them for flaws in hiring. “The way the union really gets in the way of our ability to provide the type of policing we want to is through recruiting and training,” Kleinman says. “They’ve got to get much deeper fundamental changes in their academies, into the kind of cops they’re bringing in.”

In Utah, state law requires certain training for all officers, carried out through Peace Officer Standards and Training. The city can only add to that training once officers are hired. “When Salt Lake City puts out a call for officers who have gone through POST,” Wharton says, “they’ve already been trained under a state standard that may be different than the way the city wants them to operate.” State law also governs use of lethal force by police officers. 

Speaking at a rally in support of Black Lives Matter last weekend, Utah State Sen. Derek Kitchen, D-Salt Lake City, committed to introduce bills to end qualified immunity, introduce “duty to intervene” for officers whose colleagues go over a certain line, and move funding from the Department of Public Safety to public housing.

That might be easier said than done, said State Rep. Angela Romero, D-Salt Lake City, who also attended the event. “There are certain pieces of legislation, such as Sen. Kitchen’s, that might not be supported by everyone,” she said later. “But we have to have that conversation.”

The power dynamics can make some problems seem intractable, especially on a local level. “Qualified immunity is an issue that I think people associate with being a city issue,” Wharton said, “and it’s not something the city can control.”

Colorado’s new law shows what sort of exceptional situation is required to mobilize support for reform. State Rep. Leslie Herod, the bill’s author, was participating in a protest when a shooter opened fire. According to The Atlantic, she leveraged the outpouring of support from other legislators into backing for her bill. That methodology isn’t readily available to other reform-minded officials.

Still, the Colorado law illustrates a profound shift in the national discussion around race and policing. “The visibility of (the Floyd killing), it being filmed so intimately and shown so broadly, just brought home to everyone not jut nationally but internationally the horror of how people of color are treated in the United States by law enforcement,” said Laurie Robinson, a professor of criminology at George Mason University and a member of Obama’s White House Task Force on 21st Century Policing.

Wharton hopes the national discussion is a chance to move his community — and by extension, the state — toward meaningful change. Despite the intricacies of power, he says, “Salt Lake City is often the city that’s had to deal with issues. They arise in our city before they hit others across the state. So we are often in the position of having to lead — whether it’s police reform or a number of other types of reforms — and we have to represent our residents and try to push for what they’re asking us to do.”