Judge dismisses civil lawsuit in Bernardo Palacios police shooting

The Salt Lake City Police Department did not violate Bernardo Palacios-Carbajal's constitutional rights when officers shot and killed him in 2020, a federal judge has ruled.

On Monday, U.S. District Judge David Barlow granted a motion by Salt Lake City to issue a summary judgment in the lawsuit against its officers, and ruled that Salt Lake police officers Neil Iversen and Kevin Fortuna, along with Chief Mike Brown, did not violate Palacios-Carbajal's civil rights. The shooting prompted numerous public protests.

The claims against the officers have now been dismissed and the case is closed.

"The loss of life is tragic. As police officers, we are charged with the duty to protect our community and each other and in this case that is exactly what happened," Brown said in a prepared statement following the ruling. "Our officers faced a threat. Their actions were guided by training and experience and supported by law and department policy. I appreciate the court's careful review of this matter. The court rejected many of the unsupported claims and characterizations made in this case and relied on evidence and the law to dismiss those claims."

Nathan Morris, the attorney representing the Palacios family, said they are "very disappointed and saddened by the decision" and currently considering their options about what to do next, including whether to challenge the ruling in the 10th Circuit Court of Appeals.

About 2:10 a.m. on May 23, Salt Lake police officers responded to the area of 271 W. 900 South on a report of a man threatening others with a gun. The first arriving officers spotted a man in the parking lot — later determined to be Palacios-Carbajal — who immediately ran from them.

As officers chased after him with guns drawn, one officer yelled over his police radio, "He's got a gun in his pocket. He's reaching in his right (inaudible). ...," according to the officer's body camera video.

Officers chased him through an alley across 900 South. They yelled at him 17 times to either, "Stop," "Show me your hands" or "Drop it," referring to a gun. As Palacios-Carbajal reached the parking lot of Granary Storage, 278 W. 900 South, he stumbled and fell, got up, then fell again as police closed in. Three times Palacios-Carbajal dropped his gun and stopped to pick it up.

After he fell to the ground in the parking lot, Palacios-Carbajal is seen in surveillance video from a nearby business raising both hands as if they were gripping a gun and pointing it at officers, according to Salt Lake County District Attorney Sim Gill. Both Iversen and Fortuna said they saw Palacios-Carbajal point a gun at them while he was on the ground. A total of 34 shots were fired by police.

Gill determined the officers were legally justified in using deadly force and no criminal charges were filed against them.

Palacios-Carbajal's family was highly critical of the decision not to charge the officers, claiming that not only was excessive force used but that Palacios-Carbajal was running because he was "scared for his life" and posed no threat to the officers.

The decision also sparked an outcry from protesters who painted parts of the district attorney's building red as well as the street in front of Gill's office, 35 E. 500 South, and later clashed with police. Palacios-Carbajal's death came on the heels of George Floyd's death by police in Minneapolis and led to near daily protests around the state during the summer of 2020 from those calling for police reform.

Protesters decrying the police shooting of Bernardo Palacios-Carbajal painted and marked the district attorney’s office in Salt Lake City on Thursday, July 9, 2020. | Jeffrey D. Allred, Deseret News

In September of 2020, the estate of Palacios-Carbajal filed a civil lawsuit against the officers who shot him, the police department and Salt Lake City Corporation.

In his 47-page decision, Barlow noted that "the loss of human life is tragic." But the questions the court had to consider was whether Palacios-Carbajal's constitutional rights were violated and whether the officers were entitled to qualified immunity, which grants all government workers immunity for violating constitutional and civil rights unless the victims of those violations can show that their rights were "clearly established."

In this case, the judge wrote in his ruling that the totality of all the events that happened that night had to be considered.

"Trying to separate the totality of these events and view them in a segmented manner would be unhelpful, distortive, and contrary to precedent. Based on the mandates from the Supreme Court and 10th Circuit, the court is to consider the totality of the circumstances in this case, including all events leading up to the shooting and during the shooting.

"Here, police officers quickly responded to reports of two suspects — one of whom turned out to be Mr. Palacios — who had just threatened multiple people with a gun," the ruling continued. "When the officers encountered Mr. Palacios, he ignored at least 10 orders to drop his gun and show his hands, choosing to run with the gun instead. Three times Mr. Palacios fell and lost his hold on the gun; three times he picked the gun up immediately and continued to refuse the officers' commands."

Barlow also addressed the testimony from William Harmening, one of the plaintiff's witnesses, who — as Salt Lake City and the judge noted — did have experience as a law enforcement officer and police academy instructor, but "has never been qualified by a court as an expert in anything other than securities fraud and has never investigated an officer-involved shooting."

The judge wrote that some of Harmening's comments on what he believed happened that night are "blatantly contradicted by the totality of the video evidence."

"The video shows that Mr. Palacios had both hands extended in front of his body and appeared to grip an object at or just below waist level," the judge stated. "At no time does Mr. Palacios put up his hands."

The judge ruled that it was "reasonable for officers to assume that a man who has ignored repeated commands to drop the gun, had previously threatened multiple people with the gun, and who had turned to face them while appearing to hold the gun in his hands, was making a hostile motion toward the officers.

"A reasonable officer could expect that a person who had just threatened multiple others and is committed to retrieving his gun multiple times does so because he intends to use it. That Mr. Palacios had not ambushed the officers around corners he had already passed does not make the officers' belief that he might yet do so unreasonable," the judge continued.

As for the claim that excessive force was used, "the officers continued to shoot at Mr. Palacios as long as he was a threat, specifically while he turned toward them appearing to point the gun at them," the ruling states.

A mural depicting George Floyd and Bernardo Palacios-Carbajal is pictured at the corner of 300 West and 800 South in Salt Lake City on Thursday, June 11, 2020. | Spenser Heaps, Deseret News
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While Morris said the Palacios family is discouraged with the judge's decision and knows that the way the law for qualified immunity is currently written makes it "difficult for them have a proper remedy of justice," he said the family is also pleased with the amount of support they've received in their very public battle to bring justice to their son.

"They're humbled that because of this lawsuit and because of the protests … there have been some incremental steps toward improving the system," Morris said, which included changes implemented by Salt Lake City Mayor Erin Mendenhall and the police department, and even proposals suggested by Gill. "That's not lost on the family, that their voice has been heard to a certain extent."

While mourning Palacio-Carbajal's death in such a public way has been hard on the family, he said the family recognizes that it is important for voices to be heard in order for change to be made.

"The filing of this lawsuit is part of speaking out and trying to be heard," he said. "Sometimes just the process of addressing (an issue) and discussing it is an important part of system."

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