iw children’s -f sustige center AQ Se - i COUNTY Rolph chamness, SIM GILL Jefrey Witla Hal Chief Deputy DISTRICT ATTORNEY Chet Deputy Ent onson Jsheo bine Usa Ashman Blake Nokamuta pane het oop Spore Shee Bikion November 25, 2019 BY HAND DELIVERY Sheriff Rosie Rivera Chief Mike Brown, Unified Police Dept. of Greater Salt Lake Salt Lake City Police Dept. 3365 South 900 West 475 South 300 East Salt Lake City, Utah 84119 Salt Lake City, Utah 84114 Re: SLCPD Officer Rammell's Use of Deadly Force Incident Location: 1111 East, 3300 South, Salt Lake City, Utah Incident Date: November 3, 2018 D.A. Case No 2018-1422 UPD Case No.: 18-174363 SLCPD Case No.: 18-202382 ‘Dear Sheriff Rivera and Chief Brown: This letter addresses Salt Lake Cily Police Department (“SLCPD”) Officer Brandon Rammell’s discharge of his firearm on November 3, 2018. Officer Rammell firing his weapon constitutes the use of deadly force within the statutory definition of an “Officer Involved Critical Incident” “OICI”) See Utah Code Ann. § 76-2-408(1)(b), (OC). As a result, the law enforcement agency with jurisdiction over Officer Rammell’s use of deadly force, (SLCPD) initiated what is known in Utah as the OICI Protocol, See Utah Code Ann. § 76-2-408(2)-(3). Accordingly, an investigative task force of law enforcement officers ‘employed by agencies other than SLCPD, led by a member of the Unified Police Department of Greater Salt Lake (“UPD”), was called in to investigate Officer Rammell’s weapon discharge. ‘After the investigation, the task force’s investigative findings were presented to the Salt Lake County District Attorney’s Office (“D. A.’s Office”), which has the constitutional and statutory mandate to screen such matters for possible criminal charges.! " Utah Const. Att. VIM, section 16; Utah Code Ann, §§ 17-180-203; see also id. at §77-2-2(1) (defining “screening” as the “process used by a prosecuting attomey to terminate an investigative action, proceed with prosecution, move to dismiss a prosecution that has beon commenced, or cause a prosecution to be diverted"), “Commencement of prosecution" is further dofined as “the filing of aa information or an indictunent.” Id. at § 77-2-2(3).. 35 Eas 500 South, Salt Lake City, Utah 84111 ‘Telephone 385.468.7600 « Fax 385.468.7736 : www. cisirictattomey.sico.orgSLCPD Officer Rammell OICI November 25, 2019 Page 2 SUMMARY OF FACTS AND FINDINGS, ‘The following facts were developed from the OICI protocol investigation. Should additional or different facts subsequently come to light, the opinions and conclusions contained in this letter may likewise be different, On November 3, 2018, SLCPD Officer Rammell was on duty, in uniform and driving in his patrol car when he ran a routine license plate check on a car. ‘The license plate check showed the registered owner of the car, Robert Craig Ortega had an active warrant for his arrest from the Utah Board of Pardons and Parole for a First Degree Felony Aggravated Sexual Abuse of a Child, Officer Rammell followed the car into a gas station and made contact with Mr, Ortega, who did not comply with Officer Rammell’s orders. Instead, Mr. Ortega got in his ear and tried to flee. Mr. Ortega rummaged through the interior of the car and Officer Rammell believed Mr. Ortega may have been reaching for a weapon. Officer Rammell tried to physically restrain Mr. Ortega and take him into custody. Instead of complying with Officer Rammell’s orders, Mr. Ortega fought with Officer Rammell. Mr. Ortega slipped into the driver’s seat. Officer Rammell and Mr. Ortega fought inside the ear as Officer Rammell tried to detain Mr. Ortega, and Mr. Ortega forcibly resisted. Mr. Orlega started the engine and put the car in gear, Officer Rammell explained that he feared he was going to be dragged by Mr. Ortega’s car if he held on to Mr. Ortega, or he would be run over by the ear if e let go. Mr. Ortega put the car in gear and it began to move, Officer Rammell fired one shot at Mr. Ortega. All evidence of which we're aware indicates that Officer Rammel’s bullet did not hit Mr. Ortega. ‘The D.A.’s Office operates under Utah State law to review and “screen?” criminal charges against individuals where a violation of Utah State law may have occurred. The D.A."s Office engages in an analysis (discussed more fully below) to consider whether criminal charges should be filed, In the above referenced matter, the D.A.’s Office operates pursuant fo an agreement between the D.A.’s Office and participating law enforcement agencies to perform joint investigations and independent reviews of OICIs including police officers’ use of deadly force while in the scope of their official duties. Pursuant to the State law and the agreement between the D.A.’s Office and participating law enforcement agencies, the D.A.’s Office has reviewed the above referenced matter to determine whether the office should file a criminal charge against Officer Rammell in the above referenced OICI for his use of deadly force, Among the factors ‘we considered was an analysis of whether the above referenced use of deadly force was justified under Utah State law. We also reviewed this matter using legal and ethical considerations to inform the decision to file criminal charges. As outlined more fully below, the D.A.’s Office finds Officer Rammell’s use of force not justified under Utah State law, Although we cannot 2 As explained mote fully herein, the process of “screening” a case includes an assessment of the facts and an application of the facts to relevant law, using legal and ethical standards to determine whether to file a criminal charge. 35 East 500 Soulh, Sail Loke City, UT 84111 Telephone 385.468.7600 - Fox 385.468.7736 - www clstrictaliomeysico.org,SLCPD Officer Rammell OIC ‘November 25, 2019 Page 3 conclude that the use of deadly force was justified for reasons set forth herein, we nevertheless decline to file criminal charges because we do not believe there’s evidence that Officer Rammell acted with a criminal intent that a criminal charge would require. RELEVANT LEGAL STANDARDS In considering whether to file or decline criminal charges against Officer Rammell for his use of deadly force, we followed relevant legal and ethical obligations and standards are more fully set forth below. Criminal Charges and Prosecution: Standards ‘The D.A.’s Office reviews police officers’ use of deadly force pursuant to the D.A.’s Office’s authority as a public prosecutor as set forth in Utah Constitution Article VIII, Section 16 and Utah Code 17-18a-203*, among other legal authority. Pursuant to this authority, the D.A.’s Office is responsible for determining whether a person’s actions (in this case, whether a law enforcement officer's use of deadly force) violates a criminal statute (Utah State law) and if so, whether and to what extent that person should be charged with a crime, ‘The D.A.’s Office is a public prosecution agency for and has jurisdiction over the prosecution of criminal offenses that occur within Salt Lake County. Among the duties of the D.A.'s Office is the responsibility to receive investigations of potential criminal activity from law enforcement agencies. As mentioned above, law enforcement agencies “screen” potential ctiminal charges with the D.A.’s Office by presenting evidence to the D.A.’s Office that may support the filing of criminal charges against a person who may have committed a criminal offense. Law enforcement agencies present all the relevant facts presently known to them. After receiving relevant facts about a particular matter, the D.A.’s Office considers potentially applicable statutes to determine whether the statutes proscribe the conduct. During the “screening” process, the D.A.’s Office applies legal and ethical standards to the matter at hand to decide whether to file criminal charges. The D.A.’s Office files criminal charges against individuals accused of violating the law when certain legal and ethical standards are satisfied. ‘When these logal and ethical standards are not satisfied, the D.A.’s Office declines to file a criminal charge. * Utah Const. Art. VIII, Section 16 [Public prosecutors,] The Legislature shall provide for a system of public prosecutors who shall have primary responsibility for the prosecution of criminal actions brought in the name of the State of Utah and shall perform such other duties as may be provided by statute, Public prosecutors shall be elected in a manner provided by statute, and shall be admitted to practice law in Utah, If public prosecutor fails or refuses to prosecute, the Supreme Court shall have power to appoint a prosecutor pro tempore. 417-182-203, District attorney powers and funeti na county that is located within a prosecution district, the district attomey: (1) isa public prosecutor for the county; and (2) shall perform each public prosecutor duty in accordance with this chapter or a otherwise xequited by law: 85 East 500 Soul, Sal Lake City, UT 84111 Telephone 985.468,7600 » Fex 385.468.7736 - www.cistictattomey sico.org,SLCPD Officer Rammell OICI November 25, 2019 Page 4 As it applies to this case, OICI protocol investigators performed an independent investigation into the facts and circumstances related to Officer Rammell’s use of deadly forve against Mr. Ortega. ‘The protocol investigation team presented its findings to the D. A.’s Office for an independent review and screening of criminal charges. In considering the facts and circumstances of this matter, we applied the legal and ethical obligations and standards outlined below. As discussed further herein, the application of the relevant legal and ethical obligations and standards resulted in our decision to decline to file criminal charges. Legal Standards A case must satisfy legal standards before a prosecutor files criminal charges. Among, the legal standards to file a case is the requirement that facts show “probable cause” to believe that offense was committed and the accused committed the offense, See, e.g., ULR.CrP. 4(b). A criminal case must be built on admissible evidence; the screening function doesn’t simply consider all the relevant facts presented by law enforcement but must evaluate what evidence will be legally admissible against a defendant charged with a crime. Some evidence proves facts that, while true, may nevertheless not be admissible against a defendant at trial. The screening function is limited to considering evidence that will likely be admissible against a defendant, In this case, each Utah State law statute we considered has an applicable mental state as an element of the offense. In other words, each offense we considered required us to prove Officer Rammell acted with a particular mental state or intent. While some offenses require us to prove Officer Rammell acted intentionally or knowingly, other statutes require us to show Officer Rammell acted recklessly or with some other state of mind as outlined in the particular statute, Also, each Utah State law statute we considered requires us to show Officer Rammell acted with a specified state of mind, Various statutes require the prosecution to prove a person, acted intentionally, knowingly, or recklessly. Although we discuss the potential application of the legal defense of justification, (discussed more fully below) and some of our concerns with its applicability in this ease, we nevertheless there is no evidence to meet our logal burden to prove Officer Rammell acted with criminal intent in his use of deadly force. In other words, while we cannot conclude that Officer Rammell’s use of deadly force was justified, we also acknowledge ‘we may not be able to prove Officer Rammell’s use of deadly force was not criminal beyond a reasonable doubt, Without a reasonable confidence we can meet our ethical and legal obligations (as further discussed below) we decline to file a criminal charge in this matter. Ethical Standards ‘The D.A.’s Office files cases that satisfy ethical standards and considerations in addition to legal standards for filing. Honoring ethical standards ensures that everyone affected by the 36 Easl 500 South, Soll Lake City, UT 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www.disliclaltomey.sico.orgSLCPD Officer Rammell OICI November 25, 2019 Page 5 criminal justice system—suspects, defendants, victims, the community and the system itself are treated fairly, honorably and respectfully. Among the ethical standards which a case must satisfy is a reasonable likelihood of success at trial. A prosecutor must prove cach element of the case beyond a reasonable doubt and to the unanimous satisfuction of a jury to prevail (success) at trial. A screening decision includes a consideration of factors that a jury may consider in weighing testimony, evaluating evidence, apply the law and rendering a verdict. The D.A.’s Office follows many of the screening considerations outlined by organizations like thé National District Attorneys Association’ and the American Bar Association —organizations that address the prosecution function and provide guidance in screening a case. These ethical screening standards are helpful to prosecutors deciding whether a case ought to be filed. * For instance, some relevant considerations for screening are outlined in NDAA Standards 3-3.9 and 44.2: Standard 3-3.9 Discretion in the Charging Decision {a) A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of eriminal ‘changes wen the prosecutor knows that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction, (b) The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in somo circumstances and for good canse consistent with the publie interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction Illustrative or the factors which the prosecutor may property consider in exercising his or her discretion are: (i) the prosecutor’ reasonable doubt that the accused is in fact guilty; (Gi) the extent of the harm caused by the offense; (ji the disproportion of the authorized punishment in relation to the particular offenso othe offender, Gv) possible improper motives of a complainant; (¥) reluctance of the victim to testify; (vi) cooperation ofthe accosed in the apprehension or conviction of others; and (vi) availability and likelihood of prosecution by another jurisdiction, (6) A prosecutor should not be compelled by his or her supervisor to prosecute a case in which he or she has a reasonable doubt about the guilt of the accused. (d)In making the decision to prosecute, the prosecutor should give no weight tothe personal or political acivantages or disadvantages witich might be involved or fo a desire to enhance his or her record of convietions, (¢) In cases which involve @ serious threat to the community, the prosecutor should not be deterred from prosecution by the fact that inthe jurisdiction juries have tencled to acquit persons accused of the particular kind of criminal actin question. (8 The prosccutor should not bring or seek charges greater in mumber of grec than can reasonably be supported with evidence at trial or than ate necessary to fairly reflect the gravity of the offense. (g) The prosecutor should not condition a dismissal of charges, nolfeprosequl, of similar action on the accused's telinquishment of the right to seek civil redress unless the accused has agreed to the action knowingly and {ntlligently, freoty and voluntarily, and where such waiver is approved by the court. £22 Propriety of Charges A prosecutor should file charges that he or she believes adequately encompass the ecoused’s criminal activity and ‘which he or she reasonably believes can be substantiated by admissible evidence at trial. 35 East $00 South, Solt Lake City, UT 84111 Telephone 385.468.7600 - Fox 385.468.7736 - www.dslictattomey sic0.orgSLCPD Officer Rammell OICL November 25, 2019 Page 6 Screening Our review of this case considered whether we could meet our ethical and legal obligations required to file a criminal case. We considered whether we could meet the elements ofa criminal statute and prove it beyond a reasonable doubt. One of the elements we'd have to prove that is found among potentially applicable statutes we considered was the element of state of mind indicating a criminal inten. ‘To have a case with a reasonable likelihood of success at trial, we'd need to present facts showing Officer Rammell used deadly force with the specified criminal intent; and we'd have to prove that beyond a reasonable doubt. In similar instances of screeihing charges against police officers for their use of deadly force, we usually begin our analysis by considering whether or not the facts support a finding that the officer’s use of deadly force was justified, as discussed in more detail below. In this case, we considered whether or not Officer Rammell’s use of force satisfied the elements of the legal defense of justification as set forth in Utah State law. We discuss in more detail later how our review of this matter leaves us uncertain whether we can prove beyond a reasonable doubt Officer Rammell’s use of deadly force was not justified as mentioned above, As relevant here,¢ law enforcement officers such as Oflicer Rammell are legally justified in using deadly force when (see Utah Code Ann. § 76-2-404(1) (emphases added)): (b) effecting an arrest or preventing an escape from custody following an arrest, where the officer reasonably believes that deadly force is necessary to prevent the arrest from being defeated by escape; and (i) the officer has probable cause to believe that the suspect has committed a felony offense involving the infliction or threatened infliction of death or serious bodily injury; or (ii) the officer has probable cause to believe the suspect poses a threat of death or serious bodily injury to the officer or to others if apprehension is delayed; or © Also relovant, but less so given Officer Rammell’s status as law enforcement officers, isthe articulation of “justification” in Utah State law that applies to individuals more generally, including civilians (see Utah Code § 76- 2-402(1) (emphases added)): (a) A person is justified in threatening or using forve against another when and to the extent thatthe person reasonably believes th ‘ora threat of foree is necessary to defend the person or a third ‘Person against anotier person's imminent use of unlawful force. () A person is justified in using foree intended or likely to cause death or serious bodily injury [i deadly force] only ifthe person reasonably believes that force is necessary to prevent death or serious Dodily injury tothe person ora thicd person as a result of another person's imminent use of unlawful ores, orto prevent the commission ofa foreible felony. 35 East 500 South, Salt Lake City, UT 84111 Telephone 385.468, 7600 « Fax 385.468.7736 - www cisiiiclattomey sico.orgSLCPD Officer Rammell OICI November 25, 2019 Page 7 (©) the officer reasonably believes that the use of deadly force is necessary to prevent death or serious bodily injury to the officer or another person. Based on this statute, the legal defense of justification, then, may be available where a law enforcement officer “reasonably believes that the use of deadly force is necessary to prevent death or serious bodily injury ["] to the officer or another person.” Utah Code § 76-2-404(1)(c). That affirmative defense may also be available where a law enforcement officer “reasonably believes that deadly force is necessary” to prevent a suspect's escape and the officer had probable cause to believe the suspect posed “a threat of death or serious bodily injury to the officer or to others if apprehension is delayed.” id. at § 76-2-404(1)(b). In determining whether the use of deadly force wai justified under Utah law, courts may consider several factors, including: (i) the nature of the danger; (i) the immediacy of the danger; and ({ii) the probability that the unlawful force would result in death or serious bodily injury. See Utah Code Ann, § 76- 2-402(5). Although Utah statutory law does not fully differentiate standards of “reasonableness” as between law enforcement officers and civilians, compare Utah Code § 76-2-402(1) (universal application), with Utah Code § 76-2-404(1) (application to law enforcement officers only), the Supreme Court of the United States did in Graham v. Conner, 490 U.S. 386 (1989). In Graham, the Supreme Court instructed that “reasonableness” for law enforcement officers must be assessed in light of a “reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 1d, at 396 (internal citations omitted). The Supreme Court held that this, determination “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests ... against the countervailing governmental interests, at stake.” Id. Finally, the Graham court instructed (id. (internal citations omitted; emphases added)): Because “{t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” ... its proper application ‘requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight. Even if Officer Rammell’s use of deadly force does not satisfy the elements of a justified use of deadly force, it does not necessarily follow that criminal charges are warranted, A further consideration and analysis of our legal and ethical responsibilities must weigh the facts to determine whether Officer Rammell should be charged with criminal offenses for his use of deadly force. As discussed more fully below, our decision to decline to file a criminal charge in this case acknowledges the evidence which tends to show Officer Rammell did not act with criminal intent, 7 “Serious bodily injury” is defined, in tum, as “bodily injury thet creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death.” Utah Code § 76-1-601(11). 35 East 500 South, Saif Lake City, UT 84111 Telephone 385.468.7600 « Fox 385.468.7736 - www.disiiclaltomey sico.crgSLCPD Officer Rammell OICT ‘November 25, 2019 Page 8 FACTS DEVELOPED DURING OICI INVESTIGATION ‘As noted previously, on November 3, 2018, SLCPD Officer Rammell was on duty, in uniform and driving his patrol car. While driving on eastbound on 3300 South Street in Millereek, Utah, he observed a car driving towards him and ran a routine license plate check. Information from a police database notified Officer Rammell that the registered owner of the vehicle, Robert Craig Ortega®, had an active warrant for his atrest from the Utah Board of Pardons and Parole for a First Degree Felony Aggravated Sexual Abuse of a Child. Officer Rammell turned his patrol car around and followed Mr. Ortega to a gas station located at 1111 East, 3300 South in Salt Lake City, Utah. Officer Rammell identified Mr. Ortega as the wanted person from a photograph on his in-car computer. Officer Rammell parked bis patrol car and walked in to the gas station convenience store where he saw Mr, Ortega enter. Officer Rammell made contact with Mr. Ortega inside the store, Mr. Ortega refused Officer Rammell’s order to show his identification and left the store, Mr, Ortega also refused to stop and sit down as ordered by Officer Rammell. Instead Mr, Ortega walked quickly towards his car as though he were going to drive away. Officer Rammell ordered him to stop several times but Mr. Ortega did not comply. Officer Rammell deployed his Taser and fired it at Mr. Ortega; it made contact but was not effective. ‘Mr. Ortega started to fight with Officer Rammell as Mr. Ortega tried to enter the passenger side of his car. Officer Rammell tried to physically restrain Mr, Ortega and take him into custody. Mr. Ortega got into the car, The two struggled and eventually, Mr. Ortega was able to get into the driver’s seat, start the engine and put the car into gear. In his subsequent interview, Officer Rammell said while in the car, Mr. Ortega’s hands were flailing as though he were reaching or searching for a weapon. Officer Rammell explained that he knew Mr. Ortega was wanted for a parole violation on a potential life sentence, and, in Officer Rammell’s experience, parole fugitives sometimes presented the most dangerous kind of suspect encounter, because fugitives could go to extremes to prevent apprehension and arrest. Officer Rammell explained that he also feared he was going to be dragged by Mr. Ortega’s car if he held on to Mr. Ortega, or he would be run over by the car if he let go, Officer Rammell quickly drew his firearm and fired one shot at Mr. Ortega, All evidence of which we're aware indicates that Officer Rammell’s bullet did not hit Mr. Ortega. * As noted above, Mr. Ortoga faces criminal charges for his alleged actions during the incident. As such, Mr Ortega’s statements and other potential evidence against Mr, Ortega is not set forth here and his conduct described herein is described in terms of allegations. Every person accused of wrongdoing is presumed innocent unless and until proven guilty in a court of law. 35 Fast $00 South, Sail Lake Cily, UT 84111 Telephone 385.468.7600 « Fax 385.468.7736 - www clsiclatiomeysico.orgSLCPD Officer Rammell OICI November 25, 2019 Page 9 4 Witness Statements Officer Rammell On November 15, 2018, protocol investigators interviewed Officer Rammell. Officer Rammell said that on November 3, 2018, he was on his way to a vandalism/neighbor dispute call for service in the area of 3300 South and 1100 East in Salt Lake City, Utah, Officer Rammell said he saw a vehicle traveling towards him and he ran a records request on the license plate, Officer Rammell said, to be proactive with his policing, he routinely runs license plate checks on vehicles. Officer Rammell said he often finds vehicles with revoked registration, no proof of insurance, and stolen cars. Officer Rammell said after he ran a records check on this vehicle traveling towards him, the records check revealed that the registered owner of the car, Robert Craig Ortega, was a parole fugitive, and the Utah Board of Pardons and Parole had issued an active warrant for his arrest. ‘The information provided to Officer Rammell showed Mr. Ortega was on parole from a conviction and prison sentence for a First Degree Felony Aggravated Sexual Abuse of a Child, Officer Rammell said he turned his patrol car around and followed the vehicle, Officer Rammell said he saw the car turn into a gas station at 3300 and 1111 East. As he approached the gas station, Officer Rammell said he pulled up a photograph of Mr, Ortega so he could confirm the driver was the person for whom the warrant was issued, Officer Rammell said he saw the Giver was the same person as the photo in the warrant information. Officer Rammell said he tried to make contact with the driver, but to Officer Rammell, it seemed like the driver was ignoring him. Officer Rammell said the driver walked into the convenience store at the gas station and did not respond to Officer Rammell. Officer Rammell said he followed the driver into the store, Officer Rammell said he approached the driver and asked his name and asked to see the driver's identification, Officer Rammell said the driver gave Officer Rammell “half answers” to his questions. Officer Rammell said he told the driver that the driver's car had a first degree felony arrest warrant associated with the registered owner. Officer Rammell said the driver told Officer Rammell it was the driver's uncle who had the warrant. Officer Rammell said during the discussion, the store clerk was holding the driver's identification and handed it back to the driver. Officer Rammell said he reached out and tried to take the driver's identification from the clerk as the driver walked away and out of the store. Officer Rammell said he thought the driver was going to flee on foot. Officer Rammell walked out of the store following the driver who turned on Officer Rammell to engage him. Officer Rammell said the driver began “flexing” and poised towards Officer Rammell, Officer Rammell said he drew his Taser and, with his legs, tried to sweep the driver off his feet. Officer Rammell said he fired his Taser at the driver but it was not effective. Officer 35 East 500 South, Sail Lake City, UT 84111 Telephone 385.468.7600 Fax 385.468.7736 - wivw.cistriclattomey sco.org,SLCPD Officer Rammell OICI ‘November 25, 2019 Page 10 Rammell said the driver ran to the driver’s car and got in the passenger side. Officer Rammell said the driver was “scrambling” around inside the car as though he were searching for something, Officer Rammell said the driver’s hands were moving around the glove box and the car floor and under the seat, Officer Rammell said he was concerned the driver was searching for a knife or a gun. Officer Rammell said because he was worried the driver was trying to obtain a weapon, Officer Rammell drew his duty firearm and asked the driver if he wanted to be shot. Officer Rammell said he wanted to dissuade the driver from continuing to search for or produce a weapon. Officer Rammell said he couldn’t see the driver’s hands and remained worried that the driver would obtain a weapon and use it against Officer Rammell Officer Rammell said, in his experience, arresting wanted parole fugitives can sometimes be very difficult. Officer Rammell said he believed parole fugitives are sometimes the most desperate, dangerous and unpredictable people to arrest. Officer Rammell said: “Tknew what his charge was—it’s rare when you come across a first degree felony—and the severity of his rime, I perceived at the time he was going to do anything and everything to get away, even if that meant driving me into traffic, even if it meant finding a weapon in his car, that was my perception based on his charges and based on his demeanor.” Officer Rammell said he saw that the driver was getting ready to escape in the car. Officer Rammell said he reached in and tried to remove the keys from the ignition, Officer Rammell said as he reached in, the driver hit him in the hands. Officer Rammell said he fought with the driver who climbed into the driver's seat, Officer Rammell said he was partially inside and partially outside the vehicle as he struggled with the driver. Officer Rammell said he punched and kicked the driver to try to preveat the driver from fleeing in the vehicle, Officer Rammell said as the driver got into the driver’s seat, he started screaming, Officer Rammell said even though the driver was screaming, he could hear the ear’s engine start. Officer Rammell said: “My concern was that if he got into the vehicle and started it, if T'was anywhere near that car, he was going to take me with him into that intersection,” Officer Rammell said he was halfway inside the car with his upper body inside and his shoulders and knees in the way of the vehicle’s frame when he heard the engine start, Officer Rammell said he was hanging on to the driver and to the vehicle, and he feared he would be dragged into traffic or run over by the car when the driver fled. Officer Rammell said: “when the engine started, my upper body was positioned in the way of the vehicle and if it moved forward, I would be carried with it.” Officer Rammell said he was trying to remove Mr. Ortega from the vehicle when the engine started. Officer Rammell said: “time kind of slowed down for me, and L ‘was waiting at any minute I would be carried into the intersection.” Officer Rammell said he feared that when the driver fled, it would not be a slow departure from the gas station, but rather a violent and fast jolt and that he would be carried out into the traffic in the street. Officer Rammell said he feared he would be killed or paralyzed if the driver dragged hnim out into traffic or ran over him with the car. Officer Rammell said he 35 East 800 South, Salt Loke City, UT 84111 Telephone 385.468,7600 - Fax 385.468.7736 - www.distictattomey.sico.orgSLCPD Officer Rammell OICL November 25, 2019 Page 11 believed his options were to hold on and be dragged into traffic in the street, or let go and “possibly get my legs run over” by the fleeing car, Officer Rammell said: “watehing the video2, it’s only a few seconds, I think, but in my mind, I felt like it was a couple of minutes of feeling like I’m going to be thrown into this intersection, and I’m never going to walk again, because P’m going to fall out and hit something at a dangerous speed.” Officer Rammell said the driver put the car in gear and wes about to flee, Officer Rammell said he believed he was about to be dragged into traffic in the street if he held on, or run over by the car if he let go, so he drew his firearm and fired one shot at the driver es Officer Rammell tried to position himself to avoid be run over by the car. Officer Rammell said as he fired, he tried to “get out of that zone of where [Mr. Ortega’s] car would hit me or carry me.” Officer Rammelt said as the car pulled away, he still had his gun out and realized he “was out of the way of the path of the vehicle” and that he “wasn’t being dragged.” Officer Rammell said he re-holstered his weapon and ran to his car radio to broadcast Mr. Ortega’s direction of travel, Witness S. S. On November 3, 2018, protocol investigators interviewed S. S,, a woman who witnessed some of the OICI while at the gas station, S. $. said she saw a police officer and a man fighting ‘near the gas pumps. S, S. said it looked to her like the officer was trying to get the driver out of a car, S. $. said the driver drove the car with the driver’s side door still open. S. S. said as the car drove away, the officer drew his gun and fired one shot. Witness B. On November 3, 2018, protocol investigators interviewed B. S., a man who witnessed some of the OICI while at the gas station, B. S. said he was inside his car waiting his turn for the car wash at the gas station when he saw a police officer reaching inside a car. B. S. said the car started driving out of the ges station and he saw the police officer draw his gun and fire a shot. B. S, said to him, it looked like the car was driving away and, in his opinion, the officer didn’t appear to be in danger Witness B. P. On November 3, 2018, protocol investigators interviewed B, P., a man who witnessed some of the events while at the gas station, B. P. said he was inside the gas station convenience store when he was a man fighting with a police officer. B. P. said he saw the officer try to shoot the man with Taser, but the man ran to his car. B. P, said the man tried to get into the passenger ® As we've noted in the past, we believe an initial interview conducted before an officer watches video of the event is less susceptible to criticism that the interview may have been influenced or tainted by the video. 85 East 500 South, Sall Loke City, UT 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www.cisticlaHlomey.sico.orgSLCPD Officer Rammell OCT November 25, 2019 Page 12 side of the car, but the police officer was kicking and punching the man. B. P. said the man eventually got in the car and drove off. B. P. said he heard a pop. Witness S. K. On Novemiber 3, 2018, protocol investigators interviewed S. K., a man who witnessed some of the events prior to the OICI, S. K. said he saw a police officer and a man struggling outside the convenience store. S. K. said he saw the man get away and get into a car at the gas pumps. 8. K. said he saw the police officer with a gun and called 911, Witness M. P. ‘On November 3, 2018, protocol investigators interviewed M. P., a woman who was waiting for a bus on 3300 South when she saw some of the events of the OICI. M. P. said she saw a police officer fighting with aman and heard the man yelling, M. P. said she saw the man get into a car and drive eway and saw the officer shooting at the car’s back tire. Witness T. P. On November 3, 2018, protocol investigators interviewed T. P,, a man who was driving ‘westbound on 3300 South when the OICI occurred. T. P. said he was stopped and waiting for a red light at 1100 Fast when he heard what he described as a squeaky alternator belt as a car engine revved. TP. said he heard what he thought was a backfire and then squealing again. T. P. said he felt the back end of his vehicle move as a red car collided with his vehicle and another car on 3300 South, Witness T. 8. On November 3, 2018, protocol investigators interviewed T. $., aman who was driving westbound on 3300 South when the OICT occurred. T. S. said he heard tires squealing and heard a shot fired. T. 8. said a small red car collided with the front of his vehicle, Physical Evidence Protocol investigators inspected and documented the OICI scene at the Chevron gas station at 3300 South, 1111 East in Salt Lake City, Utah, Investigators found, documented and collected a shirt apparently belonging to Mr. Ortega and apparently removed during the struggle with Officer Rammell. Investigators also found, documented and collected Officer Rammell’s deployed ‘Taser conductors, Officer Rammell’s notepad and quick reference guide and his pen, all apparently distodged during the struggle with Mr. Ortega, On November 3, 2018, protocol investigators inspected and downloaded Officer Rammell’s duty weapon, a Glock Model 17 Gen. 4 handgun, ‘The magazine in the weapon had. sixteen rounds, down one round from its maximum capacity. Investigators also recovered one 35 East 500 South, Self Lake City, UT 84111 Telephone 385.468.7600 « Fax 385.468.7736 - www.disliclaltomey sico.orgSLCPD Officer Rammell OICI November 25, 2019 Page 13 empty (spent) cartridge casing and one fired bullet projectile from inside Mr. Ortega’s vehicle which was recovered a short time after the OICI. Body-Worn Camera Recording Officer Rammell was wearing a body-wom video camera which captured some of the events surrounding the OICI. In the recording, Officer Rammell is seen struggling with Mr, Ortega. The video depicts Officer Rammell firing a shot before Mr. Ortega closes the driver's side door" as he flees from the scene. ‘The recording does not show Officer Rammell firing at a rear wheel as recounted by one of the witnesses. A frame-by-frame andlysis of Officer Rammell’s body-worn camera reveals the sequence of events as they unfolded during the OICI. As shown on the video, Mr. Ortega starts his, vebicle’s engine while Officer Rammell is holding on to Mr. Ortega’s upper torso, At the time, Officer Rammell is partially inside the vehicle. Although the situation is very dynamic, Officer Rammell’s upper body appears to be briefly inside the car at the moment Mr. Ortega starts the engine. Very shortly after Mr, Ortega starts the car's engine, Officer Rammell is seen withdrawing himself from the interior of the car, At the point in time at which Mr. Ortega puts the car into gear and speeds off, Officer Rammell appears to be entirely outside Mr. Ortega’s car. A very small amount of time has clapsed when Mr. Ortega’s car lias moved a few feet and Officer Rammel!’s weapon appears in the video frame. Officer Rammell’s weapon appears to fire as the car’s rear door passes Officer Rammell A review of the body-worn camera recording appears not to corroborate Officer Rammell’s account of the events moments prior to, during, and immediately after Officer Rammell fires his weapon. In saying this, we do not suggest that Officer Rammell either intentionally or inadvertently misled investigators or misrepresented any fact. We acknowledge the situation leading up to, during and after Officer Rammell’s use of deadly force was dynamic and chaotic. As discussed more fully below, we believe Office Rammell’s statements and answers to investigator’s questions reflected his honest beliefs and feelings about the events, but are not corroborated by the objective, observable facts. Photographs Among the photographs obtained and reviewed by investigators were photographs showing the impact of Officer Rammell’s bullet against various parts of the car and the likely trajectory. Investigators documented damage from Officer Rammell’s bullet to the side of the car’s “B® pillar, as well as a hole in the clear plastic cover of the driver’s instrument cluster. Damage to the driver's doot and “B” pillar indicate the driver’s door was nearly closed when the bullet impacted the door and “B” pillar. The trajectory of Officer Rammell’s bullet created a shallow angle relative to the longitudinal exis of the vehicle. Based on the bullet damage, it + Photographs taken of Mr. Ortega’s vehicle after the OICT corroborate the sequence of events and show Officer Rammell's bullet impacting the vehicle’s “A-pillar,” indicating the driver’s door was open when Officer Rammell fired his weapon, 35 East 500 South, Sell Lake Cily, UT 84111 Telephone 385.468.7600 « Fox 385,468,736 - www.cistfickattomey.sico.crgSLCPD Officer Rammell OIC November 25, 2019 Page 14 appears Officer Rammell fired towards the driver from a position outside Mr. Ortega’s vehicle somewhere behind the driver’s door, LEGAL ANALYSIS In considering whether to charge Officer Rammell with a criminal offense for his use of deadly force, we first try to ascertain whether Utah’s broad affirmative defense of justification, particularly as applied to law enforcement officers, effectively precludes criminal prosecution based on the facts before us. In other words, we consider whether Officer Rammell could establish at trial that he reasonably-believed the “use of deadly force [wa]s necessary to prevent death or serious bodily:injury td-the officer or another person.” Utah Code Ann. § 76-2- 404(1)(c).. If Officer Raminell believed deadly force was necessary, and his belief was reasonable, then Officer Rammel!’s use of deadly force would be justified and prevent a criminal charge against him. As discussed in more detail below, we don’t believe the facts support a finding that Officer Rammell’s use of deadly force was justified. In this case, Officer Rammell believed he encountered a wanted person with an active, first degree felony warrant for his arrest for allegedly being a fugitive from parole. Officer Rammell observed the wanted person appeared to be avoiding him and appeared to be dishonest with Officer Rammell about his identity. When confronted with an arrest, Mr. Ortega tried to flee and then fight with Officer Rammell, Rather than comply with Officer Rammell’s lawful orders and submit to Officer Rammell’s lawful authority to effect an arrest for the warrant, Mr. Ortega unlawfully used force to fight against Officer Rammell and then tried to flee from Officer Rammell As Officer Rammell explained in his interview, he believed Mr. Ortega likely presented a heightened danger, because, in Officer Rammell’s experience, wanted persons like Mr. Ortega sometimes were the most desperate, dangerous and unpredictable people to arrest. Officer Rammell approached Mr. Ortega with this concern, as any competent officer would do in a similar situation. In this case, Officer Rammell was concemed that, given the severity of the offense for which Mr. Ortega was wanted, he may imperil Officer Rammell in order to get away, even if it meant dragging Officer Rammell into traffic or finding a weapon in his car and using it against Officer Rammell. Officer Rammell explained that he tried to detain Mr. Ortega and prevent him from driving away. Officer Rammell said that he was holding on to Mr. Ortega when Mr. Ortega started the car’s engine. Officer Rammell said that he was halfivay inside the car when he heard the engine start. Officer Rammell said he was hanging on to the driver and to the vehicle, Officer Rammell said his upper body was inside the car and his shoulders and knees were in the way of the vehicle’s frame, and he feared he would be dragged into traffic or run over by the car when the driver fled, implying that his use of deadly force was necessary for his personal safety at that moment. 35 Eas! 500 South, Sail Lake City, UT 84111 Telephone 385.468.7600 - Fax 385.468.7736 - www clsirickatiomey sico.org,SLCPD Officer Rammell OCT November 25, 2019 Page 15 : Officer Rammell said the driver put the car in gear and was about to flee. Officer Rammell said he believed he was about to be dragged into traffic in the street if he held on, or run over by the car if he let go, so hé drew his firearm and fired one shot at the driver as Officer Rammell tried to position himself to avoid be run over by the car, Officer Rammell said as he fired, he tried to “get out of that zone of where [Mr. Ortega’s] car would hit me or carry me.” Our analysis takes into account that we believe Officer Rammell recollected and recounted the OICI events to the best of his memory and ability. We have no reason to believe Officer Rammell was ttying to mislead or misrepresent facts to investigators in his interview. Officer Rammell mentioned more than once that time seemed to slow down as he experienced the events. We reviewed Officer Rammell’s body-worn camera recording that captured the events of the OICI and néted differences between Officer Rammell’s account and the video recording, We note that differences between an officer’s recollected account and a video recording are often the product of normal recall and narrative activities and are to be expected. We believe it’s reasonable for Officer Rammell’s account to vary somewhat from a sequence of events based on a frame by frame analysis of the body-worn camera recording. And we don’t attribute differences between Officer Rammell’s statements and video recording to the products of dishonesty, In this case, a careful examination of individual frames from Officer Rammell’s body- ‘wom camera recording reveal that Officer Rammell was entirely outside Mr. Ortega’s vehicle and not in danger of being run over or dragged when Officer Rammell fired his weapon, The body-worn camera video recording does not support Officer Rammell’s statement and perception about Officer Rammel!’s body position relative to Mr. Ortega’s vehicle when Officer Rammell fired his weapon, Although we believe there are reasonable explanations to account for the discrepancy, those reasonable explanations cannot bridge the gap left by a factual discrepancy in which Officer Rammell was not in fact in danger of death or serious bodily injury when he fired shot at Mr. Ortega, It is not unreasonable to believe that Officer Rammell genuinely believed his life was in danger when he heard the engine start, and may have even decided to fire his ‘weapon at that point; however, when he actually fired his weapon, he was not in any physical danger. It is unreasonable to carry forward the fear as a rationalization up to the point when he actually fired the weapon when he was not in faet in danger. Officer Rammell’s body-worn camera recorded the events leading up to his use of deadly foroe as well as his responses and reactions to those events. For instance, the video recording shows the first time Officer Rammell drew his firearm while Mr, Ortega rummaged around the vehicle’s interior. Officer Rammell asked Mr, Ortega iffhe wanted to be shot. It’s reasonable to infer that Mr. Ortega’s actions caused Officer Rammell to perceive a danger to himself{—Ofticer ‘Rammell said it appeared as though Mr, Ortega were searching for a weapon inside the car. ‘The video recording shows Officer Rammell holstering his weapon and going hands-on with Mr. Ortega as Mr. Ortega slips into the driver’s seat. It’s reasonable to infer that Officer Rammell’s fear of Mr. Ortega obtaining a weapon had sufficiently abated to allow Officer Rammell to holster his weapon and go hands-on with the driver, Officer Rammell’s perception 35 East $00 South, Sall Lake City, UT 84311 Telephone 385.468.7600 - Fax 385.468.7726 - www.dlsiictattomey.sico.orgSLCPD Officer Rammell O1CI November 25, 2019 Page 16 of fear (ie, the facts that precipitated Officer Rammell drawing his weapon and pointing it at the driver) apparently sufficiently diminished such that Officer Rammell holstered his weapon. Indeed, Mr. Ortega apparently abandoned whatever his efforts were in rummaging around in the car when he slipped into the driver’s seat, his hands visible to Officer Rammell. As this happened, Officer Rammell immediately went hands-on with the driver to effect an arrest and prevent Mr. Ortega from driving away. As Officer Rammell fought with the driver to prevent his escape, the video recording shows Officer Rammell’s upper body at least partially inside the car's passenger compartment. It’s reasonable to infer that Officer Rammell didn’t perceive a threat that the vehicle would move ‘arid injure him while he was partially inside the car—until Mr. Ortega started the engine. It seems evident from the video 'that Officer Rammell believed he was not in a zone of danger as he struggled with Mr. Ortega and tried to prevent his escape. Officer Rammell was not at risk of being run over or dragged while he was partially inside the car. From the video recording, it seems evident that when Mr. Ortega started the engine, Officer Rammell’s perception changed and he reacted accordingly. When Officer Rammell heard the engine start, it is not unreasonable to infer Officer Rammell perceived a danger from the vehicle itself (rather than a danger from the driver using a ‘gun he obtained from the glove box, for instance) and made his decision to use deadly force. Whether he acted consciously or reacted unconsciously, his body responded to the sound of the engine starting by extricating himself from the vehicle’s interior. As he removed himself away from the vehicle, Officer Rammell’s left hand can be seen moving to the driver’s door frame, A frame-by-frame review shows Officer Rammell pulling back, exiting the interior of the vehicle and continuing to move back when the vehicle began to move forward as Officer Rammell raised his weapon and fired as the vehicle drove away. Not Justified In this case, Officer Rammell was factually misteken in his perception (and asserted belief) that, a the time he used deadly force, he was about to be injured. Officer Rammell’s body-worn camera recording shows his position immediately before, during and after his use of deadly force. In fact, the video recording shows, consistent with Officer Rammell’s statement, that, as the car pulled away, he “was out of the way of the path of the vehicle” and that he “wasn’t being dragged.” Officer Rammell said he re-holstered his weapon and ran to his car radio to broadeast Mr, Ortega’s direction of travel. At the moment the car moved away from Officer Rammell, it seems evident from the video recording that Officer Rammell drew his firearm, But because the car was already moving when Officer Rammell fired, e was not in danger of being harmed by the vehicle, Officer Rammell had the space (physical distance) and time to un-holster his weapon, raise and extend his arm with the weapon and point the muzzle towards the vehicle while Mr. Ortega pulled away. At the point he pulled the trigger, the vehicle was pulling away. In fact, this sequence of events was witnessed by several people who more or less generally saw and consistently described the 35 East 500 South, Salt Loke City, UT 84111 Telephone 385.468.7600 - Fax 385.488.7736 - www.cistriclaHlomey.slco.orgSLCPD Officer Rammell OIC November 25, 2019 Page 17 scene as one in which the officer shot at the car while the car drove away, It is the totality of the video recording, including Officer Rammell’s observed reactions captured on video (taken together with his statements about the events) combined with the statements of independent witnesses, all taken as a whole that establish that Officer Rammell fired his weapon from a point in space and time that did not pose a danger to Officer Rammell’s safety. As discussed above, an officer is justified in using deadly force when he “reasonably believes that the use of deadly force is necessary to prevent death or serious bodily injury to the officer or another person.” This legal standard considers the officer's belief. In this case, Officer Rammetl’s belief that he was in danger of death or scrious bodily injury seems genuine. However, the objective facts of which we're aware show Officer Rammell was not in fact in danger of being run over or drazged by Mr. Ortega’s car. When deadly force is not, in fact, necessary to prevent death or serious bodily injury, an officer cannot reasonably believe that it is—the officer might believe deadly force is necessary, but when deadly force is not, in fact, necessary, that belief cannot be reasonable. Therefore, we cannot conclude that the facts support a finding that Officer Rammell’s use of deadly force was justified. Not Criminally Chargeable However, even though we cannot conclude his nse of deadly force was justified, it does not necessarily follow that we should charge Officer Rammell with a criminal case. To have a case with a reasonable likelihood of success at trial, we'd need evidence showing Officer Remmell’s requisite mental state and we'd have to prove that beyond a reasonable doubt. In this case, we considered the context in which Officer Rammell fired his weapon at Mr. Ortega, Officer Rammell’s use of deadly force did not occur in a vacuum; our analysis took into account the dynamic situation and actions of Mr. Ortega in analyzing Officer Rammell’s use of his weapon, Although Officer Rammell said feared for his life, a belief we cannot doubt, the basis of that belief, and the basis upon which he acted is factually inconsistent with the observable facts. While Officer Rammell acted upon a mistaken belief, there is no evidence that he did so to intentionally violate the law. In fact, even under a reckless standard, there is no evidence to support a claim that Officer Rammell consciously disregarded a substantial and unjustifiable risk when he fired his weapon. See, U. C. A. 76-2-103(3). In short, we conclude that Officer Rammell’s mistaken belief that he was in a zone of danger when he fired his weapon does not rise to a state of mind that comports with a criminal intent. In other cases where an officer has used deadly force based on a mistaken belief, we have determined that the use of deadly force did not comply with the statutory provisions of justification, but also did not rise to the level of a criminal state of mind, ‘We believe it’s reasonable and not inconsistent to conclude that from Officer Rammell’s point of view, he appreciated a danger to himself—that the sequence of events until he actually used deadly force and pulled the trigger occurred in an extremely short period of time and led Officer Rammell to believe he needed to use deadly force without knowingly, intentionally, or 35 East $00 South, Solt Lake City, UT 84111 Telephone 385.488,7600 - Fax 385.488.7736 - www.dislictaliomey.sico.orgSLCPD Officer Rammell OICI November 25, 2019 Page 18 recklessly violating the law. It is thus reasonable to conclude that, while Officer Rammell ‘cannot be factually supported that his use of deadly force was justified, he nevertheless had no criminal intent to knowingly, intentionally, or recklessly commit a criminal offense in his use of deadly force. If Officer Rammell used deadly force in a different context or setting—if the facts were different from those in this case—our analysis might be different. Mr. Ortega’s alleged conduct, gives context to Officer Rammell’s use of deadly force: his arrest warrant, his deception to Officer Rammell, his efforts to evade arrest, his assaultive behavior towards Officer Rammell, his efforts (successful in the short-term) to flee from Officer Rammell, and the extremely short duration of a dynamic situation in which Officer Rammell found himself—the cumulative effect of Mr. Ortega’s alleged conduct created a situation during which we find no evidence that Officer Rammell acted with a criminal state of mind. Utah law requires a jury with reasonable doubt to return a verdict of “not guilty” against a criminally charged defendant. We believe the facts of this case support a finding of reasonable doubt as to whether Officer Rammell’s use of deadly force was done with criminal intent, CONCLUSIONS As noted previously, the facts set forth above, and the opinions and conclusions in this letter are based on the evidence of which we are currently aware. If additional facts become available, these opinions conclusions may change. Officer Rammell’s use of deadly force was not justified because the use of deadly force is factually supported by Officer Rammell’s mistaken belief that his life was in danger. However, we do not believe he used deadly force with a criminal intent, Therefore, we decline to file a criminal charge. Ifyou have questions or matters you'd like to discuss, please don’t hesitate to let me know. Salt Lake County District Attorney 35 East 500 South, Sail Lake City, UT 84111 Telephone 385.458.7600 - Fax 385.468.7736 - www.districtattomey.sico.org