Duchesne County Attorney 21554 West 9000 South P.O, Hos 206 Duchesne, Utah 64021 (4351 736-0184 Fas (135) 738-0186 July 1, 2015 Chief Rick Harrison Roosevelt Police Department 255 South State Roosevelt, UT RE: May 3, 2015 shooting of Kevin Vance Norton Pursuant to Utah Code Section 17-182-401, as an authorized Special Deputy Duchesne County Attomey, I am charged and authorized to “conduct, on behalf of the state, all prosecutions for a public offense committed within {the] county.” Pursuant to Utah Code Sections 26-4-6 through 26-4-7 and 26-4-21 (2), I have been authorized to investigate the death of Kevin Vance Norton, which death was the result of a gunshot, and have been charged to “determine if criminal prosecution shall be instituted.” The State Bureau of Investigations (SBI), assisted by the Utah County Attorney's Bureau of Investigation has concluded its investigation into the May 3, 2015 shooting of Kevin Vance Norton by Lt. Peter Butcher of the Roosevelt Police Department. After reviewing the results of that investigation and the pertinent statutes and case law, I find that Lt. Peter Butcher was {justified in the use of deadly force against Mr. Norton and will therefore not institute criminal prosecution against Lt. Butcher. Based on my review of the investigators’ reports, which include the officers’ body cams, interviews with officers, family members, and other witnesses, the Medical Examiner's report, the toxicology report, the Crime Lab report on the gun, and photos of the scene, 1 have compiled a brief factual summary of what I believe occurred and a short analysis of how I arrived at my findings and decision.FACTS On May 3, 2015, officers were called regarding a possible suicidal male with a gun. Officers attempted to locate that person, Kevin Norton, but were unable to locate him until he was driven to the hospital by his wife, who had persuaded Mr. Norton to get medical attention. As soon as he arrived at the hospital, Mr. Norton fled on foot while carrying a gun. Mr. Norton’s wife went into the emergency room and requested assistance and then attempted, unsuccessfully, to stop Mr. Norton from leaving. Emergency room personnel called police and reported a fleeing person with a gun. Chief Rick Harrison of the Roosevelt Police Department heard the dispatch call, deduced the most likely location of Mr. Norton, and confronted Mr. Norton in a wooded, gravelly area near the hospital. Deputy Morant Harrison arrived shortly thereafter and called dispatch with their location. Other officers in the area responded to assist, including Trooper Carson (UHP), Deputy Yates (Duchense Sheriff's Office), Officer Cornaby ( Roosevelt P.D.) and Lt. Butcher ( Roosevelt P.D.). Officers spoke with Mr. Norton in an effort to de-escalate the situation and obtain the gun, which Mr. Norton repeatedly placed under his chin in a firing stance, then waved the gun towards the officers, who surrounded him. Mr. Norton's gun was a Davis Industries model DM-22, .22 caliber over/under derringer. After the incident, officers discovered one live round and one spent cartridge in the gun. (An SBI investigator examined the spent cartridge and believes that the round had been fired sometime prior to this incident based on the difficulty in removing it from the gun.) Mr. Norton repeatedly requested that the encounter be recorded. When Mr. Norton did not believe that the incident was being recorded by body cameras, Deputy Harrison attempted to show Mr. Norton the footage from his camera, but was unable to get the footage to play. Officers attempted to persuade Mr. Norton that they could watch the video back at the police station. Officers also agreed that Mr. Norton would not be handcuffed during the trip to the police station, but Mr. Norton refused when officers would not allow him to retain his gun on the way to the police department. In the course of the conversation, Mr. Norton took a methamphetamine pipe from his pocket and gave it to Chief Harrison. Mr. Norton told the Chief that he had just smoked methamphetamine. Lt. Butcher borrowed a taser from Trooper Carson. Mr. Norton saw Sgt. JC Hansen, (Roosevelt P.D.), driving by and asked to speak with him. Officers waived Sgt Hansen to their location and Sgt. Hansen began to negotiate with Mr. Norton, at which time Mr. Norton indicated that he was being set up. Mr. Norton also stated that he was not aiming at anyone. Officers who were surrounding him noted that Mr. Norton was paying attention to the location of each officer. Lt. Butcher advised the Chief that he had a taser and then notified dispatch that they were “trying to talk him down, he’s still got his gun.” Mr. Norton moved forward with the gun to his chin and stated “they’re going to kill my wife and kid.” As talking with Mr. Norton was not improving the situation, Lt. Butcher asked Chief Harrison if he should get bean bag or “less lethal” rounds in case some force would be required to resolve the situation, The Chief agreed and Lt. Butcher went to his vehicle and retrieved three bean bag rounds (less lethal ammunition) as well as a shotgun from his police vehicle. Lt. Butcher loaded two of the bean bag rounds intothe shotgun, but was unable to load the third round without racking the shotgun, which action Lt. Butcher believed might antagonize Mr. Norton further. The shotgun was loaded with two bean bag rounds and four live rounds of ammunition when Lt. Butcher returned to the scene. Mr. Norton again stepped forward with the gun to his chin, and Chief Harrison handed the taser to Sgt. Jensen. Mr. Norton refused to place the gun on the ground, saying that he was worried that the gun would be scratched, so Sgt. Jensen got Dep. Harrison’s ball cap, placed it in some tree branches, and invited Mr. Norton to place the gun in the cap, where it would not be scratched. Mr. Norton stepped forward, placed the gun in the cap, stepped back, then reached forward again, grabbing the gun. Sgt. Jensen deployed his taser and Mr. Norton fell to the ground, but the officers did not believe the taser was effective. While on the ground, Mr. Norton pointed the gun towards Off. Yates, then began to roll down the hill. Lt. Butcher fired a bean bag round at Mr. Norton, then Off. Comaby fired his taser at Mr. Norton, Neither the bean bag round nor the taser appeared to be effective, and Off. Cornaby stated that Mr. Norton was “off” his taser after about two seconds. Mr. Norton continued to hold onto the gun and appeared to be attempting to regain his footing. Lt. Butcher fired another bean bag round. Mr. Norton came back up on his knees, facing officers to the other side of Lt Butcher. Mr. Norton was still holding his gun despite continual orders from the officers to release his weapon. Lt. Butcher fired a final, live round at the defendant, hitting him in the left side of his back, fatally wounding him. At the time he fired the third shot, Lt. Butcher believed that the shot was another bean bag round rather than a live round. Mr. Norton came to rest on his back, still holding the gun and Chief Harrison took him into custody. Officers took the gun from his hands and handcuffed Mr. Norton. As soon as they realized that Mr. Norton was injured, officers attempted life saving measures. Lt. Butcher dressed the wound and administered CPR while they transported him to the nearby hospital, but Mr. Norton was declared deceased at the hospital. During the entirety of this incident, officers at the scene believed that Mr. Norton could and might fire upon any of them at any time. Although Mr. Norton made numerous demands, he did not appear to be willing to resolve the incident by relinquishing his weapon. During this incident, officers’ concerns that the situation would not resolve peacefully increased. Several officers stated that Mr. Norton pointed the gun at them, and all the officers believed that Mr. Norton’s actions put their lives, or the lives of others, at risk. After Mr. Norton retrieved the gun from the hat, several officers indicated that they would have fired upon him but for the concerns about injuring other officers in crossfire. LAW The pertinent section of law is Utah Code Section 76-2-404, Peace Officer's Use of Deadly Force. Section 76-2-404 states: “(1) A peace officer, or any person acting by his ‘command in his aid and assistance, is justified in using deadly force when: ... (c) 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.” Section 76-2-404(2) also states: “If feasible, a verbal warning should be given by the officer prior to any use of deadly force under Subsection (1)(b) or (o).”Ina somewhat different context (civil rights claims), the U.S. Supreme Court and other federal courts have provided guidance on when an officer is constitutionally permitted to shoot another person. The question of excessive force by officers is reviewed under a reasonableness standard under the Fourth Amendment, taking into consideration the totality of the circumstances. Graham v. Conner, 490 U.S. 386, 395 (1989). The courts have “long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Id. At 396. “As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U.S. 128, 137-139 (1978); see also Terry v. Ohio, supra, at 21 (in analyzing the reasonableness of a particular search or seizure, "it is imperative that the facts be judged against an objective standard"). An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.” Jd. See also Scott v. United States, supra, at 138, citing United States v. Robinson, 414 US. 218 (1973). “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. With respect to a claim of excessive force, the standard that applies is reasonableness under (the] totality of the circumstances existing at that moment. Under the circumstances refers only to those circumstances known and information available to the officer at the time of his action. The calculus of reasonableness must embody allowance for the fact that a police officer is often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation.” Deering v. Reich, 183 F.3d 645, 653 (7" Cir 1999). In the matter of Montoute v. Carr, 114 F.3d 181 (11" Cir. 1997), officers responded to a call where a large crowd was involved in fighting and also reports of gunfire. Upon arriving at the scene, an officer heard a shotgun fire and observed Montoute walking away from the officer carrying a pistol-grip, sawed-off shotgun which was a felony in Florida. Carr at 182. As the officer approached Montoute, who was carrying the weapon, Montoute stated “Don't shoot me Officer. Iam on your side, man. I just take the gun away from the guy.” The officer reportedly told Montoute to drop the shotgun, but he refused and began to run away. The officer pursued Montoute and fired a shot which struck Montoute with a non-life-threatening wound. Montoute sued the officer claimint the officer had used excessive force. The officer raised the defense of qualified immunity. Id. at 183-84. The U.S. Appeals Court for the 11" Circuit began its analysis by stating “In order to be entitled to qualified immunity from a Fourth Amendment claim, an officer need not have actual probable cause but only "arguable probable cause,” i.e. the facts and circumstances must be such that the officer reasonably could have believed that probable cause existed. See Williamson v. Mills, 65 F.3d 153, 158 (11th Cir. 1995) ("to enjoy qualified immunity [the officer] need onlyhave had arguable probable cause").* Carr at 184. The court continues its analysis, stating “We have repeatedly held that because only arguable probable cause is required, the inquiry is not whether probable cause actually existed, but instead whether an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed. Id. Montoute’s argued that no officer could have reasonably believed that a risk existed once Montoute had passed the officer’s position. /d. at 185. The court dismissed Montoute’s argument, saying “We are not convinced that the danger Montoute posed vanished in a matter of a few steps. More to the point, an officer in those circumstances reasonably could have believed that the danger Montoute presented did not end after he passed Carr. We accept for the present purposes that once past Sergeant Carr, Montoute never turned to face him again, and Montoute never actually pointed the sawed-off shotgun at anyone. But there was nothing to prevent him from doing either, or both, in a split second. At least where orders to drop the weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force.” Id. ‘The court concluded its analysis stating; “In view of all of the facts, we cannot say that an officer in those volatile circumstances could not reasonably have believed that Montoute might wheel around and fire his shotgun again, or might take cover behind a parked automobile or the side of a building and shoot at the officers or others. Indeed, if the officers had allowed Montoute to take cover, or perhaps circle back around to the crowd, he could have posed even more danger than when he had presented a clear target as he approached them.” Id. LEGAL ANALYSIS The legal issue is whether Lt. Butcher was justified in using lethal force against Mr. Norton given the totality of the circumstances, i.e. whether a reasonable officer could believe that he or others were at risk of death or serious bodily injury at the time less lethal and lethal action were taken. The analysis is the same for both less lethal and lethal actions, as less lethal actions presents a risk of death, although to a lesser degree than live rounds, to the recipient. Thus the analysis is the same for each of the three shots fired by Lt. Butcher. Under these facts, the officers would have been potentially justified in using deadly force at several points during the encounter, because Mr. Norton was waiving the gun aUtowards several officers at numerous points as Mr. Norton was talking with Chief Harrison and Sgt. Hansen, The officers, however, did not chose to use force until Mr. Norton went back to retrieve the gun which he had placed in the hat provided by Sgt. Hansen. When Mr. Norton went back for the gun which he had just placed in the hat, the officers became convinced that Mr. Norton ‘would not voluntarily relinquish the gun and may/would use deadly force against them. Sgt. Hansen fired his taser at Mr. Norton, and the officers commanded Mr. Norton to drop his gun. Mr. Norton kept hold of his gun, pointing it at Dep. Yates, and Lt. Butcher fired the first bean bag round. Mr. Norton still did not drop his gun and continued his erratic movements as he tumbled down an incline, apparently trying to regain his footing. Off. Comaby fired his taser at Mr. Norton, and Mr. Norton still did not drop the gun, despite the continual demands of the officers. Lt. Butcher fired the second bean bag round and Mr. Norton continuedto move around, coming back up onto his knees, still holding the gun, potentially trying to point the gun towards Dep. Harrison, Lt, Butcher then fired a live round, which caused a fatal injury to Mr. Norton. Each of the officers on the scene stated that they were afraid for their safety and the safety of other officers during the entire encounter. Off. Cornaby felt a round go by his leg, and Trooper Carson heard that round go by Off. Cornaby as well, Dep. Yates saw Mr. Norton point the gun directly at him just after the first taser was fired. Several officers said that they would have fired except for concems about cross fire, as there were officers on each side of Mr. Norton. Lt. Butcher observed Mr. Norton take the gun back, saw Sgt. Hansen fire the taser, and observed that Mr. Norton “did not go down” and fired the first bean bag round, The second taser was fired and still Mr. Norton “did not go down” and Lt Butcher fired the second bean bag round. Mr. Norton was still moving and holding onto the gun, and Lt. Butcher fired the final live round. At that time officers were able to restrain Mr. Norton and took the gun from his hands. Lt. Butcher explained that he was concemed for the safety of himself and his fellow officers when he fired each of the shots. Based on the totality of the circumstances, Lt. Butcher did/could have had a reasonable belief that he or others were at risk to be killed or seriously injured by Mr. Norton, therefore the State declines to file charges against Lt. Butcher in this matter Sincerely, Pee. Rex MARIANE O’ BRYANT Special Deputy Duchesne County Attorney ccc: Stephen Foote, Duchesne County Attorney