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June 25, 2021
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‘We want accountability’: Family of man killed by officer in questionable shooting files $2.5M lawsuit

SALT LAKE CITY — A $2.5 million civil lawsuit has been filed by the estate of a man shot and killed by a Unified police officer — a shooting that prosecutors determined was not legally justified.

On Wednesday, a brother and cousin of Bryan Peña-Valencia, who represent his estate, along with their attorney Robert Sykes announced the lawsuit against the officers involved in the shooting death as well as the Unified Police Department, claiming the officers — due to a lack of training — escalated the situation by unnecessarily chasing after him and then used excessive force by shooting him five times after he was already on the ground.

“We want accountability. To hold someone accountable for their actions is what we want. In this case, no one is taking accountability,” said Mario Herrera, Peña-Valencia’s brother. “I’m upset because he’s my brother. I lost a brother for lack of training. I’m not saying police officers are bad, I’m not saying that. I’m just saying the lack of training for new officers is what’s missing here.”

On March 21, 2020, four officers responded to a call of shots fired in the area of 6200 S. Bangerter Highway. While searching the area, the officers came across a car in a park. As officers approached to question the driver, the vehicle sped away and the driver refused to pull over for police, according to a report from the Salt Lake County District Attorney’s Office.

The vehicle crashed a short distance away and the driver got out and ran, the report states.

But by the time officers found the wrecked vehicle, they knew the car was “completely unrelated” to the original report that shots were fired in which a “truck” was described as the suspect vehicle, according to the lawsuit. There was no reason for police to continue pursuing the driver, 28-year-old Peña-Valencia, at that point because he had committed a misdemeanor crime at most, the lawsuit states. The officers could have looked up the license plate on the wrecked car and tracked him down later.

“There was no reason for (officer Omar) Flores to continue chasing Bryan into the backyard of a private residence because of a possible misdemeanor allegation,” the lawsuit alleges.

Flores spotted Peña-Valencia attempting to climb a fence and run through a backyard. The officer followed, and according to the report by District Attorney Sim Gill, it is believed his body camera was knocked off his uniform as he scaled the fence. The lawsuit, however, contends that Flores “intentionally” turned off his body camera or dropped it “to spoil evidence.” During a press conference Wednesday announcing the lawsuit, Sykes’ office stated they believe body camera video of the shooting exists, through they do not have any evidence of it.

Both sides agree that when cornered, Peña-Valencia made comments such as, “OK, OK, I give up” and, “OK … calm down.”

But while one side says he was compliant and had surrendered at that point, police say Peña-Valencia continued to place his hands near his waistband and appeared to be contemplating his next move.

Flores attempted to use his Taser twice on Peña-Valencia with no effect.

“The man stood, facing officer Flores and was ‘motioning toward his waistband.’ Officer Flores again told the man to get on the ground, but the man did not comply,” according to the district attorney report.

A second Unified police officer, Shane Scrivner, arrived on scene and both he and Flores stood at a 90-degree angle to confront Peña-Valencia. But instead of getting on the ground, he “instead swayed side to side while staring at officer Flores,” the report states, while keeping his hands near the waistband of his hoodie.

“Officer Flores said he yelled as loud as he could: ‘Show me your hands or you will be shot!’ Officer Flores said the man ‘shifted his eyes and attention back on (him),'” according to the report. “Officer Flores said the man ‘did not comply and quickly moved both of his hands down toward the left side of this waist.’

“I thought or believed he was reaching for a firearm and I would be shot. I feared my partner would be shot,” Flores told investigators in a written statement.

Peña-Valencia’s family disagrees.

“Bryan held his hands up high, so it was obvious that he was not reaching for anything in his clothing,” the lawsuit states, and further notes that he “was completely compliant and not resisting this initial detention or being aggressive in any way.”

According to the family, Peña-Valencia did not threaten the officers, make any threatening movements, was not armed, and was no longer running from police at the time he was shot.

As for the discrepancy as to whether his arms were up or down, the family believes their loved one may have been in the process of getting on the ground when he was shot, but the officers kept yelling conflicting commands.

“I think he was confused. You have two officers yelling at you to ‘get down,’ ‘stay up,’ ‘hands up,’ ‘hands down,'” said Brittny Herrera, Mario Herrera’s wife.

“The totality of the officers’ actions made the scene very chaotic,” the lawsuit states. “Bryan was confused, frightened and afraid of what the officers might do to him, especially since both officers had their guns drawn and pointed at him. Bryan was terrified and froze.”

An autopsy determined that Peña-Valencia was shot six times and that his “arms were down and to the side of his body and not raised when he was shot.” The family says five of those shots were fired when he was already on the ground. Flores fired all six shots.

Gill ruled that Flores, despite his perceptions, was not legally justified in using deadly force. However, Gill declined to file any criminal charge against the officer. Neither Flores nor Scrivner agreed to be directly interviewed for the shooting investigation, opting to submit written statements instead.

The family contends Flores shot Peña-Valencia based on “unreasonable and fully subjective beliefs.”

“By chasing Bryan unnecessarily, Flores, through his own deliberate and reckless conduct, escalated a nonlethal situation into a lethal one in which he wrongfully used deadly force,” the lawsuit alleges. “Bryan at no time posed a threat to Flores or Scrivner or anyone else, such that deadly force was needed to force him into compliance.

The lawsuit also contends Scrivner did not do enough to stop Flores.

Mario Herrera says his family has been patient over the past year, remaining quiet until they could collect the facts. But now that Gill has issued his report, he said the family still cannot get any information about the case, including the autopsy or police reports. Herrera said his family is seeking answers, accountability and better training for all officers.

“We believe that not every cop is bad. They are here to serve and protect our county, just like first responders, just like the military. We believe that,” he said.

Peña-Valencia is survived by a son who is now being raised by Herrera. The boy just turned 12, but his family said he did not enjoy his birthday as he continues to struggle over the loss of his father, for which the family has sought therapy for him, and he has a distrust of police officers.

“I don’t think that people fully understand the great pain and grief that this has caused us, especially his son,” Ana Herrera said.

Brittny Herrera said the family is also taking legal action to, in part, have justice for Peña-Valencia’s son.

“I don’t think we’ll ever find out what happened that evening. I believe the officers know what happened. But we want answers as a family. We’re frustrated,” she said. “We will not stop until we get answers.”

The Unified Police Department declined to comment on Wednesday, stating that an internal investigation into the shooting is still underway.

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