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Posted: 5:58 PM- The Salt Lake County District Attorney's Office has ruled two sheriff's deputies were not justified in using deadly force when they shot and wounded a theft suspect in January.
But DA Lohra Miller has declined to file charges.
According to a DA investigative report, there is not a "reasonable likelihood" that Miller's office would persuade a jury to convict the officers of assault.
The report concluded that deputies David Jensen and Alan J. Morley were not justified in shooting at Joseph Blair, who suffered a gunshot wound to his arm, on Jan. 16.
Jensen and Morley gave accounts of the incident that were not supported by evidence, the report states.
Investigators concluded a third deputy, Heath Lowry, who also fired his weapon, did not use deadly force because he was shooting only at the vehicle's back tire.
All three deputies were placed on administrative leave following the shooting and have since returned to duty, said Lt. Paul Jaroscak, a sheriff's spokesman.
The sheriff's office on Wednesday, however, declined to discuss whether any of the deputies have been disciplined.
On Jan. 16, deputies pulled over a Dodge Durango carrying Joseph Blair and another man, who was driving near the intersection of 4500 South and 100 East. The men were suspected of attempting to steal a car, according to the sheriff's office.
When the driver got out of the SUV, as instructed by deputies, Blair jumped into the driver's seat and started the engine, according to accounts from deputies.
Lowry fired the first three shots from behind the Durango. Lowry then fired one round from the front of the SUV before Jensen shot from the side of the SUV, striking Blair, according to investigators. Lowry fired a total of three shots, and Morley fires six shots, according to the DA's report. It was unclear how many times Jensen shot.
Jensen and other deputies claimed that Blair drove the SUV toward Jensen, causing Jensen to shoot, out of fear for his life.
But investigators reviewing dashboard footage of the shooting concluded that Jensen shot before the SUV began moving, according to the DA's report.
Jensen initially told another deputy that the SUV struck him, and he filled out paperwork at St. Mark's Hospital indicating he suffered minor injuries from the collision. But investigators said there was no evidence the SUV ever hit him, according to the report.
According to the DA's report, Jensen, on his lawyer's advice, declined to be interviewed by police or DA investigators.
Morley told investigators that he shot at Blair because the SUV was headed toward him and he feared for his life. But investigators said the vehicle was not moving in Morley's direction when he began firing.
Lowry told investigators that he shot at Blair because the SUV was heading toward Jensen. But investigators concluded he was shooting to disable the vehicle rather than hit Blair.
Four other deputies on the scene did not fire their guns, investigators said.
One of those deputies, Rodney Moulder, told investigators that he was next to Jensen when Jensen began firing and did not believe Jensen was in danger, according to the DA report.
Moulder, in fact, asked Jensen, "Why are we shooting, why are we shooting," according to the report's summary of Moulder's interview with investigators.
A deputy standing next to Lowry during the shooting said he also saw no reason for deputies to shoot at Blair "because there was not a threat that he could identify," according to the DA's report.
Miller's decision not to pursue charges against the deputies in the Jan. 16 shooting is reminiscent of her first controversial decision as district attorney.
In January, shortly after taking office, Miller rankled her predecessor, David Yocom, by dropping a felony assault charge against a Granite School District police officer who shot and wounded an unarmed man during a foot chase in October 2004.
In that case, Miller said she did not have enough evidence to prove the officer did not act in self-defense. But Yocom, noting the case against Lt. Todd Rasmussen had survived a preliminary hearing and was headed to trial, said a jury should have made that decision.
Yocom, a Democrat, accused Miller, a Republican, of playing politics, given that her candidacy was supported by police organizations. Miller denied the charge.
DA spokesman Robert Stott declined to comment on the Jan. 16 shooting because no charges were filed but said prosecutors must consider when officers are on the job when they decide whether to take a case to trial.
"We can't say that the officer was justified under the law in using deadly force," Stott said. "On the other hand, we don't think we could win in a trial because we think the jury maybe would be swayed by the officer's circumstances."
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