Posted: July 25th, 2013 by Militant Libertarian
Those were the last words spoken to 41-year-old Kamas, Utah resident Wade Pennington as he bled to death from two gunshot wounds inflicted at point-blank range. The man who hurled that sadistic taunt at Pennington, Brett Lopez, wasn’t the shooter; his role had been to trap the unarmed victim in the kill zone while his associate, Jared Nichols, pulled the trigger.
Just minutes earlier, Nichols had been overheard saying that he intended to “take out” Pennington. He and Perez were well-acquainted with the victim; indeed, immediately after he pulled the trigger, Nichols called Wade by name. After shooting Pennington, Nichols seized the dying victim and attempted to make it look as if he had been the aggressor. In doing so, Nichols wound up with some of the dying man’s blood on his clothing.
Both Nichols and Perez lied to investigators after the shooting. Their lies were contradicted by physical evidence at the crime scene and by video recordings of the incidents leading up to the homicide. A perfunctory investigation was wrapped up within twelve days without charges being filed against Nichols and Perez.
There was abundant evidence that the death of Wade Pennington was an act of criminal homicide – arguably murder in the second degree. Neither Nichols nor Perez faced criminal charges, because they were police officers, and their victim was a man with a lengthy criminal record who was on probation at the time of the May 28, 2009 shooting.
Pennington was killed in South Jordan, Utah at the end of a high-speed pursuit that was neither necessary nor authorized.
Sgt. Allen Crist, who saw Pennington in a dark SUV outside a sporting goods store, had radioed a description of the vehicle and its license plate number and asked for other officers to confirm the plate number. Crist suspected that Pennington might have burglarized the sporting goods store. He called for a K9 unit and conducted an inspection of the building, which turned up no evidence of a break-in.
As it happens, Pennington was in the area to visit a friend. He had a court date in a week to deal with an alcohol-related parole violation and wasn’t inclined to get into any more trouble. He also had ample reason to avoid contact with the South Jordan Police Department, which had kept him under close scrutiny since his release from prison in 2005.
After being imprisoned for burglary in 2001, Pennington filed a Pro Se Habeas Corpus petition challenging the legality of his sentence. In July 2005, the Utah Court of Appeals granted his motion and ordered his release.
“The day that Wade was released, there was a riot and a lock-down at the prison,” Pennington’s brother Dennis recalled to Pro Libertate. “Officials there considered Wade to be a troublemaker, because his petition was successful and it created a real stir among the inmates.”
After Wade was arraigned on a new set of felony charges, he ended up under the jurisdiction of a drug court in Duchesne County. Those charges were filed by Sgt. Crist and Salt Lake County District Attorney Lohra Miller. Wade entered a guilty plea and was placed on probation under the jurisdiction of a drug court in Duchesne County. Dennis Pennington and the rest of the family believes that the Salt Lake County DA’s office and the South Jordan Police were angered by the leniency of the sentence and targeted him for special attention in the hope of sending him back to prison.
During that period, Wade started a successful handyman business and made what appeared to be an earnest effort to make an honest living. In early 2009, his probation was revoked for reasons never made entirely clear, but apparently had to do with alcohol use. He was taken to the Duchesne County Jail to await a transfer to Salt Lake County.
State law required that a “show cause” hearing be ordered within 72 hours of Wade’s arrest. Instead, he was held for nearly 40 days before being brought in front of a judge. That hearing took place on May 17, 2009. Wade was scheduled for a sentencing hearing on June 2. He was killed on May 28.
The dark 1994 Pathfinder Pennington was driving on May 28 belonged to his girlfriend, Kristi Russell, and it was certainly well-known to the South Jordan Police Department. During the past several years, police had stopped it no fewer than ten times. If Crist had found evidence of a break-in, it would have been quite easy to find Pennington – which is why he told his subordinates not to pursue the vehicle. Nonetheless, Nichols and Perez gave pursuit – and Pennington fled.
The officers violated both the orders of their superior and their department’s vehicle pursuit policy by chasing Pennington. They committed another very serious infraction by “going to 3” – that is, covertly communicating on a radio channel that was not recorded or audible to the dispatcher. A lawsuit filed on behalf of Pennington’s parents and son asserts that this was done because Nichols and Perez had “decided to chase Pennington until Pennington hit one of their vehicles, which would justify a chase.”
The officers switched back to an open channel and continued the pursuit. Pennington entered a cul-de-sac, with Nicholas following him. Perez got out of his police car and drew his gun; Nichols later said that Perez went “gun-up” in order “to do a felony stop” – an action that wasn’t justified because Pennington was not suspected of a felony. Perez was standing in the street when Pennington turned around and drove by him.
“He just tried to hit me with the car – aggravated assault on a police officer!” Perez shouted over the radio. The dashcam video on Nichols’s police car doesn’t provide any evidence that Pennington tried run down Perez. However, as Nichols later told investigators that Perez’s claim that Pennington had assaulted him “was a green light – let’s go ahead and pursue him.”
The original dashcam tape of the subsequent pursuit isn’t available. The version that was eventually made public has had its time code removed, and about three minutes and seventeen seconds have been deleted from it. Nichols claims that on several occasions Pennington struck his vehicle, but no there is no video evidence to support his account.
Shortly after Nichols announces that “I’m going to take him out,” he attempts what he described to investigators as a “half-assed pit maneuver” – that is, ramming the SUV in an effort to disable it.
That tactic, as Nichols pointed out to investigators, is only to be employed in situations where deadly force is justified. So by his own admission, Nichols was using deadly force in an unauthorized pursuit.
The officers succeeded in trapping Pennington in a cul-de-sac in West Jordan. Nichols, who had T-boned the Pathfinder, was separated from Pennington by about three feet. Perez, who got out of his car, approached the vehicle from the passenger side with his gun drawn. Perez – who saw that Pennington was unarmed — shouted at him to “get out on the ground. Stay
where I can see you.”
Perez told investigators that “I didn’t hear Jared” screaming orders at Pennington, because “Jared’s window was closed.” Perez also testified that Pennington was moving away from him in an effort to get out of the car – that is, to “get out on the ground,” as the officer had demanded.
When interviewed on the scene following the shooting, Perez said that he “didn’t perceive a threat” from Pennington, and that if the driver put up resistance he was prepared to “tackle him and take him down.” While Pennington started to exit the vehicle, Perez moved around the front of the car in order to avoid a crossfire with Nichols.
A second or two later, Nichols fired two shots that struck Pennington in the chest. Immediately after shooting Pennington, Nichols shouted: “Freeze, Wade! I’m going to shoot you. Get down on the f*****g ground!”
Why was Pennington shot for complying with Perez’s orders? Why did the shooter tell the victim both to “freeze” – that is, stay put in the car – and to “get on the ground” – which would have required that he exit the vehicle? And why did Nicholas sputter those self-contradictory demands after he had shot Pennington twice in the chest?
In describing the incident to investigators two days later, Nichols said that Pennington “made a lunge towards me.” Supposedly shocked and traumatized by the victim’s aggressive behavior, Nicholas claims he “said something like, `Why’d you do that, f****r?’ or `Why did you make me do that?’”
Both of those statements are demonstrable lies.
During his testimony – which was given two days after the killing, with the aid of police union attorney Jeffrey W. Hall, and after Nichols had reviewed the dashcam video – the officer said that he had to shoot because Pennington was non-compliant, and that “he was doing something to evade, still.” He also insisted that “the vehicle was still a threat,” despite the fact that it was boxed in and disabled. By this account, Pennington wasn’t a threat to officer safety, but rather a flight risk. That “threat” would have been neutralized if he had left the vehicle. But Nichols also said that the driver’s attempt to leave the Pathfinder made it necessary to shoot him.
While neither of the rationales offered by Nichols for the shooting made any sense, the most mystifying aspect of his testimony was the self-pitying rebuke he supposedly flung at Pennington. Speaking immediately after the shooting, Perez said that while Pennington “was hanging” lifeless from the window of the Pathfinder, he and Nichols “didn’t even talk.” That would mean that he didn’t hear the other officer’s anguished outburst.
However, Nichols’s body microphone did pick up a very similar complaint – which was made by the dying victim: “I’m f*****g shot. Why did you shoot me? You bunch of a**holes.”
Perez lied about that detail, as well, telling investigators that Pennington “never, you know, made a sound, nothing” after being shot.
What this means is that Nicholas and Perez knew that Pennington was alive, and yet neither did anything to help him. Rather than rendering medical aid, Nicholas and Perez tried to pull the victim from the vehicle, and then quit when his feet were “hooked up” in the car. With the dying man hanging half-way out of the driver’s side window, Perez reported the shooting and then “walked over to the street sign to see where we were.”
Nichols went back to his vehicle and shut off his recorder. Within minutes other officers arrived. Unaware that Perez’s dashboard camera was still operating, Nichols gestured at Pennington and muttered, “There goes my job.”
That remark prompted Perez to point to his vehicle and say, “I’m sorry, man.” In a different context this might have been construed as condolences for the officer’s involvement in a fatal shooting. By gesturing toward his dashboard camera, Perez was clearly apologizing for the fact that Nichols’s callous, self-pitying comment was now on record.
The report issued by the Salt Lake District Attorney’s Office on June 30, 2009 is replete with clumsy, deliberate misrepresentations. It claims that Sgt. Crist ordered that “the vehicle be stopped”; in fact, he specifically instructed that it was not to be stopped. It also recites the disproven claims that Pennington “attempted to run over a pedestrian law enforcement officer” and that he rammed Nichols’s police vehicle “numerous times.”
According to the DA’s summary of the case, “Perez stated he could not see the suspect’s hands” and that Pennington “refused to comply with his commands.” Perez actually testified that he could see both hands on the steering wheel, and by trying to leave the SUV Pennington was complying with Perez’s orders.
Predictably, the report regurgitates the familiar refrain uttered by every police officer who murders an unarmed citizen by claiming that Pennington “made a furtive movement towards the pursuing police officer,” thereby placing the intrepid paladin of public order “in fear of his life” and thereby justifying the use of “deadly force to stop the threat by the suspect.”
Perhaps the most important of the many intentional oversights by the DA’s office dealt with the ballistics report on the shooting. The State Medical Examiner’s Office reported that the bullets fired by Nichols passed through Pennington’s torso from left to right and took a slightly downward trajectory. This wouldn’t have been possible if Pennington had been “lunging” or “leaping” from the driver’s side window, causing the valiant Officer Nichols to fear for his life. What clearly happened is that Nichols shot Pennington while the driver was shifting in his seat attempting to get out of the vehicle, as Perez had ordered.
After being exonerated by the DA’s office, Nichols was given a promotion, and he remains on the South Jordan Police Department. Brett Perez, ironically, was fired for violating the department’s vehicle pursuit policy. Apparently it is a firing offense to conduct an unauthorized high-speed pursuit – unless you’re willing to kill the unarmed suspect once you’ve chased him down.
West Jordan Police Sergeant Michael S. Leary, the protocol officer who headed the investigation, had filled the same role about two years earlier in a very similar case involving the fatal police shooting of white supremacist Darren Neil Greuber in a Salt Lake City parking lot. Grueber attempted to flee when a SWAT team from the Metro Gang Unit arrived at about4:30 a.m. to serve a search warrant. Grueber wasn’t in the apartment when the SWAT raid took place. When he arrived, officers boxed in his vehicle – and Greuber tried to escape by ramming his Chevy Blazer into parked police cars. One of the officers, who was on loan from the South Jordan Police Department, shot the unarmed Greuber twice.
Like Pennington, Greuber was out on probation at the time of the shooting, and he had filed an appeal challenging his conviction. Law enforcement officials claimed that Greuber’s history made him an acute threat to “officer safety,” even though he was unarmed at the time of the shooting. And the officer who pulled the trigger was Jared Nichols. Sgt. Leary, who had investigated the July 2007 shooting of Greuber, never asked Nichols about the similarities between that incident and the killing of Wade Pennington.
“Since Lohra L. Miller took office … police-caused homicides have increased significantly in Salt Lake County,” asserted the Pennington family’s lawsuit. “Officers know that if they do shoot a person without justification, the district attorney and her investigators will not, in all likelihood, prosecute them. In fact, Nichols knew this firsthand, having been exonerated by Miller in a homicide two years prior.”
After entering the DA’s office in January 2007, one of Lorha Miller’s first acts was to dismiss criminal charges against a police officer named Richard Todd Rasmussen, who had fatally shot a suspect following a high speed chase. In explaining that decision to Salt Lake NBC affiliate KSL, Miller seemed to be reading a script prepared by the police union: “The suspect was unarmed, but had a history of being aggressive toward law enforcement officers, had a history of possession of weapons, and in this particular case tried to run the officer off the road. And at the time the officer was shot, [the suspect] was lunging at the officer at close range.”
Miller’s decision prompted her predecessor, David E. Yocom, to publish an op-ed column describing her action as “a disgrace to the criminal justice system.”
Yocom elaborated on that critique in an interview with KSL, saying that Miller, who had been supported by police unions in her election campaign, dropped the charge “to please the law enforcement groups that supported her…. [O]ne way to please them is to take a law enforcement officer off the hook on a very serious charge.”
By the time Wade Pennington was killed, Miller had made it clear that she wasn’t interested in prosecuting cops for any reason – from homicide to circulating pornography through an office e-mail account. The police reciprocated by refusing to investigate complaints that the BYU graduate’s household was used for drinking parties by her teenage children and their friends. Miller served a single term before being ousted by Sim Gill.
Since November 2, Gill has been immersed in investigating the shooting death of 21-year-old Washington native Danielle Willard by two West Valley City narcotics investigators. The officers claimed that Willard, who was receiving treatment for a drug addiction, endangered their lives when she backed her Subaru Forrester into a police cruiser while trying to escape the parking lot.
Gill’s investigation of Willard’s death led to the dismissal of 19 criminal cases that had been filed by Detective Shaun Cowley, who shot the young woman. It also led to the discovery that the narcotics unit that employed Cowley had stolen money, drugs, and “trophies” from narcotics suspects; that led to the dismissal of 125 drug-related criminal cases and the dissolution of the unit. As revelations of systemic corruption within the department mounted, Chief Thayle “Buzz” Nielsen suddenly retired, supposedly for health-related reasons.
Willard’s parents have filed a wrongful death lawsuit against West Valley City for the “assassination-style” killing of their daughter. Cowley and Officer Kevin Salmon, who killed Danielle, remain on paid vacation. Gill is continuing his investigation of the shooting, but given the precedents set by his predecessor, there’s little cause for suspense. After all, it’s well-established policy in Utah that police are permitted to “take out” unarmed suspects, rather than going to the trouble of arresting them.