Judge declines to throw out suit against Ogden police officers who shot, killed knife-wielding man

SALT LAKE CITY — A U.S. district judge has declined to dismiss a case brought against the city of Ogden and a group of police officers by the parents of a pocketknife-wielding man who was shot and killed by police in 2019.

Jovany Mercado-Bedolla, 26, was shot in his own driveway on Aug. 16, 2019, in what his parents called an “execution.” Juan and Rosa Mercado, along with their attorney Robert Sykes, filed a civil rights lawsuit in July 2020 against the officers involved and the city for their son’s death.

Attorneys for the city, officers Brandon Sevenski, Nigil Bailey, Karson Garcia, John Poulsen and detective Trent Fusselman, as well as 10 other people who are not named in the lawsuit, asked the district court to dismiss the claims against them, arguing they had qualified immunity and did not violate city policy or Mercado’s constitutional rights as the lawsuit alleges.

U.S. District Judge Robert Shelby rejected the group’s request to dispose of the parents’ claims that their son’s Fourth Amendment rights, and rights under the Utah Constitution, were violated, meaning the case against the city and the officers involved in the shooting will proceed.

Shelby did agree to throw out the lawsuit’s claims that Ogden was guilty of “failure to train and unconstitutional practices and procedures,” as Shelby said the parents “didn’t show a specific policy or custom that was violated.” He also decided in favor of Fusselman, disagreeing with the lawsuit’s claim that Fusselman falsified an affidavit when requesting a warrant to search the Mercado residence hours after the shooting, according to court documents.

The Weber County Attorney’s Office previously determined the shooting was legally justified and no action was taken against the officers following an internal affairs review.

The court’s decision said the officers’ actions toward Jovany Mercado unreasonably escalated the situation and “created the danger they allege necessitated shooting Jovany.”

The court agreed with the Mercados’ argument that Jovany Mercado had not committed a crime or threatened anyone prior to the officers’ arrival, and that he was lawfully carrying a knife.

“With the exception of Jovany’s failure to drop the pocketknife, under the factors the court has considered above, plaintiffs have supplied in their complaint on behalf of the estate sufficient allegations to support a violation of Jovany’s Fourth Amendment rights arising from his shooting,” the court document states.

The judge said the parents “have alleged a Fourth Amendment violation and have identified clearly established law existing before Jovany was shot that should have placed the Ogden officers on notice their conduct might amount to such a violation.”

Police were initially called out to the scene on reports of a man with a knife who seemed “disoriented” and was looking into vehicles. As Mercado walked at a steady pace down his driveway, the officers could be heard in body camera videos, released after the shooting, yelling orders such as “put the knife down” and “drop the knife.” Mercado continued to walk toward them but never raised his arms.

Initially, Mercado and the officers were separated by a fence at the end of the driveway. The officers, who were positioned in a semicircle, continued to walk backward as Mercado went down the driveway. The moment he walked through an opening in the fence, all four officers fired.

The lawsuit further alleges that the 911 call from neighbors that brought police to the scene “made it clear that Jovany was likely having an episode of mental illness,” and at no point did they say that Mercado was breaking the law, “making any threats to any citizens,” threatening officers as he walked towards them, or causing risk of death or serious bodily injury to anyone.

In his decision, Shelby said that although attorneys for Ogden and the police officers argue that Mercado was resisting arrest, “the video of the incident shows Jovany was never told he was facing or actually under arrest.”

“Viewing the allegations and recordings in the light most favorable to plaintiffs, the court cannot accept many of defendants’ characterizations, including that Jovany was ‘advancing’ toward the officers in an aggressive manner. Plaintiffs allege and the body camera footage supports that the officers instructed Jovany to come out from the back of the carport, which he did, and was not told to stop. He moved slowly, with an arguably strange and blank look on his face, never spoke, and never raised the arm holding his pocketknife from his side,” the decision states.