I have reviewed videos, the scene, and the interviews conducted in the investigation referenced above for the purpose of determining whether any criminal laws were violated by the Officer Mitch Bierma and Sergeant Kevin Goms employed by the Idaho Falls Police Department. For the reasons described below, I find no evidence to suggest that either officer committed a criminal offense in relation to the investigation described above, and further find their actions were JUSTIFIED as an act of self-defense.  

STANDARD OF CRIMINAL REVIEW

Pursuant to Idaho Code § 18-109, “a crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, [an enumerated] punishment.” Pursuant to Idaho Code §§ 19-505 and 19-506, in order to charge a crime, there must be sufficient facts which tend to establish there is probable cause to believe that an offense has been committed and that the defendant committed it. In other words, there must be both a prohibited act and sufficient evidence to establish probable cause to believe that an individual violated a law, which requires or proscribes an act, and provides for a punishment for committing or omitting the act.

STATEMENT OF FACTS

1. On December 4, 2023, sometime after midnight, an Idaho State Police trooper pulled over a vehicle driven by Destinie Twitchell.

2. The trooper reported that during the stop the passenger Marcos Cortez argued with the trooper and began making furtive movements.

3. The trooper gave lawful commands to control Mr. Cortez’s movements.

4. Mr. Cortez, however, pulled a firearm and shot twice at the trooper, narrowly missing the trooper.

5. As Mr. Cortez exited the vehicle, Idaho Falls Police Officer Mitch Bierma arrived, and Mr. Cortez pointed his gun and fired twice in Officer Bierma’s direction.

6. Officer Bierma and the trooper fired their service weapons at Mr. Cortez as Mr. Cortez fled.

7. Officer Bierma and other officers from Idaho Falls Police, including Sergeant Kevin Goms, arrived and found Mr. Cortez a few hundred yards away at the auto dealership at 1710 S Yellowstone Hwy, Idaho Falls.

8. Mr. Cortez held a gun to his own head, and when confronted by Idaho Falls Police K-9 Argo, Cortez fatally shot himself.

9. Sergeant Goms hearing the shot and seeing what he perceived as a threatening movement, fired one round.

10. It appears that only one round fired by law enforcement struck Mr. Cortez; in the lower left leg.

STATEMENT OF THE LAW

An otherwise violent act is justifiable if a person was acting in self-defense and/or the defense of another.  In this case it appears that at the time of the shooting there was an imminent threat toward Idaho Falls Police Officer Mitch Bierma, Sergeant Kevin Goms and the Idaho State Police trooper.

If an act involving asserted self-defense results in death, the analysis proceeds under Idaho Code § 18-4009, which states in pertinent part, “Homicide is justifiable when committed by any person when resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.”  Essentially this permits self-defense with a deadly weapon only where the accused has reasonable cause to believe, and does believe, she (or a third person) is in danger of great bodily injury or death.

However, self-defense is further justified, “(d)  When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed … or in lawfully keeping and preserving the peace.

When the act involving asserted self-defense does not result in death, the analysis proceeds under Idaho Code §19-202, which states in pertinent part, “Resistance sufficient to prevent [a public] offense may be made by the person about to be injured to prevent an offense against his person.”  I.C. § 19-202 gives one the right to use resistance sufficient to prevent the offense.

Homicide is justifiable when committed by public officers when reasonably necessary in overcoming actual resistance in the discharge of any legal duty including preserving the peace.  Use of deadly force is justified in overcoming actual resistance when the officer has probable cause to believe that the resistance poses a threat of death or serious physical injury to the officer or others.

In order to find that a person acted in self-defense, all of the following conditions must be found to have been in existence at the time of the use of deadly force:

1. A person must have believed that they were in imminent danger of death or great bodily harm.

2. In addition to that belief, a person must have believed that the action they took was necessary to save themselves from the danger presented.

3. The circumstances must have been such that a reasonable person, under similar circumstances, would have believed that they were in imminent danger of death or great bodily injury and believed that the action taken was necessary.

4. A person must have acted only in response to that danger and not for some other motivation.

5. When there is no longer any reasonable appearance of danger, the right of self-defense ends.

In deciding upon the reasonableness of a person’s beliefs, it should be determined what an ordinary and reasonable person might have concluded from all the facts and circumstances which existed at that time, and not with the benefit of hindsight.  

The danger must have been present and imminent, or must have so appeared to a reasonable person under the circumstances.  A bare fear of death or great bodily injury is not sufficient to justify a homicide or use of deadly force.  The person must have acted under the influence of fears that only a reasonable person would have had in a similar position.

Under the law of self-defense, a person has the right to defend himself from “the infliction of great bodily injury,” but “the exercise of that right must be grounded upon a reasonable apprehension of imminent harm, and a reasonable belief that the killing is necessary to protect against such injury.”

The kind and degree of force which a person may lawfully use in self-defense is limited by what a reasonable person in the same situation, seeing what that person sees and knowing what that person knows, would believe to be necessary at that time. Any use of force beyond what is necessary is regarded by the law as excessive. Although a person may believe that they are acting, and may act, in self-defense, a person is not justified in using a degree of force clearly in excess of that apparently and reasonably necessary under the existing facts and circumstances.

Bare fear alone is not a legally sufficient reason to act in self-defense. In addition to one’s perception of the situation, there must be circumstances sufficient to excite the fears of “a reasonable man.”  The Idaho rule of self-defense is not premised upon a subjective test. It is grounded in the objective concept of the actions of a “reasonable person.”  

The defense of self or of another does not require a person to wait until he or she ascertains whether the danger is apparent or real. A person confronted with such danger has a clear right to act upon appearances such as would influence the action of a reasonable person.

In Idaho, no person shall be placed in legal jeopardy of any kind whatsoever for protecting himself by reasonable means necessary, from becoming the victim of aggravated assault, robbery, rape, murder or other heinous crime.

In the exercise of the right of self-defense or defense of another, a person need not retreat from any place that person has a right to be. A person may stand his ground and defend himself or another person by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge without the benefit of hindsight.  This law applies even though the person being attacked might more easily have gained safety by flight or by withdrawing from the scene.

The idea of a requirement of “retreating to the wall” or “retreating as far as he can, or disabling his adversary without killing him, if it be in his power” has never been the law of the land. A person placed under an apparently threatening and menacing danger is only expected to act as a reasonably prudent person would act under similar circumstances and surroundings. “Under such circumstances they ordinarily have but a moment for deliberation and decision. It might so happen that as a matter of fact they could have done any one of a number of other things, and thereby have avoided the danger and refrained from committing the homicide. After they have acted, they cannot be judged from the theoretical standpoint of the man who is resting in both apparent and real safety, confronted by no danger, and menaced by no threats or demonstrations of sudden violence and felonious import. He must act quickly. He must act as a reasonable and prudent man would be likely to act under similar conditions and circumstances, and this is all the law, reason, or justice demands.”  

For centuries now, it has been the law of the United States that if a person is where he has the right to be, when someone advances upon him in a threatening manner, and with a deadly weapon; and if that person did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

This case also presents the issue of Idaho’s codification of the common law fleeing felon rule.  Despite this codification, the U.S. Supreme Court has declared that “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.”  The court declared, deadly force may not be used in such circumstances unless “it is necessary to prevent the escape and the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or others.”  Thus, in order to apply the fleeing felon statute, 1) the officer must be preventing an escape and 2) the suspect must pose a significant threat of serious physical injury to the officer or others.

The burden is on the prosecution to prove beyond a reasonable doubt that the asserted act of self-defense was not justifiable.  If there is a reasonable doubt whether the asserted act of self-defense was justifiable, a person cannot be found guilty under the law.

LEGAL ANALYSIS

This case is analyzed to determine whether Officer Bierma and Sergeant Goms’ actions were justified or conversely, if without justification, arise to the level of an aggravated assault or battery. A primary element of aggravated assault or battery is that the use of force was unlawful. In this case, as an element of the criminal prosecution, the State is required to prove beyond a reasonable doubt that Officer Bierma and Sergeant Goms were not justified under principles of self-defense in shooting and/or shooting at Mr. Cortez.

Justifiable Homicide v. Justifiable Battery. This case is being reviewed as a use of force that did not result in death of the officers’ actions (the victim’s death appears to be self-inflcted), and thus a battery and not a homicide. However, given the officer’s use of deadly force (force likely to produce death or serious bodily injury), the analysis has very little distinction. The standard in either case, is whether Officer Bierma and Sergeant Goms were confronted with the present and imminent threat of death or serious bodily injury.

The officer’s action was within the discharge of the trooper’s legal duty as a peace officer. Officer Bierma and Sergeant Goms were on duty and were responding to an urgent call for assistance by Idaho State Police trooper who was conducting a traffic stop. In this case, it was reasonable and within the scope of their duties to respond to this call for assistance.

The officers were in a place where they had a right to be. Officer Bierma and Sergeant Goms were responding to an urgent call for assistance while the trooper was conducting a lawful traffic stop, in a public parking lot of a public lodging at (Candlewood Suites, 665 Pancheri Dr, Idaho Falls, Idaho). This establishment is open to the public. There is no basis to believe that Mr. Cortez had the right to exclude the officers from the premises.

The officers were resisting a public offense. During the contact, Mr. Cortez became agitated and produced a semi-automatic firearm. Under Idaho law, assault is defined as “An unlawful attempt, coupled with apparent ability, to commit a violent injury on the person of another,” or an “intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.  An assault becomes defined as aggravated when it is committed with a deadly weapon or instrument without intent to kill; or by any means or force likely to produce great bodily harm.  Assault with Intent to Commit a Serious Felony is defined as an assault upon another with intent to commit murder, rape, mayhem, robbery, or lewd and lascivious conduct with a minor child.  Therefore, in this case, whether or not Mr. Cortez actually intended to kill Officer Bierma and Sergeant Goms with his actions does not change the legal analysis of whether Officer Bierma and Sergeant Goms’ reaction was justified.

The officer did not provoke the threatening behavior. The trooper maintained a calm, non-threatening demeanor throughout the trooper’s contact with Mr. Cortez. The trooper’s questions were intended to illicit information to forward the purposes of the stop and to ensure the trooper’s personal safety. These concerns were justified and reasonable based on Mr. Cortez’s furtive movements. Officer Bierma and Sergeant Goms responded to the scene and arrived after Mr. Cortez began firing at officers.

Prior to Mr. Cortez producing the firearm, The trooper made no threatening or provocative statements (“fighting words”) and made no threatening gestures. Upon review of the video from The trooper’s dash camera, I conclude all statements and acts by Officer Bierma and Sergeant Goms were consistent with common law enforcement training for dealing with active shooting threats. I found nothing that The trooper, Officer Bierma and Sergeant Goms said or did that would have reasonably provoked a rational person to react in the violent and threatening manner Mr. Cortez exhibited.

Objectively Reasonable Fear

The officers reacted to a reasonable appearance of danger. Mr. Cortez produced a firearm and actively shot at the trooper, Officer Bierma and Sergeant Goms. He fled from the trooper and Officer Bierma, engaging the officers in a running gunfight. Indisputably, a firearm can be used to cause serious bodily injury or death. Mr. Cortez was actively shooting in the trooper’s direction, or the direction of Officer Bierma, and the perception that Mr. Cortez constituted an immediate threat to the trooper, Officer Bierma, other officers and the public was reasonable.

Mr. Cortez’s actions created a present and imminent danger of death or great bodily harm to the officers. Mr. Cortez was within a few feet when he fired at the trooper and Officer Bierma. Mr. Cortez was firing at Officer Bierma when he was in a position of disadvantage sitting in the driver’s seat operating his vehicle, which restricted his movements and ability to take cover or return fire. Mr. Cortez continued to fire at the trooper and Officer Bierma in a running gun battle. Mr. Cortez presented not only a risk to the officers but to the public.

Objectively Reasonable force

The officers were justified in using deadly force because the officer had probable cause to believe that Mr. Cortez’ actions posed a threat of death or serious physical injury to the officers. There can be no dispute that shooting a firearm constitutes a threat of serious bodily injury or death. The trooper initially was within a few feet of the firearm and heard multiple gunshots from the firearm, and its nature was easily recognizable. The trooper also was able to observe Mr. Cortez assume a standing shooter’s stance outside the vehicle, as he fired at Officer Bierma. Officer Bierma approached in his vehicle after Mr. Cortez had already fired at the trooper. Mr. Cortez then turned his gun toward Officer Bierma’s vehicle and fired his handgun. Once the assailant pulled and fired a deadly weapon, the trooper, Officer Bierma and Sergeant Goms had reasonable cause to believe that Mr. Cortez’s actions in this case posed a threat of death or serious physical injury to the officers and others. As a matter of law, Officer Bierma and Sergeant Goms had a right to fire their weapon at Mr. Cortez after Mr. Cortez fired at the trooper and Officer Bierma, and when it appeared to Sergeant Goms that he was a further threat to Officer Bierma and other officers in the area.

The officer’s action was necessary to save the officers from the danger presented. Officer Bierma and Sergeant Goms had to quickly act to stop the threat. Likewise, Officer Bierma was shot at while his movement was restricted in the driver’s seat of the vehicle. It was a reasonable perception by Sergeant Goms that Mr. Cortez made a movement which presented a threat to other officers. These threats justified the use of deadly force.

As described above, the law allows that Officer Bierma and Sergeant Goms were entitled to “meet any attack made upon [them] with a deadly weapon, in such way and with such force as, under all the circumstances, [they], at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save [their lives], or to protect [themselves or another] from great bodily injury.”  I find no evidence that Officer Bierma and Sergeant Goms “failed to react as a reasonable and prudent man would be likely to act under similar conditions and circumstances,” and “this is all the law, reason, or justice demands.”  I likewise find no reason based on the circumstances reviewed in this case to believe that any such reasonable alternatives to the use of deadly force even existed.

The officer’s actions are judged on the facts and circumstances which existed at the time of the officer’s actions. I find no evidence that Officer Bierma and Sergeant Goms misjudged the situation. Sergeant Goms’ shot apparently occurred within a second of Mr. Cortez firing a round taking his own life. From the distance and angle he saw Mr. Cortez, I find Sergeant Goms reasonably perceived Mr. Cortez’s final movement as a potential threat to his fellow officers across the parking lot.

The facts and circumstances are legally conclusive and frankly difficult to dispute given the objective and irrefutable video recordings of the incident. I therefore find no reason to believe that anything learned through further investigation could change the legal analysis of Officer Bierma and Sergeant Goms’ actions.  

Final Considerations

There is no evidence that the officers were acting with any other motivation than self-defense.

Under Idaho law, Officer Bierma and Sergeant Goms cannot be placed in legal jeopardy of any kind whatsoever for protecting themselves by reasonable means necessary, from becoming the victim of aggravated assault or attempted murder.  As described above, I conclude that Officer Bierma and Sergeant Goms were protecting themselves and other officers from an aggravated assault and/or an attempted murder.

The evidence also supports the finding that after committing these offenses, Mr. Cortez, attempted to escape, and posed a significant threat of serious physical injury to the officer or others. Thus, deadly force was reasonable under I.C. § 18-4009(d).

It is now the law in the United States, that the burden of proof is on the prosecution to prove beyond a reasonable doubt that an accused defendant did not act in self-defense.  In this case, I conclude given the state of the evidence that to the contrary, it is beyond a reasonable doubt that Officer Bierma and Sergeant Goms in fact acted in self-defense. And further, I find Officer Bierma and Sergeant Goms’s actions commendable and heroic, potentially saving the lives of officers and the public that were in the area.

CONCLUSION

For the reasons described above, it is my conclusion that Officer Bierma and Sergeant Goms’ actions at the Candlewood Suites in Idaho Falls on December 4, 2023, were JUSTIFIED under Idaho law as an act(s) of self-defense. Further, I conclude that Officer Bierma and Sergeant Goms were protecting themselves and others by reasonable means necessary from an aggravated assault and/or attempted murder, and thus Idaho law prohibits placing the trooper’s in “legal jeopardy of any kind whatsoever.”  Therefore, any prosecution for their actions must be DECLINED.

I likewise commend these officers for their selfless bravery. I recognize how hard it must have been for Officer Bierma to command his K-9 partner Argo to approach an armed suspect, given the obvious threat Mr. Cortez presented to Argo. I believe the entire community is relieved that no harm came to any of the officers or to K-9 Argo.