Judge applies $200,000 cap to settlement over objections from officer shot in training exercise

A federal judge accepted an offer by Baltimore City to pay $200,000 to settle a lawsuit brought by a police trainee who was accidentally shot during a 2013 training exercise, citing a state law that caps such payments at that amount.

In his order, U.S. District Judge William M. Nickerson agreed to dismiss the case once the payment is made.

However, the trainee, Raymond Gray, rejected the settlement as inadequate, and his attorney said he will appeal Nickerson's ruling to the 4th U.S. Circuit Court of Appeals — specifically challenging an earlier decision by Nickerson to reject Gray's claim his constitutional rights had been violated.

Such constitutional claims are not governed by the $200,000 cap.

Gray's attorney, A. Dwight Pettit, said Baltimore officials are being disingenuous in arguing that the state cap controls the amount they could pay out to Gray, considering they have used their discretion to pay higher settlements to other claimants — including the family of Freddie Gray. Freddie Gray, 25, died after suffering severe neck injuries while in police custody last year, and the city agreed to pay his family $6.4 million without ever going to court.

"This is a case of two Grays," Pettit said. "How can you say that you have the discretion to award some folks millions of dollars and then try to hide behind the cap when, in another case, for whatever reason, you don't want to negotiate, even though it is one of your own?"

Raymond Gray, a University of Maryland police recruit, was shot in the head — blinding him in one eye and hospitalizing him for months — during a Feb. 12, 2013, training exercise at the Rosewood Center in Owings Mills, a shuttered state facility for the developmentally disabled.

William S. Kern, a 19-year veteran of the Baltimore Police Department and an instructor at the exercise, testified at his own trial that he accidentally grabbed a live weapon instead of a training gun before shooting Gray. The exercise was supposed to involve paintball-like guns. Kern was convicted of reckless endangerment in the incident and was sentenced to two months in jail in December 2013.

After the shooting, six academy officials were suspended. Then-Commissioner Anthony W. Batts, who said he was unaware of the exercise, briefly suspended training amid a review of policies and practices. The department acknowledged that it did not have permission to use the Rosewood facility.

In Gray's lawsuit, training supervisor Officer Efren E. Edwards said in a deposition that he personally told Batts and his chief of staff about the training.

Amid the proceedings, the administration of Mayor Stephanie Rawlings-Blake asked the city spending board to approve a $200,000 settlement in the case in order to "resolve the litigation proceedings" and despite Gray not agreeing to such a settlement. City Solicitor George Nilson said the move was a "relatively unusual situation" aimed at ending the case quickly if Gray's attorneys accepted.

On Friday, Nilson said the city was pleased with Nickerson's ruling and planned to deposit the money with the court as soon as possible.

Pettit said his client does not accept the terms of the settlement for several reasons.

Medical experts have projected that Gray's lifetime costs from his injuries will exceed $5 million, without taking into consideration pain and suffering, Pettit said. Yet the state's workers' compensation insurer has agreed to pay Gray $1.2 million to cover medical expenses and has a lien on any subsequent settlements related to the incident, which means Gray would see nothing from the city settlement.

"This man has lost an eye, he still has a bullet in his head, he will need constant medical attention for the rest of his life, and his ability to do anything in the workforce is gone," Pettit said.

In the argument he intends to take to the appeals court, Pettit said Nickerson was wrong in rejecting the constitutional claims in the case, and therefore wrong in applying the cap. The incident was not just an accident but the result of malfeasance throughout the Police Department's chain of command that translates into a violation of Gray's constitutional rights, Pettit said.

"The police commissioner knew about the unauthorized use of the Rosewood facility as a training ground. He knew that was going on and did nothing to stop those policies and procedures," Pettit said. "It was a policies and procedures argument that makes the whole department responsible and liable for the entire tragedy that happened to Mr. Gray."

Pettit said the issue of fairness in how Gray is being treated compared to other settlements, including the one awarded to Freddie Gray's family, is also important.

"I'm not knocking the Freddie Gray settlement," Pettit said. "I'm just saying, 'Let's have some fairness here. Let's have some justice here, not just arbitrary, capricious decisions."

Nilson said he is not surprised that Pettit intends to appeal, but said comparing settlements in cases with vastly different circumstances was not fair.

"The two cases are totally different. This is a case that has been litigated, rulings have been made, and the reason the $200,000 cap exists in this case is because the court has denied all other claims by the plaintiff except the state claims," Nilson said.

By contrast, Nilson said, the case involving Freddie Gray's family would have been a "broad-ranging case" involving state and federal claims that would have taken years to litigate, touching on questions of patterns and practices within the police department just as the U.S. Department of Justice is investigating those same practices.

If Pettit "prevails on appeal," Nilson said the city "may have to go back to the well" and provide a larger settlement, "but right now, if we were to pay out more than $200,000, we would be accused of misspending taxpayer funds."

Nilson said "everyone feels very, very bad" about what happened to Gray during the training exercise, but "that doesn't mean we should pay out whatever Mr. Pettit feels we should pay out."

Baltimore Sun reporter Justin Fenton contributed to this article.

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