Judge dismisses Select Lounge civil case after five weeks of testimony

A judge dismissed all counts in the civil trial over the 2011 Select Lounge shooting.

A Baltimore judge on Monday dismissed a civil lawsuit against police officers who shot four people, including another officer killed by friendly fire, in 2011 during a melee outside the Select Lounge nightclub.

After hearing five weeks of testimony, Circuit Judge Videtta Brown ruled that the actions of the officers who fired the shots couldn't be judged in hindsight. The case was dismissed before getting into jurors' hands.

Brown said the plaintiffs failed to show that the officers were acting in an unreasonable way when they opened fire in a dark parking lot and killed plainclothes Officer William H. Torbit Jr. after he had shot and killed a patron who was part of a group that attacked him. Officers fired 34 shots, and three women were hit by stray bullets.

The ruling comes amid heightened public scrutiny of police actions. Brown said the Constitution requires that deference be given to the officers who act in "split-second" and "high-stress" circumstances.

"The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on scene, rather than with 20/20 hindsight," Brown said.

"In this instance, what choice did the officers have? Do they let the active shooter continue to shoot until he is out of bullets? This court believes that makes absolutely no sense."

James H. Fields, an attorney representing the officers named as defendants, said the ruling "embodies everything we have believed from day one," that their actions were justifiable. In a statement, he said his clients and the Police Department bear "the scars of that tragedy" but that now the healing process can begin.

Attorneys for the plaintiffs, whose cases were heard jointly, said they disagreed with the ruling and would likely appeal.

"The ruling, effectively, allows officers to utilize excessive force," said Robert B. Schulman, who represented Torbit's family. "How can you question what a police officer does if you can't second-guess them?"

The plaintiffs sought damages, arguing that the officers showed "gross negligence" and used excessive force. Officers are generally protected from negligence claims, but they can be held liable when their conduct amounts to a "wanton or reckless disregard for human life."

Torbit was among 33 officers who responded to the downtown club at Paca and Franklin streets in the early hours of Jan. 9, 2011, after multiple reports of fighting. Torbit, who was wearing street clothes, waded into the club's crowded parking lot to break up an argument.

A police investigation found that Torbit fatally shot 22-year-old Sean Gamble after being sucker-punched by his friend and jumped by a group of people. Gamble had taken exception to the way Torbit was speaking to women.

Officers Latora Craig, Harry Dodge, Harry Pawley, and Toyia Williams then fired at Torbit, not realizing he was one of their own until the gunfire had ended.

Attorneys for the plaintiffs said that the Baltimore Police Department lacked safety procedures and that the four officers recklessly fired at Torbit with others nearby. They also claimed that the officers failed to render aid.

Schulman argued in his opening statement that the officers should have paused to identify Torbit before firing in the darkness. "All they had to do to avoid his death was take a second to look at his face," Schulman said.

Fields told jurors the officers followed their training even when faced with extraordinary circumstances. Fields said Torbit fired his weapon erratically in a crowded area, and the officers fired to protect people in the parking lot.

A review by an independent commission faulted the officers' decision-making. It led to changes in policies and procedures, including requiring plainclothes officers to wear yellow vests or jackets emblazoned with the word "police."

No criminal charges were filed. The department has declined to say whether it took any disciplinary action, which must be kept private by state law.

Brown said she spent much of the weekend looking over the case. In deciding to dismiss the case, Brown said, she had to look at the evidence in the light most favorable to the plaintiffs, and that any questions that existed should be put forward to the jury. She said there wasn't enough to let a jury decide.

"The balance tips in favor of granting [the motion to dismiss] when the facts presented lead to only one conclusion," she said.

A. Dwight Pettit, whose firm represented one of the injured women, said Brown "usurped the power and authority of the jury." He said he was "shocked" by the decision, calling it an "obvious, reversible error."

"I haven't seen anything like this," Pettit said.

Brown said that there was no dispute of the circumstances that led the officers to fire on Torbit or that they "aimed and shot at what they perceived to be either a target, an active shooter, or a threat not only to themselves but the general public."

"There is no evidence of any ill will on behalf of the officers. No one testified that the officers shot for any other reason than to incapacitate a threat," Brown said. The reasonableness of their actions "must be based on what was before the officers at the time of the shooting."

Brown noted that police guidelines on use of force say officers "may not" use deadly force if there is a substantial risk of injury to innocent people. But she said that the word choice of "may" was different than "shall," meaning the guideline isn't mandatory.

She also said the officers' conduct could not be examined from the perspective of a "reasonable civilian," but only a "reasonable police officer, similarly situated."

"That perspective … must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving," she said.

Tyrone Powers, a former FBI agent and head of the criminal justice program at Anne Arundel Community College, had questioned the officers' actions in testimony for the plaintiffs. Brown said she "regretted accepting him as an expert" and said his testimony was mere "hindsight."

In addition to the police officer defendants, the Gamble family sued the company that ran the parking lot where the shooting occurred, as well as the company that leased it to them. Brown dismissed those claims as well.

While the Gamble family attorney said the parking lot managers failed to secure and run the property, Brown said Gamble's own decisions lifted their liability for his safety.

Gamble, Brown said, wandered into a confrontation between two women, "which he knew nothing about and had nothing to do with." She said Gamble also lingered on the sidewalk talking on his phone.

"Certainly, had he gotten in the car and not lingered in the lot, he would not have engaged or interfered in the incident involving" eventual shooting victim Jasmine Graves, Brown said. "There is no evidence that it was foreseeable to the defendants that Mr. Gamble would involve himself in an incident on the lot and end up entangled with Officer Torbit and ultimately be shot."

The Select Lounge case is one of two lawsuits over Baltimore police shootings to be dismissed in recent weeks. A federal judge also dismissed a lawsuit brought by the mother of a mentally ill man who was fatally shot by police in 2012.

In that case, the man's mother said police should have been able to control her son, who was unarmed, without using their firearms. U.S. District Judge Catherine C. Blake said the officers' use of deadly force was "objectively reasonable under the circumstances they confronted."

jfenton@baltsun.com

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