The architect of the guidelines thousands of Baltimore police are told to follow on the street took the witness stand in the city's Circuit Court yesterday to say Sgt. Stephen R. Pagotto acted "reasonably" when he went against that training during a fatal car stop.
Charles J. "Joe" Key Sr., who was until June the lieutenant in charge of the police firing range, is considered one of the state's foremost experts on weapons, tactics and the use of deadly force. He has led demonstrations for fellow officers, judges and prosecutors -- including the man prosecuting Pagotto, Lawrence Doan -- on the life-and-death decisions officers must make in seconds.
But testifying yesterday on behalf of Pagotto, who is charged with manslaughter in the shooting of 22-year-old Preston E. Barnes, Key said the sergeant was not at fault -- even though he acted contrary to Key's own teachings. And Key said there was no evidence that the shooting had been intentional.
Asked the ultimate cause of Barnes' death, Key blamed Barnes for driving away while a police officer was trying to stop him.
"Mr. Barnes' death was caused by his involvement in the selling of controlled dangerous substances and the attendant dangers in that," Key said.
Pagotto, a 15-year veteran of the force, and a partner stopped Barnes' car in the 2600 block of Kirk Ave. the night of Feb. 7 because the car appeared to lack a back tag. When Barnes, allegedly on a drug-selling mission with two passengers in the car, did not respond to the officers' commands to get out, Pagotto said, he reached into the open car door and grabbed Barnes with his left hand, wielding his gun in his right. Pagotto testified that the car began to accelerate, he fell from it and his gun fired, hitting Barnes in the left armpit and killing him.
Key said he was to have been paid up to $7,000 for appearing at the trial but decided to forgo his fee after hearing testimony from prosecution experts. Those experts called Pagotto's actions reckless and dangerous, and said he should have taken cover behind his vehicle and called for backup rather than trying to pull Barnes from the car.
Key said that Pagotto did several things he was taught not to do, including approaching the car with gun in hand, holding his finger on the slide of the Glock 9 mm instead of under the trigger guard. But he said those guidelines were "discretionary," and that violating them did not mean Pagotto had violated a regulation or law.
"It's a guideline," Key said. "The officer had a reasonable perception that his life was in danger."
Key said that even though Pagotto had been trained about three years ago to put his finger below the trigger guard, the training probably consisted of no more than 30 minutes. By contrast, he said, Pagotto had been putting his finger on the slide -- the way officers were previously taught.
Key himself ordered the change because he feared the original positioning led to accidental discharges. But he attributed Pagotto's lapse to "muscle memory."
"An individual trains himself by routine," Key said. "He's going to go back and do what he did in a stress situation."
Key testified that he had conducted a reconstruction of the incident, and that the reconstruction, along with physical evidence found at the scene, was consistent with Pagotto's written account of what had happened. He also said that Pagotto violated no written policy by leaving the scene after the shooting.
Under cross-examination, Key said he told Doan shortly after the shooting that Pagotto "shouldn't" have approached the car with a gun in his hand or tried to remove Barnes from the car while the weapon was out. But Key said he was talking only about what Pagotto had done in terms of whether it was consistent with training, not whether it was reasonable under the circumstances.
Asking about Key's guidelines, Doan said: "This is your goal for how reasonable officers should conduct themselves?"
"In part, yes," Key replied.
Pub Date: 12/13/96