Cracking down on officers too quick on the trigger; Files show shootings rarely ruled improper

THE BALTIMORE SUN

Baltimore police have shot 123 people in the past four years, killing three dozen. But even when officers open fire when they shouldn't, they rarely get in trouble.

A departmental crackdown on misconduct that has snared officers for offenses ranging from lying to sexual harassment has not included officers who misuse their weapons, the most potent form of force in an officer's arsenal.

In almost every shooting over the past four years, especially when the suspect survived, a supervisor has ruled the gunfire justified and well within the department's rules, a review by The Sun of more than 100 internal files has found.

"When the average citizen hesitates on the job, they might lose an account or deal," said Officer Gary McLhinney, president of the police union. "When an officer hesitates and is wrong, we are dead."

Virtually the only time an officer has been reprimanded in a shooting is for an accidental discharge, which usually results in a one-day suspension. Prosecutors in the city state's attorney's office say their office has never charged an officer with a crime in a nonfatal shooting.

Firearms instructors, however, review each incident with a more critical eye and often label a shooting "out of policy." Their conclusions are used to retrain officers in the proper use of weapons. Only rarely are they used to punish officers.

Commissioner Thomas C. Frazier said last week that he has tightened his department's oversight of police-involved shootings and that they now are investigated as thoroughly as use-of-force complaints.

As a result, department investigators review every shooting. Frazier said an officer and a lieutenant are being investigated in separate questionable shootings, including one in which a man stealing a bottle of vodka was wounded in the back.

But police say officers usually are justified in using their guns. This month, three officers were shot at and two were slightly wounded.

"The police shootings within the past two weeks certainly highlight the dangers and the high degree of risk which officers face each and every day as they continue to remove guns and gun violators from Baltimore's communities," said the department's chief spokesman, Robert W. Weinhold Jr.

The number of police-involved shootings in Baltimore is about average for large U.S. cities. A recent independent study ranks Baltimore 14th of 28 cities studied in average number of people killed by police gunfire this decade.

A lack of statistics

The Sun examined files involving police shootings as part of a broad examination of how Baltimore law enforcers are punished for wrongdoing. Conclusions are difficult to draw because the department does not track discipline doled out in police-involved shootings.

Investigators' files on officers who fail to submit reports can be several inches thick and include dozens of interviews. Files on shootings, by contrast, are often thin, consisting of an offense report, a summary review by a supervisor and a brief critique by a firearms instructor.

Internal Investigation Division officials are unable to say how many officers have been punished for improper shootings. Investigators said none had; the Sun review found four since 1992.

"Cops cannot be second-guessed every time they take out their guns," said Charles "Joe" Key Sr., a firearms training supervisor who retired in 1996. "But there should be a review at least when they discharge. Some of these shootings rise to the level of criminal acts."

Two of the cases involved officers who fired at cars. In both, the officers said they shot at a vehicle careening toward them. Reviews, however, found that the bullets had been fired from behind or beside the vehicles. One officer was reprimanded, another suspended for three days.

Key, the architect of the Baltimore Police Department's rules on using force, had for years urged that a review board evaluate officers who fire their weapons.

But the idea -- which had the backing of former Assistant State's Attorney Timothy J. Doory, now a district judge -- has not been embraced by Frazier.

All shootings involving officers are investigated by homicide detectives, whose job is to determine whether a crime was committed. Instructors from the training division also investigate, using what they learn to teach recruits the appropriate ways to use their weapons.

The department forbids the use of firearms except in self-defense or to protect someone from "imminent threat of death or serious physical injury." The rules conclude: "Members must always bear in mind, 'When in doubt, don't fire.' "

Police shootings that result in a death appear to be vigorously scrutinized by department commanders and city prosecutors. Three officers have been tried in recent years on criminal charges from fatal shootings in the line of duty.

But officials could recall only one officer, former Sgt. Stephen R. Pagotto, who has been convicted of a crime. Police successfully argued that he violated so many rules -- the most egregious was putting his fingers on the trigger before he intended to fire -- that he was negligent in the death of Preston E. Barnes during a traffic stop in 1996. He was convicted of involuntary manslaughter.

A jury in 1994 acquitted Officer Shean D. Camper of criminal charges in the fatal shooting of Jerrod Dwayne Wagstaff, 25, in a dark alley. But a jury in the wrongful-death suit filed against Camper found in 1996 that the shooting was unjustified and ordered Camper to pay $111,000 in damages. A revised settlement was reached in which the city was held liable for the bill, the amount of which has been sealed.

Officer Edward T. Gorwell II faces retrial on a manslaughter charge from the 1993 shooting death of Simmont Donta Thomas, 14. The first ended in a mistrial. He remains on paid desk duty.

And Tuesday, the city settled a $200 million lawsuit filed by the family of a man fatally shot by Officer Charles M. Smothers II in 1997 outside Lexington Market -- a shooting that was captured on videotape and sparked communitywide protests over the use of deadly force.

Police investigators ruled Smothers' shooting of James Quarles III, who refused to drop a knife, justified, and the state's attorney's office declined to prosecute, saying no evidence of a crime existed. The amount of the settlement was sealed by the judge.

Key can list case after case in which he says an officer should have been fired or disciplined for firing his or her weapon. Three occurred in 1995:

A Western District officer chasing a young car-theft suspect grabbed the wrong youth on a street corner. He pistol-whipped the youth, and his gun went off, grazing the youngster's head.

The officer said his gun fired accidentally during the struggle, but Key said his investigation supported the youth's contention that he was shot while lying on the ground.

"I thought the cop should have been prosecuted," Key said.

A Southern District officer fired at a suspect but missed. The bullet ricocheted off a wall and grazed a child's head. The officer, unaware of the injury, returned to the station house.

Other officers discovered the misstep when they responded to the report of a child shot. Key said the officer was disciplined for failing to report he had discharged his weapon.

The officer was transferred to the Violent Crimes Task Force to investigate shootings. "He should have been fired," Key said.

A Central District sergeant, Craig W. Gentile, tried to stop a suspected drunken driver by standing in the car's path on East Baltimore Street in March 1995. When the car came too close, he drew his gun and shot three times. He said he fired because he could not get out of the way. Police recovered two bags of marijuana, two Valium tablets and $27,000 from the trunk.

His supervisor ruled the shooting justified, though Key discovered that the slightly wounded driver had been shot through the side window and another bullet had been fired from behind.

"He should not have fired at a moving vehicle," Key wrote in the report, which said the shooting was "not consistent" with department policy. "The administrative report neglects to mention that at least one shot was fired at the rear."

Key's report added: "If he had time to fire, he had time to get out of the way."

In an interview, Key said: "This guy just stood in the middle of the street and blazed away. He made a drug arrest and everybody says, 'Good job.' "

Gentile disputes Key's findings, which led to administrative charges against Gentile, a severe letter of reprimand and remedial firearms training. Gentile is suing the department, claiming the 12-month statute of limitations had expired when he was charged. He also says he was boxed in by a van and had no escape.

"Hindsight is 20/20," Gentile said in an interview. "I did what I had to do to survive. I did what I thought was justified. Some people agreed with me. Other people didn't."

The case highlights a disturbing trend for Key. Many officers resort to gunfire because they disregard training and put themselves in harm's way.

Take, for example, Detective Aaron Stewart. He confronted a car-theft suspect outside the officer's home three years ago and tried to stop the man by diving through an open window of the car. With his gun in one hand, Stewart used his other to set the emergency brake.

The driver bit Stewart, whose gun fired, hitting the suspect in his left thigh. A gunbattle with suspects in another car ensued, leaving Stewart wounded in the foot.

Department commanders ruled the shooting justified, but Key found several problems. One was that Stewart should not have reached into the car, especially with his gun drawn. Department rules forbid officers from grabbing someone with their weapons drawn.

Key noted that Stewart had said his gun discharged accidentally. "Officer Stewart should not have had his finger on the trigger until he was prepared to shoot."

'Instinct takes over'

Stewart, who was not disciplined, said he did what he thought was best.

"We get trained, and when you get on the scene, you know exactly what you are supposed to do," he said. "But instinct takes over, and you do what you believe is your job."

Reports reviewed by The Sun show many cases in which officers did not shoot, despite being the target of gunfire. Many times, officers said they hesitated out of concern for bystanders.

Other times, officers, whose lives are often in peril, are involved in firefights that defy imagination.

In 1996, for example, Officer Ty C. Crane was in a gunbattle on a crowded West Baltimore street in which he fired 42 times, reloading three times.

Witnesses, including a minister in a car that was disabled by a stray bullet, said the suspect fired first, even after the officer six times yelled at him to drop the gun.

Sgt. Christopher Streett was seriously wounded two years ago during a gunbattle in a Southwest Baltimore house when a man opened fire on officers from an attic crawl space. The suspect, hit 28 times by officers' bullets, died.

Accidental gunfire

In the many cases when police accidentally discharge their weapons, officers are charged with negligence and usually are suspended for a day. In September 1995, there were three such cases in one day -- twice at the city jail, where officers must check their weapons before processing prisoners.

At 12: 30 a.m. that day, an officer's gun discharged into a metal trap designed to prevent such accidents while officers unload their guns. At 9 a.m., another officer's weapon accidentally discharged at the same place. That afternoon, a gun went off inside Police Headquarters when an officer fell and bumped the weapon on a table.

Also in 1995, an officer was suspended for one day when her gun discharged inside her Cockeysville apartment. The bullet went through her mattress, box spring and floor and lodged in a pillow in the unit below.

Officials attributed the spate to officers not being used to their rapid-fire Glock semiautomatic handguns, which have a lighter trigger than the six-shot pistols officers once carried.

Some shootings that appear questionable turn out to be justified. Last year, Western District Officer Lynee Epperson chased an armed suspect in a shooting. Although Epperson didn't know it, the man had dropped his weapon while fleeing.

When he "very quickly emerged from the bushes," she shot him in the left arm, a police spokesman said at the time. "The officer had previously observed a gun in the suspect's hand. Fearing the suspect still had the gun and considering the suspect was wanted for a shooting, she then fired one shot."

That shooting was ruled justifiable. One that wasn't involved Officer Kevin McDaniel, who had stopped a stolen Jeep on Pulaski Highway in 1995. He couldn't see the driver's hands and drew his gun. As he walked toward the car, the driver backed up.

"This sudden movement startled Officer McDaniel, causing him to discharge one round from his service weapon," a report states. The bullet went harmlessly through a rear passenger window.

McDaniel said he was suspended for a few days; the department's file says only that he was counseled by supervisors in "the proper use of his weapon in a stressful situation."

In an interview, the Northeastern District officer said he disagreed with the department's evaluation.

"I couldn't see inside the Jeep," he said. "But I did not have my gun pointed at the person inside." He said he ran to get out of the way as the vehicle backed up, and clenched his hand on his gun and trigger, causing it to fire.

His case is similar to that of Pagotto, who testified that he fired his gun when the car he had stopped backed up and hit his hand, causing his gun to fire and fatally strike the driver in the left armpit.

Prosecutors argued that Pagotto should not have had his finger on the trigger unless he was prepared to fire, and he should not have tried to open the car door with one hand while he had a gun in the other.

Pagotto was convicted of involuntary manslaughter and reckless endangerment and sentenced to 20 months in prison, which he is appealing.

Also in 1995, Officer Robert F. Brooks opened fire on a man who jumped from a stolen car and turned and aimed a gun at him. "For fear of my life, I fired three rounds at him with negative results," wrote Brooks, who could not be reached for comment for this article.

But a bullet from Brooks' weapon pierced the bedroom window of a nearby house, "almost striking a citizen," wrote Lt. Michael Tabor, who recommended additional training for the officer.

"After debriefing Officer Brooks concerning this shooting, I am satisfied that Officer Brooks realizes now the repercussions of a stray round," Tabor wrote in a report.

Pub Date: 1/29/99

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