Verdict against officer upset

Court rules shooting of motorist in '96 falls short of manslaughter

Pagotto case stirred city

Victim's family irate

Md. attorney general to consider an appeal

July 08, 1999|By Peter Hermann | Peter Hermann,SUN STAFF

The state's second-highest court threw out yesterday the manslaughter conviction of a former Baltimore police sergeant who shot and killed a 22-year-old motorist during a traffic stop three years ago.

Stephen R. Pagotto had been the first city officer in memory to be convicted of a crime for firing his weapon in the line of duty, sparking tension in the community. He was sentenced to 20 months in prison, but was free on bail awaiting the outcome of his appeal.

The Court of Special Appeals reversed a 2 1/2-year-old Baltimore Circuit Court jury verdict and ruled in a 120-page opinion that while Pagotto violated departmental rules and training guidelines, his accidental shooting of Preston E. Barnes on Feb. 7, 1996, did not amount to criminal negligence.

"The actions of Sergeant Pagotto may well have contributed to the creation of a dangerous confrontation between himself and Preston Barnes," the three-member panel wrote. "We hold that it does not show, however, such a departure from the norm of reasonable police conduct that it may fairly be characterized as extraordinary and outrageous."

The court's decision places much of the blame on Barnes, who was on probation for drug possession and had 10 bags of crack cocaine in the car when Pagotto pulled him over. The ruling says that Barnes was trying to escape the officer when he was shot.

"It was Preston Barnes' future criminality measured from that moment, the imminent implementation of his getawayplan, that became the independent intervening cause of his own death," the ruling says.

The Maryland attorney general's office will now have to decide whether to appeal yesterday's decision to the Court of Appeals, the state's highest court. Officials said they would decide within two weeks.

Barnes' mother, Sylvia Smith, who had sued the city and reached a secret out-of-court settlement, reacted angrily to yesterday's ruling.

"I don't understand the system," she said yesterday at her home in Northeast Baltimore. "My child was killed for nothing. I want [Pagotto] put away."

Smith disagreed with the court's finding that her son contributed to his death.

"If he wanted to escape, he wouldn't have stopped at all," she said.

Barnes' brother, Kenron Barnes, 23, said a police officer's job "is to protect and serve, not shoot and kill."

Tensions and tactics

The shooting of Barnes on Kirk Avenue raised tensions between community members and police, and quickly escalated into a debate over law enforcement tactics and an ambitious effort by officers to get guns off city streets.

Vandals wrote "Killer Cop Pagotto" on the officer's van. Circuit Judge John Carroll Byrnes took the unusual step of going on radio talk shows to field questions from callers after the trial. Demonstrators picketed City Hall.

To police, Pagotto's trial examined how far an officer can deviate from his training when he believes his life is in danger. To community activists, it presented a unique opportunity to watch a police officer on trial for shooting a civilian.

The Court of Special Appeals addressed that conflict in its opinion, written by Judge Charles E. Moylan Jr., who criticized a common police practice of using routine traffic stops to justify stopping cars and searching for drugs and guns. Pagotto had stopped Barnes' white Subaru because the rear license plate was not properly displayed.

Moylan wrote that if anything "was fraught with the danger of ill consequences, it was perhaps the governmental policy itself of relying on pretextual traffic stops for the purpose of taking guns off the street, a policy of confronting a grave on-the-street reality with relatively feeble rationale."

Pagotto, 43, was on vacation in California and could not be reached yesterday for comment. He had received court permission to leave the state.

His union lawyer, Henry L. Belsky, was elated with the decision.

"I really thought it [the case] was a miscarriage of justice," Belsky said. "This was a case that never should have been brought."

Pagotto had been fired after the guilty verdict in December 1996. A jury took 5 1/2 hours to convict the sergeant on one count of involuntary manslaughter and two counts of reckless endangerment.

The former sergeant's lawyers and union representatives said Pagotto might want his job back. Police officials would not comment on that yesterday, but said that if he is returned to the force, he would remain suspended without pay pending an administrative hearing on his conduct the night of the shooting.

`Important day for police'

Officer Gary McLhinney, president of the Fraternal Order of Police Lodge 3, which raised more than $100,000 to pay for Pagotto's defense, said the court's ruling gives officers broader discretion in fighting crime.

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