Appeals court exoneration of Pagotto gives police officers too much license

July 11, 1999

WITH A BANG of the gavel, Maryland's Special Court of Appeals has said that Preston Barnes died in a police shooting three years ago and that it was his own, stupid fault. The conviction of former Baltimore City Police Department Sgt. Stephen Pagotto for involuntary manslaughter was overturned.

"It was Preston Barnes' future criminality measured from that moment, the imminent implementation of his getaway plan, that became the independent intervening cause of his death," the judges said in their opinion reported Thursday in The Sun.

Actually the cause of Barnes' death was a bullet fired into his left armpit from the gun of Pagotto. Pagotto had stopped Barnes' car on Kirk Avenue for an improperly displayed rear tag. He approached the car with his gun drawn, ordered Barnes and two passengers out and reached in to grab Barnes, who gunned the engine. Pagotto said his gun went off accidentally, and the bullet hit Barnes in the side.

Truth in reporting requires saying that Barnes did, indeed, do several things wrong that night. Gunning the engine was one. Not getting out of the car another. Driving a car with dope inside while being on probation was yet another. Barnes and his two cohorts, instead of turning on the car's interior light and showing Pagotto their hands, tried to hide their drugs in the moments before Pagotto approached. From their view, they were just hiding incriminating drug evidence. Pagotto, a cop who must have believed that the main cause of death for police officers is being shot in routine traffic stops, must have, for his own safety, figured the guys might be hiding a gun.

The appeals court ruling said Pagotto's approaching the car with his finger on the trigger was justified and not "a wanton and reckless disregard for human life," a requirement for proving involuntary manslaughter. Pagotto was convicted of involuntary manslaughter by a Baltimore Circuit Court jury. Pagotto, the appeals court found, "approached an inherently dangerous confrontation with his weapon in hand."

But should he have? Circuit Judge John Carroll Byrnes, in his 1997 opinion sentencing Pagotto, wrote that " this defendant had no lawful target. Police officers cannot be permitted to regard themselves literally as soldiers ready to shoot upon any nonthreatening provocation or even in circumstances that give rise to suspicions that criminal conduct is occurring or occurred. If we accept that standard, we would be establishing, virtually, a quasi-police state."

Now, two years later, three appeals court judges are telling us that it's perfectly fine if officers "approach inherently dangerous confrontations" with their guns drawn. But every traffic stop can be regarded as an inherently dangerous confrontation. Have the appeals court judges just given carte blanche for officers to pull weapons and approach cars in every traffic stop? Most cops don't do this.

In the several stops officers have made of my car, none approached with a gun drawn. In the worst case, an overwrought black officer repeatedly made idiotic demands for me to keep my hands where he could see them even though it was broad daylight and my hands were never from his sight. But even he never pulled his gun.

They've upped the ante on the streets, these three judges. Black men who were previously unreluctant to drive in Baltimore should be leery of doing it now. Among young black men, there's already a fear and loathing of police, an ironic situation, considering that young black men and cops are the two most despised groups in America.

For all the talk about Barnes trying to escape because he had drugs in the car (one of his comrades testified to as much before a grand jury), we have to consider if he gunned the engine because Pagotto had his gun drawn. We have to consider it because Barnes isn't here to speak for himself.

Three years ago, my son got a gun to protect himself from the neighborhood stick-up boy, who responded by calling the cops and telling them my son had a gun in his house. As three officers with guns drawn approached his porch, my son came came to the door, saw them coming and ran back in the house.

"Why," I asked later, "would you do such a foolhardy thing?

"Because I saw three white cops coming at me with their guns out," he replied, in a tone that indicated he figured the answer should have been obvious.

With their ruling in the Pagotto case, appeals court judges have given the green light for officers to approach cars or pedestrians with guns drawn even if a clear need for the use of deadly force has not been established. Thank heavens police training still forbids it.

Pub Date: 7/11/99

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