No charges in fatal police shooting at city's Select Lounge

Bernstein: "Highly chaotic situation" but no criminal wrongdoing

August 04, 2011|By Justin Fenton, The Baltimore Sun

Baltimore State's Attorney Gregg Bernstein said Thursday that no one will face criminal charges in the fatal shooting by police officers of a plainclothes colleague, whom they mistook for a gunman, moving authorities a step closer to closing one of the most painful chapters in the department's history.

Bernstein said that his office concluded that the four city officers who shot Officer William H. Torbit Jr. outside the Select Lounge on Jan. 9 had a "reasonable fear of imminent, substantial physical harm or death" and that their actions did not rise to criminal activity.

The review, which was not presented to a grand jury, found that Torbit, on duty and working plainclothes, shot and killed 22-year-old bar patron Sean Gamble during a struggle, and that the uniformed officers returned fire unaware that Torbit was a fellow officer. Forty-two rounds were fired by the five officers, including Torbit.

"It is our conclusion that all the officers acted reasonably in a highly chaotic situation in which they had a reasonable belief that they and other civilians in the area were in imminent fear of substantial bodily harm or death, and which therefore required them to use deadly force in order to protect themselves and each other," Bernstein said.

The findings cap a seven-month investigation by homicide detectives and prosecutors into the first "friendly-fire" fatal shooting involving on-duty Baltimore officers in more than 80 years. An independent review commission appointed by Mayor Stephanie Rawlings-Blake will continue to deliberate on possible policy changes, though the mayor said Thursday she would push the panel to conclude its work soon.

While the city police union said it was relieved by Bernstein's determination, others expressed frustration. Torbit's sister, Sherri Torbit, told WJZ-TV that her family was "shaken" that no one would face charges. She called the decision not to present the case to a grand jury part of a "cover-up."

"They take care of their own," she said. "It's too bad dead men can't talk."

Gamble's family could not be reached for comment.

A. Dwight Pettit, an attorney representing one of three women wounded by stray bullets, said that it was "inconceivable to me that there's no criminal liability when 42 shots are fired into a public area with people exiting a nightclub on public streets."

"I don't know how you have that many shots fired, and not have some conclusion of excessive force or reckless endangerment," Pettit said.

Robert F. Cherry, president of the city police union, said the labor organization is "satisfied that our officers have been vindicated and acted within reason — as did Will Torbit." But he said he was frustrated that those who were the "stimulus for what happened" were not charged.

Officials said the shootings were captured on a surveillance camera and showed Torbit, 33, becoming outnumbered and swallowed up in what Bernstein said "can only be described as a wild, uncontrollable melee." One man who punched Torbit, knocking him to the ground, told investigators that he saw Torbit fighting with Gamble and did not realize he was a police officer.

With the finding, Officers Harry Dodge, Harry Pawley, Toyia Williams and Latora Craig have been cleared of criminal wrongdoing. Bernstein also said that Torbit's actions in shooting Gamble were justified.

"I respect the decision of the State's Attorney in this matter," Police Commissioner Frederick H. Bealefeld III said in a statement. "This incident was a terrible tragedy for everyone involved and we must learn from it."

The decision not to take the case to a grand jury is not unprecedented. In 1997, then-State's Attorney Patricia C. Jessamy declined to take a controversial case involving a police shooting outside Lexington Market to a grand jury, saying those proceedings are cloaked in secrecy and a determination by her office allowed her to share the findings with the public.

Police had said the day after the Select Lounge shooting, which occurred in the 400 block of N. Paca St., that an investigation would likely be completed in three weeks. But it lagged for more than three months, and some of the victims' relatives grew impatient. The case has been with Bernstein's office since May 2, when police announced said they had completed their investigation and forwarded it to prosecutors.

The shooting led to some quick changes within the Police Department, including a temporary order that plainclothes officers wear clothing that more clearly identified them as officers. The police department also provided members of the Central District midnight shift with six weeks of training designed to address the operational challenges presented in the downtown entertainment district.

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