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.
City officials said the Police Department would "promptly" release the investigative file related to the Select Lounge shooting. Though the investigation is now formally closed, a Police Department spokesman said the city is withholding the surveillance tape of the incident until it can privately screen the video for the victims' families. It was unclear if or when that would occur. At least one of the families has retained a civil attorney.
Bernstein underscored that his office's review did not include whether the officers followed their departmental training, whether they should face administrative charges, or whether they could be found liable in civil court.
Recommendations on possible policy changes will come from the blue-ribbon commission appointed by Rawlings-Blake, though a timetable for completion of the commission's work is unclear. The city police union recently advised officers that they did not have to participate because the commission does not have subpoena power.
"We're pressing them [to finish]. We know that they've been requesting information, and we're trying to work with them to better coordinate so we can get them what they need to finish," Rawlings-Blake said Thursday morning at a community event. "They're doing important work, I'm impressed with what they're talking about so far … and my hope is the work that they're doing, the work that they're completing will save lives for years to come."
At a news conference at the Clarence M. Mitchell Jr. Courthouse, Bernstein provided additional details of the shooting.
He said Torbit was on duty when he was among 33 officers — seven of whom were working plainclothes — who responded to the disturbance at the Select Lounge. Torbit helped clear the inside of the club, and was assisting with crowd control outside when several fights began. He was wearing a long-sleeved shirt and blue jeans, with a badge around his neck, and his service weapon and handcuffs at his side, Bernstein said.
Normally an officer on such an assignment would not be working crowd control, but he had been called to the scene after dispatchers put out a "Signal 13." That code, for an officer in distress, typically draws scores of officers looking to help.
Two witnesses interviewed by The Baltimore Sun in January said they saw a group of women walking to their cars outside the club when a vehicle began to pull out and almost hit one of them. Bernstein identified that woman as Jasmine Graves, 24, and said she became angry at the driver and hit the car with her shoe.
Bernstein said Torbit directed the driver to leave, which angered Graves and led to an argument.
"In the meantime, Sean Gamble, standing just a few feet away, makes a comment to Mr. Torbit about how he is treating and talking to Ms. Graves," Bernstein said. "The two begin arguing, which escalates into punches being thrown."
After a friend of Gamble punched Torbit in the head, they fell to the ground and others "joined in the fracas" and kicked and punched Torbit.
Bernstein said Pawley was closest to Torbit and used pepper spray, which dispersed the crowd. He then saw Torbit lying on the ground firing his weapon. Pawley fired at Torbit, and the other officers followed.
Graves, the woman who was arguing with the driver of the vehicle that grazed her, was shot in the head as she ran from the scene, the prosecutor said. Two other women, Katrina Harris, 23, and Jamie Jordan, 24, were also struck by ricocheting bullets, Bernstein said.
"Confronted with a life-threatening situation to both themselves and the people around them, by virtue that they saw an individual lying on the ground with a weapon in his hand, they acted reasonably to protect both themselves and the other people in the area," Bernstein said.
Asked about the officers mistaking Torbit for a civilian gunman, Bernstein said "people are not charged criminally with making mistakes. To the extent that these officers may or may not have made a mistake, that is something to be addressed in a different forum."
Such "friendly-fire" shootings are rare but not unprecedented. In 1926, Officer Henry Sudmeier was shot by fellow officers as he investigated a burglary in a Mount Washington church. He died from his injuries eight years later. In 1959, Patrolman Richard H. Duvall Jr. was killed when his partner's gun accidentally discharged.
Off-duty Officer Norman Stamp was killed in 2007 when officers responded to a fight at a bar where he was a patron. But in that case, police said, Stamp had gone after the officers wearing brass knuckles. A civil jury sided with the officer who had shot him.Copyright © 2015, CT Now