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Judge frees Ogden City from police excessive force and gun rights suit

Wednesday , June 13, 2018 - 5:00 AM

OGDEN — Ogden City and one of three police officers who scuffled with an agitated traveler in the police station lobby have been absolved of civil court allegations of excessive force and violation of the man’s gun rights.

Harold Mark Torbett, an Alabaman passing through Utah to take a new job in Seattle, walked into the Ogden Police Department on Feb. 8, 2016, to seek medical help.

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But three officers who responded to a report of a man with a gun ended up tussling with Torbett, 60, and he suffered a broken femur when an officer took him to the ground.

Torbett and his wife, Regina, later filed a suit in U.S. District Court in Salt Lake City, alleging police disregarded his physical distress, used excessive force to subdue him and violated his right to openly carry a firearm.

Judge Bruce Jenkins in Salt Lake City filed an order May 29, 2018, dismissing the claims against the city, the police department and Officer Zackary Martin.

The judge said he would rule later on the allegations against the other two officers, Travis Williams and Cody Marsh. Williams performed the takedown and Marsh grappled with Torbett to handcuff him.

Jenkins did not explain his decision. But in voluminous filings, Torbett’s lawyers had faulted police on a variety of grounds, while city attorneys said the officers’ actions were reasonable considering the circumstances of the confusing incident.

Asked Monday about Jenkins withholding a ruling on the actions of Williams and Marsh, an attorney representing Ogden City said the judge “wanted to further analyze the law with respect to those two officers.”

“If he is not certain that the facts are clear, he may ask a jury” to make a determination, said the attorney, Stephen Noel.

While Jenkins removed the city, the police department and Martin as defendants, the city continues to represent the other two men because they are being sued in their capacity as police officers, Noel said.

At an Ogden hospital after the incident, doctors determined Torbett was suffering from diabetic ketoacidosis, a complication of diabetes that may cause mental confusion and stomach pain.

He told officers he believed he was suffering from food poisoning, and the officers said he also claimed someone had been shooting at him. In depositions, one of the officers testified he suspected Torbett may have been under the influence of controlled substances.

Torbett had a .22 caliber Walther PP semi-automatic handgun, which he said he had unloaded, disassembled and placed on a chair beside him while he waited for officers in the lobby.

But another person who had been in the lobby went outside and called police dispatch, saying he feared the strangely acting man might shoot him.

Williams and Martin, community police officers, were inside the station near the lobby entrance and heard the “man with a gun” call. They went to the lobby, meeting Marsh.

In depositions, Torbett and the officers offered divergent accounts of the ensuing confrontation.

Torbett said he asked several times for the officers to take him to the hospital. They said they summoned paramedics from the fire department next door but Torbett stood up from the couch and tried to leave.

Torbett’s attorneys said he got up only after “he got the impression he was being interrogated rather than aided.”

Williams extended his arm to block Torbett from leaving. Martin said Torbett began shaking a bottle of water, throwing it on his face and uniform. Torbett said water spilled because officers had begun to jostle him.

Torbett said Williams picked him up and “body-slammed” him to the floor.

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“I tried lifting him up to get his feet off the ground,” Williams said in his deposition. “I tried to swing his legs to one side so I could sit him down. At that point, I collapsed my knees and my weight, and I heard him scream in pain.”

The officer added, “I didn't slam him, didn't throw him down. I sat him down softly … I just tried to be super careful, accounting for his age.”

Marsh described the takedown by Williams as “kind of like a paratrooper roll ... to minimize the impact when he hits the ground.”

While the confrontation was captured on security video, the quality was so poor that nothing was clear. Police later had a better video system installed in the lobby.

Had he not been injured, Torbett would have been arrested and jailed, Marsh said.

“I had arrestable offenses on him — disorderly conduct, resisting and carrying concealed,” Marsh said. “He said he was going to knock me out. He looked agitated and tensed up.”

Torbett’s attorneys contested officers’ conclusion that the man had been carrying a concealed weapon.

They said he first tried to turn in the gun at the reception window but was refused. So he ejected a round from the chamber, disassembled the gun and set in on the couch.

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Torbett had a right to carry a weapon openly, and by refusing to hold his weapon for him, police violated the Utah Firearm Safe Harbor Law, the attorneys said.

Martin testified officers were focused on protecting public safety, and they wanted to know who had been shooting at Torbett. Letting him leave the station was not a good option, police said.

“When somebody's acting strangely in the lobby of a police station with a gun, that's usually not a good thing,” Martin said. “So going into that situation, where a guy is sitting there with a gun right next to him, yeah, that's a bit concerning.”

In court documents, an expert witness for Torbett said officers had more reasonable choices, “Including not grabbing the plaintiff, letting him walk out of the station, or accompanying him to his car to regain control through communication. and after making all those other attempts to de-escalate the situation, they could have decided to go hands on.”

The witness added, “How is it that tackling an individual to the ground with sufficient force to shatter his hip is for that individual’s own safety?”

Torbett’s suit criticized the training of Ogden Police in recognizing signs of medical distress, restraining people without injury and recognizing lawful exercise of the Second Amendment.

But the city argued the city and its officers had “qualified immunity” from civil damages.

Qualified immunity, the city said, shields government employees from damage suits “so long as ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”

You can reach reporter Mark Shenefelt at mshenefelt@standard.net. Follow him on Twitter at @mshenefelt and like him on Facebook at Facebook.com/SEMarkShenefelt.

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