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Federal judge dismisses police brutality suit against Ogden police

By Mark Shenefelt standard-Examiner - | Oct 12, 2018

OGDEN — A federal judge Thursday rejected a claim that Ogden officers used excessive force in wrestling an agitated man to the floor of the police station, breaking his leg.

In a memorandum decision, U.S. District Judge Bruce Jenkins in Salt Lake City said officers Travis Williams and Cody Marsh were entitled to qualified immunity against civil suit because their actions were reasonable.

The judge’s action closes the case brought by attorneys for Harold Mark Torbett, an Alabaman who on Feb. 8, 2016, entered the lobby seeking medical help and asking the receptionist to hold his firearm for safekeeping.

Doctors later determined Torbett, who was traveling across the country to a new job in Seattle, was suffering a severe diabetic episode, but he and the officers did not realize it.

Williams, Marsh and a third officer who responded to a report of a man with a gun ended up tussling with Torbett, 60, and he suffered a broken femur when Williams took him to the ground.

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

In May, Jenkins ruled in favor of Ogden City, the police department and the third officer, Zackary Martin. He said he needed more time to analyze the claims against Williams and Marsh.

While Williams performed the takedown, Marsh grappled with Torbett to handcuff him.

The judge pointed out that Torbett’s use-of-force expert witness conceded the officers “had reasonable suspicion to conduct an investigation” and, in the course of their investigation, “the officers were attempting to de-escalate the situation.”

The doctrine of qualified immunity is “designed to protect public officials who act in good faith, on the basis of objectively reasonable understandings of the law at the time of their actions,” according to a court document filed by Ogden City.

Jenkins said the gun was not a threat to the officers’ safety because they had already retrieved it after Torbett set it on a chair in the lobby.

But officers were justifiably concerned by Torbett’s “strange and aggressive behavior in a place prized as the pinnacle of public safety, a police station.”

By MARK SHENEFELT, Standard-Examiner

The Ogden Police Department lobby.

Torbett, the judge wrote, “appeared paranoid, threatened to knock out Officer Williams, swore at Officer Martin, splashed water on Officer Martin, and physically resisted Officer Williams’s attempt to detain him.”

Officers wanted to stop Torbett from leaving, for his own safety and that of others, Jenkins said, because Torbett told them he was “fading in and out of consciousness.” Plus, they were concerned he may have another firearm in his vehicle.

When faced with safety threats, officers may protect themselves in certain circumstances by drawing their weapons, handcuffing a suspect or forcing a suspect to the ground, Jenkins said.

“Officers were investigating an uncertain situation and (Torbett) exhibited strange and aggressive behavior, reasonably justifying an arm hold and takedown to control the escalating threat …,” the judge said.

“Officers Williams and Marsh were entitled to use the force apparently necessary, even if not actually necessary, to subdue the threat.”

Once Torbett began pulling away from Williams’s arm hold, Jenkins said, the officers believed they had probable cause to arrest him for disorderly conduct and carrying a concealed firearm — for bringing a gun and loaded magazine into the police station in a laptop bag without a concealed carry permit.

He said other courts have concluded that takedown maneuvers were reasonable to “subdue strange and aggressive conduct in police stations.”

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.


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