WEST VIRGINIA RECORD

HUNTINGTON – A federal appeals court has ruled in favor of a Huntington police officer in a lawsuit over a fatal shooting at Club Babylon.

The U.S. Court of Appeals for the Fourth Circuit on July 18 affirmed a lower court ruling for Officer Ronald Lusk and the City of Huntington. The two were sued by the Estate of Joseph Jermaine Porter, Latoya Hackett and Betty Jo Radford after a November 2009 shooting incident.

“Here, the plaintiffs failed to present evidence establishing that the officers owed any duty to the club’s patrons or breached any such duty based on the officers’ conduct before the shooting,” says the decision, authored by Judge Barbara Milano Keenan.

“In fact, the only discussion of the applicable standard of care presented by the plaintiffs related to the duty of care owed by an officer in employing deadly force against a suspect.

“That evidence, however, did not address in any manner a standard of care or duty owed by the officers in their conduct preceding the shooting.”

The decision says a police officer less than a block from Club Babylon heard gunshots coming from the direction of the club at 3 a.m. on a night in November 2009. Several officers responded when he reported the incident over the police radio.

Several club patrons were running in the street and hiding behind vehicles, and officers also saw shell casings on the ground in front of the club. Ultimately, they determined three people had been shot near the front entrance.

Lusk and other officers entered the club with guns drawn, and one officer testified that he was told the shooters were moving to the back.

The decision says Porter continued to move toward the rear of the club after he was told to stop. Lusk testified that he grabbed Porter’s left arm and spun him around.

Lusk says he saw a silver gun in Porter’s right hand that was pointing at him. Lusk said he stepped to his left and shot Porter.

The bullet went through Porter’s right arm and became lodged in his spine. He died from the injury.

After all the evidence was submitted, U.S. District Judge Robert C. Chambers, of the Southern District of West Virginia, entered judgment as a matter of law in favor of the defendants on the simple negligence claim made by the plaintiffs.

A jury ruled Lusk did not violate Porter’s constitutional right to be free from the use of excessive force and Lusk did not act willfully, wantonly or recklessly.

As to the simple negligence claim, the plaintiffs argued a jury could have determined that Lusk did not intentionally fire his weapon at Porter because he testified that his “gun went off.”

“The plaintiffs’ reliance on isolated words and phrases used by Lusk mischaracterizes his testimony,” Keenan wrote.

The plaintiffs also argued Lusk acted negligently before the shooting by failing to use due care in assessing whether Porter presented a threat.

“The plaintiffs’ bare contention that Lusk was mistaken in his perception that Porter held a gun does not establish a claim of negligence,” Keenan wrote.

“Instead, the plaintiffs were required to demonstrate the duty that the officers owed to Porter in assessing whether Porter was a threat, and the manner in which Lusk’s assessment of the situation, made in a matter of seconds, breached that duty.”

Representing the plaintiffs was Patrick Stanley Cassidy and Timothy F. Cogan of Cassidy, Myers, Cogan & Voegelin in Wheeling.

Representing the defendants were Nathaniel A. Kuratomi and Charles K. Gould of Jenkins Fenstermaker in Huntington.

In 2012, Reginald Marbury pleaded guilty to malicious wounding in connection with the incident, which resulted in the shooting of Sontezz Lomax.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.