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Plaintiff’s summary judgment motion denied in Baltimore police excessive force case

In this still taken from a bystander’s video recording, Larry Lomax, center on ground, is grabbed by a police officer after being pepper-sprayed in May 2015. Lomax’s lawyers argued the video itself is enough to prove excessive force, but a Baltimore judge on Wednesday allowed the case to proceed to trial next month.

In this still taken from a bystander’s video recording, Larry Lomax, center on ground, is grabbed by a police officer after being pepper-sprayed in May 2015. Lomax’s lawyers argued the video itself is enough to prove excessive force, but a Baltimore judge on Wednesday allowed the case to proceed to trial next month.

Excessive force and battery claims against a Baltimore police lieutenant who pepper-sprayed a man at close range and a sergeant who took the man to the ground during the 2015 civil unrest following the death of Freddie Gray will proceed to trial next month after a judge denied the plaintiff’s motion for summary judgment.

Attorneys for Larry Lomax filed the rare offensive motion last month because, as they told Baltimore City Circuit Judge Videtta A. Brown at Wednesday’s hearing, a video recording of the incident alone showed sufficient undisputed facts to support Lomax’s claim of excessive force. The officers have said Lomax aggressively approached them.

Brown ruled that just as the parties argued differing interpretations at the hearing, a jury could reach different conclusions at trial.

“The court looked at the videos and even I see it somewhat differently than the way it was argued to me,” Brown said.

Brown also partially granted the defense motion for summary judgment, dismissing claims against two officers completely and doing away with the civil conspiracy claim alleged against the remaining defendants.

Lomax was in a crowd at North and Pennsylvania avenues the night of May 2, 2015 when a 10 p.m. curfew went into effect.

Video of the incident, taken by a bystander and uploaded online, shows Lomax approaching police after they broadcast the curfew, yelling and demanding to be arrested. Lt. Christopher O’Ree, who was commanding a mobile field force, sprayed him with a canister of either pepper spray or crowd-dispersal tear gas — the parties disputed the substance — after which Sgt. Keith Gladstone took him to the ground and two officers removed him from the intersection when the crowd began throwing bottles.

In depositions, O’Ree and Gladstone testified that Lomax approached quickly and was aggressive. But Wylie M. Stecklow, a lawyer for Lomax, said the video shows his client walking slowly with his hands at his sides and no weapons. Gladstone also said he grabbed Lomax by his shirt to pull him down but Stecklow said the video showed him grabbing Lomax’ hair.

“The video here utterly discredits the defendants’ version of events,” said Stecklow, a New York City solo practitioner.

But defense attorney Neil E. Duke told Brown that while he also believes the video “speaks for itself,” he sees officers facing a man who approached them threateningly in a rapidly-evolving situation in the midst of days of sometimes violence civil unrest.

“I guess all I can suggest to your honor is we look at the video and Mr. Lomax is not backing down” said Duke, a shareholder with Baker Donelson PC in Baltimore. Duke also asked Brown to take judicial notice of the events in Baltimore in May 2015.

The dispute over Gladstone’s actions in taking Lomax to the ground later worked in the plaintiff’s favor when Brown rejected a defense motion for summary judgment on the excessive force and battery claims against Gladstone, noting she again found a dispute as to material facts and determined a reasonable jury could agree with Lomax’s interpretation of events.

Brown did find that nothing in the video supported excessive force and battery claims against the two officers who removed Lomax from the scene despite Stecklow’s argument that they dragged him away and failed to follow department protocol for someone who had just been sprayed with pepper spray or tear gas.

“I’ll be honest with you, I do not think it establishes the claim of excessive force,” Brown said of the video. “There’s no malice with which these officers are handling Mr. Lomax.”

Another judge previously dismissed claims of false arrest, false imprisonment and malicious prosecution, determining Lomax’s arrest was valid though he was ultimately acquitted.

The case is Larry Lomax et al. v. Lieutenant Christopher O’Ree et al., 24C16002313.


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