Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, May 31, 1995                   TAG: 9505310099
SECTION: NATIONAL/INTERNATIONAL                    PAGE: C-5   EDITION: METRO 
SOURCE: Associated Press
DATELINE: RICHMOND, VA.                                LENGTH: Medium

POLICEMAN NOT LIABLE IN KIDS' DEATHS

In a 9-4 decision, the 4th U.S. Circuit Court of Appeals reversed a three-judge panel's ruling that Cambridge, Md., police Officer Donald Johnson could face civil liability in the deaths of Carol L. Pinder's children.

Johnson investigated a fight between Pinder and her former boyfriend, Don Pittman, at the woman's home March 10, 1989. Pinder said Pittman was abusive and violent and threatened to kill her and her children.

The officer arrested Pittman and assured Pinder he would be locked up overnight. He also told her, erroneously, that she had to wait until the next day to swear out a warrant against Pittman.

The same evening, Pittman appeared before a judge and was released on his own recognizance. Pinder, assured by Johnson that Pittman would be in jail, had gone to work.

Pittman returned to Pinder's home and set it afire. Her children, who were asleep, died of smoke inhalation. Pittman was later convicted of first-degree murder and is serving three life sentences without possibility of parole.

Pinder sued Johnson, claiming his promises made him duty-bound to protect her and her children. Johnson claimed qualified immunity - a defense that says holding public officials liable in hindsight would paralyze government.

The appeals court majority cited a U.S. Supreme Court opinion in another case that said the government can be held liable only if it prevents a person from protecting himself - not if it simply ignores that a person is in danger.

``Neither Johnson nor any other state official had restrained Pinder's freedom to act on her own behalf,'' Judge James H. Wilkinson wrote. ``In cases like this, it is always easy to second-guess. Tragic circumstances only sharpen our hindsight, and it is tempting to express our sense of outrage at the failure of Officer Johnson to protect Pinder's children from Pittman's villainy.''

In a dissenting opinion, Judge Donald S. Russell wrote that the majority ``casually disregards the very real ways in which Officer Johnson's conduct placed Pinder and her children in a position of danger. Pinder's children were left alone at home, vulnerable to the rampage of a violent, intemperate man, and deprived of their mother's protection because of the hollow word of an irresponsible, thoughtless police officer.''