While a federal civil rights lawsuits against the Moore County Sheriff's Office and a former deputy who shot two student soldiers was settled this week, the deputy's own suit against the Army may be headed for its day in court early next year.

The U.S. government wants Randall Butler's claim dismissed without trial. It filed a motion in late September asking for summary judgment.

Butler, now the chief deputy in Lee County, was on road duty on a cold wintry day seven years ago when he stopped a green pickup just outside Robbins. He had spotted one man in the bed, apparently sleeping despite the weather. According to documents filed with the court, Butler's suspicions were aroused. When he followed the truck and it turned off on a road that would only bring it back where it came from, Butler hit the blue lights.

What followed depends on whose account the jury believes. Butler said he thought his life was in danger from armed men, and he shot twice at a man he thought was going for an assault rifle in a backpack, and twice more at a man he thought was reaching for a weapon behind his back.

The first man, Sgt. Stephen Phelps, was wounded. The second, Lt. Tallas Tomeny, died. Both were student soldiers who thought the stop was part of an Army training game called Robin Sage conducted by Special Forces with civilian volunteer assistance.

Investigations by the State Bureau of Investigation and then-District Attorney Garland Yates reached the conclusion that what happened was a tragic accident resulting from a deadly misunderstanding -- the soldiers thought they were in a training scenario, and Butler thought they were trying to kill him.

No criminal charges were ever filed, but both Phelps and Tomeny's estate sued. That case is being tried now in federal court in Greensboro. Butler's damage suit against the government is set for a January 2010, trial date.

Butler, following the incident, had to undergo many hours of counseling and therapy before he was allowed to return to duty. The Sheriff's Office did not want him endangering himself or possibly other officers by hesitation in hazardous situations because of his reaction to what he had gone through, according to court documents.

In December 2005, after the Army turned down his personal injury claim, Butler filed suit against the federal government. He seeks to recover $5 million for "past and future medical expenses, loss of future wages, pain and suffering, mental distress, and loss of enjoyment of life" according to court documents.

He claims the Army should have told the Sheriff's Office about military training that day and was negligent in failing to train those taking part in Robin Sage how to interact with local law officers.

Last month, the Army's attorney asked the federal court to dismiss Butler's claims. Documents filed to support the motion include a number of Army training manuals and statements made under oath in Iraq by Col. Charles King, a retired officer who, at the time of the incident, commanded the Army's 1st Special Warfare Training Group (Airborne) at Fort Bragg (SWTG).

Another statement by Command Sgt. Maj. Charles Beebe was also filed to support the motion to dismiss. The government says Butler alleges that Army personnel "negligently planned and executed Operation Robin Sage, a Special Forces training exercise conducted in North Carolina in February 2002" and challenges "professional military judgments involved in Special Forces training."

Those judgments, according to Anna Mills Wagoner -- U.S. attorney for the Middle District of North Carolina, who represents the United States -- involve "elements of discretion, implicating military readiness, and resources policies."

Wagoner's recent motion claims that, because judgment is involved, what the Army did falls under an exception called the "Discretionary Function Exception." She claims they were "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion be abused."

Butler has until Oct. 19 to file a response.

Contact John Chappell at (910) 783-5841 or by e-mail at jchappell@thepilot.com.