The soldier shot by a Moore County deputy during a U.S. Army training exercise has agreed to dismiss his civil rights lawsuit - even though a federal jury has already sided with him.

Stephen Phelps sued both the Sheriff's Department and former deputy Randall Butler, alleging that Butler used excessive force when he shot him and another soldier, Tallas Tomeny, following a traffic stop outside Robbins in February 2002 during the Robin Sage training exercise.

Tomeny died in the parking lot of Acorn Ridge Baptist Church. Phelps was seriously wounded.

On Oct. 27, a U.S. District Court jury ruled in Phelps' favor, awarding both compensatory and punitive damages.

Before entry of any judgment in the case by U.S. District Court Judge William L. Osteen, Jr., the parties conferred and reached an out-of-court settlement of all claims. Phelps agreed to dismiss his case for $1.23 million in damages, costs and attorney's fees.

Punitive damages are not included, and all claims were dismissed. The award only includes compensation for his injuries, costs of court, litigation costs, interest, and attorney fees and expenses, according to his lawyer, Carlos A. Mahoney.

"Stephen is happy with the settlement, and the check has been paid," Mahoney said. "He was happy that his full story came out and that the jury believed him."

That jury heard three eyewitness accounts during the trial in Greensboro. Butler told them he thought his life was in danger from armed men. He found what he thought at the time were two "machine guns" hidden in the bottom compartment of a black bag Tomeny had with him, according to his testimony.

Butler said he did not know Phelps and Tomeny were soldiers in civilian clothes pretending to aid indigenous fighters in an imaginary country called Pineland - part of an exercise called Robin Sage the Army uses to give future Special Forces soldiers realistic experiences like those they will face in unconventional warfare.

Their driver, Charles Leiber, was a longtime civilian volunteer playing the part of a resident of Pineland. He and the two soldiers assumed Butler was in on the scenario, not unlike others in use to this day where law enforcement officers take roles in training.

Leiber told the jury he saw Butler toss that black bag away, pulling it from Tomeny's grasp, then pull his gun. After holstering his pistol, he sprayed Tomeny with pepper spray, according to Leiber, and then shot him. When Phelps jumped and ran for the bag, Leiber said Butler turned and shot him - though he couldn't see from the patrol car where exactly Phelps was or what he was doing.

Phelps, who had been riding in the back of Leiber's pickup, testified he jumped out after Butler started spraying Tomeny. He was heading for nearby woods, stopping only to retrieve the bag and its disassembled assault rifle. The rifle held only blanks, he said.

According to Phelps, he turned when he heard gunfire, the shots that killed Tomeny. Slipping as he turned, he was facing Butler when he was shot, according to his testimony.

Butler's testimony differed. He shot Tomeny, who'd previously tried to get his service pistol, after the man ducked away from his pepper spray and only after first shooting Phelps, according to testimony. Butler said he shot Phelps first because he saw him coming up with a weapon. He then shot Tomeny when the man appeared to be reaching behind him for a weapon.

Phelps recovered enough to graduate with his class from Fort Bragg's JFK Special Warfare Center and School and receive his Green Beret. He took additional training to become both a combat engineer and a Special Forces medic. He served two deployments each in Afghanistan and Iraq before leaving the Army to work for a defense contractor. He and Tomeny's family filed their lawsuit in 2004.

Butler has sued the Army, but that case is now on hold. U.S. District Court Judge Tilley ordered that trial - which was to have started Monday - postponed and ordered both sides to file reports advising the court how to proceed given the verdict in the Phelps case.

Since Phelps' settlement resulted in a dismissal, that verdict never actually was entered as a final judgment. It remains to be determined whether the jury finding that Butler used excessive force will mean he cannot sue the Army for failing to notify Moore County about Robin Sage activities in the Robbins area that day.

The Federal Tort Claims process uses each state's laws to determine liability. In North Carolina, no one can claim damages if they themselves committed contributory negligencey. Whether the jury verdict has any standing to bar Butler's claim could be a factor.

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