A federal judge will have to decide if a sorority at Wake Forest University should be dropped from a wrongful-death lawsuit that blames it for the fatal shooting of a Winston-Salem University student on the school’s campus last year.

The university’s chapter of Delta Sigma Theta hosted a party at The Barn, an event venue on campus, on the night of Jan. 19, 2018. Around 1 a.m. on Jan. 20, 2018, after a fight broke out at the party, Najee Baker, a WSSU football player from Brooklyn, N.Y., was shot on a road outside The Barn and later died at Wake Forest Baptist Medical Center. Winston-Salem police arrested two men in connection to the fatal shooting. Jakier Shanique Austin, 22, is charged with murder and other charges, and Malik Patience Smith, 18, is facing two gun possession charges and one charge of assault by pointing a gun.

According to the lawsuit, Austin and Smith got into the fight with Baker, left the venue and walked to their cars to get guns. They later confronted Baker on a road near The Barn, with Smith pointing a gun to a friend of Baker’s while Austin shot Baker, the lawsuit alleges.

Baker’s mother filed a lawsuit in May in U.S. District Court in the Middle District of North Carolina. The lawsuit names Wake Forest University, the university chapter of Delta Sigma Theta and others as defendants in the lawsuit.

In September, attorney Jeffrey Keister filed a motion to dismiss the claims against the sorority. They argue that the sorority had no duty toward Baker beyond the Barn and members of the sorority had no way of predicting that Smith and Austin would commit alleged acts of violence. “The question before the Court essentially boils down to whether the Chapter could have forseen the intentional, criminal act of Austin and Smith,” Keister said in court papers. “The answer is, both legally and factually, negative. Austin and Smith’s act, in shooting Mr. Baker, was an unforeseen, intervening, superseding, and insulating cause that was simply unforeseeable to the Chapter and its members.”

Jonathan Fazzola, attorney for Baker’s mother, who is the administrator of her son’s estate, filed a response to that motion on Tuesday.

Fazzola argued that the sorority promoted the party, called Event Level 1913, which references the date that the historically black sorority was founded. The sorority was also responsible for following university guidelines in determining the amount of security needed for the party and to vet the people who were allowed to purchase tickets and get into the party, Fazzola said.

None of those things happened, he said. The party had one Wake Forest University police officer and several security guards from Rhino Sports and Entertainment Services, which is also a defendant in the lawsuit. The officer and the security guards could not contain the fight and escort Austin and Smith off campus, thus preventing them from getting the guns, Fazzola said.

The sorority should have been aware of past incidents at The Barn, Fazzola said. The lawsuit alleges that The Barn had been the site of numerous problems on campus that required the intervention of university and Winston-Salem police. At one point, a combined force of nine university and Winston-Salem police officers monitored events at The Barn.

But the university changed its policies after 2014, when Wake Forest police shut down a party hosted by Kappa Alpha Phi, a black fraternity. Black and other minority students complained that Wake Forest police were racist in how they handled events hosted by minority students, according to the lawsuit.

The university police commissioned an independent study whose recommendations the lawsuit alleges that the university ignored. The lawsuit said that the university reduced the amount of security at large events and left students in charge of event management.

Fazzola said the sorority failed to make sure that non-students were not allowed on campus. Austin was also able to purchase three tickets to the party at the door — one for him, one for Smith and one for another person. The three men were not students at either Wake Forest University or Winston-Salem State University.

“The Sorority expressly agreed to be responsible for managing and overseeing the Event, including monitoring who was allowed into the Event and assessing the need for adequate security,” Fazzola said in court papers. “The Sorority also agreed to undertake significant responsibilities in providing security and event management at the Event, when it knew, or in the exercise of reasonable care should have known, that the provision of reasonable and adequate security at the Event was necessary to ensure the safety of and well-being of the attendees, including to protect them from the criminal acts of third parties.”

On September, U.S. District Judge Catherine Eagles denied the university’s motion to dismiss the lawsuit. The university has since filed a written answer to the lawsuit, denying the allegations.

The lawsuit is seeking at least $75,000 in damages. A trial date in the case has not yet been set. The criminal cases against Austin and Smith are still pending.

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