Kansas Police Officer Who Killed Innocent Man During A Swatting Denied Qualified Immunity

from the only-officer-who-fired-a-shot dept

Swatting is truly heinous. People angry about video game playing somehow believe they’re justified in attempting to end their opponents’ lives, literally. Toxic sub-humans who can’t handle losing turn to secondhand killing to get their revenge. Absolutely abhorrent behavior that plays into law enforcement’s shoot-first, handcuff-the-corpse-later warrior mentality.

In this case, originating in a Wichita, Kansas, the swatting performed on behalf of a truly shitty Call of Duty player has at least a couple of silver linings. The first is that the perpetrator, “serial swatter” Tyler Rai Barriss, has been sentenced to twenty years in prison for his participation in this violent tragedy.

The second silver lining is that the only officer to shoot at the victim, Wichita resident Andrew Finch, has been denied qualified immunity. He will continue to face a lawsuit brought by Finch’s family, alleging multiple constitutional violations.

The events leading up to Finch’s killing by Wichita PD officer Justin Rapp are nearly as horrifying as the deadly outcome. This is from the Tenth Circuit Appeals Court decision [PDF] allowing the family’s lawsuit to continue:

At 6:10 p.m. on December 28, 2017, a City of Wichita service officer answered a call. The caller stated his mother had struck his father with a gun. The service officer attempted multiple times to connect the caller to 911 but the call dropped repeatedly. Seven minutes later, the caller gave his number to the officer, who passed along the information to the Sedgwick County 911 dispatchers. At 6:18 p.m., a 911 dispatcher contacted the caller. This time, the caller told the dispatcher he had shot his father in the head and was holding his mother and brother at gunpoint in a closet. He gave the dispatcher an address in a residential Wichita neighborhood. The dispatcher transmitted alerts to officers that the caller had shot his father and was holding his mother and brother at gunpoint. The dispatcher also reported that the caller was threatening to light the house on fire and commit suicide

The reality of the situation is that the call was placed by Tyler Barriss, a Los Angeles resident. The call was made on behalf of a Call of Duty player who was angry about an online in-game altercation with Andrew Finch.

Officers, understandably, felt they were dealing with an ongoing hostage situation and an armed suspect. No less than 10 officers converged on the address, approaching the house from multiple sides. Officer Rapp arrived and took an overlook position about 45 feet from the house’s front door. He had not been on the scene long before he decided it was time to pull the trigger.

Rapp had only been in his position about forty seconds when Finch opened his front door. Finch pushed the screen door open and took a step out onto the porch. An officer on the east side of the residence turned his rifle light on and instructed Finch to put his hands up and step off the porch. Jonker yelled “show your hands!” At the same time, officers to the east of the house shouted other commands. Jonker then yelled “walk this way!” Officers later testified that they could not understand the commands being given by Jonker at the north side. None of the officers identified themselves as police.

This lack of identification might have been excusable if this had happened during the day. But at this point in December, the sun had long since set by the time officers arrived (a little after 6 pm). Confused and attempting to respond to multiple, presumably conflicting orders from several different officers, Finch did something that provoked Officer Rapp to shoot him: he moved his hands.

On the north side, an officer saw Finch reach back with his right hand and place it on the front doorknob. Jonker saw Finch lower his hand and then start to raise his hands in response to the commands. But Jonker was primarily focused on officers on the east side, not on Finch. Rapp saw Finch grab the right side of his hoodie and lift it up, making a motion that appeared as if he was drawing a firearm. Rapp thought Finch was not complying with commands and possibly was armed. He testified he thought he saw a gun in Finch’s hand.

Approximately ten seconds after Finch first opened the door and stepped onto the porch, Rapp fired a single shot from his rifle, hitting Finch in the chest. Finch fell backwards into the residence, where he died within minutes. He was not armed.

Officer Rapp was the only police officer (out of nearly a dozen) to open fire. He was later cleared of any wrongdoing by the Wichita PD’s internal investigation.

But exoneration by his employer means nothing here. He claimed his shooting was fully justified by the nature of the situation and Finch’s movements. The lower court disagreed, saying plenty of facts were still up for discussion.

The district court concluded that a reasonable jury could find that (1) Rapp fired a shot when he could see Finch’s hands were empty, (2) Rapp’s assertion that Finch made a threatening motion was false, and (3) Rapp could not see Finch’s movements clearly due to darkness and distance, along with numerous other facts. Thus, it found that a reasonable jury could also conclude Rapp did not reasonably believe Finch posed a threat.

The footnote attached to this paragraph also says a jury could find that Finch’s movements weren’t threatening, but rather logical responses to the bizarre situation he found himself confronted with when he stepped out his front door.

The district court concluded a reasonable jury could find: (1) Finch was confused but attempted to comply with officers’ commands and his movements did not indicate hostile or threatening action; (2) persons yelling at Finch were not immediately recognizable as police; (3) Finch simply moved his arms when officers were giving him multiple commands; (4) Finch’s movements did not suggest he was attempting to draw a firearm; (5) Finch was never told to keep his hands up in the air or that he would be shot; (6) an officer could see Finch was not actively resisting commands; and (7) Rapp was unaware Finch was attempting to go back into the house when Finch was shot.

The court agrees all of this should be examined further. Further examination may show Rapp’s actions were unreasonable, a violation of Finch’s rights. And the violation here was not theoretical. It was clearly established.

To be sure, there is no case with identical facts to those here. But “[w]e do not think it requires a court decision with identical facts to establish clearly that it is unreasonable to use deadly force when the force is totally unnecessary to restrain a suspect or to protect officers, the public, or the suspect himself.” Taken together, the cases relied on by the district court establish that an officer, even when responding to a dangerous reported situation, may not shoot an unarmed and unthreatening suspect.

And, at this point in the case, it’s enough to keep Officer Rapp from prematurely exiting this lawsuit. Whether or not a jury will find in favor of Finch’s survivors remains to be seen, but at least this decision makes it clear it takes more than unspecified fears about officer safety to justify deadly force… at least in case somewhat similar to these.

Now, for the somewhat disappointing coda:

The Wichita Police Department has promoted the officer who pulled the trigger in the nation’s first deadly “swatting” call, a move the mayor and two city council members said could undermine efforts to rebuild trust in the largest police department in Kansas.

The June 25 promotion of Justin Rapp to detective comes amid pending lawsuits and a Netflix docuseries that focused an episode on the shooting. Rapp shot and killed Andrew Finch, an unarmed 28-year-old father, in December 2017 after a California serial hoaxer reported a bogus murder-hostage situation at Finch’s address.

The interim police chief, Lem Moore, told the Wichita Eagle that the shooting did not “disqualify Rapp from promotion.” That’s probably true, but [gestures at the mayor and council members’ comments] maybe not the best idea when the officer is still facing a federal lawsuit — one in which he has twice been stripped of qualified immunity.

Filed Under: 10th circuit, andrew finch, justin rapp, kansas, qualified immunity, swatting, tyler rai barriss

Source : https://www.techdirt.com/2022/07/28/kansas-police-officer-who-killed-innocent-man-during-a-swatting-denied-qualified-immunity/

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