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Parents of man killed in Old Town police shooting in 2012 file federal lawsuit

  • The Wichita Eagle
  • Published Friday, March 7, 2014, at 10:54 p.m.
  • Updated Tuesday, May 13, 2014, at 12:54 p.m.

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The parents of a man fatally shot by Wichita police in Old Town in 2012 have filed a civil lawsuit in federal court, alleging that officers were negligent and excessive in their use of force, and violated the Constitution.

The lawsuit, filed Friday in United States District Court in Kansas City by Randall Smart and Brenda Bryant, also attempts to cast doubt on law enforcement claims that their son, 23-year-old Marquez Smart, fired the shots that prompted a police chase and his eventual killing.

The complaint names the city of Wichita, the Wichita Police Department and two police officers, Lee Froese and Aaron Chaffee, as defendants. Among accusations, it alleges that Smart’s killing was unconstitutional because he was not shot under exceptional circumstances and that Smart did not have a weapon at the time.

It also claims that the officers involved were negligent because they opened fire into a crowd and without assessing the situation, fired at Smart “based (alone) on the fact that he had a yellow shirt” on and shot him “execution style” after he was lying on the ground.

Smart’s parents are seeking unspecified monetary damages in the case.

Contacted by phone Friday evening, Wichita Police Department spokesman Capt. Doug Nolte said he was unaware of the lawsuit and referred inquiries to the city’s legal department.

“I have not seen it, don’t know anything about it,” Nolte said.

Wichita City Attorney Gary Rebenstorf, the city’s chief spokesman for legal matters, could not be immediately reached for comment Friday evening. The city’s communication director, Van Williams, said by phone that the city typically does not comment on pending litigation, “especially litigation that no one has seen.”

Williams also said he was unaware of the lawsuit.

Kansas City attorneys Bradley Kuhlman and Andrew Protzman, who are representing Smart’s parents in the lawsuit, according to records, did not immediately return phone or e-mail messages from The Eagle seeking comment Friday evening.

Police shot Smart as he reportedly fled Old Town, Wichita’s downtown entertainment district, after 2 a.m. March 10. Officers said they saw a man wearing yellow – later identified as Smart – hold a gun in front of him while he was in a crowd gathered outside of Doc Howard’s Lounge, a club. One of the officers saw the shooter fire and then chased a man toward the Old Town Hotel parking garage, where the man was shot five times by police.

A report released in November 2012 by the Sedgwick County District Attorney’s Office cleared the officers of wrongdoing in Smart’s shooting but failed to say who shot three of four bystanders injured by gunfire.

Friday’s lawsuit mentions a person “who claimed to be an ‘innocent bystander’ who had been shot in the leg as he sought refuge (from gunfire) in the hotel parking garage.”

“The ‘innocent bystander’ was wearing a yellow shirt,” the lawsuit continues, the same color shirt Marquez Smart wore when he was shot by police.

The lawsuit

The lawsuit alleges that Marquez Smart and a cousin who was not named went to a concert at Doc Howard’s and were admitted after being searched for weapons by the club. Earlier that day Smart had purchased a yellow shirt, and at no time was he seen with a weapon by the cousin.

Police were “especially concerned about the possibility of gang-related violence” that night and officers both in uniforms and undercover were at the club to help manage the closing-time crowd.

Not long after the concert let out at 1:45 a.m., “there was a short scuffle, a yell and a shot fired in the crowd,” near the Old Town Hotel parking garage. Froese, one of the officers named in the lawsuit, “saw a black male with a yellow shirt holding a handgun with his right hand” and ran after the man as he fled toward the parking garage after the man fired again into the crowd.

Froese fired repeatedly as he chased the shooter toward the parking garage, where there were 100 to 200 people, the lawsuit says. The man then ran around the back of Froese’s parked patrol car and into the parking garage.

The lawsuit continues, saying Chaffee, the second officer named in the lawsuit, saw both Froese and the shooter firing but that “he didn’t have a perfect view, but could follow what happened because of the yellow shirt.” Chaffee was on an elevated platform across from the hotel parking garage at the time. He “hurriedly turned to make his way off ... to get to the street level” and, when he reached it, he “regained sight of a yellow shirt worn by a man running into the alleyway.”

The lawsuit also claims that shortly before the shooting, Smart and his cousin were walking southward near the parking garage and talking with friends. “Suddenly, Marquez Smart was knocked down from behind and fell into his cousin. The force of the blow was so hard that Marquez dropped and broke his glasses. ... The two cousins fell together to the sidewalk as a shot was fired close to them.”

The lawsuit says Smart and his cousin got to their feet and started running north, back toward the parking garage’s northeast entrance, the exit and the alleyway. The cousin ran behind a parked patrol car and exited to the west, “losing sight and contact with Marquez,” the lawsuit says. Smart ran in front of the patrol car and into the alleyway.

The lawsuit alleges that in the alleyway Chaffee told a man wearing a yellow shirt to “stop and drop the gun.” Chaffee then fired at the man, according to statements by an unnamed witness who is mentioned in the lawsuit, and “the man in a yellow shirt fell face down, his arms outstretched and his head nodding, as if in complete surrender.”

According to statements by the unnamed witness, Chaffee fired two or three more times into the wounded man’s back “despite the man being completely submissive,” the lawsuit says. The lawsuit says that the witness questioned Chaffee about the shooting but was told to leave the area, along with another person. Both complied but neither were interviewed by Wichita police during the subsequent investigation, the lawsuit alleges.

The lawsuit also says that even though police suspected him of shooting into the crowd outside of Doc Howard’s, Smart’s hand was never tested for gunshot residue. It also says that Smart’s name did not show up on a Wichita Police Department list of known gang members and that he had no gang ties.

Reach Amy Renee Leiker at 316-268-6644 or aleiker@wichitaeagle.com. Follow her on Twitter: @amyreneeleiker.

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