Federal judges appear skeptical of Wichita’s appeal in $25M Finch swatting case
A federal appeals court appeared to take a dim view Monday of Wichita’s arguments seeking to dismiss a police misconduct lawsuit against the officer who killed an innocent man while responding to a faked “swatting” call in 2017.
Sam Green, the lawyer representing the city and its officer, Justin Rapp, argued that the case should have been been dismissed by the trial judge because the phony emergency call led Rapp into a faked murder-hostage crisis.
In practice, the city would be responsible for any damages found against Rapp. The family of the shooting victim, Andrew Finch, has sued for $25 million on behalf of his children.
Rapp had only two to three seconds to decide whether Finch was threatening other officers when he stepped out to his porch to investigate the commotion he heard outside his home, Green argued.
He said Rapp should be covered by qualified immunity, a legal principle that offers some protection for public employees against being sued for actions taken on the job.
“That split second decision should never go to a jury,” Green said “That is the exact thing that qualified immunity is seeking to protect are those split second decisions.”
The judges sounded skeptical and pressed Green repeatedly over whether it would be advisable or even legal to second-guess U.S. District Judge John W. Broome’s decision to let the Rapp case go to a jury trial.
Broome ruled earlier that Rapp can stand trial for shooting Finch. He also dropped the city government as a defendant in the case, ruling that lawyers for the Finch family had failed to adequately prove that the city had a policy or custom of excessive force against suspects that led to the shooting.
Both sides have appealed, with the city arguing Rapp shouldn’t have to stand trial and the Finch side arguing that the city should be on trial as well.
Monday’s oral argument were before a three-judge appellate panel at the 10th Circuit Court in Denver. Due to the ongoing COVID-19 threat, the arguments were held on Zoom and the public was allowed only audio access to the proceedings.
The bogus call that led to Finch’s death was a case of swatting, where someone with a grudge calls in a false emergency report to trigger a response by a police Special Weapons and Tactics — or SWAT — team.
Officers were sent to the Finch family’s two-story rental home at 1033 W. McCormick after a man phoned City Hall at 6:10 p.m. with a bogus tale that he’d shot his father in the head and was holding his mother and brother hostage at gunpoint with plans to set the house on fire with gasoline.
It was later learned that the made-up report stemmed from a dispute between online gamers over a $1.50 bet on a game of Call of Duty.
Finch, a 28-year-old father of two, had no connection to the hoax orchestrated by Tyler Barriss, a young California man well known in the gaming world for his swatting antics.
Barriss is serving a 20-year sentence over the Wichita case and other dangerous hoaxes. An Ohio teen gamer who brought him into the picture was sentenced to 15 months in prison.
Green said body camera video from another officer on the night of the shooting showed that as officers shouted commands at Finch, he raised his hands, then lowered them with his right hand briefly out of out of sight. Green argued he then reportedly raised his hand again in a way that Rapp believed threatened officers to his right at the east side of the yard.
“The facts are not really in dispute,” Green said. “We know what movements he made. We can see from the video that they more or less corroborate what Officer Rapp saw, so. . .” Green said.
At that point, he was interrupted by Judge Nancy L. Moritz.
“I disagree with that,” Moritz said. “And some of the other officers disagreed with that too, didn’t they?”
Green: “I don’t believe so your honor, they all saw and turned. . . “
But Moritz cut him off again: “Not all the officers saw him pointing towards them on the east side.”
Green: “Correct, and . . .
Moritz: “They didn’t all see that at all.”
Green: “Correct, that is true . . .
Moritz: “Not all the officers thought he had a gun. In fact, how many of them thought he had a gun?”
Green: “The testimony is several of them thought he was, it was a threatening situation, but nobody, the officers to the side could not see his hands the way . . .”
Moritz: “Some said it wasn’t imminently threatening. There were lots of different views and certainly the video itself could be viewed differently than what you just stated. It certainly could be in terms of where his hand was and how he moved and which way it moved. I think what you’re asking us to do is disagree with the district court’s factual findings and of course we don’t have jurisdiction to do that.”
From there, Green sought to argue that it was not the perceptions of the video that were critical, but the timing.
Moritz appeared skeptical about that as well.
“So are you saying that any time there’s a split second-decision by an officer, no matter how many other officers don’t see the same thing, no matter whether the video might indicate something different, if it’s a matter of split seconds, then it’s subjectively reasonable regardless of what anything or what anyone else says?” Moritz said.
If the appeals court rules in the Finch family’s favor, the case will return to Wichita for trial a few months from now.
This story was originally published September 20, 2021 at 5:15 PM.
