Man killed by deputy was complying with officer’s orders, court motion says

An unarmed Barber County man “in fact did comply” when officers “simultaneously shouted inconsistent commands” at him right before the undersheriff fired a fatal bean bag round, the man’s widow contends in a court document.

That contention is at odds with a news release issued Oct. 7 by the Kansas Bureau of Investigation saying that Steven Myers “did not comply with all verbal commands given by deputies” when he was shot in Sun City on Oct. 6.

The court motion raising concerns about the shooting was filed in Barber County District Court on Monday as part of the wife’s effort to get a copy of all body- and dash-camera recordings of the shooting. She is the mother of their three children, ages 1, 9 and 11.

The motion seeking the recordings – filed by Kristina Myers’ attorney, Overland Park attorney Michael Kuckelman – argues that “The public has a right to evaluate the veracity of Sheriff Small’s version of the unjustified shooting.”

Attorneys for Barber County argue that Kuckelman has been able to view the video recordings twice and has been “provided everything the Kansas Open Records Act requires. ... There is no right to obtain copies of video recordings,” they say.

Kuckelman confirmed Wednesday that the concerns about the shooting raised in the motion are based on what he saw and heard when he was allowed to view the recordings. Still, he said, it’s important for him and his client to have copies for their review and because it is in the public interest.

A hearing on the dispute over copies of the recordings had been scheduled for Thursday in Barber County District Court. The hearing has been continued until 3:30 p.m. Dec. 1.

According to the KBI statement the day after the shooting, preliminary information indicated that the Sheriff’s Office got a call about a man threatening people with a gun outside a Main Street bar in Sun City. When officers arrived, bystanders said the man had left. During a search of several locations, deputies found the man in a shed about 15 feet from a residence. When the man came out of the shed, “he did not comply with all verbal commands given by the deputies. One deputy fired a less-lethal bean bag round toward the subject, hitting him.” Despite treatment from officers and EMS, Myers died at the scene, KBI said.

Myers was hit on the left side of his chest.

Kristina Myers’ court motion raises other issues about the shooting:

▪ Less than five minutes before Undersheriff Virgil “Dusty” Brewer fired what was supposed to be a less-lethal bean bag, Sheriff Lonnie Small was recorded telling Brewer: “A little luck and he’ll just pass out and die,” the motion says.

▪ Records also show that the sheriff disabled his body camera right after the shooting, the motion says.

▪ The only civilian eyewitness to the shooting “immediately shouted “God damn, that was a little drastic wasn’t it!” the document says. “Undersheriff Brewer then threatened the eyewitness with arrest for ‘interference’ and commanded him to leave his own property.”

Kuckelman, the attorney seeking the recordings, said in the motion that the sheriff has denied Kristina Myers’ request under the Kansas Open Records Act. In the denial, the sheriff’s attorneys said the records are exempt because they are criminal investigation records, now in KBI’s possession, the motion says.

Kuckelman argued that “the only conceivable target of an active criminal investigation would be the shooter, Undersheriff Brewer,” and he and his attorneys have a copy of the recordings. “If Sheriff Small seeks to protect the criminal investigation by keeping the Recordings out of the hands of the criminal suspect, then that ship has sailed. ...

“Sheriff Small can’t have it both ways: he cannot make his own public statement blaming the deceased for the shooting and then use the criminal investigation exception to hide the truth from the public,” the document says.

This story was originally published November 15, 2017 at 6:41 PM with the headline "Man killed by deputy was complying with officer’s orders, court motion says."