$5M excessive-force suit against Wichita police can proceed, judge rules

A federal judge is letting a widow proceed with a $5 million lawsuit that says Wichita police acted recklessly and used excessive force against her suicidal husband when they rushed into their home and fired more than 40 shots, hitting him 16 times.

The injuries from the shooting left 45-year-old Stacy Richard impotent and so depressed that he hanged himself several months later, according to the judge’s order. The judge found that the wife made a “plausible claim” that the shooting – which her husband survived – led to his eventual death.

U.S. District Court Judge Eric Melgren recently ruled that Richard’s wife, Michlle, laid out a sufficient legal claim that Wichita police used excessive force and that the city failed to properly train its officers.

The ruling was in response to a motion by the city to dismiss the lawsuit.

The judge, however, did side with the city in dismissing the lawsuit’s argument that there is a “pattern and practice of excessive force.”

The lawsuit, filed last year, names five officers, the police department and the city as defendants. The lawsuit was brought by Wichita lawyers James Thompson and Donald Snook, who have other pending lawsuits against the city over officer shootings.

How it happened

The judge’s order lays out a narrative of what happened.

On Feb. 25, 2014, Stacy Richard was armed and suicidal in the couple’s home. Michlle Richard called his therapist, saying that “Stacy was only a danger to himself.” The therapist called 911, and officers were dispatched. The wife exited the home, leaving her husband alone inside.

Among the officers who responded are the five defendants: Officers Bruce Mackey, Matthew Phillips, William Stevens and Brian Arterburn and Sgt. Michael O’Brien.

“The officers were informed that Stacy had declared he would shoot himself if the police showed up,” the judge’s narrative continues. “Although dispatch reported that shots had been fired, Sergeant O’Brien and Officer Mackey reported that they had not heard any shots.”

Officers couldn’t reach Stacy Richard by phone.

Within five minutes of arriving, the officers “quickly went through the residence until they encountered Stacy on the couch with a gun in his hand.” They gave him commands, but he didn’t respond “or did so very quietly,” the narrative says.

“In a matter of moments, Stacy raised his arm towards the officers. Although the video is not entirely clear, it appears that he may have pointed his gun towards the officers.”

Mackey, Arterburn, Stevens and Phillips fired more than 40 rounds, hitting Richard 16 times: in the head, chest, abdomen, penis, scrotum, right buttock and both legs, the judge’s order said.

“Stacy did not fire a shot.”

His medical bills from the shooting exceeded $400,000. Six months afterward, he returned to work but “suffered constant pain” and was left impotent because of the injuries to his genitals.

“Once again, Stacy sunk into deep depression,” and in October 2014, he hanged himself in his garage, the judge’s order said.

Was it reasonable?

In his ruling, Melgren noted that the defendants “argue that the officers were justified in shooting Stacy because they reasonably believed he was pointing a firearm at them.”

“But the Court must look at more than the instant that the shots were fired,” Melgren wrote. “The Court must consider whether the officers’ own reckless or deliberate conduct unreasonably created a need to use lethal force.”

The defendants contend that officers can enter a home without a warrant to give emergency aid to an injured person.

“Presumably, they were worried that he had shot himself,” Melgren wrote. But the judge added that that “narrative is unsupported by the facts. … True, the officers were advised that shots were fired. But some officers reported that they had not actually heard shots. And neither the video of the entry nor the audio of the dispatch demonstrate that the officers were primarily concerned that Stacy had already shot himself when they entered the home. Indeed there is no evidence that EMS was called when it was reported that shots had been fired. The officers only call EMS after they shot Stacy.”

So, Melgren concluded, “the Court cannot find that the officers entered the house with the reasonable belief that they needed to render emergency assistance.”

And in a footnote, he wrote: “In other words, the Defendants argue that the officers’ conduct was objectively reasonable where they abruptly entered the house to protect Stacy because they were worried that Stacy had shot or would shoot himself, whereupon instead the officers promptly themselves shot at Stacy 40 times.”

Melgren found that Michlle Richard had made a “plausible claim” that the officers acted unreasonably, noting that her husband was “emotionally disturbed and considering suicide” and “alone in the house” and that officers went in and “issued forceful commands.”

“It is plausible that these commands caused Stacy to become more distressed. Stacy was not suspected of committing a crime, and he did not pose any immediate danger to others when he was alone in his house.”

Handling suicidal call

Melgren also found that Richard’s wife made a reasonable claim of “failure to train,” noting that the “shooting of 10 mentally ill people by WPD officers since 2010 arguably illustrates deliberate indifference to those persons” and that “the failure of officers to request a crisis intervention team before entering the house is a direct result of inadequate training.”

Courts usually are “reluctant to recognize suicide as a proximate consequence of a defendant’s wrongful act,” Melgren wrote.

But the judge noted that the wife alleges that the gunshots left her husband with “unbearable and constant physical and mental pain.” The wife contends that her husband’s resulting impotency left him unable “to be intimate with his wife” and that it “took a great toll on his mental health, marriage, and self-image. She claims that these factors caused Stacy to take his life.”

Those allegations can’t be dismissed, Melgren said. “It is certainly plausible that Stacy’s suicide was the proximate consequence of the 16 gunshot wounds he suffered.”

Pattern claim dismissed

On another issue, Michlle Richard argues that police have a “pattern and practice of concealing misconduct” that has failed to keep officers from using excessive force. Part of the argument is that the city hides the identities of officers who shoot people, lets them meet privately with union representatives and a critical stress incident team and that officers are “coached” on what to say about a shooting, Melgren wrote.

Michlle Richard also argues that police shooting investigations lack civilian oversight, that police shootings are presumed to be justifiable before official findings and that “investigators fail to meaningfully investigate shootings.”

She contends that “the City has never found that an officer involved shooting was excessive or violated policy,” the judge wrote.

But after considering her argument, Melgren concluded: “These allegations do not rise to the level of a pattern and practice of excessive force. ... Plaintiff fails to allege deliberate indifference or tacit authorization of excessive force.

“At best, she alleges that the City fostered an environment in which excessive force cases were not vigorously prosecuted.”

This story was originally published October 4, 2016 at 4:38 PM with the headline "$5M excessive-force suit against Wichita police can proceed, judge rules."