Officer not wearing body cam in fatal beanbag shooting

The Barber County undersheriff who fired a fatal beanbag round that killed a 42-year-old Sun City man on Oct. 6 was the only officer at the shooting not wearing a body camera, witnesses testified Friday.

Undersheriff Virgil Brewer testified that he left his body camera on the sun visor in his car before he fired on Steven Myers. Brewer, who was hired in January, said he hadn’t read all of the Sheriff’s Office policies.

The attorney for Myers’ wife said that according to the policy, all officers at the shooting should have been wearing body cameras and should have kept them on throughout the incident and the ensuing investigation, which lasted for hours in the back yard of a Sun City home where Myers died.

Michael Kuckelman, attorney for Kristina Myers, provided The Eagle a copy of the policy, which says “All officers will wear the issued ‘Body Cam’ video camera on the front of their uniform in a place that will afford the best view … to the area in front of the officer.”

And this: “The camera will be utilized when at all possible on all major incidents … .”

After the hearing, Kuckelman said that probably if the Sheriff’s Office had “complied with their own policies and procedures that day (of the shooting), Steven Myers would be alive.” He would not elaborate.

Through his attorney, Jeff Jordan, Sheriff Lonnie Small has provided six videos to media and the Myers family.

None of the images viewed by The Eagle appear to show a completely clear view of the shooting.

Kuckelman has contended that Myers was not armed and was complying with a command to come out of a shed when he was hit at close distance with a beanbag round, fired from a shotgun, that hit him in the chest.

Sheriff’s officers were responding to a report that Myers was intoxicated, armed with a “long gun” and threatening people outside Buster’s bar in Sun City.

The testimony in Barber County District Court in Medicine Lodge on Friday marked the first time that Sheriff Small and Undersheriff Brewer spoke publicly about the shooting.

Judge Francis Meisenheimer told the packed courtroom – filled with Myers’ relatives and supporters – that the purpose of Friday’s hearing was limited to determining whether all of the videos of the shooting had been given over by the Sheriff’s Office. The Eagle received a copy of the videos on Wednesday after requesting them under the Kansas Open Records Act.

Sheriff Small testified that all video has been provided to Myers’ family or others requesting it.

Kuckelman used the hearing to ask questions about why Undersheriff Brewer, who fired the beanbag, was the only one of four sheriff’s officers at the scene not wearing a body camera.

Asked if he had read all of the department policies, Brewer responded, “Not in its entirety, no.”

Asked why he didn’t have his body camera on, Brewer said it was “affixed to the sun visor” in his vehicle.

Brewer also said his vehicle was the only one without a dash camera and that he hasn’t had a dash camera since he joined the Sheriff’s Office in January.

As Brewer and Small were questioned, two Kansas Highway Patrol troopers providing courtroom security intently watched the audience.

Kuckelman then questioned Sheriff Small, who referred to the beanbag as a “less-than-lethal” weapon. Experts refer to it as a “less lethal” weapon because it can be fatal at close range when fired into the chest.

Small said he purposely turned off his body camera after the shooting “after what I believed ... the whole incident was over.” After he stopped the camera that evening, he remained at the scene until the morning, he said.

Asked if he told other sheriff’s officers to turn off their cameras after the shooting, he said that one deputy asked if could shut it off after some significant time had passed after the shooting, “and I said yes, we’re done here.”

The Kansas Bureau of Investigation had sent someone to investigate the shooting.

When Kuckelman asked Small whether there should be more video available under the sheriff’s policy, Small said officers have discretion on when to use their cameras.

Small agreed that the shooting was a major incident.

Small also agreed that he and two deputies all used both their body cameras and their dash cameras and that there was no video from the undersheriff who fired the beanbag.

Kuckelman asked Small why he turned off his camera at the scene when the investigation there was continuing. “I just thought it was over because he was apprehended,” Small said of Myers. He lay on the ground in a blood-soaked shirt with handcuffs on.

A future trial, not yet scheduled, will deal with Kuckelman’s allegations that the Sheriff’s Office violated the Open Records Act by not providing copies of videos sooner.

It forced the Myers family to press for the video long enough to incur $20,000 to $25,000 in legal fees, Kuckelman said.

Jordan, the sheriff’s attorney, said Kuckelman has been allowed to view the video all along and that the only issue was whether he could get copies, not the timing.

Kuckelman said while getting the videos should be considered a “phenomenal success,” government shouldn’t force families to hire an attorney and persist until they get videos of shootings by officers. “It just defeats the purpose” of the open records law, he said.

He repeated a criticism he made Wednesday, saying that the Sheriff’s Office showed no compassion or courtesy to the Myers family when it gave video copies to news media before providing it to the family, “or even informing the family that they were going to release it.”

Jordan disagreed, saying Kuckelman was told days before the release that the Sheriff’s Office planned to make copies available before Friday’s hearing. Copies were only provided to media that made requests under the open records law.

The family’s legal battle over the shooting and the release of the video will affect other law enforcement agencies’ actions regarding the Open Records Law, Kuckelman said.

“It will hit them in the pocketbook,” he said, “and that will cause compliance.”

Kristina Myers is suing the sheriff and the undersheriff in federal court alleging that the shooting was “unjustifiable,” “wrongful” and “reckless.”

The lawsuit seeks damages and costs to be determined by the court.

This story was originally published December 22, 2017 at 12:19 PM with the headline "Officer not wearing body cam in fatal beanbag shooting."