The Wichita police officer who fired the shot that killed Andrew Finch after a swatting call will not face charges, District Attorney Marc Bennett said Thursday.
Bennett said he had to make a determination based on Kansas law and law handed down by the Supreme Court, which says that when determining if an officer acted reasonably, evidence has to be reviewed based on what the officer knew at the time of the shooting, not 20/20 hindsight, he said.
Premium content for only $0.99
For the most comprehensive local coverage, subscribe today.
The officer, whom the reports refers to as "Officer #1," will not be named since he's not being charged, Bennett said.
Wichita police went to Finch’s house just after 6:15 p.m. on Dec. 28 after receiving a false call about a murder and hostage situation inside.
Officers didn’t know the report was false, Bennett said, and had arrived at the house with information that two people were being held at gunpoint, and the shooter wasn’t going to lower his weapon, according to dispatch records that were released the next day.
Instead, Finch, 28, was inside with his family and a roommate. Finch opened his front door when he saw police lights outside and didn’t know why, his mom, Lisa, told reporters the day after the shooting. Wichita police have said he was given commands to keep his hands raised, but say he reached toward his waistline multiple times.
When he reached his hands up suddenly, police say, a officer who was standing in a driveway across the street from Finch shot him.
Bennett reviewed more than 80 pieces of video evidence and interviewed every officer who was at Finch's house, including ones from the Sedgwick County Sheriff's Office. He said officers who were closer to Finch thought he reached down to pull up his pants. At one point, Finch's right arm was not visible to other officers.
The officer who fired the shot, along with some others, thought Finch was reaching for a gun, Bennett said.
"This shooting should not have happened," he said. "But this officer’s decision was made in the context of the false call."
The 911 call
Records provided by Sedgwick County Emergency services reflect that the first 911 happened just after 6:15 p.m. A male caller told dispatch that he shot his dad and was inside 1033 W. McCormick.
At 6:19 p.m., officers were notified that a shooting had occurred. Forty-two seconds after the initial dispatch was made, dispatch told officers that the caller "did shoot his dad in the head, he is not breathing. He's also indicating that his mom and brother are in the house and he has them at gunpoint."
The caller told 911 that he was holding the gun and wouldn't drop it.
Bennett said that when officers swarmed Finch's house, they had reason to believe there was an armed man inside.
Wichita police released a portion of that call the day after the shooting. In the recording, the caller says he's in a one-story house. Finch's house was two stories.
Bennett confirmed during a news conference Thursday that that conversation happened during a second call with 911, 10 minutes after Finch was shot.
The first officer to Finch's house was a 17-year veteran and sergeant of the Wichita Police Department. He directed officers to cover the north side of Finch's house and to block the street, Bennett's report says.
He directed the officer who fired the shot -- only referred to in the report as "officer #1" -- to move to the front of the house because he wanted "a rifle for long cover."
Finch's mother, Lisa, told reporters the day after her son was shot that he opened the door after noticing police lights outside.
At 6:28 p.m., an officer states over the radio, "we got the front door open."
When Finch opened the door, multiple officers began yelling, "let me see your hands" and "come out here," the report says.
"Thinking it would be better for the male to focus away from the officers staged to the east, Sgt. #1 began 'Screaming louder for this guy to, to walk towards me,'" the report says.
The sergeant pulled out his handgun as soon as Finch stepped into the doorway, then "recognized that he was too far to, 'be taking a shot from that distance,' with a handgun."
The sergeant said Finch's hands appeared to be in front of him until "his right hand came down a little bit to his side and that's when everyone screamed louder."
He glanced away to where other officers were standing and heard the crack of the rifle.
Finch was shot 10 seconds after he opened the door.
"Shots fired. One Down. Confirming. It's the suspect?" dispatch asks.
"Don't know," a WPD sergeant responds, according to a report released by Bennett.
Bennett said Thursday that some officers thought Finch was reaching for a gun. Others said he wasn't in their view because he positioned his body back inside the house. His hand was on his storm door when the shot was fired, and the bullet ricocheted into him, Bennett said.
An autopsy report says Finch was hit by multiple bullet fragments.
The officer who fired the shot told investigators that he thought Finch was the man who told dispatchers he had killed his father, and was holding his mother and a sibling hostage, Bennett said.
He said in an interview that he saw a silhouette of a person through an upstairs window. The person appeared to be bending over and moving up and down. Another officer said he thought it looked like someone was conducting CPR, the report says.
The officer who shot Finch agreed.
When Finch stepped onto his porch, the officer said he was looking through the scope on his rifle. He heard officers command Finch to show his hands.
The officer told investigators that he saw Finch throw "his hands up very quickly" to about ear-level, "and almost as soon as he puts his hands up, he brings them back down." The officer said he saw Finch "reach back with his right hand and lift 'the side of his sweatshirt or jacket or whatever it is that's he's wearing'" to his side.
He thought Finch was pulling out a gun, the report says.
The officer said, “At the same time that his hand starts to come up and that when I’m like okay he’s, he’s ‘gonna fire at officers. I believe that I see a, a gun in his hand and as the, that’s being raised at the officers and at that point that’s when I decide to protect those officers and their lives and safety, I fire one round at this individual.”
Bennett said, "In isolation, the mere movement of a subject’s hands may not be reasonably interpreted as a threat."
"However, the context of this case is wholly unique. Officer #1 was there, positioned with a rifle to offer cover for the officers to the east, because he and other law enforcement officers had been dispatched to the scene to confront a man who claimed to have shot his father in the head and who was actively holding his mother and sibling hostage," Bennett said. "What is now clear, was not in that moment. The call was a hoax, ostensibly intended to draw a law enforcement presence to the residence. None of the officers on the scene in that moment knew this."
The Wichita Police Department released a statement saying, "This incident has weighed on the hearts of the WPD and community. Chief Gordon Ramsay and the WPD continue to extend sympathy to the Finch family and the officers involved."
An internal investigation will be done to make sure policies and training were followed. The Citizens Review Board will also review the case.
Attorney Andrew M. Stroth said he informed Finch's mother, Lisa, shortly after he got word that Bennett wouldn't be filing charges against the officer.
"When we received the information from the district attorney, I called Lisa and told her the decision," said Stroth, who is representing the family in a federal civil-rights lawsuit against the city of Wichita and the Police Department.
"The family's devastated and the family is disappointed by the decision of the district attorney today," he said.
He said Bennett's decision won't affect the civil case.
"The criminal standard (in court) is very different from the civil standard," he said. "The lack of indictment today, from our perspective . . . has zero impact on the civil case."
He said police body camera video shows the shooting wasn't justified. "It is our perspective that the video (shows) that there is no threat to the officers or anyone else," he said. "Andrew Finch had nothing to do with the swatting call or the prank call and he was an innocent victim of a completely unreasonable and unjustified use of force."
The shooting of Finch has mobilized a determined group of activists who have addressed the City Council about the case almost every week since it happened.
One of the leaders of that group, Michael Mihalakis, best known as Meko Haze of the online media site Daily Haze, said Bennett's decision was "unexpected and sudden."
"Advocates for the victim's family feel his (Bennett's) office should face heavy scrutiny for this rash and unjust decision," he said.
He was the first to publicly identify the officer who the activists believe fired the fatal shot, information which has not been officially confirmed by the police or the district attorney.
He also contrasted Bennett's decision with the case of former Wichita Ofcr. Dexter Betts, who was fired from the department and charged with felony aggravated battery after injuring a 9-year-old girl while shooting at her family dog.
"A black man who shot a dog was quickly indicted, but Andrew Finch's killer walks free." he said. "This decision doesn't feel like justice."
The person charged with making the false call - Tyler Barriss, 25, of Los Angeles - has been charged with involuntary manslaughter. He is scheduled for a preliminary hearing on May 22.
Reports say Barriss was called by someone after a feud between two Call of Duty players broke out over a virtual “friendly kill” during a game earlier that day. There was a $1.50 wager over the game.
One of the players allegedly called Barriss and requested he “swat” another player.
While speaking with reporters after the shooting, Finch's mother, Lisa, said her son doesn't play video games and wasn't involved in the feud. Her family has since filed a federal lawsuit against Wichita and the Police Department.
The two other gamers allegedly involved in the initial game have not been charged with a crime.
Contributing: Dion Lefler and Kaitlyn Alanis of The Eagle