Lawsuit over fatal beanbag shooting by officer can go forward in Barber County case

A federal judge has decided to allow a wrongful death lawsuit to continue against Barber County Undersheriff Virgil Brewer, who fired a so-called “less lethal” beanbag round at close range into the chest of 42-year-old Steven Myers.

Although the judge dismissed Barber County Sheriff Lonnie Small as a defendant in the federal lawsuit, the judge ruled that the sheriff could be sued in state court, according to a court order filed Wednesday.

An attorney for Myers’ family, Michael Kuckelman, said Thursday that the family plans to file suit against Sheriff Small in Barber County District Court next week.

The ruling by federal Judge Carlos Murguia, in Kansas City, Kan., removes the sheriff from the federal lawsuit because he was not directly involved in pulling the trigger but keeps the undersheriff who fired the beanbag as a defendant, Kuckelman said.

The planned lawsuit in state court against the sheriff will contend that Small was negligent in supervising Brewer and is responsible for Brewer’s actions, while the federal lawsuit will continue to argue that Brewer violated Myers’ constitutional rights, Kuckelman said.

Sheriff Small’s attorney, Jeff Jordan, would not comment Thursday. Attorneys for the county and Undersheriff Brewer couldn’t be reached Thursday.

Myers, a husband and father of three young children, died Oct. 6, 2017, when Brewer fired a beanbag — a bag filled with pellets that is supposed to be less lethal than a regular round — from a 12-gauge shotgun at a distance of 6 to 8 feet, according to the memorandum and order by the judge filed Wednesday.

Sheriff’s officers had responded to a 911 call in which Myers allegedly was “threatening people with a shotgun in the street in front of Buster’s Bar in Sun City,” according to the narrative in the court document. By the time officers arrived, Myers had gone home, put away the gun and had taken his dog for a walk, the document says.

Small saw Myers in a shed at a neighbor’s home, ordered him to come out, and then the sheriff turned around and walked away from Myers as Brewer and a deputy shouted at Myers, telling him to put his hands up and get on the ground, it says.

“After about eight seconds of yelling,” Brewer fired his shotgun at Myers’ chest, the judge’s memorandum and order says. The shooting was captured on body camera video that has become evidence in the case.

Barber County faces the risk of being responsible for millions of dollars in damages in the federal lawsuit because “we have three young children who are now fatherless,” Kuckelman said.

The Myers family continues to call for Brewer’s firing. And with Brewer still carrying a gun and a badge, “it makes the family incredibly uncomfortable,” Kuckelman said. At the least, Brewer should be restricted to desk duty where he can be under close supervision, Kuckelman said.

Kuckelman noted that Brewer remains under a state attorney general’s criminal investigation into Myers’ death.

The Eagle has previously reported that recordings show Brewer firing the beanbag round from a shotgun from less than 10 feet into Myers’ chest. According to guidelines in a 2009 report by the Los Angeles-based Police Assessment Resource Center, the beanbag shot was too close and hit the wrong spot if it was intended not to be fatal. The report said that “beanbag rounds present a risk of death or serious physical injury at less than 10 feet when fired at the chest, head, neck, and groin.” The report put the “optimal distance for a beanbag” at between 21 and 50 feet.

Beanbag rounds, designed to be less lethal than normal law enforcement weapons, are not intended for “up-close encounters,” said Matthew Barge, a police practices expert and executive director of the center’s New York City office. “You want to avoid center mass” when aiming, Barge told The Eagle.

Law enforcement agencies usually limit the use of a beanbag — a small fabric pillow filled with lead pellets and usually fired from a 12-gauge shotgun — to specially trained officers or supervisors, Barge said. That’s partly because beanbag shotgun use differs from handgun use, in which officers are trained to fire at the “center mass.”

This story was originally published June 28, 2018 at 9:34 PM with the headline "Lawsuit over fatal beanbag shooting by officer can go forward in Barber County case."