What does use of force look like in Wichita?
Wichita police killed a 23-year-old man running away from a club in the city’s Old Town entertainment district six years ago after someone fired a gun into a crowd at closing time.
The officers who chased Marquez Smart on March 10, 2012, believed he was the shooter, followed him and shot at him, hitting him five times from behind.
Others say Smart was innocent, trying to escape bullets and chaos like everyone else when he was wrongly gunned down.
A federal judge in a recent ruling dismissing a 2014 civil lawsuit brought by Smart’s family, said that a jury could side with Smart’s family and find that the Wichita officers used excessive force.
But, the judge ruled, the officers can’t be sued for the shooting because of a legal doctrine called qualified immunity, which often shields government workers from liability.
In recent years, U.S. Supreme Court decisions have made it increasingly difficult for victims of police shootings to win civil lawsuits against officers accused of using excessive force.
Chief Magistrate Judge James O’Hara in Kansas City, Kan., noted in his Aug. 7 decision that he had a duty to follow high court rulings.
But he was bothered that officers aren’t being taken to trial, writing “the court is troubled by the continued march toward fully insulating police officers from trial — and thereby denying any relief to victims of excessive force — in contradiction to the plain language of the Fourth Amendment.”
The Fourth Amendment protects citizens against unreasonable search and seizure including the use of excessive force by law enforcement.
Smart’s parents, Randall Smart and Brenda Bryant, are “disappointed and upset” by O’Hara’s dismissal, one of the Kansas City attorneys representing them said.
But they’re hopeful he’ll change his mind. Last month, they filed a motion asking him to reconsider his ruling.
“We think that the court was wrong about certain issues of the law,” the attorney said. “... It shouldn’t be that difficult to get your case in front of a jury when you have evidence that supports your version of the facts.”
Smart’s parents are represented by Benjamin A. Stelter-Embry, Andrew B. Protzman and Bradley Kuhlman.
Steven Pigg, an attorney representing the city, told The Eagle he wouldn’t talk about O’Hara’s decision. But the city in court documents is urging the judge to refuse to alter his ruling.
An investigation by the Sedgwick County District Attorney’s Office cleared the officers of any crime six months after Smart’s shooting.
After the DA’s Office said the officers wouldn’t be charged, Smart’s parents filed the federal lawsuit, which seeks monetary damages, against the City of Wichita, the Wichita Police Department and the two officers who chased and shot at Smart. They filed the suit on March 7, 2014, nearly two years to the day after their son’s death.
The shooting in 2012
The Wichita Police Department has shot and killed at least 48 people since 1980, Wichita Eagle records show. At least 15 of those happened between 2010 and 2015.
Smart was fatally shot by police chasing him at around 2 a.m. on March 10, 2012. Police would later say they saw a man wearing yellow hold a gun in front of him while he was in a crowd of a few hundred people gathered outside of an Old Town club called Doc Howard’s Lounge. One of the officers who shot at Smart saw the man fire and then dart off; the other only heard the gunfire before he pursued the suspect, according to court records.
The officers, Lee Froese and Aaron Chaffee, both fired their guns, according to court records. Smart, who was wearing a yellow shirt, was hit five times, in his back, arm and hip.
Evidence suggests three of the bullets hit him after he was lying face down on the ground with his arms out, court records say; those shots were fired by Chaffee. Smart died around 2:30 a.m. at a Wichita hospital.
Police found an empty .45-caliber handgun missing its magazine several feet away from Smart’s body. A magazine and bullet casings were found along the path Smart ran, but there wasn’t a weapon on him.
Police have said that one of the reasons they focused on Smart was because he ran to the north when much of the crowd scattered to the south. Neither officer saw anyone other than the man in yellow with a gun, according to court documents, and they didn’t focus on anyone else during the chaos.
But Smart didn’t point a gun at the officers or anyone else while he was being chased, according to the court order dismissing the case. Several people denied seeing a gun on him.
Smart’s parents allege in the lawsuit that Smart never had a gun and was checked for weapons at the door of the club. They say he was running away from the gunfire like everyone else and was shot without any warning from police.
The federal judge’s ruling
In his ruling, the judge, O’Hara, wrote that, when considering evidence in a light most favorable to Smart, he thought a reasonable jury could find that:
▪ The officers didn’t order Smart to drop the gun they thought he had — and if they did, that there wasn’t enough time for Smart to comply before he was shot
▪ Police fired a volley of three shots into Smart’s back after he was lying on the ground
▪ Smart didn’t pose a threat to the officers or bystanders
▪ A reasonable officer could have concluded that Smart was running away from the gunfire like the rest of the crowd and wasn’t resisting capture or arrest
▪ Police had time to see that Smart was unarmed and was not a threat when he was shot in the back
▪ Police used excessive force when they shot Smart, violating his Constitutional rights
What is qualified immunity
The lawsuit has played out at a time when police have been under scrutiny for shooting people, and the nation’s high court has made it increasingly difficult for victims to get their civil lawsuits in front of a jury.
In April, the U.S. Supreme Court threw out a lawsuit by an Arizona woman shot by police outside of her home after she was seen carrying a knife, saying that officers “are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.”
That means unless there’s a nearly identical case with nearly identical circumstances where a court has already decided that police actions violated a person’s Constitutional rights, an officer can’t be sued in civil court.
Justice Sonia Sotomayor in dissent said the majority decision was wrong and “sends an alarming signal” that officers “can shoot first and think later.”
Qualified immunity is designed to protect government workers like police officers from frivolous lawsuits and ensure they aren’t fearful of doing their jobs, University of Kansas School of Law professor Lumen Mulligan said.
It “is a very robust defense,” he said.
But it also makes it difficult for someone with a legitimate Constitutional complaint to win a lawsuit because the standards for overcoming an immunity claim are high.
What that means in practice, Mulligan said, is that sometimes no one is held accountable.
“It really is (that) a first constitutional violation comes without liability,” he said, which can be problematic from a civil rights perspective.
“This is a body of law designed to make it hard for plaintiffs to win. On the one hand it makes perfect sense. We want our police officers to be on the beat” and not tied up in court, he said.
“The question is just, to what degree? Where exactly do we turn the control knob? Right now, it’s a very high hurdle.”
No identical case, judge said
In his ruling, O’Hara said that the Wichita police officers were entitled to immunity because there was no nearly identical case that made it “sufficiently clear” that the officers’ actions may have been unconstitutional.
Without that, O’Hara said he could not find the officers’ actions “plainly incompetent” or “in knowing violation of the law” when they are viewed “from the perspective of an officer on the scene forced to make split-second judgments in an indisputably chaotic situation.
Yet, he said he worried that such an approach to qualified immunity creates “an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”
“There is no case ‘close enough on point’ to render it ‘beyond debate’ that Officer Chaffee’s shooting of Smart, in the four-to-five seconds after Smart fell, was unconstitutional. ... No precedent suggests a reasonable officer in this situation necessarily would have perceived Smart to have dropped his gun, mentally registered that fact, concluded Smart was no longer a threat ... and reacted by ceasing fire, all within that four-to-five second period.”
If the judge decides not to reverse his ruling like Smart’s family is asking, they plan to appeal, their attorney said.