Eleven months from a scheduled trial date, the fatal “swatting” of Andrew Finch has already cost Wichita nearly a quarter of a million dollars and if his family prevails in court it could end up costing $25 million more, according to case records and city documents.
Two of Finch’s surviving relatives — his mother, Lisa Finch and his sister, Dominica Finch — are seeking $25 million in damages related to the Dec. 28, 2017 shooting by police Officer Justin Rapp that claimed Finch’s life as he stood on the porch of his home in the 1000 block of West McCormick.
Lisa Finch is scheduled to address the City Council during public comments at Tuesday’s meeting. It will be the third time she’s spoken to the council since her son was killed.
She said she continues to suffer from grief over the shooting and that the lawyer contracted by the city to defend the case, Steven Pigg of Topeka, has added to her pain.
“When he deposed me, he traumatized me so bad that I couldn’t get out of bed for four days,” she said. “He kept telling me my daughter committed suicide. He said that to me like 10 or 15 times. My oldest daughter was killed in a car wreck.”
Pigg is one of the state’s most prominent attorneys in defending public agencies and officials against constitutional and civil rights claims. He did not return a phone message seeking comment.
City Attorney Jennifer Magana declined comment.
Finch was an innocent and unintended victim of “swatting”– a hoax designed to provoke a special weapons and tactics (or SWAT) team response to a nonexistent emergency.
Tyler Barriss, 27, of Los Angeles, is serving a 20-year prison sentence for the bogus call that brought police to Finch’s house and other similar crimes.
Barriss, a serial swatter known within the online gaming culture, was hired to perpetrate the deadly hoax by a gamer wanting revenge on another player over a disputed $1.50 wager on a game of Call of Duty.
The Finches had nothing to do with the game or gamers, but Barriss sent police to their house by mistake because it was a former address of the person he was trying to target.
A $25 million case
The damages sought in the case are detailed for the first time in a new pretrial order filed by U.S. Magistrate Judge Angel Mitchell.
The Finches are seeking the following damages:
▪ Pain and suffering — $10.5 million
▪ Loss of consortium — $10.5 million
▪ Lifetime lost earnings — $2.5 million
▪ Punitive damages — $1.5 million, $750,000 each against Rapp and his supervisor during the shooting, Sgt. Benjamin Jonker
▪ Medical and burial expenses — $19,315
The court order shows two plaintiffs have been dropped from the case.
One is Ali Abdelhadi, a friend of the Finches who was at their home the night the shooting occurred.
The other is Finch’s niece and Lisa Finch’s granddaughter, Adelina Finch. The 18-year-old was at the house when her uncle was killed and committed suicide in January.
Adelina’s boyfriend, 20-year-old Jeremy “J.C.” Arnold, who found her mortally wounded in the south Wichita apartment they shared, killed himself two months later.
Defense costs mount
The trial date in the case has been tentatively set for Sept. 29, 2020.
The amount of money that City Hall has spent on its defense so far was obtained by The Wichita Eagle through a request under the Kansas Open Records Act.
It showed that the city has paid Pigg’s firm — Fisher, Patterson, Sayler and Smith — $244,338 in fees through the middle of October. The city paid for another $2,627 in court reporter and transcript fees.
A 2017 retainer agreement between the city and the law firm shows that the city pays per-hour rates of $190 for work done by the firm’s partners, $150 for associate attorneys, $85 for paralegals and $45 for clerks.
Lisa Finch said she was perplexed by some of the firm’s actions in the case.
“They deposed my sister, my daughter and my grandson who weren’t even there that night” of the shooting, she said.
Pigg also deposed Ann Jones, a local activist who the Finches had never met until the weekend after the shooting, but who became part of their emotional support circle after the fact, Lisa Finch said.
The defense attorney also subpoenaed business records and treatment charts from Vanessa Galbreath, a therapist who provided counseling services to Lisa Finch, court records show.
“He (Pigg) subpoenaed my mental health records clear back to 2013,” Lisa Finch said. “That has nothing to do with my son being murdered that night.”
Court records show that Pigg sought a contempt-of-court charge against the therapist after she showed up for an August deposition but didn’t produce Lisa Finch’s medical records.
Culture of violence alleged
The Finch family alleges that Rapp was unjustified in shooting Finch, which happened about seven seconds after he came to the doorway. Finch was unarmed and presented no threat to officers or anyone else, they said.
Rapp, armed with a sniper rifle, fired the fatal shot from across a four-lane street, although other officers were closer and in a better position to assess any threat, the family alleges.
The family members also assert that the police handcuffed Finch and stepped over him to search the house instead of providing him with emergency medical care, and that Jonker failed to properly supervise officers, including Rapp, at the scene.
The family’s allegations also are critical of the Police Department itself, saying the bureau tasked with investigating use of force “whitewashes officer misconduct” and “contributes to a culture in which officers believe they can commit violence with impunity.”
Their case notes that Rapp and Jonker had regularly been referred to the department’s Early Intervention System, which is supposed to alert supervisors when officers accumulate an unusual number of complaints and uses of force.
“Rapp was referred to EIS every year from 2014 to 2017 for engaging in a high number of use-of-force incidents — at least 6 incidents in 6 months — but he still remained certified to use the sniper rifle that he deployed on Finch,” according to the pretrial order which summarizes both sides’ arguments. “Jonker himself was referred to EIS in both 2014 and 2016 for his involvement in a high number of use-of-force incidents, but he continued to supervise incidents involving the possible use of deadly force.”
City of Wichita: shooting justified
The city contends that the shooting was justified because Rapp, who was assigned to “long cover” at the shooting scene, thought that Finch was the suspect described in the swatting call and that he could have been drawing a gun on fellow officers.
“Finch initially raised both hands to about shoulder level but then disregarded the orders (from officers), dropped his hands, took a step back, bladed his body — ie, turned the front of his body on the diagonal towards officers located in the front of the neighboring house to the east — dipped his shoulder and drew his right hand from his back or right side and raised it toward officers to the east,” the city’s contentions in the pretrial order said. “To protect other officers, Rapp fired one shot that struck Finch. The shot was fatal.”
Sedgwick County District Attorney Marc Bennett reviewed the investigation and decided not to file criminal charges, which the city said indicates “that Rapp’s perception was reasonable” given the circumstances.
The city also defended Jonker’s performance, saying he “acted reasonably to assess the situation, establish a perimeter and evaluate whether SWAT should be called out.”
Even if the SWAT team had been called, it couldn’t have possibly arrived before Rapp fired the fatal shot, the city contends.
The city is denying that it created a culture encouraging and/or excusing violence by its officers, saying it maintains a constitutionally acceptable policy on use of deadly force and “investigates all officer-involved shootings and takes appropriate action if an officer violates policy.”