Jury should hear claim of excessive force in 2012 police shooting, appeals court says
A jury may get to decide after all whether a police officer used excessive force in the fatal shooting of Marquez Smart — a 23-year-old unarmed man who was shot from behind as he was lying face down in an Old Town parking lot.
Smart was running away from a club in the city’s Old Town entertainment district nearly eight years ago after someone fired a gun into a crowd at closing time. The officers who chased him 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 like everyone else.
Wednesday, an appeals court ruled that a jury should decide whether the Wichita police officer who fatally shot Smart violated his constitutional rights.
The decision reverses a 2018 U.S. District Court ruling that dismissed a lawsuit by brought Smart’s parents. The federal judge who dismissed the suit did so, saying the officers involved couldn’t be sued under the qualified immunity doctrine, which shields officials from civil liability in certain circumstances.
But in Wednesday’s majority opinion, U.S. Court of Appeals Tenth Circuit Court Judge Carolyn McHugh wrote that “a reasonable jury could conclude that by the time Officer (Aaron) Chaffee fired his final shots, Mr. Smart was lying face down on the ground with his arms stretched out, was unarmed,” had time to look back at the officer and thus posed no threat that warranted use of deadly force.
When the facts are viewed most favorably for the plaintiffs, “Officer Chaffee violated clearly established law if he shot Mr. Smart after it would have been clear to a reasonable officer that the perceived threat had passed,” McHugh wrote.
A panel, made up of three judges on the appeals court, remanded the case back to the district court for a jury trial on the claim. In addition to the reversal, Wednesday’s decision affirmed the dismissal of two other claims brought against Chaffee and another officer involved, Lee Froese, as well as a claim alleging the shooting resulted from unlawful policies, practices or customs adopted by the city and Wichita Police Department.
Judge Robert Bacharach disagreed with the majority, saying that the reversal of only one claim “does not go far enough.”
“The Constitution clearly prohibited both officers from shooting an unarmed individual posing no threat to anyone,” Bacharach wrote in a dissenting opinion.
Andrew Protzman, a lawyer for Smart’s parents and estate, said the family is “pleased with the ultimate outcome of the ruling because it allows Marquez Smart’s parents’ claims to go forward against the officer that we believe shot and killed him.”
“We believe that the dissent actually captures the issues and the legal reasoning more correctly. But we’re pleased that the Court of Appeals remanded the case to proceed to trial,” he said in a phone interview.
Wichita City Attorney and Director of Law Jennifer Magana declined to comment on the ruling in an emailed statement, citing pending litigation.
Police shot and killed Smart as he fled Old Town, Wichita’s entertainment district, at around 2 a.m. on March 10, 2012. Officers said they saw a man wearing yellow hold a gun in front of him and fire into a crowd gathering outside of the now-closed Doc Howard’s Lounge club. The officers chased Smart, who was wearing yellow, as the crowd scattered and shot him five times near the Old Town Hotel parking garage.
Evidence cited in the Smart family’s lawsuit shows Smart was lying on the ground with his arms stretched out and had no gun on him when Chaffee fired the final volley of three shots into his back. Police found an empty .45-caliber handgun several feet away from Smart’s body and a magazine and bullet casings along the path Smart ran. Court records say Smart didn’t point a gun at the officers or anyone else while he was chased and several witnesses said he didn’t have a firearm that morning.
This story was originally published February 26, 2020 at 5:43 PM.
