Lawsuit against Wichita officer who shot Andrew Finch can move forward, judge rules
Claims contending a Wichita officer acted unconstitutionally when he fatally shot Andrew Finch during the nation’s first deadly swatting call can proceed to trial, a federal judge ruled Friday — turning away part of a city request for summary judgment in a 2018 lawsuit filed by Finch’s mother and sister.
U.S. District Judge John W. Broomes also said the officer, Justin Rapp, was not civilly immune from liability in the police killing because the law “was clearly established at the time that using deadly force in response to Finch’s movements was a violation of the Fourth Amendment.”
“A reasonable officer would have known that using deadly force when Finch displayed no weapon and made no overtly threatening movement was unlawful,” Broomes wrote in a 57-page ruling that also considered the merits of claims against the city and Rapp’s supervising officer, as well as whether to allow expert testimony on police policies and practices.
The ruling paves the way for a jury to weigh whether Rapp’s actions were reasonable and whether and to what extent he might bear any liability in civil court for Finch’s shooting.
Lisa Finch, the mother of Andrew Finch, said she was delighted by the ruling.
“I contacted my attorney and he said this was a major, major win for us,” because it denies Rapp the protection of qualified immunity that often shuts down lawsuits against police, Lisa Finch said.
“I have faith — my faith waned a little bit — but I’ve had faith from the beginning that Rapp would be held accountable,” Lisa Finch said. “I can’t ask for much more than that.”
Jurors, however, won’t decide any claims related to the city’s use of force policies and practices or the actions of Sgt. Benjamin Jonker, the on-scene commander the night of the shooting. Broomes dropped the city and the sergeant as defendants, allowing the case only to go ahead against Rapp.
Broomes ruled that lawyers representing the Finch family had failed to show the city has a policy or custom of using excessive force on suspects and that “a municipality may not be held liable . . . solely because it employs an officer who committed a violation.”
The judge released Jonker from the case, saying while Jonker did order Rapp to cover the scene from across the street as a rifleman, the sergeant didn’t control Rapp’s decisions.
Jonker didn’t order the shooting and because he was trying to establish a police perimeter when Finch came out onto his front porch, Jonker was not in position to prevent Rapp from firing the fatal shot, the judge concluded.
“Jonker did not give any officer, including Rapp, any instructions on when to shoot or what to do when Finch came onto the porch,” the ruling said. “The shot occurred within three minutes of when Jonker first arrived at the scene and about 45 seconds after he and Rapp went to the north side of the residence.”
On the issue of whether Rapp violated Finch’s constitutional rights to be free from unreasonable and excessive force, Broomes ruled that a jury weighing evidence in the case could conclude that Rapp “did not possess facts that would allow him to reasonably believe that Finch posed an immediate threat to the safety of the officers or others.”
“A belief that Finch might be armed and dangerous, even though reasonable, had to be considered with other reasonable possibilities, including the possibility that Finch was one of the hostages of the reported 911 caller, that he was an innocent person unconnected to the reported crimes, or that there were no crimes at all.
“The mere fact that Finch lowered his arms after he showed there was nothing in his hands, or raised his arms while officers were yelling ‘show your hands,’ would not give a reasonable officer probable cause to believe Finch posed a threat of serious physical harm to others that justified the use of deadly force.”
Rapp was not criminally charged in connection with the killing. He was exonerated in the police department’s internal investigation.
Chicago-based lawyer Andrew Stroth, who is representing the Finch family, said that based on the ruling the civil case will move forward to a jury trial.
“The court correctly recognized that when a police officer shoots and kills a person who he is sworn to protect and who poses no threat to him or anyone else is not entitled to qualified immunity,” he said in a written statement.
“We view this decision as a significant step towards achieving justice for the Finch family. Two children no longer have their father as a result of the unjustified actions of Officer Justin Rapp.”
Steven Pigg, who is representing the city and Rapp in the case, declined to comment. Mayor Brandon Whipple and city spokeswoman Megan Lovely also declined.
Rapp fatally shot an unarmed Finch while responding to what turned out to be a hoax call about a homicide and hostage situation moments after Finch stepped out onto his front porch to see why emergency lights were outside of his home the evening of Dec. 28, 2017.
Officers were sent to the two-story rental home at 1033 W. McCormick after a man phoned City Hall at 6:10 p.m. with a tale of how he’d shot his father in the head and was holding his mother and brother hostage at gunpoint with plans to set the house ablaze. Sedgwick County dispatchers contacted the caller at 6:18 p.m. and broadcast the report over emergency radio a minute later.
The call drew to the address officers and deputies who thought they were responding to a homicide scene and a threat of additional loss of life. Several officers surrounded the house while patrol cars with flashing lights blocked traffic.
Rapp, a member of the Wichita Police Department’s Special Community Action Team, retrieved a rifle and, at the direction of Jonker, stationed across the street where he had a clear view of the front porch to provide long-range cover for officers who were closer to the house.
Rapp had only been in position for 40 seconds when Finch opened his front door and stepped outside to see why police lights were outside. Moments later, he fired a sniper rifle once from across the street, not knowing who Finch was or whether he was armed and posed a danger to anyone.
Finch, a 28-year-old father of two, had no connection to the hoax that was the work of Tyler Barriss, a California man well-known in the gaming world for his swatting antics. Police have contended Finch did not comply with commands from officers and dropped his hands to his waist, a gesture law enforcement often interprets as reaching for a weapon.
But Finch’s family says Finch, startled by the commotion, followed shouted orders from officers who hadn’t identified themselves, but he was confused and received mixed commands. At least one officer shone a flashlight on Finch that night, which may have made it hard for him to see his surroundings, according to court filings.
Finch was pronounced dead at a local hospital.
Police later learned the emergency call was a hoax stemming from a fight between two online gamers in a $1.50 Call of Duty wager match. Barriss, who made the false report using a cellphone connected to a South Los Angeles library’s WiFi, is currently serving 20 years in federal prison for his role in the Wichita swatting and other hoax calls.
Casey Viner, the Ohio teen who recruited Barriss to make the hoax call, was ordered to serve 15 months in federal prison. His intended target and fellow gamer, Shane Gaskill of Wichita, struck a diversion deal with prosecutors for his role in the swatting, which included giving Barriss the 1033 W. McCormick address.
The case drew national attention to swatting, a form of retaliation where someone reports a fake crime or other emergency situation to prompt a special tactics and weapons team — or SWAT — response to an address.
Contributing: Dion Lefler of The Eagle
Editor’s note: A previous version of this story misstated where Andrew Finch died. (Updated 10 a.m. 6/20/2020)
This story was originally published June 19, 2020 at 4:51 PM.
