The U.S. Court of Appeals in the 10th Circuit affirmed a lower-court decision that a lawsuit against a Wichita Police Department officer could proceed because he wasn't shielded by the qualified immunity defense after shooting and killing an unarmed man in a 2017 incident of swatting involving online gamers. (Getty Images)
TOPEKA — The U.S. Court of Appeals for the 10th Circuit agreed with a lower federal court in Kansas a family could pursue a lawsuit against a Wichita police officer but not the city of Wichita for a fatal shooting of an innocent, unarmed man who was targeted in a hoax emergency call to law enforcement.
Officer Justin Rapp, who was recently promoted by the Wichita Police Department, shot and killed Andrew Finch, 28, in December 2017 while responding to a 911 call about a possible murder and hostage situation. Rapp said he fired on Finch because he thought — incorrectly — Finch was holding a firearm.
The Sedgwick County district attorney didn’t file charges against Rapp and the police department took no disciplinary action against Rapp after the shooting.
Rapp and other officers swarmed the Wichita residence based on what turned out to be a “swatting” call in which a person falsely reported to authorities that a deranged man murdered his father and was holding family members hostage. When officers surrounded the residence, Finch stepped outside to speak with officers.
Within 10 seconds Finch was fatally shot in the chest by Rapp, who was positioned 40 yards away. Rapp didn’t offer a verbal warning before pulling the trigger.
The U.S. District Court in Wichita responded to a $25 million lawsuit filed by the Finch family alleging excessive force and constitutional violations by granting summary judgment in favor of the City of Wichita and some responding police officers. The district court rejected Rapp’s assertion of a qualified immunity defense.
The Finch plaintiffs appealed the summary judgment secured by the City of Wichita and Rapp appealed denial of qualified immunity to the 10th Circuit Court of Appeals based in Denver.
The three-judge appellate panel agreed liability of the City of Wichita was properly resolved because the Finch family didn’t put forth sufficient evidence to prevail on a municipal liability claim.
However, the appellate panel said the lower court was right to deny qualified immunity to Rapp because a reasonable jury could conclude Finch was unarmed and unthreatening and Rapp’s actions “violated clearly established law.”
“As a result,” the appellate judges said, “qualified immunity ‘protects all but the plainly incompetent or those who knowingly violate the law.'”
Federal prosecutors said Shane Gaskill of Wichita and Casey Viner of North College Hill, Ohio, initiated the incident after engaging in a virtual altercation regarding their play on the “Call of Duty World War II” video game. Viner contacted gamer Tyler Barriss, of Los Angeles, and asked him to swat Gaskill. However, Gaskill had given a false residential address to Viner. When Barriss contacted Wichita police to falsely report serious crimes in progress, the officers were sent to an address where Finch lived.
“Numerous officers rushed to Finch’s address, believing there was a barricaded shooter scenario with hostages,” the appeal court decision said. “Rapp had only been in position about 40 seconds when Finch opened the front door. He testified he thought he saw a gun in Finch’s hand. Approximately 10 seconds after Finch first opened the door and stepped onto the porch, Rapp fired a single shot from his rifle, hitting Finch in the chest.”
The court decision said Finch fell backwards into the residence and died within minutes. Finch wasn’t involved in the video game and didn’t know the three gamers.
Gaskill and Viner were convicted of crimes for their actions, with Viner sentenced to 15 months in prison. Gaskill is scheduled to be sentenced July 21. Barriss, who was considered a “serial swatter,” was sentenced in federal court to 20 years in prison after pleading guilty to more than 50 felonies nationwide.
Rapp was a member of a special team on the Wichita Police Department that regularly responded to high-risk incidents. He carried a rifle and was certified to use the weapon from a distance up to 50 yards.
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