BELLE PLAINE, Kan. (AP) — A judge on Friday ruled that a lawsuit can move forward against a Wichita police officer who fatally shot an innocent man in 2017 while responding to a hoax emergency call stemming from a dispute between two online gamers.
The death of 28-year-old Andrew Finch drew national attention to “swatting,” a form of retaliation in which someone reports a false emergency to get authorities to descend on an address. The address the gamers used was old, leading police to Finch, who was not involved in the dispute or video game.
U.S. District Judge John W. Broomes in a 57-page decision refused to grant Officer Justin Rapp’s request for summary judgment in the federal lawsuit filed by Finch’s family.
Rapp’s attorneys argued that the officer’s actions did not violate Finch’s constitutional rights against unreasonable force, and that Rapp was entitled to qualified immunity.
“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 the ruling.
The decision leaves it up to jurors in the civil case to decide whether Rapp’s actions were reasonable. No criminal charges have been filed against the officers.
Attorney Andrew M. Stroth, who represents the Finch family, said in a written statement that the court correctly recognized that Rapp is not entitled to qualified immunity.
“We view this decision as a significant step towards achieving justice for the Finch family,” Stroth said. “Two children no longer have their father as a result of the unjustified actions of Officer Justin Rapp.”
Wichita City Attorney Jennifer Magana said the city will decline comment because litigation is still pending.
Broomes also ruled in favor of the city of Wichita and the supervising officer on the scene, Benjamin Jonker, rejecting arguments from Finch’s family that they too are liable.
Attorneys for the family contended that the city’s officers routinely use excessive lethal force, and that the Wichita Police Department should have known its failure to stop the practice showed deliberate indifference that ultimately led to Finch’s shooting.
The lawsuit contended there were 23 shootings by Wichita officers between 2012 and early 2018 in which citizens’ rights were violated by unreasonable use of force.
In ruling for the city, the judge said Finch’s family failed to cite evidence of a direct link between the city’s actions and the shooting of Finch.
The judge found Jonker was entitled to qualified immunity because he did not order Rapp commit an unlawful act.
Police went to Finch’s home after Tyler R. Barriss, a then-25-year-old Los Angeles man with an online reputation for “swatting,” called police from Los Angeles on Dec. 28, 2017, to falsely report a shooting and kidnapping at that Wichita address. Finch was shot after opening his door to see what was going on outside.