Wie ist das ausgegangen? Würde mich schon interessieren.
https://www.nbcnews.com/news/us-news/family-wichita-man-killed-police-swatting-incident-seeking-25-million-n1079836[*quote*]
Nov. 11, 2019, 3:14 PM GMT+1 / Updated Nov. 11, 2019, 4:52 PM GMT+1
By Kalhan Rosenblatt
The family of a Wichita, Kansas, man killed in a 2017 swatting incident is seeking $25 million in damages from the city, according to court documents obtained by NBC affiliate KSNW.
https://www.ksn.com/wp-content/uploads/sites/13/2019/11/Finch-Lawsuit-Pretrial-Order-07915478965.pdf[...]
[*/quote*]
https://www.ksn.com/wp-content/uploads/sites/13/2019/11/Finch-Lawsuit-Pretrial-Order-07915478965.pdf[*quote*]
Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 1 of 19
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LISA G. FINCH et al.
Plaintiff(s)
vs.
CITY OF WICHITA, KANSAS et al.
Defendant(s).
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Case No. 18-cv-1018-JWB-ADM
PRETRIAL ORDER
U.S. Magistrate Judge Angel D. Mitchell conducted a pretrial conference in this case on
October 8, 2019. Plaintiffs Lisa G. Finch and Dominica C. Finch, as Co-Administrators of the
Estate of Andrew Thomas Finch1 appeared through counsel Sheila Bedi, Alexa Van Brunt, and
Rick Bailey (in person) and Carlton Odim and Andrew Stroth (by phone). The defendants City of
Wichita, Wichita Police Officer Justin Rapp, and Wichita Police Sergeant Benjamin Jonker
appeared through counsel, Steven Pigg and Sam Green (in person).
This pretrial order supersedes all pleadings and controls the subsequent course of this case.
It will not be modified except by consent of the parties and the court’s approval, or by order of the
court to prevent manifest injustice. Fed. R. Civ. P. 16(d) & (e); D. Kan. Rule 16.2(b).
1
As set forth in footnote 2 below, plaintiffs have now abandoned Counts 2-4 of their First
Amended Complaint. (ECF No. 64.) These were the only claims asserted by Lisa G. Finch in her
individual capacity, and by plaintiffs Adelina Finch (now deceased) and Ali Abdelhadi.
Accordingly, those plaintiffs are dismissed from this action. The only remaining plaintiffs are Lisa
G. Finch and Dominica C. Finch in their capacity as co-administrators of Mr. Finch’s estate.
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1)
PRELIMINARY MATTERS.
a)
Subject-Matter Jurisdiction. This action is brought pursuant to 42 U.S.C. § 1983
et seq. for violations of the United States Constitution. Subject matter jurisdiction is invoked under
28 U.S.C. § 1331 (federal question) and is not disputed
b)
Personal Jurisdiction. The court’s personal jurisdiction over the parties is not
disputed.
c)Venue. Venue in this court is not disputed.
d)Governing Law. Subject to the court’s determination of the law that applies to the
case, the parties believe that the substantive issues in this case are governed by federal law.
2)
STIPULATIONS.
a)
The following facts are stipulated for purposes of summary judgment and trial. The
parties may later agree to additional stipulated facts in advance of trial.
1.Andrew Thomas Finch (“Finch”) is deceased. At the time of his death, he was 28
years old. He resided at 1033 W. McCormick Avenue in Wichita, Kansas.
2.Plaintiff Lisa G. Finch is Finch’s mother, a resident of Sedgwick County, Kansas,
and the Co-Administrator of the Estate of Andrew Thomas Finch filed in the 18th
Judicial District of Sedgwick County, Case No. 2018-PR-000050 (the “Finch
Estate”).
3.Plaintiff Dominica C. Finch is Finch’s sister, a Sedgwick County resident, and the
Co-Administrator of the Finch Estate.
4.Former plaintiff Ali Abdelhadi is a Sedgwick County resident.
5.Former plaintiff Adelina Finch was Finch’s niece and a Sedgwick County resident.
She died while this lawsuit was pending and is no longer a party to this action.
6.Defendant City of Wichita (“City”) is a city and municipality organized under the
laws of the State of Kansas.
7.The City is responsible for the Wichita Police Department’s (“WPD”) policies,
practices, and customs.
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8.Defendant Police Officer Justin Rapp (“Rapp”) was employed by the WPD when
Finch was shot (“Finch shooting”). Rapp remains employed by the WPD.
9.Defendant Police Sergeant Benjamin Jonker (“Jonker”) was employed by the WPD
at the time of the Finch shooting. Jonker remains employed by the WPD.
10.Rapp and Jonker were acting within the scope of their employment with the WPD
at the time of the Finch shooting on December 28, 2017.
11.At 6:10 p.m. on December 28, 2017, the downtown City “Badge on the Floor”
received a call (“the call”) from phone number 316-435-8355. The Badge on the
Floor is a city hall security screener. The Badge on the Floor referred the call to
911 emergency dispatchers. The person who made the call (“the caller”) hung up
and called back multiple times.
12.At 6:18 p.m., Sedgwick County 911 dispatchers made contact with the caller. The
caller told the 911 dispatchers that he was located at 1033 W. McCormick in
Wichita (“the scene”); that he had shot his father in the head and his father was not
breathing; that he was holding his mother and brother hostage at gun point in a
closet; and that he wanted to kill himself and light the house on fire.
13.At 6:19 p.m., dispatchers transmitted alerts by tone to officers that a shooting had
occurred. Forty-two seconds later, a dispatcher radioed over the air that a suspect
at 1033 W. McCormick in Wichita had shot his father in the head, that his father
was not breathing, and that he was holding his mother and brother hostage at gun
point in a closet.
14.That call was a false or “swatting” call. A swatting call occurs when someone
makes a telephone call to an emergency service to falsely report a critical or
emergency situation.
15.At the time of the swatting call, there was no person at 1033 W. McCormick who
had shot a person or who was holding a person hostage.
16.The caller was later identified as Tyler Barriss. Barriss was a Los Angeles resident
and serial “swatter.” He had no connection to Finch.
17.After the Finch shooting, the Los Angeles Police Department arrested Barriss, and
the Sedgwick County District Attorney’s Office charged him with involuntary
manslaughter and other criminal acts. The United States Attorney for the District
of Kansas also charged him by indictment with cyberstalking, wire fraud, and
interstate threats. Barriss pled guilty in the federal case and was sentenced to 240
months in prison.
18.As a result of the dispatch on December 28, WPD officers and Sedgwick County
Sheriff’s deputies responded to the scene.
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3Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 4 of 19
19.Finch was at home when law enforcement arrived. Also present at 1033 W.
McCormick that evening were Lisa Finch, Adelina Finch, Ali Abdelhadi, and
Micah Johnico.
20.At 6:28 p.m., Rapp shot Finch on the front porch of 1033 W. McCormick Street
from a distance of approximately 40 yards.
21.An autopsy was performed on Finch’s body at the Sedgwick County Regional
Forensic Science Center on December 29, 2017. The cause of death was ruled a
gunshot wound to the upper left side of his chest.
b)The parties will confer and file a stipulation to the authenticity of exhibits for
purposes of trial and summary judgment on or before November 1, 2019.
3)
FACTUAL CONTENTIONS.
a)
Plaintiff’s Contentions.
Individual Liability
On December 28, 2017, approximately 16 heavily armed WPD officers and Sedgwick
County Sheriff’s deputies surrounded Finch’s home (the “scene”). Finch went out onto his front
porch, and Rapp shot him in the chest less than 10 seconds later. Rapp was the only officer to
shoot his firearm. Finch was unarmed and was not holding anything in his hands that might have
been mistaken as a weapon. No weapon was found on his body or anywhere inside the residence.
Finch did not make any threatening movements or statements. He was not engaged in committing
any crime. Finch died of his wounds at a local hospital about 30 minutes later.
The officers arrived at the scene in response to a hoax (a “swatting” call) made by Barriss,
who had no connection to Finch. The occupants of the house were ignorant of the hoax call, and
law enforcement officers did not know the call was a prank when they initially responded to the
scene. They believed they were confronting a potentially armed and suicidal suspect who was
holding hostages. It was a “typical” critical incident of the kind WPD officers encounter regularly.
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4Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 5 of 19
Jonker was the WPD on-scene supervisor who was responsible for providing directives to
the responding officers and formulating a planned response. He failed to implement substantive
measures to direct the WPD officers and ensure the safety of all involved, including Finch. By the
time Finch exited the porch, Jonker had not established a plan for the WPD’s response, provided
instructions to officers about how to handle the incident, or made or directed subordinate officers
to make announcements to the occupants to alert them that the police had surrounded the house
and provide them with options to end the encounter peacefully. Jonker did not take any steps to
ensure that WPD officers identified themselves to Finch before the shooting. The officers were
not visually recognizable as police. Jonker also failed to designate a primary point of contact
responsible for communicating with any civilian who might come outside—a violation of WPD
policy. When Finch stepped on the porch, every officer on the scene began screaming at him and
issuing instructions from all around the house.
Also contrary to WPD protocol, Jonker failed to conduct a preliminary investigation about
the incident. Had he (or someone under his command) conducted a cursory inquiry, including
talking to Finch, WPD would have learned that neither Finch nor anyone in the house presented a
serious threat and that the emergency call was a hoax, thus averting the need for lethal force.
Jonker was similarly derelict in failing to request the assistance of specialized units. This
includes WPD’s Special Weapons and Tactics (“SWAT”) unit, which is specially trained to
respond to high-stakes scenarios; WPD policy required that SWAT be called to any scene
involving a barricaded gunman or hostages. It also includes WPD’s Crisis Intervention Team
(“CIT”), who receive specific training on defusing and safely resolving potential mental health
emergencies. Jonker and those under his command also failed to use established de-escalation
techniques on which WPD officers are trained to neutralize potentially lethal situations. Instead,
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5Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 6 of 19
Jonker violated WPD policy by escalating tensions, initiating an aggressive police response, and
allowing all officers to interact simultaneously with Finch, rather than identifying a single contact
person to stabilize the situation calmly.
Just before Finch was shot, WPD officers circled the house, positioning themselves at
points north, east, and west of the residence. Several officers, including Rapp and Jonker, were
located on the north side about 40 yards away and across a four-lane street from where Finch came
out on his front porch. Minutes after Rapp and other WPD officers arrived at the scene, Rapp shot
Finch in the chest with a sniper rifle. At the time, Rapp could not see the officers on the east side
of the house who were physically closer to Finch, had a clearer view of him, and were in a better
position to evaluate whether he was a potential threat. None of the officers on the east side fired
their weapons. Neither Jonker nor any other officer commanded by him warned Finch that deadly
force would be used if he did not comply with the instructions being issued on all sides.
At the time Rapp fired his rifle, he could clearly see Finch’s hands. He did not see Finch
holding a weapon or anything that looked like a weapon. Rapp believes it was possible that, at the
time he fired his weapon, Finch was turning to go back into his own home because he was
frightened by the police response. Other officers who were on the scene and in the same physical
position as Rapp concurred with that assessment. The WPD officers standing beside Jonker and
Rapp at the time Rapp fired his weapon did not believe Finch posed a threat to any of the officers
on the scene. Sheriff’s deputies who were standing on the east side never saw Finch with a weapon
or anything that looked like a weapon and did not believe Finch posed a threat when he was shot.
Finch did not die immediately after he was shot. Instead, he remained breathing and
bleeding inside the front door of his house for over 15 minutes before receiving emergency
assistance. Occupants inside the home heard Finch’s body drop, saw him lying on the floor face
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6Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 7 of 19
down, and heard him giving labored breaths. But they were not allowed to help Finch because
WPD officers ordered all of the occupants of the house outside after the shooting. Meanwhile,
they handcuffed Finch while he was unconscious and lying on the floor, and they stepped over
him to search the house rather than give him any aid. Responding officers waited over 15 minutes
before they provided Finch with any emergency medical care.
Municipal Liability
The City is liable under two theories of municipal accountability.
First, the City is liable for WPD’s customary use of excessive lethal force against civilians.
In addition to the Finch shooting, WPD officers shot at least 17 other civilians between 2014 and
2017. Of these, 10 died and 4 were injured. In addition, WPD officers shot and killed at least 4
individuals in 2012. Each of these shootings was objectively unreasonable in that WPD officers
exhibited specific deficiencies in police practice that contributed to the Department’s widespread
use of excessive lethal force. These deficiencies include:
-failing to de-escalate situations involving potentially armed individuals, particularly
in circumstances involving a potential mental health emergency;
-failing to plan an adequate police response to a critical incident;
-using affirmative escalation tactics in response to potential critical incidents;
-recklessly using firearms in the vicinity of both suspects and innocent bystanders;
-failing to call for specialized back-up, including from SWAT or CIT; and
-failing to properly supervise WPD officers’ response to critical incidents.
The City knew or should have known that its officers were consistently using excessive lethal force
in responding to critical incidents. By failing to take ameliorative measures to address this, the
City was deliberately indifferent to the risk that WPD officers would continue to violate civilians’
rights with deadly consequences. Finch died as a result of the City’s purposeful inaction.
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7Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 8 of 19
Second, the City is liable for WPD’s inadequate disciplinary and accountability procedures
for officers who use lethal force. WPD is expected to conduct criminal investigations of officer
shootings, but these investigations do not address potential WPD policy violations. They do not
result in documented reports or outcomes. Investigations are conducted by homicide detectives
who do not recommend or mandate internal discipline for officers. As a matter of WPD policy
and protocol, these functions are relegated to the Professional Standards Bureau (“PSB”). The
PSB is an internal affairs agency that is tasked with “conduct[ing] complete investigations of each
assigned case” to ascertain whether involved officers complied with WPD policies and regulations.
PSB officers are expected to exercise “sound independent judgment”; to “interview complainants,
focus personnel and witnesses”; and, above all, to gather “all possible evidence to determine the
relevance and value to the investigation.”
In reality, PSB whitewashes officer misconduct. This contributes to a culture in which
officers believe they can commit violence with impunity. In the shooting cases referenced above,
WPD failed to investigate incidents in which officers used lethal force. PSB has no authority to
conduct administrative investigations into an officer shooting separate from the criminal
investigation, to recommend needed reforms or policy changes, or to recommend or impose officer
discipline. PSB operates under the radar with no independent or public oversight, and wholly at
the behest of the Chief of Police and his command channel. WPD command channel officers are
responsible for administrative outcomes, but they do not investigate alleged violation(s) and have
no first-hand knowledge of the evidence. No policies or procedures govern the command channel
review process for PSB “investigations.” These reviews (if they occur at all) take place in secret
meetings that are never documented or recorded. These deficiencies are demonstrated through
numerous investigative files, including but not limited to the PSB reports.
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8Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 9 of 19
WPD’s Early Intervention System (“EIS”) is supposed to serve as a bulwark against officer
excesses, but it is similarly neutered. As a matter of WPD policy, the EIS is expected to provide
PSB with alerts when an officer accumulates a certain number of complaints and uses of force so
that supervisors can intervene and “mitigate circumstances that cause negative consequences for
employees, co-workers, the Department, and/or the general public.” In reality, EIS reports are
ignored and their accuracy is never subject to independent audit.
The result of these deficiencies is that WPD officers are not disciplined, counseled, or re-
trained after using lethal force in ways that violate WPD policy. This flawed accountability system
results in WPD ratifying its officers’ misconduct and permitting officers to engage in clearly
identifiable patterns of policy violations and misconduct with impunity.
The Finch shooting is emblematic of the City’s violations. Rapp was supposedly subject
to a criminal WPD investigation for shooting and killing Finch. But there is no documented report
from that investigation. Instead, WPD created only an incident report that classified the shooting
as a “Justifiable Homicide” before the criminal investigation or PSB review were completed. The
report offers no specific findings about Rapp’s (or any officer’s) conduct, but it exonerates Rapp.
The administrative investigation in the Finch case improperly relied on the flawed criminal
investigation to bolster its own exonerative findings. PSB conducted an “administrative review”
of the incident, purportedly to determine whether Rapp complied with WPD regulations governing
use of force. But PSB failed to conduct any independent inquiry into the shooting—in violation
of its own procedures but in keeping with the Department’s pattern of failed accountability.
Specifically, PSB investigating detective Joseph Pichler relied on interviews conducted by WPD
detectives in the separate criminal investigation, despite the fact that these interviews did not
address (and are not intended to address) violations of WPD policy or regulations. Pichler did not
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9Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 10 of 19
collect any evidence related to the incident. He did not interview any witnesses and he failed to
consider key evidence, including statements of other officers who were standing right next to Rapp
or much closer to the victim and who did not find Finch to be a threat at the time he was shot.
Pichler did not address the discrepancies amongst statements of officers who were at the scene.
He also did not evaluate Jonker’s role in escalating and failing to properly supervise the police
response. PSB did not subject Jonker’s actions to any scrutiny, consistent with PSB’s failure to
investigate supervisory misconduct in shooting incidents.
Pichler also invented non-existent evidence to clear Rapp’s name. In “finding” Rapp
complied with WPD regulations, Pichler attributed motives to Rapp that Rapp himself never
enunciated. Pichler concluded: “Although it was not articulated, in order to preserve life, the
officers could not let the suspect re-enter the residence.” But Rapp himself never justified the
Finch shooting based on protecting others in the residence.
WPD’s lack of officer accountability is further evidenced by the fact that both Jonker and
Rapp were regularly referred to WPD’s EIS for uses of force before the Finch shooting and yet
they were still allowed to participate in and supervise high-stakes scenarios. 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. Jonker specifically chose Rapp to provide sniper cover at the scene. 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.
The City’s systematic accountability violations were the moving force behind the Finch
shooting. The WPD’s unwritten policy and practice of concealing officer misconduct emboldened
officers to act recklessly, knowing they would be protected from disciplinary action even if their
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10Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 11 of 19
conduct violated WPD policy and the public’s rights. When police departments lack institutional
accountability for policy violations, officers continue committing misconduct. Finch’s untimely
death resulted from objectively unreasonable actions by the individual defendants, and the City’s
deliberate indifference to the risk its officers would act in that manner.
b)
Defendants’ Contentions.
Jonker and Rapp responded with other law enforcement officers to a dispatch of a shooting
at 1033 W. McCormick in Wichita. Officers were informed that the caller had shot his dad in the
head, the dad was not breathing, and that he was holding his mother and brother in the house at
gunpoint. Given the nature of the call, Rapp retrieved a rifle and began to cover the west side and
rear of the scene with other officers. Officers noticed a shadow through the window that appeared
to be someone performing CPR. Jonker arrived and began to assess the situation. Other officers
had arrived and taken positions to establish a perimeter. Jonker directed Rapp to the front of 1033
W. McCormick to provide “long cover.” Jonker inquired of dispatch and checked with other
officers present in an attempt to gather more information.
Approximately 30 seconds after Rapp and Jonker arrived across the street from the front
door of 1033 W. McCormick, and within 2-3 minutes after Jonker arrived at the residence, Finch
opened the door and stepped partially onto the front porch. Officers directed Finch to show his
hands. Jonker directed Finch to walk toward Jonker. Finch initially raised both hands to about
shoulder level but then disregarded the orders, dropped his hands, took a step back, bladed his
body (i.e., 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. Rapp perceived Finch to be the suspect who had shot
his father, and that the suspect drew a gun and was targeting officers to the east. To protect other
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11Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 12 of 19
officers, Rapp fired one shot that struck Finch. The shot was fatal. It occurred approximately
seven seconds after Finch opened the front door, and only nine minutes after the initial dispatch.
Jonker acted reasonably to assess the situation, establish a perimeter, and evaluate whether
SWAT should be called out in accordance with WPD policy for responses to hostage, barricaded
suspect, or sniper situations. The shot occurred before SWAT could have deployed at the residence
even if SWAT had been called out immediately upon dispatch’s receipt of the call.
WPD detectives investigated the shooting with oversight and assistance from the Kansas
Bureau of Investigation and the Sedgwick County District Attorney’s office. The WPD’s PSB
monitored the investigation.
The Sedgwick County District Attorney reviewed the full
investigation and concluded that body camera videos confirmed that Finch initially raised his
hands, turned his upper torso to the east at which time his right arm was not visible, then raised his
right arm directly in front of his body toward officers to the east. This was consistent with Rapp’s
perception. The District Attorney recognized that Rapp’s perception was reasonable. Other
officers also perceived Finch to be the suspect and, depending on their vantage points, perceived
that Finch reached to his waist or behind him. Other officers did not fire their weapons for fear of
cross-fire with other officers or citizens, or because the officers lost sight of Finch when he moved
partially back behind the door threshold.
Jonker and Rapp’s actions were based on their reasonable belief that they were responding
to a call involving a shooting and hostages. Unknown to them at the time, the dispatch was based
on a false call by Barriss, who has since been convicted of charges related to this and other false
calls. Barriss made the false call on behalf of a video game player to retaliate against another video
game player, but he targeted the wrong address.
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12Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 13 of 19
The City maintains and enforces a constitutional policy on the use of deadly force. It
investigates all officer-involved shootings and takes appropriate action if an officer violates policy.
Supervisors review all uses of force. The City also monitors all uses of force through an early
intervention system. If an officer’s use of force meets a threshold number during a specified time,
further review evaluates compliance with policy or further training. The WPD meets or exceeds
reasonable police standards for law enforcement officers in the use of force and accountability.
Rapp’s split-second decision was objectively reasonable under the totality of the
circumstances based on the information provided to him by dispatch and Finch’s actions. Rapp’s
decision to shoot was not caused by any unconstitutional WPD practice regarding use of force.
4)
LEGAL CLAIMS AND DEFENSES.
a)
Plaintiffs’ Legal Claims.2
Plaintiffs Lisa G. Finch and Dominica C. Finch, in their capacity as co-administrators of
the Finch Estate, assert that the Estate is entitled to recover upon the following theories:
(i)
Count One: 42 U.S.C. § 1983 excessive force claim (Fourth and
Fourteenth Amendments) against Jonker and Rapp
Jonker and Rapp, in their capacity as WPD officers, violated Finch’s Fourth Amendment
rights to be secure in his person against the use of excessive force and, in particular, to be free
from the unreasonable use of deadly force. No reasonable officer in Rapp’s position would have
had probable cause to believe that Finch presented a serious threat of physical harm to himself or
any other person at the time Rapp fired his weapon. Jonker and Rapp are also liable under the
Fourth Amendment for recklessly and deliberately precipitating the circumstances under which
Rapp fired his weapon.
2
At the pretrial conference, plaintiffs confirmed that they are abandoning Counts 2-4 of their
First Amended Complaint. (ECF No. 64.) The remaining claims are asserted by plaintiffs Lisa G.
Finch and Dominica C. Finch in their capacity as co-administrators of the Finch Estate.
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13Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 14 of 19
(ii)
Count Five: 42 U.S.C. § 1983 supervisory liability claim (Fourth
Amendment) against Jonker
Jonker is liable as a supervisor for Rapp’s Fourth Amendment violation. Jonker personally
participated in the Finch shooting by directing, exercising control over, and failing to supervise
Rapp and other officers responding to the scene. He set in motion a series of events that he knew,
or reasonably should have known, would violate Finch’s Fourth Amendment constitutional rights.
(iii)
Count Six: 42 U.S.C. § 1983 unlawful policy, practice, or custom claim
(as set forth in Monell v. Department of Social Services of the City of New
York and its progeny) against the City
The City, through the WPD and its officers, had an informal policy, practice, or custom of
using excessive deadly force against civilians; the City knew about its officers’ repeated use of
deadly force and failed to intercede; that policy, practice, or custom caused Finch’s death.
The City, through the WPD and its officers, had an informal policy, practice, or custom of
failing to hold officers accountable for using excessive deadly force; in this respect, the City was
deliberately indifferent to the fact that these discipline failures violated the rights of civilians,
including Finch; that policy, practice, or custom caused Finch to be unlawfully shot and killed.
b)
Defendants’ Defenses.
Defendants generally deny plaintiffs’ claims and damages and assert the following
defenses:
Count One
Rapp’s split-second decision to fire a single shot at Finch was objectively reasonable under
the totality of the circumstances. Finch reasonably appeared to present an imminent threat of
serious physical injury to other officers and to hostages if allowed to re-enter the house.
Rapp’s belief that he had probable cause to use deadly force was reasonable even if he
lacked probable cause, entitling him to qualified immunity. An objectively reasonable officer
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14Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 15 of 19
would have probable cause to believe that Finch presented an imminent threat to other officers and
to use deadly force to prevent the suspect from retreating to the house where he presented a deadly
threat to hostages. Officer Rapp did not violate clearly established law.
Defendants engaged in no reckless, wanton, or even negligent conduct that created the need
to use force.
Jonker acted reasonably and is entitled to qualified immunity from plaintiffs’ claims.
Jonker violated no clearly established law.
Count Five
Rapp and Jonker responded reasonably under the totality of the circumstances to the call
reporting a homicide with hostages held at gunpoint and to Finch’s actions when he appeared at
the front door, disregarded officers’ lawful commands, and reacted in a manner replicating drawing
a handgun and targeting officers or when he appeared to be retreating into the residence where he
posed an imminent threat to hostages.
Rapp did not violate any constitutional right of Finch, thus precluding any supervisory
claim against Jonker.
Jonker did not order or direct Rapp’s shot, nor have time to intervene. No affirmative link
exists between the shot and Jonker’s conduct.
Jonker was not deliberately indifferent nor even negligent in any manner that caused a
Fourth Amendment violation.
Jonker did not violate any clearly established law and is entitled to qualified immunity.
Count Six
The City of Wichita did not maintain an unconstitutional custom, practice, or policy
relating to WPD officers’ use of force.
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15Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 16 of 19
The City maintained an appropriate accountability system related to WPD officers’ use of
force.
No unconstitutional custom, practice, or policy of the City caused a violation of plaintiffs’
Fourth Amendment rights.
Because neither Jonker nor Rapp violated Finch’s Fourth Amendment rights, plaintiffs
have no claim against the City.
The City was not deliberately indifferent in any manner that caused a violation of plaintiffs’
constitutional rights.
Other Defenses
No plaintiff other than the Finch Estate has standing to assert any claim based on the use
of force against Finch. For example, plaintiffs’ claim for loss of consortium is not a proper § 1983
claim on behalf of the Finch Estate.
Plaintiffs withdrew their motion to amend to assert a claim based on denial of medical care
and waived any such claim. Defendants acted reasonably to provide medical care to Finch under
the circumstances. Finch was immediately unconscious and the injury fatal, so any delay in
medical care was not a cause of injury or death.
5)
DAMAGES AND NON-MONETARY RELIEF REQUESTED.
Plaintiffs seek to recover compensatory and punitive damages stemming from the
defendants’ actions that caused Finch’s death. These damages include the decedent’s pain and
suffering when Rapp shot him in the chest while acting under Jonker’s direct supervision. They
also include the mental anguish, suffering and bereavement of Finch’s family, who are plaintiffs
in this suit, and who lost their son and brother as a result of the Defendants’ actions.
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16Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 17 of 19
While it is impossible to calculate a monetary amount sufficient to compensate for the loss
of an innocent life, plaintiffs seek the following:
Pain and Suffering - $10,500,000
Medical & Burial - $19,315
Lifetime Lost Earnings - $2,500,000
Loss of Consortium - $10,500,000
Punitives - $1,500,000 ($750,000 against Rapp, and $750,000 against Jonker)
Total - $25,019,315
Plaintiffs also seek attorneys’ fees in a reasonable amount based on hours expended at a reasonable
rate, and other litigation costs, pursuant to 42 U.S.C. § 1988.
6)
AMENDMENTS TO THE PLEADINGS.
Plaintiffs amended the pleadings once. (See First Am. Compl. (ECF No. 67-1).) No
other amendments are expected.
7)
DISCOVERY.
Under the scheduling order and any amendments, all discovery was to have been completed
by September 20, 2019. The parties agreed to take two expert depositions past the discovery
deadline, and reported that they would be complete by October 15.
Unopposed discovery may continue after the deadline to complete discovery so long as it
does not delay the briefing of or ruling on dispositive motions or other pretrial preparations.
Although discovery may be conducted beyond the deadline for completion of discovery if all
parties are in agreement to do so, under these circumstances the court will not be available to
resolve any disputes that arise during the course of such extended discovery.
MOTIONS.
a)
Pending Motions.
None.
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17Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 18 of 19
b)
Additional Pretrial Motions.
After the pretrial conference, the parties intend to file the following motions:
Plaintiffs intend to file motions to exclude and/or limit the expert testimony, including
rebuttal testimony, of the Defendants’ expert witnesses John J. Ryan and James Borden. Plaintiffs
also intend to file motions in limine in advance of trial.
Defendants intend to file motions in limine, motions to exclude or restrict plaintiffs’ expert
testimony and motions for summary judgment.
The dispositive-motion deadline, as established in the scheduling order and any
amendments, was previously set for November 8, 2019. The parties requested an extension of
summary judgment briefing deadlines to accommodate the depositions being taken after the
discovery deadline by agreement and also because of the volume of the discovery record. The
court now extends that deadline and imposes the following schedule: any motions for summary
judgment shall be filed on or before November 30, 2019; responses shall be filed on or before
January 14, 2020; and replies shall be filed on or before February 13, 2020.
The parties should follow the summary-judgment guidelines available on the court’s
website:
http://ksd.uscourts.gov/wp-content/uploads/2015/10/Summary-Judgment-Guidelines.pdfIn addition, any summary judgment motions and related briefs shall comply with the Honorable
District Judge John W. Broomes’ Standing Order Regarding Page Limits (“Standing Order”). The
parties stated that they may file motions to exceed the page limits established in. Any such motion
shall comply with ¶ 1(B) of the Standing Order.
c)
Motions Regarding Expert Testimony.
All motions to exclude testimony of
expert witnesses pursuant to Fed. R. Evid. 702-705, Daubert v. Merrell Dow Pharmaceuticals,
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18Case 6:18-cv-01018-JWB Document 158 Filed 10/29/19 Page 19 of 19
Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), or similar case
law, must be filed in accordance with the dispositive-motion deadline and briefing schedule set
forth above.
9)
TRIAL.
The trial docket setting is September 29, 2020 at 9:00 a.m. The case will be tried by jury
in Wichita, Kansas. Trial is expected to take approximately 7-10 days. The court will attempt to
decide any timely filed dispositive motions approximately 60 days before trial. If no dispositive
motions are timely filed, or if the case remains at issue after timely dispositive motions have been
decided, then Judge Broomes may enter an order or convene another pretrial conference to set
deadlines for filing final witness and exhibit disclosures, exchanging and marking trial exhibits,
designating deposition testimony for presentation at trial, motions in limine, proposed instructions
in jury trials, and proposed findings of fact and conclusions of law in bench trials.
IT IS SO ORDERED.
Dated October 29, 2019, at Topeka, Kansas.
s/ Angel D. Mitchell
Angel D. Mitchell
U. S. Magistrate Judge
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Topic: Aufruf: Öffentliche Sammlung für die Leichenbeseitigungsgebühr (Read 811 times)