Appeals court allows lawsuit against Wichita police officer to proceed in ‘swatting’ death

Federal judges reject officer’s claim of qualified immunity in 2017 shooting

BY: Tim Carpenter source

Court denies new hearing for Wichita police officer Justin Rapp in Andrew Finch killing

CHANCE SWAIM, MATTHEW KELLY source

Wichita Police Detective Justin Rapp was denied a rehearing in the U.S. Court of Appeals on Monday, after lawyers hired by the city argued the court should have granted him qualified immunity in the shooting death of Andrew Finch.

Rapp shot and killed Andrew Finch, 28, in December 2017 after a California serial hoaxer reported a bogus murder-hostage situation at Finch’s address.

Finch, who was unarmed and unaware of the phony emergency call to law enforcement, stepped onto his porch after it had been surrounded by police officers. Within 10 seconds, Rapp shot Finch in the chest from 40 yards away.

It was the nation’s first deadly swatting call.

Finch’s family is suing Rapp — whose defense is being paid by the city of Wichita — in federal court.

The U.S. Court District of Kansas had already denied qualified immunity to Rapp. That legal theory is meant to shield public officials from liability when they are performing their official duties.

U.S. District Judge John W. Broomes wrote in a June 2020 decision that “a reasonable officer would have known that using deadly force when Finch displayed no weapon and made no overtly threatening movement was unlawful.”

He added that there “is enough evidence in the record which, if believed by a jury, contradicts or casts doubt on Rapp’s testimony about what he saw when he fired the shot.”

A panel of federal appellate judges affirmed Broomes’s decision last month.

In response, Rapp’s lawyers — Steven Pigg and Samuel Green — filed a petition asking the appellate court to rehear the case or to bring additional jurists to overrule the decision. Pigg and Green argued that a panel of three circuit judges failed to account for the “split-second nature” of Rapp’s decision to shoot Finch.

Rapp told detectives he thought Finch had a gun and planned to use it on officers. He later testified in a separate federal court case that he did not see a gun in Finch’s hand and shot him based on his hand motions.

LOOK HOW THIS PIGG FUCK MURDERING COP NAMED RAPP “alternative explanation, one that Rapp never said factored into his decision to shoot Finch: that he shot Finch to stop him from going back inside his house.” SO HE WANTS TO USE A REASON THAT HIS BRAIN ITSELF NEVER USED AT THE TIME OF THE INCIDENT BUT INSTEAD LATER COMES UP WITH TO COVER HIS ASS. HE SHOULD BE DONT IN THE SAME MANNER AS HE DID THAT POOR INNOCENT VICTIM

“The district court and the panel opinion failed to address this alternative objectively reasonable justification for the use of force but instead relied solely on Rapp’s subjective explanation for using force,” Pigg and Green wrote in their petition.

In a decision issued Monday by Chief Judge Timothy Tymokovich, Senior Circuit Judge Carlos Lucero and Circuit Judge Nancy Moritz, the U.S. Court of Appeals denied a rehearing and rejected the city’s petition for a rehearing before the entire Court of Appeals.

The rejection is three sentences long:

“Appellant’s petition for rehearing is denied,” the decision says. “The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, that petition is also denied.”

Sedgwick County District Attorney Marc Bennett declined to bring criminal charges against Rapp, citing the state’s stand-your-ground self-defense law. The Wichita Police Department recently promoted Rapp to detective, against objections by some City Council members and Mayor Brandon Whipple.

Rapp’s lawyers did not want to comment on the decision Monday afternoon.

Andrew M. Stroth, lawyer for the Finch family, celebrated the decision Monday, and said the civil lawsuit could be the last chance for Rapp or the city to be held accountable in Finch’s death.

“Given the Tenth Circuit’s decision today, the Finch family will finally have the opportunity to seek justice with a jury trial in Kansas,” Stoth said.

Stroth also indicated the case could be settled out of court.

“I would welcome the opportunity to speak to Mayor Whipple and his council to work to resolve the case,” Stroth said. “Either way, we’re fully prepared to go to trial so the world can see what happened to Andrew Finch.” source

2017 Wichita swatting

On December 28, 2017, a fatal swatting incident occurred in Wichita, Kansas, United States. During an online dispute between Casey Viner and Shane Gaskill, regarding the video game Call of Duty: WWII, Viner threatened to have Gaskill swatted. Gaskill responded by giving him a false address for his residence, one that was occupied by an uninvolved person, Andrew Finch. Viner then asked Tyler Barriss to make the required fraudulent call to initiate the swatting. Wichita Police responded to the address, and as Finch was exiting his house, police officer Justin Rapp fatally shot him.

Barriss pled guilty to involuntary manslaughter and many other charges from unrelated incidents for which he was wanted. In March 2019, Barriss was sentenced to 20 years in federal prison.^[1] Viner was sentenced to 15 months imprisonment and 2 years supervised release for his involvement, while Gaskill was sentenced to 18 months imprisonment. Rapp was not charged for Finch’s death.

Tyler Barriss

At the time of the incident, Tyler Raj Barriss was a 25-year-old homeless man living in Los Angeles, California. Known online as “SWAuTistic”, he had a criminal record including domestic violence,^[2] and had served 16 months in Los Angeles County Jail for making false bomb threats against KABC-TV, an elementary school in Los Angeles, and a middle school in Granada Hills. He was wanted by police in Panama City, Florida, for calling approximately 30 other bomb threats, including one to a high school,^[3] and on fraud and mischief charges in Canada for harassing a woman in Calgary.^[4]

Events of December 28

Reports surfaced that the deadly series of events reportedly began with an online argument over a $1.50 wager in an online match of Call of Duty: WWII on UMG Gaming, which operates online tournaments, including one involving said game. Two men, Casey Viner (known by pseudonym Baperizer) and Shane Gaskill^[5] (known by pseudonym Miruhcle), fought over friendly fire in the Call of Duty: WWII match, causing them to lose both the match and $1.50 in wagers. The two gamers took to Twitter in an argument about the loss.

Viner threatened to swat Gaskill over the loss. Gaskill intentionally gave Viner the wrong address: a place in Wichita where he previously resided with his family, and where he said he would “be waiting”. Gaskill’s family had been evicted in 2016.^[6] Viner then contacted Barriss and provided him with the address given to swat Gaskill. Finch was not a known gamer and had nothing to do with the Call of Duty match.^[7]

Using voice over IP through the free Wi-Fi provided by a South Los Angeles library, Barriss called the Wichita police department. Because the call was transferred from Wichita City Hall to 911, the dispatcher believed the call was coming from the Wichita area. Barriss, identifying himself as “Brian”, claimed that he was at the residence at 1033 West McCormick Street, had fatally shot his father, and was holding family members at gunpoint. He asked if police were coming to the house, saying he had already poured gasoline all over the house and was threatening to set it on fire.^[8]

Shooting

Wichita Police Department officers, who were not SWAT team members, untrained for tactical situations or hostage rescues,^[9] responded to Barriss’ call and surrounded Finch’s residence. Andrew Finch is reported by his mother Lisa Finch, who was at the scene, to have seen the police lights outside and opened the front door to see what was happening. Mrs. Finch reports that her 28-year-old son “screamed and then they shot him.” Moments after Finch stepped onto his front porch, police ordered him to put his hands up. According to officer testimony, he began to do so and then stopped. A Wichita police officer standing on the other side of the street fired a single round^[10] striking Finch and piercing his heart and right lung.^[11] Finch was transported to Ascension Via Christi St. Francis, where he was pronounced dead 17 minutes after he was shot.^[8][12]

Finch’s mother reports the police then ordered her and other family members to exit the residence. The family was handcuffed and taken to the police station for questioning. Initial reports from Deputy Wichita Police Chief Troy Livingston stated that “A male came to the front door. As he came to the front door, one of our officers discharged his weapon.” Livingston did not initially state if Finch was armed, or what caused the officer to fire his weapon. In a later statement on December 30, the Wichita Police Department stated the shooting was caused by Finch “reaching into his waistband”.^[12] The officer involved was eventually identified as Justin Rapp, a seven-year veteran of the force.^[13]

In court, Rapp testified in May 2018 that he was given no information when he arrived at the scene, including when Finch was given his first verbal command, when the 911 call ended, or whether officers at the scene were aware the caller was still on the phone with 911.^[14] Sedgwick County Department of Emergency Communications has also denied an open-records request pertaining to the 911 call, stating the police department had asked that no more records be released.^[15]

Aftermath

Many Wichita residents and other U.S.-based commentators have expressed concern over the death of Finch.^[16][17] Wichita residents used the opportunity of a city council meeting on January 9, 2018 to voice concerns on the subject, including questioning the release of only seven seconds of the police body cam footage, and arguing that the city should assume full responsibility to avoid a lengthy struggle by the Finch family for justice. The council did not comment directly, but indicated a willingness to consider training procedures at a later time.^[18]

Nearly a week after the shooting, Andrew Finch’s mother Lisa Finch wrote to the Wichita mayor and police chief, stating that she did not know where her son’s body was being kept, and that she wanted to give him a “proper funeral service and burial.” “Please let me see my son’s lifeless body,” she wrote in a letter dated January 3, 2018. In the same letter, Mrs. Finch asked why the police officer who killed her son had not, at that time, been identified, why the family was handcuffed, and when police will return their belongings, including two cell phones and a computer, seized from the house. The family attorney, Andrew M. Stroth, has also called for the city, police department, and officer involved in the shooting to be held liable “for the unjustified shooting of Andrew Finch.”^[19]

Finch’s 18-year-old niece Adelina died by suicide by gunshot on January 11, 2019. Adelina was raised by Lisa and Andrew Finch after her own mother had died; she was 17 at the time of the shooting, and witnessed her uncle’s death.^[20] Lisa Finch blames Adelina’s death on the events of December 28.^[21]

Parties involved

Shooting victim

• Andrew Thomas Finch, aged 28; father of two, who had no affiliation with either the three men or the Call of Duty game.

Call of Duty: WWII players

• Casey “Baperizer” Viner,^[5] 18; of North College Hill, Ohio^[6] (sentenced to 15 months in prison and 2 years supervised release)
• Shane “Miruhcle” Gaskill,^[5] 19; of Wichita, Kansas^[6] (sentencing hearing pending)

911 hoax caller

• Tyler Raj “SWAuTistic” Barriss, 25; of Los Angeles, California^[22] (sentenced to 20 years in federal prison)

Officer who fatally shot Finch

• Justin Rapp, Officer, Wichita Police Department; originally stated he believed Finch had a gun, but testified in May 2018 that he merely saw Finch make a motion with his hand^[14] (not charged with any crime)

Legal proceedings

Legal proceedings

Barriss was arrested on December 29, 2017, in Los Angeles on a fugitive warrant stemming from a 2015 charge of making false bomb threats to KABC-TV, and was charged with false alarm, a felony. On January 12, 2018, Barriss was extradited to Kansas, where he was charged with involuntary manslaughter and held in Sedgwick County Jail.^[1]

Barriss, Viner, and Gaskill were indicted in the United States District Court for the District of Kansas on May 23 on charges related to the swatting. Barriss was charged with false information and hoaxes, cyberstalking resulting in death, making threats of death or damage to property by fire, interstate threats, conspiracy to make false reports, and wire fraud. Viner was charged with wire fraud, conspiracy to make false/hoax reports, obstruction of justice, and conspiracy to obstruct justice. Gaskill was charged with obstruction of justice, wire fraud, and conspiracy to obstruct justice. Gaskill was re-indicted in July on additional charges, after it was discovered that he goaded Barriss to “try again” after the fatal shooting.^[23][24]

On October 26, 2018, forty-six additional charges against Barriss were added, which included financial fraud, and fake threats of bombs and shootings made to police and schools; some of these charges involved unindicted co-conspirators residing in Des Plaines, Illinois; Gulf Breeze, Florida; Grand Rapids, Michigan; and Greenwood, Missouri. On November 13 he pleaded guilty to 51 federal charges, for which U.S. Attorney Stephen McAllister recommended a sentence of 20 years’ incarceration. Under the terms of the plea agreement, Barriss has also been required to formally apologize to Finch’s family and pay $10,100 in fines and restitution, and has agreed to five years of supervised release.^[25]

Barriss’ sentencing was held March 29, 2019; he received 90 months’ imprisonment for the California charges, and 150 months for the Kansas charges, to be served consecutively. Barriss also paid a $5,000 fine, the full amount of which was awarded by the Kansas Crime Victims Compensation Board to Finch’s family as restitution.^[26] He is scheduled to be released from FCI Phoenix on January 14, 2035.

In April 2019, Viner pleaded guilty to conspiracy and obstruction of justice, and was sentenced in September to a 15-month prison sentence in addition to two years’ probation, during which time he would be banned from playing video games.^[27][28] Viner was released from custody at USP Big Sandy on November 14, 2020.

In September 2019, it was reported that Gaskill struck a deal for deferred prosecution that could allow the charges against him to be dropped.^[28] Under terms of Gaskill’s pretrial diversion agreement, the government agreed not to pursue prosecution for at least 18 months. Gaskill agreed to waive any speedy trial defenses and pay $1,000 in restitution, costs and penalties.^[29] In September 2021, it was reported that Gaskill had violated the terms of his pretrial diversion and the trial against Gaskill resumed.^[30] Gaskill pled guilty to one count of wire fraud in May 2022,^[31] and was sentenced to 18 months in prison in September 2022.^[32]

As of July 2022, Officer Rapp faces civil trial. 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.^[33]

Legislative response

In response to Finch’s slaying, the Kansas state legislature approved a bill in March 2018 to establish creating a false alarm resulting in injury or death as a class-one felony, carrying a prison sentence between 10 and 41 years. The bill was signed into law by Governor Jeff Colyer on April 12.^[34]

The Andrew T. Finch Memorial Act of 2018 was introduced in the U.S. House of Representatives by Rep. Ron Estes in March 2018. The bill, also known as the Preventing Swatting and Protecting Our Communities Act of 2018, would make providing false information with the intent to cause an emergency response punishable by up to five years’ imprisonment, up to 20 years’ imprisonment if serious injury results, and up to life imprisonment if the act results in death. The bill was referred to the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations,^[35] but was never taken up for a vote and died in committee.

Rep. Eliot Engel introduced a bill in January 2019 to amend the Communications Act of 1934, to provide for enhanced penalties for the transmission of misleading or inaccurate caller identification information with the intent to trigger an emergency response. As of March 2019, it has been referred to the Subcommittee on Crime, Terrorism, and Homeland Security.^[36]

References